COMMONWEALTH OF KENTUCKY OFFICE on THE ATTORNEY GENERAL CAPITOL BUILDING, SUITE 1 18 AANDY BESHEAR A 700 CAPETOL AVENUE ENERAL May 16, 2017 FRANKFORT, KENTUCKY 40601 (502) 696-5800 FAX: (502) 564?2894 VIA HAND-DELIVERY Executive Branch Ethics Commission #3 Fountain Place Frankfort, KY 40601 Re: Advisory Opinion Request Dear Commission: The Kentucky Attorney General is the Commonwealth?s chief law officer. See KRS 15.020. In that capacity, his duties include investigating and prosecuting public corruption. See KRS 15 Within the Of?ce of the Attorney General,~such functions are performed by the Bublio hitegrity/Special Investigations Branch. That Branch is part of the larger Department of Criminal Investigations, which 13 overseen by a Commissioner. The Commissioner reports to an Assistant Deputy Attorney General, who then reports to the Deputy Attorney Generals Recently, signi?cant and serious questions have been raised concerning the sale of a multi~ million dollar home to the Governor by an individual who: 4 (1) is a large political donor to the Governor, donating tens of thousands of dollars to the Governor directly, to the Governor?s political party, and to his inauguration; (2) was appointed by the Governor to the board of the Kentucky Retirement Systems, where he sits on an investment committee overseeing more than $1.6 billion in state assets; and (3) is an owner, officer, or bene?ciary of numerous businesses that either directly contract with or seek necessary approvals ?om the state, without which they cannot operate. As a result of these questions, the Of?ce of the Attorney General has reviewed prior ethics opinions from the Commission to determine whether the Office can open aninvesiigation into the circumstances surrounding the Governor?s real estate transaction. To be clear, no such investigationhas been opened. . Included in our review were Advisory Opinions 03~05 and 06~l6. hiAdvis'ory Opinion 03-05, . the Commission was asked whether the investigation of a political opponent creates an actual con?ict of interest for a Constitutional Of?cer. At the time, the Attorney General had ?led as a candidate for the - of?ce of governor. One of his opponents in the race formerly served as CEO of a corp oration whose successor corporation was under investigation by the Attorney General?s Office. On these facts, the Commission found a con?ict of interest existed. 1 This structure is virtually identical to other state law enforcement agencies; they are led by a commissioner or director, who reports to a Cabinet Secretary, who then reports to the Secretary of the Cabinet. AN EQUAL. OPPORTUNITY EMPLOYER EXECUTIVE BRANCH ETHICS COMMISSION May 16, 2017 Page 2 According to the Commission in Opinion 03v05, KRS ?states clearly that no public servant can use his in?uence in a matter that involves a substantial con?ict between his private interest (in this case, the Attorney General?s candidacy for political of?ce) and his duties in the public mterest (m this case, the Attorney General?s mandate to enforce the law in Kentucky)? In other words, the Commission found that iftwo people were running against each other, one could not use his or her position in government to investigate the other. The Commission also found that simple recusal of the Constitutional Of?cer (here, the Attorney General) would not suf?ce if the investigation would he handled by an agency under his control. The Commission stated the investigation should be transferred to another law enforcement agency, not under the control of the Constitutional Of?cer, to investigate and prosecute the case. The Commission made this ruling despite the fact that the investigators in the Attorney General?s Of?ce are classi?ed employees with decades of experience and statewide jurisdiction. 16, issued by the Commission on its own motion, extended Advisory Advisory Opinion 06 he investigates a known Opinion 03-05. It held that a con?ict of interest exists for the Attorney General if . . candidate for the of?ce of governor and later becomes a candidate himself. The opinion seemed to indicate that speculation that two Constitutional Officers might run against one another precluded them from investigating each other. Under the facts existing at the time Advisory Opinion 0616 was issued, the Of?ce of the Attorney General was investigating potential merit system violations by the Governor, who had already announced his intent to seek reelection. The Attorney General had not yet ?led as a. candidate for governor, but he previously had stated that he was ?considering? a run for the of?ce. The Commission found that a con?ict of interest would present itself if the Attorney General ever ?led as a gubernatorial candidate, regardless of Whether the investigation and prosecution of the Governor had been completed, and regardless of whether the Governor even remained a candidate in the election. According to the Commission, ?If the Attorney General contemplated an eventual candidacy for the of?ce of governor in 2007, he should have removed himself and his of?ce ?om the merit system investigation of the Governor upon the Governor?s announcement for candidacy.? Here, the current Governor has indicated that he is a likely candidate for re?eleotion in 20193 And, while General Beshear has made no public statements of his intent, the current Governor has indicated that he believes General Beshear will run against him and certainly views him as a political rivals Indeed, the Governor recently stated, ?Andy Beshear clearly wants to be governorfh Under these circumstances, and in light of the language of Advisory Opinions 03~05 and 06-16, the Of?ce of the Attorney General has not initiated any investigation into the Governor?s real estate transaction as of the date of this letter. 2 See evin Likely to Run for Re~Electicn in 2019,? WBKO, Deb. 9, 2016, .html (last visited May 12, 2017). a See Tom Lo?us, ?Bevin Bashes Planned Parenthood, Andy Beshear,? THE Mar. 10, 2017, available at (last visited May 12, 2017). 4 1d. EXECUTIVE BRANCH ETHICS COMMISSION May 16, 2017 Page 3 Given these issues and what appears to be a gross example of ?pay to play? I am seeking an advisory opinion from the Commission clarifying its position. To that end, the Office asks the Commission the following questions: . (1) Does the Commission still view Advisory Opinions 03?05 and 06?16 as valid, such that an Attorney General that has not ruled out a run for the of?ce of governor should not undertake an investigation by himself personally or by any employee, branch, or division of his Of?ce, with or without the Attorney General?s personal recusal and appropriate to the detriment of a known, likely, or potential political opponent? the Attorney General prohibited ?ora (2) If the answer to the ?rst question, above, is yes, is that contractor ultimately answers to contracting with a third party to perform the investigation i an of?cial within the Attorney General?s Of?ce? (3) As you are aware, KRS applies not only to the Attorney General, but to all ?public servants.? Thus, a rule that applies to one Censtitutional Of?cer should apply to all others. If the Commission still views Advisory Opinions 03-05 and 06-16 as valid, is it also a con?ict of interest in violation of the ethics code for another Constitutional Of?cer to directly, or through a department, cabinet, or agency run by his appointees and ultimately answerable to onent? In other words, is it also the case that a him investigate a likely or potential political opp con?ict of interest exists if a sitting Governor considering seeking reelection initiates an investigation involving himself personally or any employee, agency, or contractor at his direction that could further his private interest (possible candidacy) to the detriment of a known or likely political adversary? The Office of the Attorney General appreciates your prompt attention to this advisory opinion request. Because the Of?ce is refraining from opening any investigation described above pending issuance of your opinion, and because the statute of limitations may already be running to the extent a misdemeanor has been committed, see KRS the Of?ce asks that you take up this request as early as practicable, and no later than your next regularly scheduled meeting. Additionally, I request that you provide me with a copy of your draft opinion. it J. Michael Brown Chief Deputy Attorney General