Saturday, July 30, 2016

Exception to the terminable-at-will doctrine


The limitations to the wrongful discharge exception to the terminable-at-will doctrine are carefully set out in Firestone. We state: "[e]mployers as a group have a legitimate interest to protect" which requires that "the cause of action for wrongful discharge [be] clearly defined and suitably controlled." Id.
We embraced Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983), to establish the limitations on "any judicial exceptions to the employment-at-will doctrine." 335 N.W.2d at 835. They are:
1) The discharge must be contrary to a fundamental and well-defined public policy as evidenced by existing law.
2) That policy must be evidenced by a constitutional or statutory provision.
3) The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact.

* * *

 We adopt, as an appropriate caveat to our decision in Firestone Textile Co. Div. v. Meadows, supra, the position of the Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982). The Michigan court held that only two situations exist where "grounds for discharging an employee are so contrary to public policy as to be actionable" absent "explicit legislative statements prohibiting the discharge." 316 N.W.2d at 711. First, "where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment." Second, "when the reason for a discharge was the employee's exercise of a right conferred by well-established legislative enactment." 316 N.W.2d at 711-12. Here the concept of an employment-related nexus is critical to the creation of a "clearly defined" and "suitably controlled" cause of action for wrongful discharge. These are the limitations imposed by Firestone Textile Co. Div. v. Meadows, supra at 733.

Grzyb v. Evans, 700 SW 2d 399 (Ky 1985)

See also:

Foster V. Jennie Stuart Medical Center, 435 SW 3d 629 (Ky App 2013)
Pierce v. Bennett, 835 F. Supp. 2d 288 (WD Ky 2011)
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Friday, July 29, 2016

Notes: KRS 514.070 Theft by failure to make required disposition of property.

 KRS 514.070(1) A person is guilty of theft by failure to make required disposition of property received when:
(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.
 ----------- oOo ---------- 

 Blanton v. Commonwealth 562 SW 2d 90 (Ky App, 1978) - New Trial

" . . . . the failure to pay claims for labor and material out of amounts received from the owner constitutes a misdemeanor under KRS 376.990(2) only if the contractor fails to pay sums which he knows to be due and owing. No criminal liability may be imposed for failure to pay an amount which is disputed in good faith by the contractor. Moreover, to commit the felony of theft by failure to make required disposition of property under KRS 514.070, a contractor must not only know that an amount is due and owing for labor and material, but he must also know that he has a legal obligation to make payment out of the proceeds received from the owner and must intentionally deal with proceeds as his own."
 ----------- oOo ---------- 

Commonwealth v. Jeter 590 SW 2d 346 (Ky App, 1979)

["K.R.S. 514.070 does not proscribe the type of transaction whereby a seller accepts money for the purchase of merchandise and then refuses to deliver the property as promised."]
"The basic thrust of this statute [KRS 514.070] is to impose penal sanctions for such conduct as a retailer's failure to pay over to the state sales taxes which have been collected, a contractor's failure to make proper application of payments in satisfaction of materialmans' liens, an employer's failure to apply withheld employee's wages to a pension fund, or a bank employee's failure to properly credit funds deposited for the account of a customer. Brickey, Kentucky Criminal Law, § 14.08."
 ----------- oOo ---------- 

Commonwealth v. Perry, 219 S.W.3d at 720 (Ky 2007)
"The sole issue in this certification of the law sought by the Commonwealth is whether the offense of Theft by Failure to Make Required Disposition of Property (KRS 514.070) covers a situation in which the victim gives money to the defendant with the agreement that the defendant will purchase merchandise from a third party source and give it to the victim, and then the defendant fails to purchase the item or return the money. We hold that it does."
 ----------- oOo ---------- 

Taylor v. Commonwealth, 799 SW 2d 818 (Ky 1990) - Conviction affirmed
 In the context here presented, the only substantial difference between the elements of KRS 304.9-400 and those of KRS 514.070 is that conviction under the insurance code would lie if the agent converts the funds to his own use or illegally withholds them, whereas conviction under the penal code would properly ensue if he intentionally deals with the proceeds as his own and fails to make the required disposition. Taylor could be acquitted of theft and convicted of the lesser offense only if he had withheld the premiums but had not intentionally dealt with them as his own. Appellant's avowal of an intention and ability to pay, termed a denial of criminal intent, does not, even if believed, exculpate him under KRS 514.070.
 ----------- oOo ---------- 

Butts v. Commonwealth, 581 SW 2d 565 (Ky 1979) - agent of a corporation is liable for crimes he commits for the benefit of corporation
Butts contends that his motions for directed verdicts of acquittal on these charges should have been granted because there was no evidence that he dealt with customers' property, which Sentry held under an obligation to repay, as his own. Rather, he maintains that he obtained the property as Sentry's agent and that he disposed of the property for the benefit of Sentry and not himself. We do not agree with this contention.

