Hospitals & Asylums
Governor Ernie Fletcher v. Attorney General Greg Stumbo HA-15-5-06
Motion for a Civil Proceeding for Compensation for Wrongful Termination of Employment
1. The indictments of a Grand Jury against Kentucky Gov. Ernie Fletcher (R) by hopeful officeholder Attorney General Greg Stumbo threaten to repeat the coup d’etat that was suffered in the State of Ohio at great cost to State sovereignty should the “criminal” trial be permitted to proceed. The Timeline of the case is nicely summarized and indictment is supplemented with Fletcher's motion to disqualify Attorney General Greg Stumbo and Fletcher's memo supporting the disqualification of Stumbo.
The difference between Kentucky and Ohio is first that Gov. Ernie Fletcher does
not appear to be the killer and extrinsic evidence indicates that it is very
likely that it was the Attorney General who poisoned the Governor to such an
extent that he needed to be hospitalized as implied by the extrinsic evidence
of interstate organized criminal activity preluding Butler
3. The Executive Branch Code of Ethics prohibits the Attorney General from participating in proceedings involving his political rivals. Concluding that “standards of ethical conduct for the executive branch of state government were needed to determine those conflicts of interest which are substantial and material or which, by nature of the conflict-of-interest, tend to bring public servants into disrepute,” Kentucky’s General Assembly enacted the Executive Branch Code of Ethics (Ethics Code) KRS311A.020(1)(a) that , prohibits a public servant, by himself or through others, from knowingly “using or attempting to use his influence in any matter which involves a substantial conflict-of-interest between his personal or private interest and his duties in the public interests.”
4. Executive Branch Ethics Commission Advisory Opinion 03-05 explains: As a public servant, the Attorney General must abide by the provisions of the Executive Branch Code of Ethics . . . . KRS 11A.020(1) states clearly that no public servant can use his influence in a matter that involves a substantial conflict between his private interests (in this case, the Attorney General’s candidacy for political office) and his duties in the public interest (in this case, the Attorney General’s mandate to enforce the law in Kentucky). KRS 15.733(2) mandates the disqualification of a prosecutor from proceedings involving political rivals because such involvement creates a conflict-of-interest that is inconsistent with a prosecutor’s ability to impartially administer justice.
5. Society charges prosecutors with the duty of obtaining results that are just – not merely convictions. Young v. United States, 481 U.S. 787, 803 (1987); Tennessee v. Culbreath, 30 S.W.3d 309, 314 (Tenn. 2000); KBA E-275 (July 1983). Consequently, it is black letter law that an impartial prosecutor is a constitutional necessity. Young, 481 US at 811, Pennsylvania v. Balenger, 704 A2d 1385, 1389-90 (Pa. Super. Ct. 1997). When a prosecutor’s personal interests or biases threaten society’s interest in impartial proceedings, courts squarely hold that disqualification of that prosecutor is required. Culbreath, 30 S.W.2d at 316; In re J.S., 436 A2d 772, 773 (Vt. 1981); KBA E-350 (July 1992). An important consideration emphasized by many courts in these cases is the dual nature of the prosecutor’s duty. The prosecutor’s mission is not so much to secure a conviction as it is to achieve a just result. The defendant is entitled to a full measure of fairness, and it is as much the prosecutor’s duty to see that the accused is not deprived of any statutory or constitutional rights as it is to prosecute. Thus, disqualification may be necessary if the trial court determines that the prosecutor has a conflict-of-interest which might prejudice him or her against the accused. Courts have concluded that disqualification from participation in criminal prosecutions was required or proper on the basis of . . . political confrontations.
6. In Kentucky, KRS 15.733(2) governs conflicts of interest automatically requiring the disqualification of a prosecutor. Nunn v. Commonwealth, 896 S.W.2d 911, 913 (Ky. 1995). Recognizing that certain circumstances inherently jeopardize a prosecutor’s ability to remain impartial, KRS 15.733(2) statutorily defines those situations “when a prosecutor must disqualify himself/herself from prosecuting a case on the basis of a conflict-of-interest.” OAG 05-009 (2005).“Among these mandatory disqualifications are “when the prosecutor . . . has an interest that could be substantially affected.” OAG 05-009 (2005); KBA E-275 (cautioning against the risk of a prosecutor “‘over prosecuting’ a criminal action insofar as he has a vested interest in the outcome”). Thus, KRS 15.733(2)(c) specifically requires disqualification when a prosecutor knows that he has an “interest that could be substantially affected by the outcome of the proceeding,” KRS 15.733(2)(c), and KRS 15.733(2)(f) broadly defines those interests in order to include all possible sources of conflict that might affect a prosecutor’s ability to remain impartial. As the court in Pennsylvania v. Martin, 232 A.2d 729, 747 (Penn. 1967) noted: There is something manifestly inequitable about a prosecuting attorney, with the whole prosecution machinery at his command, using, or threatening to use, or even only seeming to threaten to use the armament of his office, to bolster his candidacy for a different office, when his opponent and his opponent’s supporters have no way of similarly fighting back. Kentucky Bar Ass’n v. Twehues, 849 S.W.2d 549, 550-51 (Ky. 1993) (recognizing trial court’s disqualifying county attorney as prosecutor due to conflict-of-interest without discussing existence of actual prejudice).
7. Both KRS 11A.020 and KRS 15.733(2) require the disqualification of Attorney General Stumbo and the Office of the Attorney General from further involvement in the merit hiring investigation against Governor Fletcher. KRS 11A.020(1)(a) prohibits the Attorney General from involving himself in proceedings that could potentially result in a conflict between his personal interests and public duties, and the Executive Branch Ethics Commission has squarely held that participating in proceedings involving political opponents is a conflict-of-interest that is prohibited under the Ethics Code and Executive Branch Ethics Commission Advisory Opinion 03-05 p. 1 (2003). Because General Stumbo controls the livelihood and career advancement opportunities of the staff of the Office of the Attorney General, they have a substantial interest in obtaining a result that will curry favor with him. Consequently, in the interest of ensuring the impartial administration of justice, the court must also disqualify the Office of the Attorney General under KRS 15.733(2).
8. The Governor shall certify to the Secretary of Labor every 3 months how many and how much the state needs to
administrate claims for unemployment compensation under 42USC(7)XII§1321 whereupon the Secretary of the Treasurer shall
quickly make adjustments to the book recognizing these payments.