KyKurmudgeon

After reading today’s story about Attorney General Greg Stumbo’s job approval/disapproval numbers in The Courier-Journal Bluegrass Poll, I had to compare them to the same poll’s numbers on Gov. Ernie Fletcher to see who emerged from that 18-month BlackBerry Jam hiring investigation with the better public image.

On the approval side, Stumbo had a slight edge - 47 percent to Fletcher’s 42 percent overall, 10 percent to Fletcher’s 8 percent in the "strongly approve" category.

But on the disapproval side, it wasn’t close. Stumbo’s disapproval rating stood at 26 percent (11 percent "strongly disapprove") compared to Fletcher’s 48 percent (25 percent "strongly disapprove").

Obviously, Kentuckians aren’t buying Fletcher’s "witch hunt" excuse in any significant numbers. If they were, Stumbo’s negatives should be higher.

When he announced his support for Democratic gubernatorial candidate Steve Beshear yesterday, former state Rep. Steve Nunn handed out copies of a brief article he wrote addressing Gov. Ernie Fletcher’s claim that he was the victim of a "witch hunt." Following are some excerpts:

Ernie Fletcher claims to be the victim of a witch hunt. I can hear the Wicked Witch in the "Land of Oz" laughing long and hard at that one. "I’ll get you my little pretty and your little dog Sadie, too."

The sordid true facts show acts of witchcraft by our governor that led to 29 indictments, including his own. But during a bewitching ceremony sometimes called a pep rally, he released them from the indictment spell with his special powers of pardon. And, of course, they were so innocent he fired nine of them immediately thereafter just to make them disappear. …

Ding-dong, the witch has been found! Through the hind-sighted crystal ball, we can see our governor in his witch’s garb, broomstick in hand. Now a confirmed witch, Ernie Fletcher has been sighted and indicted, and he signed a devilish deal in which he acknowledged evidence of witchcraft that "strongly indicates wrongdoing."

Like Samantha in Bewitched, with a twitch of his nose, Ernie Fletcher would have us forget his four years of failed leadership, failure to "restore hope," and his abject failure to end waste, fraud and abuse. Fletcher has had so many professions and degrees, perhaps he forgot to mention this one in witchcraft.

Even though we are not in Kansas, the voters of Kentucky need to drop a house on this administration and free all the people of Commonwealth of Oz from this nightmare.

As had been expected, two prominent former Republican officeholders endorsed Democratic gubernatorial candidate Steve Beshear this afternoon. Longtime state Rep. Steve Nunn and Larry Hopkins, who served in both the state House and the U.S. House and was the Republican gubernatorial candidate in 1991, made the official announcements in one of the old Fayette County Courthouse’s courtrooms.

"I’m proud to be here today as the son of the last Republican governor," Nunn said. "And I feel confident that, if my dad were still alive, he would be standing here with me." In endorsing Beshear, Nunn was critical of Gov. Ernie Fletcher ability to work with the legislature and of his handling of the BlackBerry Jam hiring scandal. When Fletcher pardoned everyone and then fired nine aides a few days later, "That’s when the light bulb went off for me." Nunn was one of Fletcher’s opponents in the 2003 Republican primary.

Hopkins said he supports Beshear because the Democratic candidate "is reaching out to everyone" and will continue to do so to deal with issues such as finding ways to insure Kentuckians who are now uninsured. Hopkins added that when Beshear and he were both in the state House he saw Beshear reach out and work with everyone to get a neonatal unit at the University of Kentucky Hospital. The former congressman also said he supports the Democratic candidate because "I want the opportunity to vote yes or no on casino gambling."

Nunn said he is supporting the re-election campaigns of Secretary of State Trey Grayson and Agriculture Commissioner Richie Farmer, both Republicans, but added that he favors the Democratic candidates in the other statewide races. Asked why he isn’t supporting his former Republican House colleague state Rep. Stan Lee for attorney general, Nunn responded, "Because I know Stan Lee," adding that Democrat Jack Conway is better suited for the job. Describing Lee as being close to an "extremist" on social issues, Nunn said, "Sometimes, Stan doesn’t see the big picture."