An agent of a corporation is liable for crimes he commits for the benefit of or in the name of a corporation "to the same extent as if the conduct were performed in his own name or behalf." KRS 502.060 (Emphasis added). The purpose of this section of the Penal Code is to prevent an individual from hiding behind a corporation to avoid criminal liability for his conduct. KRS 502.060 Commentary (1971). The evidence is uncontradicted that Sentry intentionally dealt with customers' property as its own. Butts was the agent of Sentry who executed these illegal conversions. By operation of statute Butts is responsible for converting the property.
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Notes: CR 36.01 and 37.03 - Rumpel v. Rumpel 438 SW 3d 354, (Ky 2014)

 The trial court found that Kaven violated CR 36.01. That rule permits one party to request another party to admit "the truth of any matters within the scope of Rule 26.02 [the rule defining what is discoverable]." Under the rule, the party receiving the request must, in a timely manner, either admit the matter asserted, deny it, or object to the request. The purpose of the rule is to streamline the litigation by eliminating from controversy factual matters that will not be disputed at trial. Thompson v. King Feed & Nutrition Service, Inc., 153 Wash.2d 447, 105 P.3d 378, 390 (2005) (discussing Washington's virtually identical rule); Dobos v. Ingersoll, 9 P.3d 1020, 1028 (Alaska 2000) (discussing Alaska's version of the rule).

Under CR 37.03, an improper failure to admit the matter asserted, if the requesting party thereafter proves the truth of it, authorizes the trial court, upon the requesting party's application, to order "the other party to pay him [the requesting party] the reasonable expenses incurred in making that proof, including reasonable attorney's fee."[2] CR 37.03 thus provides an exception to the American Rule against the shifting of fees. Because CR 36 and CR 37.03 apply to civil proceedings generally, the fee shifting they allow is potentially of far-reaching effect. Indeed, if under those rules a party could obtain a fee award merely by requesting prior to trial that a disputed fact be admitted and then, if the fact were denied, prevailing on the dispute at trial, prevailing parties would be routinely entitled to fee awards, and our approach to fee shifting would be turned on its head. Cf. Piney Meeting House Investments, Inc. v. Hart, 284 Va. 187, 726 S.E.2d 319 (2012) (disallowing under Virginia's version of CR 37 a request intended merely to subvert the American Rule).

That clearly is not the intent of the rules allowing for fee sanctions. See Bell, 423 S.W.3d at 742 (noting that rules allowing for fees as a sanction must be narrowly construed precisely to prevent this sort of subversion of the American Rule). On the contrary, CR 37.03 provides that, even if the requesting party proves the truth of a matter concerning which an admission was requested and denied, a fee sanction is not appropriate if

    (a) the request was held objectionable pursuant to Rule 36.01, or

    (b) the admission sought was of no substantial importance, or

    (c) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or

    (d) there was other good reason for the failure to admit.

CR 37.03.

The rule does not require, in other words, that a party admit a genuinely disputed fact or risk having to pay fees should the fact-finder ultimately decide the dispute against him. Prevailing at trial, although necessary to invoke the rule, is not the sole issue. The main issue under the rule, rather, is whether the party denying a request for admission acted reasonably in believing that he might prevail, or had some other legitimate reason for making the denial. We review a trial court's grant or denial of discovery sanctions, including fee awards, for abuse of discretion, Turner v. Andrew, 413 S.W.3d 272 (Ky.2013), and we agree with Kaven that the trial court abused its discretion here by failing to consider whether Kaven's denials of Kathie's requests for admission were justified.
 Rumpel v. Rumpel 438 SW 3d 354, (Ky 2014)
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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West Buechel: Bad joke bookkeeping

For a few months during the Spring of 2015, West Buechel's Clerk-Treasurer distributed generated "check registers," showing City checks, amounts and to whom paid, and she also distributed copies of the City's General Fund II bank account statements. If you know that check numbers and amounts are listed on the bank's monthly account statements, it is only natural to wonder, "How do the bank's numbers compare to Kim Richards' numbers?"

Not good. Officially, First Degree Meshuggeneh.



Bank
Check
Check No. Statement
Register




2002 $826.45
$266.32
2003 $607.58
$95.00
2004 $1,416.03
$17.72
2005 $81.78
$18.00
2006 $1,306.53
$23.32
2007 $1,375.57
$220.32
2008 $44.28
$148.47
2009 $66.34
$40.00
2010 $68.99
$45.36
2011 $5,295.20
$675.40
2012 $520.69
$30.00
2013 $183.28
$80.56
2014 $24.20
$313.39
2015 $313.39
$24.20
2016 $80.56
$183.28
2017 $30.00
$520.69
2018 $675.40
$5,295.20
2019 $45.36
$68.99
2020 $40.00
$66.34
2021 $148.47
$44.28
2022 $220.32
$1,375.57
2023 $23.32
$1,306.53
2024 $18.00
$81.78
2025 $17.72
$1,416.03
2026 $95.00
$607.58
2027 $266.32
$826.45
2028 $26.00
$10.00
2029 $10.00
$26.00

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Stalking the wild KRS 424.220 Financial Statement

 There is always a gap between the written law and the law that is actually put into play in practical day-to-day life. It helps to have actual examples. The more the better.

