March 25, 2008

Council may change ethics law

The Metro Ethics Commission dismisses its first citizen complaint — three-and-a-half years later. What was the hurry?At last, Sarah Lynn Cunningham and Bob Henderson are no longer legally entwined. The former, a noted environmental activist, was an engineer at the Metropolitan Sewer District who blew the whistle on alleged malfeasance there and, according to a jury’s decision early last year, was fired for it, which is illegal in Kentucky.The latter is a retiree and Democratic Metro Councilman from South Louisville’s 14th District who allegedly parlayed his gig as a city legislator into favors from MSD — also illegal. Now, three-and-a-half years after Cunningham filed a complaint with the Metro Ethics Commission over Henderson’s alleged involvement, the case has been dismissed, and the councilman is officially clear of the MSD scandal. Cunningham, meanwhile, will not appeal the commission’s decision. After a frustrating process that ended with an abrupt dismissal, she said she’s lost what little faith she still had that government ethics in Louisville Metro is not an oxymoron.“I see this from two perspectives: My own specific situation and the community at large,” she said. “In both cases, the delay was unreasonable. The delay made the whole thing ineffective.” Since November 2004, Henderson has denied allegations that he pressured MSD workers to give him and his legislative aide, Larry Mattingly, favors. In an interview Monday, he repeated what has become his mantra, that the charge was politically motivated. “I got caught up in, I think, Ms. Cunningham trying to get at (MSD director) Bud Schardein,” he said. Schardein was implicated in the trial and has remained in his job since. Mayor Abramson, effectively his boss, declined to take any action after a jury found he’d wrongfully fired Cunningham. However, the jury awarded her no damages. Whether you believe Cunningham or Henderson is of less consequence than what their entanglement has revealed about the city’s system of checks and balances. Short of a costly lawsuit, the Metro Ethics Commission is the only recourse for a citizen aggrieved by a public official to seek official recompense. The Metro Council created the seven-member panel shortly after merger, and its real bailiwick appears to be opining on potential conflicts of interest for elected officials. Its members are appointed by the mayor and approved by the council. These are volunteer positions, and the volunteers are mostly busy people with full-time jobs — while the commission purports to meet monthly, it rarely does, sometimes allowing three months or more to pass between meetings. There is nothing in the ethics ordinance to keep a complex matter like the one between Cunningham and Henderson from dragging on for years. Speaking to LEO for a story last April, then-chair John Mason said the commission wanted to be thorough: “ … the last thing we wanted to do was to reach the end of this procedure and have (Cunningham) feel her complaint wasn’t subjected to careful deliberation and due process.” But by last April, the commission had not even convened its formal investigatory process, which in this case was handled by a pair of Bowling Green attorneys. Their report, which LEO obtained through Cunningham this week, relied heavily on testimony given at the trial early last year, as well as two interviews with Cunningham and one with Henderson. The trial testimony used — including depositions — was almost entirely what witnesses called by MSD’s attorneys offered. Cunningham contends that is unbalanced. “They hired attorneys to conduct an investigation on their behalf, and they omitted a lot of the evidence,” she said. “It didn’t occur to me when I filed this complaint that they would cherry pick evidence and use it against me.” Commission chair Kathy Quesenberry, an attorney, did not return e-mail and voicemail messages. As the process dragged, both Cunningham and Henderson complained extensively about its timeliness. Now, after three-and-a-half years and bad publicity about a precarious ethics situation in the Metro — including a series in this newspaper that culminated in detailed suggestions for a better commission — the council may take its first corrective action tomorrow. Democrats David Tandy (4) and Madonna Flood (24) are expected to put forth an amendment to the current ordinance that would establish strict timelines on citizen complaints. “When you come to court or you have a legal matter, there’s a reasonable amount of time or expectation as to when something can be adjudicated and when it’s going to be resolved,” Tandy, an attorney, said Monday.The Democrats are expected to stop short of sweeping changes. Steve Haag, Republican caucus director, said some council Republicans want to make the ordinance more enforceable. He approached LEO last fall about it, after a story in this newspaper revealed both long delays and a general inability to adjudicate in at least two commission investigations of citizen complaints. Regardless, two major hurdles to a fuller ethics process remain: The commission has no way to compel someone to testify before it, and it doesn’t have jurisdiction over all Metro agencies — including MSD.  Contact the writer at sgeorge@leoweekly.com