Judge rules against disqualifying AG office from pension lawsuit

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FRANKFORT, Ky. (KT) - A motion to disqualify Attorney General Andy Beshear’s office from pursuing the lawsuit he filed to throw out the pension reform bill was denied in Franklin Circuit Court on Wednesday.

 

Steve Pitt, counsel to Gov. Matt Bevin, sought to disqualify Beshear and his office because he sent a letter to each legislator warning them that Senate Bill 1, the original pension reform bill, would be the subject of lawsuits.  After the revised version, SB 151, was signed into law, Beshear filed suit.


“Under the Rules of Professional Conduct, he made the decision to advise them legally.  Once he did that, our position is ‘he crossed the Rubicon,’” argued Pitt.  “Legal advice was provided to legislators, and the attorney general is bound by the express language of the rules, which prohibit suing someone you’ve given legal advice to.”


Assistant Attorney General La Tasha Buckner replied to Pitt’s argument saying, “In the letter to legislators, the attorney general was very clear that he’s the people’s attorney and was warning the General Assembly. He was doing his duty to the commonwealth, not political offices.”


Franklin Circuit Judge Phillip Shepherd told Pitt, “It seems to me a little bit that you are trying to force a round peg in a square hole,” regarding a conflict of interest by the attorney general.


Pitt also testified: “Is the attorney general, as a lawyer, governed by the same rules of professional conduct like every other lawyer in this room is, or does he have some sort of absolute power because of his position as attorney general, not to have to follow the rules?”


Shepherd also wondered whether it was appropriate to have legislative leadership be a party to the suit, to which David Fleenor, attorney for Senate President Robert Stivers, said, “That’s why we have not taken an official position on this.”


The judge denied the disqualification motion saying, “The attorney general has acted ethically here in terms of obligations to his clients.  Of course, whether he’s correct legally is another question.” 


“The client of the attorney general is the people of Kentucky, and disputes the attorney general may have with other elected officials should in no way disqualify the attorney general from either rendering advice to public officials, or from suing public officials who have taken an action that the attorney general believes is inconsistent with constitutional or statutory obligations.”


After the hearing, Pitt spoke to reporters. “I was disappointed but not surprised by the ruling,” he said.  “It is very clear that a lawyer cannot provide legal advice to a person on a certain matter, then turn around and sue that same person on the same legal issue later on.”


“This is not like Skyline Chili. You can’t have it two or three or four ways.”


Attorney General Andy Beshear issued a statement, saying: “Today’s ruling recognizes that, as the attorney general, I’m the people’s lawyer, and it is my duty to fight on behalf of teachers, police officers, firefighters, social workers and other public servants. I will continue to protect the rights of our public servants and to enforce the Constitution’s requirement that our government is transparent and never turns a sewage bill into a pension bill ever again.”    


Proceeding forward, Beshear’s office will file their main brief in the case later this month, the defendants have another month to file their briefs, then the attorney general has time to file a reply.  A hearing on the merits of the case will be held in June.


Shepherd said he understands there is some urgency in the case, since the legislation takes effect in mid-July, although some provisions don’t begin until 2019.


Because of that, Pitt said he would be very surprised if the side that doesn’t prevail at Franklin Circuit Court doesn’t move to have the appeal transferred directly to the Kentucky Supreme Court.  He also raised the possibility of revisiting the disqualification issue at a later date.

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