This is a start. What I lack by being slow, I try to make up for by being relentless. The following are recently completed KRS 424.220 Financial Statements from Meade County, Kentucky, for FY 2015-2016. Since FY 2015-16 just ended on June 30th, I mean recent when I say recent. The Meade County Treasurer, Tammy Weick, is clearly on top of her job.

This document is divided into five parts
  1. Statement of Assets 
  2. Statement of Receipts
  3. Statement of Revenues
  4. Statement of Appropriations
  5. Statement of Claims
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Thursday, July 28, 2016

Tort of fraudulent misrepresentation


Reposted from DelCotto Law Group: Kentucky Law: Elements of Fraud Claims By: Jamie L. Harris, Esq.

"Kentucky law . . .  recognizes the tort of fraudulent misrepresentation. In Kentucky, fraud by misrepresentation comprises six elements:
(1) the defendant must have made a material misrepresentation;
(2) that was false;
(3) that the defendant knew was false, or made with reckless disregard for its truth;
(4) that was intended to induce the plaintiff to act, based on the misrepresentation;
(5) that the plaintiff reasonably relied; and
(6) that caused the plaintiff injury.
Flegles, Inc. v. TruServ Corp., 289 S.W.3d 544, 549 (Ky. 2009). To be actionable, a misrepresentation. . . must relate to a past or present material fact. A mere statement of opinion or prediction may not be the basis of an action. This means . . . that forward-looking opinions about investment prospects or future sales performance . . . generally cannot be the basis for a fraud claim.” Ibid. Nor does “sales talk or puffing which is universal and an expected practice . . . amount to actionable misrepresentation. This is certainly true where the parties deal at arm’s length and have equal means of information.” McHargue v. Fayette Coal & Feed Co.,283 S.W.2d 170, 172 (Ky. 1955) (internal quotation marks omitted). A caveat to the necessary elements under either a fraud by omission claim or a fraudulent misrepresentation claim is that “mere silence does not constitute fraud where it relates to facts open to common observation or discoverable by the exercise of ordinary diligence, or where means of information are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d 918, 920–921 (Ky.1956).
-oOo-


--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Administrative dissolution

 In Kentucky, business entities are required by law to formally dissolve. In order to properly close, a domestic entity must file articles of dissolution. The Secretary of State's filing fee for articles of dissolution is $40.00.

In the alternative, failure to file the required annual report ($15 filing fee) will automatically result, through the mere passage of time, in an administrative dissolution. Net out of pocket savings of $55 and no need to draft articles of anything..

Hmmmm . . . . which way to go?
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Monday, July 25, 2016

Easy money

If there are any under-employed Kentucky trial lawyers out there looking to make some easy money, I have a plan and I hate leaving money on the table. I can't collect statutory attorney fees myself. If you're interested, get in contact with me.

If you can't figure out how to get in contact with me, I don't want you as my attorney. 

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Motion hour

Motion hour in Kentucky civil practice has its good side and it has its bad side, but without any doubt in my mind, the main structural design purpose behind motion hour is to inflate lawyers' billable hours for doing nothing.

With a little advance planning, any inventive attorney can structure his motion hour practice to bill four clients in four different actions for an hour each for a fifteen minute walk, fifteen minutes waiting and fifteen minutes of pure formality. God bless the economies of scale! 

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Sunday, July 24, 2016

Pity

I have a lot of compassion for folk with substance abuse problems and addictions. It does really bad things to a person's physical and mental health, with nasty blow-back on family life in general. But, being a Libertarian and a Christian, my principles embrace non-interference linked to a ready willingness to help and guided by Jesus' teaching that it's impossible to save anyone by condemning them first.

I still have a problem with dealers.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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The answer to the question

On August 26, 2014, Rick Richards enters his guilty plea on two counts of trafficking in a controlled substance. Specifically, prescription Oxycodone and Hydrocodone.

On September 22, 2014 the Jefferson Circuit Court accepted the guilty plea and the plea agreement, and grants a motion for pretrial diversion.

On October 9, 2014 Defendant files a "Motion for the Defendant to Exercise Constitutional Rights" and the Jefferson Circuit Court grants the motion by entering an Order, "that Rick Richards is hereby allowed to continue to seek public office and to exercise his voting rights and any other constitutional rights therefore [sic] afforded him." 

On  Tuesday, November 11, 2014, Rick Richards wins the election for Mayor of West Buechel by 10 votes.


