KY Court Dismisses Suit Against State’s Transportation Heads

Tue August 19, 2003 - Midwest Edition

FRANKFORT, KY (AP) A Franklin Circuit judge recently dismissed a lawsuit alleging racketeering and civil rights violations against the state’s Transportation Cabinet, its director and the state highway engineer in their official capacities.

Transportation Secretary James Codell III and state highway engineer J.M. Yowell may still be sued in their individual capacities. Codell’s Frankfort attorney, William E. Johnson, said he planned to ask the judge to dismiss the claim against the secretary.

Judge Roger Crittenden made the ruling after a brief hearing in his chambers at the Franklin Count Courthouse.

Robert Dibert, a Louisville attorney representing the cabinet, said he was “happy” with the judge’s ruling.

“The judge has ruled, as the cabinet requested, that the cabinet is dismissed and the claims against the individuals acting in their official capacities has been dismissed,” Dibert said.

Plaintiffs Chaz Concrete Co. of Louisville and Grant Trucking Co. of Jeffersonville, IN, filed the lawsuit early last month alleging Codell and Yowell knowingly used the state’s “disadvantaged business enterprise” program to award contracts to companies that were unqualified. That deprived legitimate candidates from benefiting from the program, according to the suit.

The program is aimed at helping socially and economically disadvantaged companies compete for state contracts. Certification in the program helps construction companies owned by minorities and women get work as subcontractors on state road projects and other public construction projects.

Dibert argued that state agencies may not be sued unless the state Legislature grants specific permission to do so. In this case, Dibert maintained, the legislature did not.

He said the court did not have authority to override the General Assembly.

“In effect, it asks the court to act as a super-legislature,” Dibert said. “And Kentucky Courts just don’t do that.”

Attorney Kent Wicker, who was representing the two companies, argued the lawsuit was proper because there were allegations of criminal activity.

Wicker said the companies would be entitled to a court injunction on the disadvantaged business enterprise program. That gave them the ability to sue the cabinet in court, Wicker said.

Even though there was a “compelling argument” to allow the case to continue against the cabinet, past Kentucky State Supreme Court rulings grant state agencies immunity in such cases, Crittenden said.

Transportation spokesman Mark Pfeiffer said cabinet officials were satisfied with Crittenden’s ruling.

“We’re pleased because the cabinet is no longer a party in that lawsuit,” Pfeiffer said.

Gov. Paul Patton’s former mistress Tina Conner has claimed the governor helped get a company she owned, ST construction, certified for the program. Conner last week pleaded innocent to a federal mail fraud charge stemming from statements she made about how she obtained that certification.

Patton denies claims he used his power to either help or hurt Conner, and has not been charged with any wrongdoing.

Wicker said he plans to pursue the case against Codell and Yowell in their personal capacities.

“`We have great respect for Judge Crittenden,” Wicker said outside the judge’s chambers. “We will review his opinion and make our decisions, we haven’t had a chance to analyze it.”