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May 4, 2007

The façade of accountability: The Metro Ethics Commission seems to be asleep at the switch. What’s that mean for the a

Maggie and Dennis Martin were piqued when Insight Communications said it wouldn’t drag cable lines to their neighborhood, a serene area of low population on the outer edge of the county, almost in Bullitt. It is, in a sense, the last frontier of Jefferson County, a hopelessly developable swath of the Old Life that landowners and developers haggle over with predictable regularity.Insight would go there on a condition: the Martins pay about $122,000, what Insight claimed it would cost to move lines to the eastern edge. They tried calling their Metro Councilman, Stuart Benson, to put the screws to the cable giant. No dice — Benson can’t appropriate public money for a private citizen like that.So what else? What can citizens do with a claim that they’re being bullied by a Metro officer or, in this case, a company with direct ties to Metro officers?File a complaint with the Metro Ethics Commission, an august body whose mission is to enforce the Metro Code of Ethics and offer recourse to citizens who think they’ve been slighted by any one of the 6,000-plus people on the taxpayer till. The Martins entered theirs on Oct. 31, 2006, naming Mayor Jerry Abramson and Jim Adkins, former director of the Department of Public Works, for failing to enforce provisions in the Insight-Metro contract they believe required the company to provide them service.They waited a month. Nothing happened.Maggie called. There had been no progress.It became 2007. Still no word from the Commission.Then, in early March, the Martins got a letter asking for clarification of a portion of the complaint.Another month passed; the Martins heard nothing.When the seven-member panel decided — in closed session at its April 19 meeting — that it would not investigate the complaint, the Martins weren’t there to hear it. In fact, they didn’t hear it for more than a week, while the Commission took its time drafting a letter of explanation.Undeterred, the Martins filed an appeal Monday. “We’re just not very optimistic that there will be reasonable oversight,” Maggie said in a recent interview.This dithering is not isolated. In fact, it has been two-and-a-half years since the first citizen complaint was filed with the Commission, and the investigation into it finally seems to have begun — about a month ago.The Metro Ethics Commission was formed after merger, in 2003, a carryover from the former City of Louisville Ethics Commission. Its members are volunteers with various connections to the city, though none can be Metro officers: John Mason (chair), Kathy Quesenberry (vice chair), Dr. Thomas H. Crawford, Charles “Mike” Cronan IV, Mary C. Morrow, Stanford Obi and the Rev. Wayne Steele, Sr. They are appointed by the Mayor and approved by the Metro Council. They try to meet every two months, but even that is sometimes out of reach: The Commission did not meet between August 2006 and February 2007, a likely explanation for the plodding approach to the Martins’ complaint. The meetings in between were canceled for lack of a quorum (four people). That seems to occur with some regularity, according to documents LEO has obtained through multiple open records requests over the past eight months.According to the ordinance that formed and governs it, financial disclosure statements from all Metro officers and the city’s official Code of Ethics fall under the Commission’s purview. Part of the Commission’s task is to protect against reprisal, nepotism and conflict of interest in government business.The ordinance does not, however, offer the Commission subpoena power or any other method to compel Metro officials named in complaints to cooperate with investigations. The harshest of the penalties it may dole out is a $500 fine, and an intentional violation of the ethics code is a misdemeanor. It is incumbent upon the Metro Council to handle any heavier load. The Commission has had relatively little else to do over the course of its existence than decide whether it is “ethical” for members of the Metro Council to accept tickets to sporting events or attend fund-raisers held by people or organizations that could pose a conflict of interest. There have been at least 11 complaints filed by citizens in the last four years; there is no evidence in meeting minutes of the Commission making a decision on several, and at least three are still pending. The importance of matters involving political and corporate influence (or confluence) notwithstanding, it appears — with regard to the complaints of everyday Metro citizens or workers — that the Commission is either overly deliberative or too lackadaisical to act. A professional engineer and 14-year veteran of the Metropolitan Sewer District, Sarah Lynn Cunningham was laid off by the quasi-public agency on Dec. 7, 2004. A federal jury decided in January that Cunningham lost her job in retaliation for a report she filed with the Attorney General earlier that year, alleging malfeasance at MSD and transgressions by Metro Councilman Bob Henderson and his aide (both have denied all allegations in past interviews with LEO). On Nov. 22, 2004, Cunningham filed an ethics complaint against Henderson. She was the first citizen to do so under the new ordinance. In March 2005, at the behest of the Commission, Cunningham submitted a revised complaint, this time including MSD director Bud Schardein, chief engineer Derek Guthrie and board member William Gray.Since then, MSD has tried to stall the Commission’s work, first by asking to stay proceedings (as the matter was in federal court), which the Commission denied. Then, in April 2006, MSD sued the Commission, arguing that it does not fall under the Commission’s purview as a quasi-public agency. The Commission asked the Office of the Attorney General for a legal opinion on that distinction; the OAG declined to issue a ruling because the matter between Cunningham and MSD had not been decided in federal court. The suit between MSD and the Commission is ongoing. Over the two-and-a-half years since she filed her complaint, Cunningham has attended nearly every meeting of the Commission, according to records obtained by LEO. She wrote a letter to the Commission in October, saying the body has “progressively removed methods by which I might be apprised of its handling of my complaint” — including being forbidden to communicate with Commission members outside of meetings. When she went to the Commission’s attorney for information, she wrote, he was vague and uninformative at best. As such, she asked to address and question the Commission during a meeting, a request that was denied.“As best I can tell from the way they talk, most of their decisions are made by e-mail,” Cunningham said recently in an interview. “It’s a totally bogus operation. It’s meant to present the façade of accountability.”In an e-mail exchange last week, Mason, chair of the Commission, wrote that they’ve been cautious with Cunningham’s complaint because it was the first they received. “Ms. Cunningham has suffered the frustration and anguish of being the Commission’s first complainant,” he wrote. “We took longer than need be, but we wanted to act with the strictest adherence to the ordinance, with proper deliberation, or with legal counsel. The last thing we wanted to do was to reach the end of this procedure and have her feel her complaint wasn’t subjected to careful deliberation and due process.” An investigating officer — one of the Commission’s attorneys — interviewed Cunningham in late March (the results are currently sealed, as the investigation is ongoing). The investigating officer may also attempt to interview Schardein, Guthrie and Henderson (Gray died last year), although they don’t have to cooperate.The option to refuse to cooperate is perhaps the ordinance’s weakest point. Mason wrote in an e-mail that the Commission, which can request amendments to the ordinance with the Metro Council, is planning to offer changes that will “strengthen the ordinance, and we will do so when time permits.” He was no more specific about the changes. Councilman Dan Johnson, D-21, who sponsored the ordinance, said it’s not necessary for the Commission to have further investigative powers — matters requiring deeper investigations should go to the courts. According to Bill Patteson, spokesman for County Attorney Irv Maze, a decision in a recent case involving Metro Police’s citizen review board established that the Council couldn’t ascribe subpoena powers. He said there’s no way, other than proceeding up the chain of command — to the Council president, then to the Attorney General, and so forth — for a citizen to have his or her grievance against a Metro officer fully investigated. “Mostly, the Ethics Commission is intended more to answer ethical issues among the various entities of local government,” he said. Taking a complaint to court is likely to be expensive, prohibitively so for some. Dennis Martin said it’s an option they’re keeping open — for now. “What do you do,” he asked rhetorically, “throw another ethics complaint on top of that?” It seems many citizens would have no other choice.  Contact the writer at sgeorge@leoweekly.com