This is a legal move worthy of further discussion, but not today.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Saturday, July 23, 2016

Citizen criminal complaints

The Kentucky legal system is somewhat unusual in that for minor criminal violations and misdemeanor offenses, citizens have the option to bypass the police and complain directly to the County Attorney. The County Attorney, or an Assistant County Attorney, reviews the citizen complaint and makes an initial determination of probable cause.

If there is probable cause, the Assistant County Attorney completes AOC Form 315.B, Criminal Complaint and refers the matter to the District Court for final determination. It seems that if the Assistant County rejects the citizen complaint, that too is referred to the District Court. I don't know what form is used, but there must be one. There is always a form.

The District Court may accept the County Attorney's recommendation and issue an arrest warrant or summons or refer the matter to mediation.  The District Court may also reject the County Attorney's recommendation regarding the citizen complaint and not take action.

Domestic violence is a common basis for such citizen complaints, but the process can be employed for any violation or misdemeanor.

The first step is to convince an Assistant County Attorney that a non-felony crime has been committed.



--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Kentucky Instructions to Juries - by Judge John S. Palmore





Kentucky Instructions to Juries (Civil), 5th Ed. 2016
by Judge John S. Palmore
898 pages

Amazon Kindle Edition $170.49





--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Jury instruction

After thinking about it for thirty year, or so, I finally realize that jury instructions are much more important and deserve more work than I had ever previously considered.

CR 51 Instructions to jury; objections
(1) At any time before or during the trial, the court may direct the parties to tender written instructions. At the close of the evidence any party may move the court to instruct the jury on any matter appropriate to the issues in the action.

(2) After considering any tendered instructions and motions to instruct and before the commencement of the argument, the court shall show the parties the written instructions it will give the jury, allowing them an opportunity to make objections out of the hearing of the jury. Thereafter, and before argument to the jury, the written instructions shall be given.
 
(3) No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Up to my ass in lawyers: Aunt Zoe

Zoe S. Wyatt was my mother's mother's sister, but she was known to me simply as Aunt Zoe. Great Aunt Zoe was a self-contained woman who passed in 1982 at the age of 102. She lived alone on a farm outside Redkey, Indiana, East of Muncie, for most of her life until she moved to a Westminster retirement home at the age of 92. She was the last survivor of her five sisters and one brother, Russell, whom the five sisters always called "baby."

She was remarkable. I didn't see it when she was alive, but she was surely remarkable as I now clearly understand. There was a Mr. Wyatt at one time, briefly, who went "over there" in WWI and who didn't come back.

Before World War I, Aunt Zoe worked as a law clerk in the Navy Department in Washington to help pay her way through law school. She graduated from the National University of Law in Washington. She maintained law offices in Washington D. C. for years, and always one in Redkey. Her father had made the bricks for the one-room school house she attended as a child and she taught in as an adult.  She later used that same school house for a law office.

Zoe was the first woman elected prosecuting attorney in Indiana. The first of her two terms in office began in 1933. In the 1940's she staged an unsuccessful campaign for the Indiana Governorship on the old Prohibitionist Party ticket.

I just thought of her as a cheerful old woman who liked to grow roses.

UPI obituary March 1, 1982

  1. My mother's mother's sister was a lawyer;
  2. My father was a lawyer;
  3. My father's brother was a lawyer;
  4. My father's father was a lawyer;
  5. My father's mother's brother was a lawyer;
  6. My brother is a lawyer, and;
  7. My brother's son is a lawyer.

I think that's all of them.
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Friday, July 22, 2016

An avalanch of bullshit

A whole year full of imaginary numbers.

These are links to the four quarterly Financial Statements produced and distributed by West Buechel City Hall for calendar year 2015. Faced with severe criticism questioning the accuracy of these Financial Statements, Mayor Richards' response was to stop handing them out. None have been made available for 2016.

West Buechel's Quarterly Financial Report - March 31, 2015
West Buechel's Quarterly Financial Report - June 30, 2015
West Buechel's Quarterly Financial Report - September 30, 2015
West Buechel's Quarterly Financial Report - December 31, 2015

The scatology of bookkeeping - the bottom line.

It is not easy to penetrate the fog of slobishness that enshrouds these reports, and it's really not worth the effort to do so. Extrinsic evidence clearly shows the numbers reported are pure fiction.  But, doing the best we can to take these reports at face value, it looks like the City of West Buechel had total income and expense for 2015 sort of something like this:

Total  receipts - $1,459,386.70
Total expenses - $1,566,517.97

Net difference - ($107,131.27)

This is not horrible, in isolation . . . for a fairy tale.

If banks are good at anything, it's how to add and subtract and never forget.

West Buechel's audited Financial Statement shows cash on hand on June 30, 2014 of $2,001,929.

Between 6/30/14 and 12/31/14, when former Mayor Sharon Fowler left office, the City's General Fund bank account declined by $133,751.28. All else being equal, the City shoulda oughta had about $1.87 million cash in various bank accounts when Richard Richards took office as Mayor on January 1, 2015.