The Beshear campaign also announced that Lexington-Fayette Urban County Councilman David Stevens, who serves in a non-partisan office but is a Republican, has also endorsed the Democratic candidate.

1. After weeks of hitting the casino issue hard in TV ads and campaign stops, Gov. Ernie Fletcher improved his numbers in the latest SurveyUSA poll by a whopping two points, from 37 percent a month ago to 39 percent today. Democratic challenger Steve Beshear was favored by 58 percent of the respondents in both polls. A couple of conclusions can be drawn from these results. First, as I’ve noted previously, Fletcher’s relatively stagnant numbers suggest that Kentuckians have made up their minds about him, and in a negative way. Second, if the casino issue is having any impact on this race, it must be in a positive way for Beshear. I don’t think the issue is having an impact. This race is about one issue: Ernie Fletcher’s record. And he apparently can’t run away from it.

2. Former Transportation Cabinet official Dan Druen’s request that the hearing on his ethics charges be held in public before Election Day made the latest poll numbers look like the good news in Gov. Fletcher’s day. Druen, who was credited with drawing up the infamous "hit list" that was instrumental in the indictment of 15 people in open court (including Fletcher and Druen) and the return of 14 other indictments under seal, was fired early in the BlackBerry Jam hiring investigation of Fletcher administration hiring practices. He obviously considers himself a fall guy who deserves some payback. What better way to achieve that goal than by  reiterating, under oath in an official proceeding prior to the election, his assertion that everything he did was at the direction of Fletcher?

3. I favor the additional requirements for filing campaign finance reports proposed yesterday by state Sen. Damon Thayer and Secretary of State Trey Grayson. In fact, I would like to see even more frequent reports than the 60-day, 30-day and 15-day filings this bill would require. But the reporting rules I would most like to see strengthened next year are the ethics statutes that now allow Fletcher to avoid reporting contributions to his legal defense fund until after this November’s election.

I ask that question because today is an anniversary of sorts. Two years ago today, Gov. Ernie Fletcher held his Pardonin’ Pep Rally in the Capitol Rotunda, to celebrate issuing a blanket amnesty that covered all his friends and aides who got caught up in the BlackBerry Jam hiring investigation.

Apparently, Beshear is going to let this anniversary go by without reminding Kentuckians of the pardon, just as he let last Friday go by without reminding Kentuckians that, one year earlier, Fletcher cut the deal with Attorney General Greg Stumbo to get the indictments against him dropped. As part of that deal, Fletcher signed an agreed order that "acknowledges that the evidence strongly indicates wrongdoing by his administration" and "accepts responsibility for (the wrongful acts) as head of the executive branch of government.

If I were a candidate running against Ernie Fletcher, I wouldn’t let such anniversaries go by without calling the public’s attention to them and the record they reflect.

For a variety of reasons, including an overnight trip to Western Kentucky, I have been a bit remiss in blogging this week. So, let’s do some catching up:

1. Although its legislative apologists in both chambers of the General Assembly have gone on at length trying to spin the bill the Senate is expected to give final passage to tomorrow as a "comprehensive" statement of energy policy rather than a sellout to coal, House Bill 1 falls far short of the mark set by their lofty statements. While there are some minor hat-tips to real energy policy in this bill, it is first, last and always a seven-course banquet for coal. Everyone else gets table scraps. A truly comprehensive bill would encourage small businesses and individual Kentuckians to go "green" both in their business facilities and residences and in their transportation. A truly comprehensive bill also would do far more than this one does to address the issue of carbon capture and sequestration. While there are some decent aspects to this bill, it is mostly just another handout to large, wealthy corporations. From that perspective, it may qualify for the "comprehensive" label because it opens wide the door to the state treasury.

