GOVERNMENT – Ethics: Turbyfill v. Executive Branch Ethics Commission (COA 11/20/2009)

Turbyfill v. Executive Branch Ethics Commission
2008-CA-001394 11/20/09 2009 WL 3878046

Opinion by Judge Wine; Judges Nickell and Thompson concurred.

The Court affirmed an order of the circuit court denying appellant’s petition for judicial review and declining to order dismissal of administrative proceedings opened by the Kentucky Executive Branch Ethics Commission (EBEC) for the purpose of sanctioning appellant. Although, appellant had been previously pardoned by the Governor, the EBEC filed “Allegations of Violations” in which it sought to fine appellant and publicly reprimand him for violating KRS 11A.020. The Court held that the allegation that appellant violated KRS 11A.020 was not criminal in nature and was collateral to the criminal proceedings for which he was pardoned. Therefore, the EBEC proceedings were not subject to the pardon.

The Court further held that the statutory scheme was not so punitive in purpose or effect so as to transform it into a criminal penalty. The Court rejected appellant’s argument that the pardon could not preclude civil actions by private individuals but could preclude civil actions by a state agency seeking to enforce violations of state law. First, because the EBEC proceeding was a collateral civil action, the pardon could not preclude its action. Second, the language of the pardon itself did not purport to include EBEC administrative actions.