Bank records for January 12, 2016 show the City had a total of $1,575,635.99 cash on hand, which represents a deficit of some $290,000 since 1/1/15.

It is impossible to reconcile the bank numbers with the City's financial reports, even if you're allowed to round off to the nearest hundred thousand dollars. The difference between a $290k decline shown in the bank records and the claimed deficit of $107k shown in the City's financial reports is too big to ignore.

Except, everyone seems to have no trouble ignoring it.

One of these days, somebody will take this seriously.


Don't get excited,
The thief he kindly spoke,
There are those here among us
Who think that life is but a joke.






--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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What does a West Buechel Financial Statement look like?

This is the Quarterly Financial Statement for the City of West Buechel, Kentucky for the quarter ending 12/31/2015. It was prepared by City Clerk-Treasurer Kimberly Richards and it was submitted to the West Buechel City Council by Mayor Richard Richards. This report is called a Profit & Loss Statement and, as you can see, it is not a GASB compliant Financial Statement. It is a KRS 424.220 Financial Statement.

This report suffers from quite a few factual inaccuracies.

For example, Police Department payroll for the quarter was reported as $91,954.01

In fact, Police Department payroll for the quarter was $176, 158.02

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Thursday, July 21, 2016

What does a GASB Financial Statement look like?

 Since KRS 91A.040(6)(c) requires the GASB compliant Financial Statements to be made part of the City's annual audit report, the quick way to find one is to go to a recent audit report for an example of what a GSAB Financial Statement looks like. Unfortunately Richards & Richards have not commissioned or produced an audit report for FY 2014-2015, so we have to go back to the last audit report produced by the Fowler administration for FY 2013-2014:

These Financial Statements for the City of West Buechel are extracted from the City's FY 2013-14 audit report. They were produced by Jonathan Michael Smith.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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There is more than one type of "Financial Statement"

 KRS 91A(1)(b) requires a city's books of account to be maintained so to fairly and fully disclosure the City's financial operations in conformity with generally accepted governmental accounting principles.

The Governmental Accounting Standards Board (GASB) is the recognized authority on generally accepted governmental accounting principles.

The first type of Financial Statement for city fiscal accounting is the type that is mandated by the GSAB. These Financial Statements are created monthly, quarterly, but at least annually by the city's treasurer or bookkeeper and these are the Financial Statements that an independent C.P.A. audits, as required by KRS 91A.040.

KRS 91A.040(6), however, specifically references two different types of Financial Statements. The first one is the type just discussed, GASB Financial Statements:

 KRS 91A.040(6) "Each city shall . . . publish . . . "
(c) A statement that a copy of the complete audit report, including financial statements and supplemental information, is on file at city hall and is available for public inspection during normal business hours;
But,  KRS 91A.040(6) also states:
(f) A statement that copies of the financial statement prepared in accordance with KRS 424.220 . . . are available to the public at no cost . . . .
 Thus, there are clearly two different types of Financial Statements cities are required to produce:
  1. GASB Financial Statements, and; 
  2. Financial Statement prepared in accordance with KRS 424.220
One or the other is not enough. Gotta have both.

KRS 424.990 provides the criminal and civil penalties imposed upon government officials personally for not complying with the financial reporting requirements of KRS 424.220.

Being trusted with public money is clearly not a job for amateurs. Having a competent lawyer helps too. 

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Fun times in Jefferson District Court

So, back in March I filed a lawsuit against against Richard W. Richards and his ace bookkeeper Kimberly Richards under KRS 424.990. I have come to suspect that I am the first person in the History of the Universe to undertake such litigation.

Floating a totally brand new idea before a Jefferson District Court Judge is not the wholly joyful experience you might expect it to be.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Once upon a time in the Southern District of Indiana

Once, in the U. S. District Court for the Southern District of Indiana, Indianapolis Division, Hon. Cale J. Holder presiding,  there was a long jury trial of a major drug smuggling operation. Every day the DEA agents would cart in six or seven huge bales of marijuana and stack them right in the front of the courtroom where the jury could see them all day long, and then they would cart them out after the jury was sent home for the day. It was good courtroom theatrics and for some reason the defense lawyers never complained about it.

These big bales of pot were not wrapped in plastic or burlap. They were like hay bales with nothing but baling wire holding them together. Did International Harvester know their hay balers were being used for this purpose? I like to imagine that John Deere has a dedicated sales force marketing farm machinery to Mexican pot plantations. Business is business.

Kentucky farmers may have a thing or two to learn from the Mexicans, as hard as that may be to admit.

Once, after court had recessed for the day and the bales had been removed from the courtroom, I noticed that there was still a lot of loose pot left on the carpet. It looked like about an eighth of an ounce that fell out of the bales. The DEA guys didn't clean up after themselves.