2. Former Transportation Cabinet official Dan Druen and four other former members of Gov. Ernie Fletcher’s administration still face charges lodged by the Executive Branch Ethics Commission for offenses related to the BlackBerry Jam hiring scandal. Druen told the Herald-Leader in December, "Everything I did was pursuant to a directive from my supervisors, top to bottom, including the governor, in advancement of the very initiative that carried his name." Despite that public assertion by a person who remains charged with violating state ethics laws, the commission voted in June to drop an investigation of possible ethical violations by Fletcher. A former commission member who left after that vote says it was a partisan decision by a panel dominated by Fletcher appointees. Gee, you think? More important, do you think this particular commission has any credibility left?

3. I agree with half of what WHAS-TV’s Mark Hebert said on his blog about the Kentucky Republican Party doctoring a photo to make Democratic gubernatorial candidate Steve Beshear look like some casino lounge lizard. Hebert thought the prank was both funny and stupid. I just though it was stupid because it invites retaliation. I doubt that the Beshear campaign would stoop to the depths plumbed by R state Chairman Steve Robertson, but some Beshear supporters might. How would Fletcher like to see pictures circulated that had his head Photoshopped onto a body clad in, say, an orange jumpsuit? Once again, Fletcher’s crowd didn’t give any thought to possible consequences of their actions.

4. With both gubernatorial candidates now on the air with TV spots, a couple of comments are in order. In future ads, Beshear should leave most of the audio to announcers and get rid of the hand gestures. His voice isn’t his best asset, and the gestures look forced. As for Fletcher’s "No Casinos" ad, the tag line - "It’s a story without a happy ending" - could prove prophetic for him, given his poll numbers.

Sunday’s column:

When politicians can’t run on their record, they tend to run against something or someone.

So it is that Gov. Ernie Fletcher wants to make this fall’s gubernatorial election a referendum on casino gambling with a little gay-bashing thrown in for good measure.

As an incumbent who barely won 50 percent of the vote in his party’s primary and whose approval rating hasn’t reached 40 percent for more than two years, Fletcher desperately needs voters to focus on anything but his record if he hopes to have any chance of re-election.

When a governor has been indicted along with more than two dozen of his aides and friends, has issued a blanket pardon covering everyone but himself, has taken advantage of his Fifth Amendment rights in front of a special grand jury and has cut a deal with prosecutors to get the charges against him dropped, the last thing he wants voters to think about is his record.

Such a governor has to keep the spotlight pointed in another direction, which explains why Fletcher recently changed his position on expanded gambling and health benefits for domestic partners of university employees and is trying to make those two issues the focus of the campaign.

It’s an attempt to rally his ultra-right Republican base and appeal to conservative Democrats, particularly in Western Kentucky.

(Indeed, Western Kentucky is the critical area of the state for Fletcher. If he can’t pick up tons of Democratic votes there, his campaign is doomed.

(That’s why an energy bill he virtually ignored during this year’s regular General Assembly session became the state’s most urgent need once the primary was behind him. Its passage could give him a boost in the Western Kentucky coalfields.)

Former Lt. Gov. Steve Beshear, who parlayed his support for expanded gambling into a win in the Democratic primary, can’t afford to let the general election become a straight up-and-down vote on casinos and domestic-partner benefits.

Sure, polls generally show that a majority of Kentuckians favor expanded gambling. And health insurance doesn’t stir anti-gay passions the way same-sex marriage did in 2004. Monday’s rather tepid Capitol Rotunda rally against domestic-partner benefits proved that.

But the combination of the two issues poses a danger to Beshear if he lets them define this gubernatorial race.

Beshear needs to make this election a referendum on Fletcher, and not just because of the hiring investigation. For Beshear, it needs to be a referendum on the totality of Fletcher’s record.

On his ineffectiveness in dealing with the legislature.

On his mishandling of changes in the state health-insurance plan, which nearly caused a teachers’ strike.

On his “revenue neutral” tax tinkerization plan that proved to be a tax increase, forcing lawmakers into a “do over” a year later.

On the structurally imbalanced budgets that added more than $4 billion to the state debt during Fletcher’s term.

