Judges rules parts of Duncan hiring lawsuit may go forward

LAST UPDATED AT 5 P.M.

Parts of a federal lawsuit that allege Gov. Ernie Fletcher and other top administration officials illegally fired a Transportation Cabinet employee can move toward trial, U.S. District Judge Joseph M. Hood ruled today.

In a complex order, Hood dismissed several parts of the suit filed by Transportation Cabinet worker Michael Duncan, but ruled that the key issue of whether Duncan's constitutional rights to freedom of speech and association were violated can move forward.

However, Hood described evidence backing up that claim as "scant."

"There is scant evidence to suggest that Duncan's constitutional rights were violated, and there is in fact appreciable evidence to the contrary; however, there is sufficient evidence to create a genuine issue of material fact regarding the reason for Plaintiff's termination," Hood wrote in the 19-page order.

Hood also lifted a stay on discovery in the case, which raises the possibility that Fletcher will be deposed in the legal battle before the Nov. 6 election.

Fletcher's attorney, Stephen Pitt of Louisville, acknowledged that the governor could be forced to answer Duncan's questions before the election, but said "it's highly unlikely." Pitt said he does not yet know whether Fletcher will appeal the decision, which could delay any depositions for months.

"We're 90 percent pleased with the order," Pitt said.

Duncan's attorney, Thomas Clay of Louisville, challenged Fletcher to immediately answer questions under oath regarding Duncan's firing.

"I think it's important, not only for this lawsuit, but for the people of Kentucky to get some kind of testimony from this governor about what he did and what he knew before they decide who should lead this state," Clay said.

He said Hood's description of the evidence as scant is not a major obstacle, noting that Duncan has not yet had the opportunity to interview administration officials.

"We're hoping to be able to flesh this out with the testimony of people involved," Clay said.

He noted that one former transportation official, Dan Druen, has said publicly that any action he took was at the direction of Fletcher.

"Everything I did was pursuant to a directive from my supervisors, top to bottom, including the governor, in advancement of the very initiative that carried his name," known as the Governor's Personnel Initiative, Druen told the Herald-Leader in December.

Duncan alleges he was wrongly fired from the cabinet's Office of Inspector General because he was a supporter of Democrat Ben Chandler in the 2003 governor's race. His firing was at the heart of a lengthy grand jury investigation of hiring practices in Fletcher's administration.

That investigation eventually led to indictments of 15 officials, including Fletcher. The governor issued pardons for everyone but himself and later struck a deal with Attorney General Greg Stumbo to dismiss the remaining charges.

Earlier this year, the state Personnel Board ruled Duncan was wrongly fired for political reasons and ordered him back to work. Duncan has since returned to his state job, although the Transportation Cabinet has appealed that decision to Franklin Circuit Court.

In his order, Hood said Duncan is free to continue his reinstatement claim against Transportation Secretary Bill Nighbert, but that issue will likely be moot if his reinstatement is upheld in state court.

Hood dismissed Duncan's claims that he deserves monetary relief and that his due process rights were violated. The judge also ordered Clay to further explain why he should not dismiss Duncan's assertion that his rights were violated under the federal Equal Protection Clause.

Also, Hood granted Fletcher's motion for summary judgment on a claim that he defamed Duncan during an appearance on a Lexington radio show.

Fletcher, Nighbert and Deputy Transportation Secretary Jim Adams had asked Hood to summarily dismiss them from the lawsuit.

- John Stamper

Comments

[Jack Burden]

This article misses the point. Quoting from Judge Hood's order:

"Defendants note that Duncan’s employment in the Attorney General’s office was also terminated for 'failing to perform the work to the employer’s satisfaction.' Additionally, Nighbert states that he questioned Duncan’s judgment, a contention that appears valid considering Duncan’s conceded relationship with a subordinate employee while employed in the Attorney General’s office. The Court also notes the incongruity in of (sic) Plaintiff’s contention that the very administration who hired him knowing his political affiliation - and in fact “cleared” his employment despite his ties to Chandler - would, less than six months later, discharge Plaintiff because of his political affiliation with Chandler. There is scant evidence to suggest that Duncan’s constitutional rights were violated..."

In short, Judge Hood just decimated what remains of Duncan's case and said he can't win. Scant evidence??? It's lucky Stumbo contrived to get Duncan his job back since Duncan will need the money to pay his legal bills.

beware what you ask for. rumor says nighbert will step down and that cave will move over.

whatever you want, you DO NOT want Cave as Transportation Sec.
And I am a strong Republican who has NEVER voted Democrat

[someone in the know]

Some people don't know much about mike duncan. see Mr. Duncan is retired from special investigation of the Ky state police so when they fired Mr. Duncan they fired the wrong person. Mr. Duncan these types of investigations into criminal wrong doing is what he done for a living.