Next morning, the pot that had been on the carpet was gone. I guessed the cleaning guy scooped it up over night and smoked it. Having a generous spirit, I went out of my way to give those bales a little kick with the toe of my shoe when I walked past, to loosen them up some.

My philosophy is a happy worker is a productive worker and nobody ever got killed by a runaway vacuum cleaner. 
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Things I learned as a litigator


1.  It is impossible to win at settlement if you are not prepared to win at trial. Therefore, to settle a case, get ready for trial.

2, It is pointless to win at trial if you are not also prepared to win on appeal, or to win on appeal if you lose at the first trial. Therefore, to win at trial, prepare to win on appeal.

It the grand scheme of things, appeals are a lot cheaper than are trials. If trial preparation is competently planned and executed, the research is done, the briefs are already written and part of the Clerk's file, and you made your damn record!

Therefore, to settle a case, aim to win the appeal.

The specialization and division of labor between trial lawyers and appeal lawyers makes no sense. A good trial lawyer must, of necessity, also be a good appeal lawyer.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Why do people do what they do?

Litigation between spouses in divorce situations are frequent example of irrationality in action, to the benefit of only the lawyers involved. The recent Court of Appeals opinion in Lee v. Lee,  No. 2014-CA-000387-MR, July 15, 2016 is a good example.

Mr. Lee formed a Kentucky Limited Liability Corporation to shield his assets from a $70,000 judgement obtained by Mrs, Lee. The Jefferson Circuit Court disregarded the supposed separate and independent existence of the LLC and held, as a matter of fact, that the LLC was the judgment debtor's "alter ego."

In other words, the LLC was a sham and, for all practical purposes, the judgment against Mr. Lee was also a judgment against the LLC. Therefore, the Court issued a garnishment order against the LLC's bank.

Mr. Lee was clearly a big fan of Founding Father Robert Goodloe Harper, who famously issues the drunken declaration of principle "Millions for defense, but not one cent for tribute," in connection with the XYZ affair and French attempts at extortion. (Harper's toast was subsequently adopted as a slogan in connection with the Barbary pirate conflict, for which it is better known.) Mr. Lee did not appeal the Circuit Court's factual determination to disregard the LLC's separate existence, but he did assert the proposition on appeal that a separate judgment against the LLC was required for a bank garnishment, whether the LLC was a sham or not.

It didn't work.

I think I understand everything so far.

The trial and appellate judges do what they do because it's their job.

The lawyers do what they do for the money and pointless appeals are actually cheaper than the time it would take to talk sense to a blockhead. "You pay for it, we'll do it," is not a bad motto.

Mrs. Lee wanted her money and Mr. Lee didn't want to give it to her.

But, the Amicus brief in the appeal has me stumped. Who and why would anyone file an Amicus brief in an appeal like this?

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Wednesday, July 20, 2016

Things I learned while a Federal Disctict Court Judge law clerk

1.  F.B.I. Agents have NO sense of humor, but D.E.A. Agents like to have fun.

2. Unbiased judges do not exist.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Did you ever hear the story about the chicken?

 OK. If I understand KRE 608 correctly, this is how it works:


Question: Do you have an opinion about the defendant's truthfulness? KRE 608(a)(1)

Answer: Yes I do.

Question: What is your opinion about the defendant's truthfulness?

Answer:  I believe the defendant is very truthful.

-----

Cross exam: On direct you expressed your opinion that the defendant was truthful.

 Answer: Yes.

Cross exam: Did you ever hear about the incident with the defendant and the chicken? KRE 608(b)

-- Objection, your Honor. Foundation.

-- I have an affidavit right here, your Honor, that explains all about that chicken. May I approach? (Hands paper to judge. Judge reads and frowns. The defendant's dog killed a neighbor's chicken. When the neighbor asked the defendant to pay for his chicken, the defendant falsely insisted his dog had been at the vet for two days, but he had been caught in the lie.)

Alternate ending #1

--  Objection overruled. Proceed.

Answer: No. I don't know anything about any chicken. What chicken?


Alternate ending #2

--  Objection sustained. Proceed

 Question: OK. Did you ever hear about the incident with the defendant and the pig?

This is bound to have have a bad effect on the jury. Chickens? Pigs? What type of pervert is this? 

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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What I learned while Law Clerk for the Indiana Supreme Court


1. Make your damn record!!

2. 90% of all homicides are alcohol or drug related.

Oh, I also learned that if one is exposed to a steady diet of insanity, senseless mayhem and gore, it takes about six months to go totally numb to it.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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The heart of accountability

 The heart of accountability rests on acknowledging that we cannot trust politicians and public officials  to regulate themselves.

Quis custodiet ipsos custodes?

Who will guard the guards themselves?

You are the only one.