On the waste, fraud and abuse perpetrated on the state by a governor who campaigned on a promise to eliminate waste, fraud and abuse.

On the retreat from education reform at all levels that has occurred on Fletcher’s watch.

On the ineptitude his appointees displayed in bungling the search for a new education commissioner.

Even on the firing of state park workers who dared to have visible tattoos and loose shirttails while mowing grass and cleaning toilets.

If Beshear can keep voters focused on Fletcher’s record of failed leadership while building a positive case that he can do better, he will probably win.

But if he lets Fletcher turn this election into a referendum on expanded gambling and domestic-partner benefits, well, whenever you gamble, there’s always a chance you can lose.

1. For more than three years, Kentuckians have watched Gov. Ernie Fletcher’s administration stumble through one legislative session after another, fumble the ball on health insurance so badly it nearly caused a teachers’ strike and bumble its handling of the BlackBerry Jam hiring scandal. So, we all should be immune to surprises in regard to the administration’s frequent displays of ineptitude. Right? Well, maybe not. If the documents released yesterday by the Executive Branch Ethics Commission and cited in John Stamper’s story in today’s H-L can be believed, this is an administration that couldn’t even manage to rig a bridge design contract when it tried. The favored company still didn’t get the contract. How bad is that?

2. On May 11, the state Personnel Board voted 4 to 1 with one abstention to approve an order reinstating Mike Duncan to his former position in the Transportation Cabinet. (Duncan’s 2005 firing was a central element in the hiring investigation in which a special Franklin County grand jury indicted 15 people in open court, including Gov. Fletcher, and returned 14 other sealed indictments.) The order the Personnel Board approved in May said, "Analysis of the several hours of testimony and the well-reasoned arguments of counsel yields the following: … the selection process under which (Duncan) was hired was not tainted nor preordained …" Yesterday, however, the Personnel Board voted 5 to 1 to open an investigation of Duncan’s hiring based on arguments presented by Personnel Cabinet Secretary Brian Crall. The administration clearly does not want Duncan to get his job back. It has appealed the May order from the Personnel Board, and these belated questions about the validity of his hiring is just another hurdle the administration wants to put in his way. But none of that explains why members of the Personnel Board would vote to investigate a hiring that they have already concluded "was not tainted nor preordained."

Today’s column:

FRANKFORT — Just when you think it’s over, it isn’t.

As expected, former Transportation Cabinet official Sam Beverage pleaded guilty Monday to one count of official misconduct, thereby avoiding a perjury trial.

Since Beverage was the only person still facing a charge from the special Franklin County grand jury’s 18-month investigation of hiring practices in Gov. Ernie Fletcher’s administration, this deal was billed in advance as “The End” for a drama that stretched out over more than two years.

Sure, the Executive Branch Ethics Commission and the state Personnel Board are still poking around in the “mess” Fletcher brought to Frankfort. But the Beverage deal was supposed to be “The End” of the criminal cases.

A happy, lucky “The End” for Fletcher. No trial meant no parade of current and former staffers giving potentially damaging testimony during the middle of a re-election campaign.

A not-so-happy, not-so-lucky “The End” for Beverage, whose offense occurred one day after the effective date of the blanket pardon Fletcher issued for everyone else (except himself) involved in the BlackBerry Jam hiring scandal.

Whether by the pardon or by the deal Attorney General Greg Stumbo approved that got the indictment against Fletcher dismissed, everyone else got a walk on the charges against them. Beverage got a conviction on his record, a circumstance that defense attorney Burl McCoy called “very unfair.”

Turns out, though, that “The End” of one criminal investigation may not be “The End” of the Fletcher administration’s legal problems.

As part of his plea arrangement, Beverage provided prosecutors a written statement and videotaped testimony that contained what Franklin Commonwealth’s Attorney Larry Cleveland described as “credible” information regarding other possible illegal activity in the Fletcher administration, including the alleged steering of contracts to specific political supporters of the governor.

