Kentucky Senator Damon Thayer has been informed by the state's Legislative Ethics Commission that it is fine for him to support a constitutional amendment for the implementation of expanded gaming in the state
, even though he has profited financially from the horse-racing industry via consulting fees.
News of the potential conflict of interest first arose in an article by the Lexington Herald-Leader. In turn, Kentucky Governor Steve Beshear fired back at Kentucky Senate President David Williams, whom Gov. Beshear accused of being behind the initial article.
“I certainly thought that that was a cheap shot that was taken … in the newspapers about Senator Thayer," Gov. Beshear was quoted as saying. The initial article had reported that Sen. Thayer collected at least $208,000 in consulting fees from the horse-racing industry from 2010 to part of 2011.
In response to Gov. Beshear's allegations, Sen. Pres. Williams said that Beshear should “quit trying to start these fights” and that the governor should put on his “big-boy pants.”
The contents of the letter the Legislative Ethics Commission sent to Sen. Thayer appears below.
Dear Sen. Thayer:
Thank you for contacting the Legislative Ethics Commission with your question regarding whether a legislator who has business clients such as thoroughbred horse farms is allowed by state law to support a proposed constitutional amendment relating to casino gaming, which if adopted, may benefit horse racing and other areas.
The short answer to your question is "yes"a legislator in such a situation may sponsor, discuss, and vote for or against a proposed constitutional amendment relating to casino gaming.
In 2008, the Legislative Ethics Commission issued an opinion (OLEC 08-01), which addressed a similar question regarding a proposed constitutional amendment on casino gaming, except in that situation, the legislator's employer was interested in operating a gaming facility if an amendment was adopted. OLEC 08-01 states as follows:
On potential conflict of interest questions, such as this, the relevant statute in the Kentucky Code of Legislative Ethics is KRS 6.761. That statute forbids a legislator from participating in the discussion of a question in committee or on the floor of the General Assembly or from voting or making any decision in his legislative capacity on any matter in which he, a member of his family, or a "business associate" will derive a direct monetary gain or suffer a direct monetary loss as a result of his vote or decision. KRS6.611 (5) defines "business associate" to include an employer.
Assuming that clients of a legislator's business may be considered "business associates", within the meaning of the Ethics Code [See KRS 6.611(5)], neither the clients nor the legislator would derive a direct monetary gain or loss from legislation which would submit a proposed constitutional amendment to the voters for their acceptance or rejection.
Any monetary gain to a legislator's clients, should the voters approve the amendment, would at best be indirect, and if they should reject it, non-existent.
In providing for a part-time legislature, Kentucky's Constitution recognizes that legislators will have varying experiences and interests, and that their participation in public issues should only be restricted in the most specific situations. As OLEC 08-01 states:
As with any elected legislative body, the law encourages all members to participate and vote on as many matters as possible, so their constituents are properly represented. Only when a potential benefit or detriment is particular to a legislator, a member of his or her family, or a business associate does the law call for the legislator to abstain.
Therefore, it is appropriate for a legislator who is a doctor to vote on matters affecting the medical profession, farmers who are legislators may support or oppose bills affecting agriculture, and teachers who serve in the General Assembly may vote on education issues, including teachers' salaries.
You also asked whether you would be deemed to have a "personal or private interest" in the, proposed legislation under Section 57 of Kentucky's Constitution. I think not.
In a somewhat similar case, members of the General Assembly who were veterans had voted on legislation to submit to the voters what purported to be a constitutional amendment providing a bonus for veterans. Kentucky's highest court observed that under Section 57, the members of the General Assembly who were veterans did not have a personal or private interest in this legislation because "it did not grant a veteran's bonus to anybody" and was nothing more than enabling legislation seeking a vote of the people. Stovall v. Gartrell , 332 S.W. 2d 256, 260 et seq. (Ky. 1960). In short, that legislation conferred no personal or private rights on anyone.
A proposed constitutional amendment does not grant a right to offer casino gaming to any specific entity, nor does it confer benefits on any specific entity. Depending on its language, it may submit to the electorate the question of whether such gaming should be permitted, and may define broad industries or areas of government which would benefit from the proceeds. A legislator who has business clients such as horse farms may sponsor, discuss, and vote upon such a proposed amendment, even if the horse racing industry generally would benefit if the amendment is adopted by voters.
Please let me know if this has not sufficiently answered your question, or if you want a formal opinion of the Commission. Thank you again for contacting the Commission.