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Tuesday, July 19, 2016

A snippet


When a witness testifies to the good character of a party, he may be asked if he has not heard that the party had done this or that; but proof may not be made by other witnesses in rebuttal that the party had done the things in question.
Etherton v. Commonwealth, 246 Ky. 553, 55 S.W.2d 343, 347 (1932).

KRE 405
(a) *** 
(b) Inquiry on cross-examination. On cross-examination of a character witness, it is proper to inquire if the witness has heard of or knows about relevant specific instances of conduct. However, no specific instance of conduct may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of the inquiry.
(c) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

See also:
Baze v. Commonwealth, 965 SW 2d 817, (Ky 1997)
Purcell v. Commonwealth, 149 SW 3d 382, (Ky 2004)

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Monday, July 18, 2016

Imagine

I'm trying to imagine what it will be like when I subpoena the entire West Buechel City Council and the former Mayor to answer this one simple question:

What is Rick Richards' reputation for truthfulness?

--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Notes on character evidence | Credibility | Impeachment

 KRE 607 Who may impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.
 -oOo-

KRE 404 Character evidence and evidence of other crimes

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of victim generally. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, other than in a prosecution for criminal sexual conduct, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witnesses. Evidence of the character of witnesses, as provided in KRE 607, KRE 608, and KRE 609
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
(c) Notice requirement. In a criminal case, if the prosecution intends to introduce evidence pursuant to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable pretrial notice to the defendant of its intention to offer such evidence. Upon failure of the prosecution to give such notice the court may exclude the evidence offered under subdivision (b) or for good cause shown may excuse the failure to give such notice and grant the defendant a continuance or such other remedy as is necessary to avoid unfair prejudice caused by such failure.
 -oOo-
KRE 405 Methods of proving character

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to general reputation in the community or by testimony in the form of opinion.
(b) Inquiry on cross-examination. On cross-examination of a character witness, it is proper to inquire if the witness has heard of or knows about relevant specific instances of conduct. However, no specific instance of conduct may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of the inquiry.
(c) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
 -oOo-
  
KRE 608 Evidence of character and conduct of witness
 
 (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness, and 
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:
(1) concerning the witness' character for truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. 
No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.
 -oOo-

KRE 613 Prior statements of witnesses

(a) Examining witness concerning prior statement. Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that the impeaching party has acted in good faith.

(b) This provision does not apply to admissions of a party-opponent as defined in KRE 801A.
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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KRE 609 Impeachment by evidence of conviction of crime

 KRE 609 Impeachment by evidence of conviction of crime
(a) General rule. For the purpose of reflecting upon the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record if denied by the witness, but only if the crime was punishable by death or imprisonment for one (1) year or more under the law under which the witness was convicted. The identity of the crime upon which conviction was based may not be disclosed upon cross-examination unless the witness has denied the existence of the conviction. However, a witness against whom a conviction is admitted under this provision may choose to disclose the identity of the crime upon which the conviction is based.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect. 
(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
1. Mandatory. Not discretionary. ". . . .evidence that the witness has been convicted of a crime shall be admitted . . . . "
2. Felony convictions only (punishable by death or imprisonment for one (1) year or more).
3. Guilty pleas and pretrial diversions not yet completed count as convictions.
In Thomas v. Commonwealth, 95 S.W.3d 828, 830 (Ky. 2003) the Kentucky Supreme Court stated,“Once the trial court accepted his guilty plea to the underlying felony, the appellant was a convicted felon until such time as he completed the diversion program.,” (quoted in Praither v. Commonwealth, 301 S.W.3d 20 (Kentucky Supreme Court, 2009))

Thomas also stated, “Upon pleading guilty, the defendant’s “status as a ‘convicted felon’ was established”

Commonwealth v. Derringer, 386 SW 3d 123 – (Kentucky Supreme Court, 2012)
"[A] defendant is considered convicted of the offense, for certain purposes, once he enters the guilty plea”
4. If the witness admits to the felony conviction, the nature of the crime may not be inquired into upon cross-examination, although the witness may elect to disclose it voluntarily.

5. The conviction may be established by public record and the identity of the crime disclosed if the witness denies the conviction. I suppose the public record of the conviction or guilty plea could be admissible, if properly redacted to hide the identity of the crime, even though the witness admitted it.

6. Generally limited to convictions less than ten years old.


--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Horse sex and evidence of habit

 Effective July 1, 2006, after a long struggle with the issue, the Kentucky Supreme Court adopted KRE 406, regarding the admissibility of evidence tending to establish a person's or organization's habit or routine practice.
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
In Curry v. Bennett 301 SW 3d 502, (Ky. App. 2009), the trial court's decision to admit testimony it is the normal practice, or custom, in the American Saddlebred horse industry that the trainer acts as the agent for the horse owner was affirmed on appeal. Since there was not anything especially prejudicial about this testimony that might be reason to exclude it under KRE 403, the court did not abuse its discretion by admitting it.