Cleveland will refer the statement and videotape to the attorney general’s office, which could put Stumbo in a bit of a spot.

He can’t ignore what a veteran prosecutor refers to as “credible” information about  possible illegal activity. On the other hand, if he launches another investigation of the Fletcher administration, particularly after cutting the deal that let him fill the No. 2 spot on an unsuccessful gubernatorial slate this year, his motives will be called into question even more than they were the first time around.

Stumbo can best serve himself and the integrity and credibility of the attorney general’s office by letting a special prosecutor pursue the information Beverage provided.

If Stumbo is in a spot, Fletcher could be in a much worse one.

Here he is in the middle of a re-election campaign, facing the prospect of another criminal investigation involving his administration, with all that such an investigation entails.

Could there be another special grand jury?

Could that parade of witnesses he avoided in a Beverage trial become instead a parade of administration figures exercising their Fifth Amendment rights before such a grand jury?

Could we see repeats of the epic legal battles prosecutors and the administration’s lawyers waged during the last investigation?

Wherever Beverage’s information leads, the possibility that the Fletcher administration and Kentucky may be in for what Yogi Berra called “deja vu all over again” reinforces my belief that the worst mistake the governor made the first time around was choosing to fight.

Cooperation with prosecutors and wrist slaps for a few of his most zealous “disciples” could have brought “The End” of the hiring investigation in a matter of weeks.

Had he taken that course, it’s unlikely Beverage would have been standing in Franklin Circuit Court this week, accepting a plea agreement that included telling prosecutors what he knows about other possible illegal activity in the Fletcher administration.

Although the complaints the Executive Branch Ethics Commission filed against four former members of Gov. Ernie Fletcher’s administration grabbed the headlines, that was not the only action the panel took at its meeting last Friday. Commission members also approved Advisory Opinion 07-11, which has some interesting things to say about the ethical considerations behind merit system hiring decisions. Following are some excerpts of that opinion, which the commission issued of its own volition:

"As public servants, officials and employees are faced with many types of ethical dilemmas that involve situations where doing the ‘right thing’ may be a significant personal cost to the employee or his agency. Being ethical means doing the right thing for the benefit of the entire state regardless of personal costs. Other types of ethical quandaries involve situations in which there are two conflicting sets of ‘right’ values, where both actions may be legal, but one action may be more ethical. In these cases, the ethical path may not be as easy to follow. Officials and employees should consider which path or course of actions serves the interests of the commonwealth as a whole, and which action better promotes public confidence in the integrity of government. …

"The commission believes that all hiring procedures within state government should be conducted in a fair and impartial manner. Potential employees should not be shown favoritism or discrimination, or given any advantage or disadvantage, based on their political views, but rather should be employed because they are the most qualified or well suited for the position. Although a hiring decision may be subjective, if pre-selection of employees based on political recommendations is practiced, then all potential candidates are not considered equally, and the best candidate for the position may not be selected. …

"Furthermore, as provided in Advisory Opinion 03-8 …, executive branch officials and employees within the Office of the Governor should not influence other state agencies regarding hiring practices in derogation of the state at large. Circumventing established processes of government which have been established by law or regulation is in derogation of the state at large. Specifically, when high-level officials (executive or legislative) forward names of individuals, for employment, to agency employees who are responsible for hiring, with the recommendation of placing such individuals in positions somewhere within the agency, established processes may appear to be circumvented. Because of the source of the recommendations, employees responsible for hiring may feel pressure or an obligation to place such individuals in positions. Such "pre-selection" of individuals for positions prior to obtaining personnel registers and conducting interviews circumvents the established hiring process and consequently may violate the provisions of KRS Chapter 11A… ."

(KRS Chapter 11A lays out the law regarding executive branch ethics.)

While the complaints lodged against the former administration officials were approved by a three-member majority of the commission, all five commissioners voted in favor of this opinion. Four of the five were appointed by Fletcher. It sounds like they take messing around with merit system jobs a bit more seriously than the governor, who once compared it to "noodling out of season."