Smith's lawyer questions logic of ethics votes

Wednesday, July 29, 2009
From left, Bob Binkley, Ginger Shofner and Mary Ann Neill consider business at the most recent meeting of the county's Ethics Committee.

A former county commission chairman's lawyer questions two votes by the county's Ethics Committee on his client's case and calls them self-contradictory.

Lewisburg-based attorney Robert Binkley represents Sam Smith, the former commission chairman who had been accused of failing to reveal he had land for sale that might have been used for a landfill. The Ethics Committee voted July 13.

"I question the committee's decision that Sam Smith did not violate the code of ethics, yet they referred the complaint to the district attorney for investigation to see if he violated any state statutes," Binkley said.

"How could you find no ethical violation and then send it to the DA?"

"It's self contradictory," he said.

Another way of looking at Binkley's "simple question" is that if there was a hint of criminality for the state prosecutor to examine, then that would at least imply that there was some unethical conduct since criminals are, by definition, unethical, according to points made during an interview with Binkley on Monday. Smith's lawyer agreed the point had merit.

This leads to Binkley's second question about the Ethics Committee's decisions 16 days ago.

"Why did the committee dismiss allegations against Waggoner with one vote?" Binkley asked.

Mike Waggoner was Smith's real estate agent when his property was for sale more than a year ago. Waggoner negotiated an option for Waste Management Inc. to buy Smith's property. Waggoner is a member of the Marshall County Board of Public Utilities (MCBPU). When Smith resigned from the county commission to avoid a conflict of interest with the prospect of selling his land to Waste Management, Smith also left the MCBPU. Subsequently, Waggoner was accused and vindicated of allegations that he acted unethically. Ethics Committee members said the MCBPU had no control over landfills, so Waggoner's membership on the utility board didn't rise to an ethical dilemma when he represented Smith. The allegation against Waggoner from Tri-County Environmental Association was dismissed with one vote by the Ethics Committee.

"Yet when the motion was made to dismiss the allegations against Smith," Binkley said, "the committee took two votes: one on the allegation on the ethical code; and the second on whether to refer the matter to the district attorney.

"I'm talking about the procedure," Binkley said. "The procedure changed when it came to acting on the complaint against Sam [Smith] ... I'm not questioning whether someone did something completely good or bad. I'm talking about procedure."

Smith was clearly a participant in actions brought up by the environmental group against Waggoner, Binkley noted, and then when Smith's case was considered, "There was a motion to dismiss and it was not permitted to go forward. It was broken into two questions. My question is why did it change?"

County Attorney Ginger Shofner's July 10 report to the July 13 committee meeting includes her recommendation that the panel vote twice on Smith. The first issue was whether Smith had a personal interest that would have affected his vote. The committee voted 3-2 that there was no conflict and while Smith did vote on landfill issues, they were before the ethics code was adopted.

Once the code was adopted, the question was whether Smith should have declared a personal interest in the outcome of votes to prohibit landfills closer than two miles from a church, school, daycare and medical facilities.

Binkley pressed on his question: "Why did the action on Sam require two votes when Waggoner's only required one vote?"

Shofner's report to the committee states she recommended two votes, but she also reported, "At the outset of this investigation, I had advised that unless there were substantial circumstances revealed through the investigation that pointed to possible state law violations, the committee should proceed cautiously with forwarding any one of the two complaints it received to the District Attorney's Office...

"I felt that it was not in the best interest of the county to serve as a gateway to the District Attorney," Shofner said. "Any individual may take his or her complaint to the District Attorney..."

Binkley said, "I think the biggest things the Ethics Committee did here is that the two decisions are contradictory."