Past Open-Records Reprimand May Haunt Barr in Kentucky

Posted July 30, 2010 at 9:25am

On the campaign trail, Kentucky House candidate Andy Barr (R) has so far been fairly successful in navigating the political land mines that stem from his previous work as a top legal aide for disgraced former Gov. Ernie Fletcher (R).

But a recently surfaced state attorney general decision is raising new questions about Barr’s claim to be “a voice of compliance” in Fletcher’s office.

Barr is facing Rep. Ben Chandler (D) in the Lexington-based 6th district, and Republicans see the race as their best pickup opportunity in the Bluegrass State this cycle.

While campaigning, Barr has said he’s proud of his work in the Fletcher administration, but Democrats have been working to find ways to tie the first-time candidate to the ethical issues of his former boss.

At issue this week is a December 2007 open records decision by then-state Attorney General Greg Stumbo (D) that reprimanded Fletcher’s office for its failure to adequately manage official records. Barr served as deputy general counsel to Fletcher in 2007 and is mentioned in the decision a dozen times by Stumbo, who concluded that the “failure to implement an effective program for ensuring records preservation constitutes a subversion of the intent” of the state’s Open Records Act.

“When Barr worked for Fletcher, there was certainly no compliance with Kentucky’s open record law,” Pierce Whites, who served as deputy attorney general under Stumbo, said Thursday.

Whites described the Open Records Act as Kentucky’s equivalent to the federal Freedom of Information Act and called the legislation “a critically important government-in-the-sunshine law” that gives the public access to important documents.

“As the governor’s counsel, Barr should have ensured that such records were retained,” he said. “Instead, critical documents mysteriously disappeared.”

Whites now works as general counsel to now-state Speaker Stumbo. It was Stumbo who led the investigation into Fletcher’s efforts to skirt state hiring laws in order to give plumb state jobs to political supporters. Fletcher was indicted in that case, but the charges were dropped after he cut a deal and admitted wrongdoing by his administration.

Stumbo’s December 2007 decision involving Barr did not stem from his larger investigation of Fletcher but was issued after an appeal came to his office over an Open Records Act request that Barr did not fulfill because he said the governor’s office did not have the documents requested.

In his decision, Stumbo’s office acknowledged that “while Mr. Barr is correct in … asserting that his ‘Office cannot be forced to produce what it does not have’ … the analysis does not end there. … Because the Office of the Governor failed to provide even a minimal explanation for the apparent loss or destruction of the record(s), this office must conclude that it failed to adequately manage its records. Loss or destruction of a public record creates a rebuttable presumption of records mismanagement, and the Office of the Governor has failed to overcome this presumption.”

Although Stumbo criticized the governor’s office for poor record keeping, he stopped short of declaring the failure to produce the requested documents an actual violation of the Open Records Act.

Barr’s office pointed to that fact in its response to the decision Thursday afternoon.

“Attorney General Stumbo’s report clearly states that Andy Barr was in full compliance with the law in his actions as deputy general counsel,” campaign manager John Connell said Thursday. “Andy is pleased that he will be able to spend the rest of the campaign on issues that matter to voters.”

Connell called the matter a distraction from the real issues of the race, namely that Chandler “votes with [Speaker] Nancy Pelosi [D-Calif.] 93 percent of the time.”

Democrats have worked hard in recent months to make the 6th district contest a character debate on Barr.

Immediately after Barr won his primary in May, state Democratic Party Executive Director Sherman Brown issued a release saying, “The only thing worse than a corrupt politician is the lawyer who tries to make it seem legal. … [Barr’s] most noteworthy achievement is defending a corrupt Governor and his political cronies in the courts.”

Democratic operatives have also been quick to point out Barr’s past run-ins with the law, including a public drinking charge and his guilty plea to possession of a fake driver’s license at age 19.

But Republicans say Democrats may want to avoid an ethics debate in the race.

“Ben Chandler serves on the ethics committee but refuses to cough up $10,000 in tainted Charlie Rangel cash,” National Republican Congressional Committee spokesman Andy Seré said Thursday.

One poll this week from the Kentucky political Web site CN 2 showed Chandler with a 14-point lead in the race with 21 percent undecided. But speculation about a possible GOP takeover of the 6th district was ratcheted up this week after it was revealed that several coal industry representatives are considering forming a 527 group to take advantage of the recent Citizens United ruling to target Chandler.

Chandler’s name was included on a list of “anti-coal incumbents” circulated among industry executives by Roger Nicholson of the International Coal Group. While there are no active mines in the 6th district, which includes Lexington, the area still contains a sizable number of companies and families that rely on the coal industry. And the coal industry was particularly irked by Chandler’s vote last year to support the House cap-and-trade bill, legislation that the coal companies believe to be a direct attack on their bottom line.