[Trackmasterscoob]

The real question is what incompetent fool hired Duncan in the first place.

Cave would only be Secretary for 2 months.

[PO'd]

Someone in the know may be giving Mr. Duncan too much credit for his abilities. Independent legal review and Judge Hood have both stated that there is very legal footing for the majority of his case. Sour grapes do not make a legal standing.

There's a great column about Fletcher in today's Kentucky Post:

http://news.cincypost.com/apps/pbcs.dll/article?AID=/20070901/EDIT/709010319/1003/EDIT

It no longer matters what Hood thinks of the evidence. He has found there is a material issue of fact. That means the case will go to trial where a jury will decide the case. Given how poorly this administration has done with juries made up of ordinary citizens, I'd say Duncan has a good shot. Plus, he now gets to depose Ernie. Will Ole Ernie take the 5th again right before the election?

[Trackmasterscoob]

Unless I'm missing something it appears that Duncan, for the most part, got his butt kicked here. Now he must prove that the only reason he was dismissed from his probationary status job was because of politics, when the other side is going to put forward very specific reasons for his dismissal which were not political. As for discovery, that's a two way street. There's also a lesson for future Governors..when you're going to fire someone you can normally fire at will, do so with only a pink slip and a smile. Just like it used to be.

[PO'd]

Scoob you're pretty observant. People always steer away from the obvious and offer alternatives and in this case, the political card was played.

Good. Now the evidence about Duncan being an adulterer with a co-worker, along with not a good investigator, will all come out in the open and it won't be swept under the rug like all the press except the Frankfort State Journal did during the Personnel Board hearing on his dismissal.

Another opportunity for Duncan to be embarassed on a statewide stage.

[CornFused]

What is the scoop on Nighbert's resignation and Stan Cave taking over? From what I have observed, Stan Cave (along with Rudolph perhaps) seems to be the source of most of Fletcher's poor political decisions over the last 3+ years...

Pat Crowley has a great column in today's Enquirer:

http://news.enquirer.com/apps/pbcs.dll/article?AID=/20070902/NEWS0103/709020394/-1/all

"Both major political parties have their crooks, cronies and creeps. But the GOP gets a lot of mileage here, across the state and throughout the nation as the party of 'family values.' In fact, the word 'values' appears nearly 30 times in the 92-page Republican Party Platform.

"Toe-sucking with hookers is hardly family values; neither is trolling for sex in bathrooms, hitting on teenage boys or bribery.

"Politicians should leave the family values to families."

Only place I've heard anything about Nighbert leaving is here.

And you're wrong about Cave. I've never met a more decent, intelligent, honest person in my life except maybe the governor himself.

"And you're wrong about Cave. I've never met a more decent, intelligent, honest person in my life except maybe the governor himself."

3:18, you must be joking.

Either that, or you're Mitch McConnell:

http://www.bluegrassreport.org/bluegrass_politics/2006/04/pollyanna_strik.html

[Ernst Scribbler]

I've got an issue with this paragraph:

"That investigation eventually led to indictments of 15 officials, including Fletcher. The governor issued pardons for everyone but himself and later struck a deal with Attorney General Greg Stumbo to dismiss the remaining charges."

The Governor "struck" a deal, but so did the AG. Generally, prosecutor's are "in the catbird's seat", as it were. For what reason or reasons would the AG "strike" any sort of a deal if The Gov had actually done anything criminally wrong that he could be convicted for in a criminal trial? Instead of implying that it is a plea agreement (as in a guilty plea to a lesser offense), read/publish it again.

[CornFused]

"And you're wrong about Cave. I've never met a more decent, intelligent, honest person in my life except maybe the governor himself."

10:15 -- Your comments about Fletcher (which I know is political spin and not true- probably posted by Cave himself) tells me what I suspect about Cave is correct.
Fletcher and Cave, joined at the hip and both hypocrites on family values...
Thanks for the confirmation.

Hypocrites on family values?

What, exactly, do you mean by that?

[LMAO]

From what I have been told by the people in the Governor's office, Stan Cave is a royal @$$. He screams at the staff and threatens them all the time. This is a page right out of the Robbie Rudolph (He can't graduate from college) playbook.

Different Cave than the one I know, who's pretty soft-spoken.

And even if what you say is true, since when is being a hardass boss not reflecting family values?

Or are we gonna see that lie about Gwen Mayes brought up again?