The horses were in two different states. The horse sex was totally clinical.
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Sunday, July 17, 2016

West Buechel - No problem that cannot be ignored

Hilda Christine Walton was a legendary figure in West Buechel. I never met her since she knocked the dust off her sandals and left town before I arrived. I've been told that she was better looking than Jessica Rabbit, if you know who that is. It was intended as a compliment . . . to be better looking than a cartoon character.

Once upon a time Ms. Walton owned eight adjoining lots right next to West Buechel's City Hall.

Former Mayor Sharon Fowler coveted those lots for some undisclosed public purpose, or she got tired of looking at the ratty house that stood there. It all depends upon who you ask. Therefore, with boodles of taxpayer cash sitting in the bank doing nothing, the obvious solution was for the City to buy the property, demolish the house and figure out what to do with the land later. All for the measly price of $135,000, which was up from Ms. Walton's original asking price of $125k. 

So, that's what the City of West Buechel did in 2013, and life was wonderful. Until I came along.

I read then damn deed and noticed it conveyed only six of the lots, leaving out two right in the middle: 3912 Shepherdsville Rd.  So, I did what I do. I wrote a blog post about it and brought it to everyone's attention. 

Since Rick Richards and I were still on speaking terms at the time, in May 2015, I specifically told him about the deed problem.  Basically, it went like this: Mr. Mayor, you have a problem. The solution is to get Ms. Walton to sign a deed of correction. Tell the City Attorney, he'll know what to do. Have a nice day. I've done my part. Good luck.

What did Mayor Richards do?

Nothing.

What did the City Council do?

Yawn.

What happened next?

Hilda Walton got incinerated in a flaming car crash and died on April 23, 2016.

Those two missing lots are now part of Ms. Walton's estate, under some lawyer's thumb, and it is now a much, much easier problem for the City to solve. Adding lawyers, probate judges and heirs to the mix is always a step in the direction of simplification.
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Saturday, July 16, 2016

KRS 424.990 - details

 KRS 424.990 Penalties.

This is how KRS 424.990 looks in the books. Arcane.

Any person who violates any provision of KRS 424.110 to 424.370 shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500). In addition, any officer who fails to comply with any of the provisions of KRS 424.220, 424.230, 424.240, 424.250, 424.290 or 424.330 shall, for each such failure, be subject to a forfeiture of not less than fifty dollars ($50) nor more than five hundred dollars ($500), in the discretion of the court, which may be recovered only once, in a civil action brought by any citizen of the city, county or district for which the officer serves. The costs of all proceedings, including a reasonable fee for the attorney of the citizen bringing the action, shall be assessed against the unsuccessful party.

This is how it looks reformatted for easy reading. Paragraph breaks and numbering added:
1. Any person who violates any provision of KRS 424.110 to 424.370 shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500). 
2. In addition, any officer who fails to comply with any of the provisions of KRS 424.220, 424.230, 424.240, 424.250, 424.290 or 424.330 shall, for each such failure, be subject to a forfeiture of not less than fifty dollars ($50) nor more than five hundred dollars ($500), in the discretion of the court,
  • which may be recovered only once, in a civil action
  • brought by any citizen of the city, county or district for which the officer serves.
  • The costs of all proceedings, including a reasonable fee for the attorney of the citizen bringing the action, shall be assessed against the unsuccessful party.
The fines imposed in paragraph 1 are clearly in the nature of criminal violations to be prosecuted by the County Attorney in the name of the Commonwealth, with all that implies, with exclusive jurisdiction in the District Court.  The fines are imposed for violations of any part of KRS Chapter 424, pertaining to legal notices that must be published by various units of  government in the Commonwealth.

KRS 424.110 through 424.215 are general provisions relating to the time, content, manner, cost and proof for publication of required legal notices.

KRS 424.2200 through 424.380 relate to specific matters that must be published. These include:
  • Financial Statements - KRS 424.220 & 230;
  • Budgets - KRS 424.240 & 250;
  • Bids - KRS 424.260;
  • Administrative Regulations - KRS 424.270;
  • Due Dates for Ad Valorem Taxes - KRS 424.280;
  • Election Ballots - KRS 424.290;
  • Public Service Commission Hearings - KRS 424.300;
  • Delinquent Taxes KRS.424.330;
  • Fiduciary Appointments - KRS 424.340;
  • Invitation to Bid on Municipal Bonds - KRS 424.360, and;
  • Judicial Sales of Real Property  KRS 424.370.
The criminal fines imposed by KRS 424.990 apply to violations of all of these.

The civil forfeiture provision applies only to non-compliance with the KRS sections relating to Financial Statements, Budgets, Election Ballots and Delinquent Taxes.


--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Where no mouse has gone before - Accountability

There's a great story in The Last Whole Earth Catalog about an old-time retail (General Store) marketing trick. The store owner would cut a series of round holes in a big piece of plywood and screw glass Ball Jars in from the back. With a frame around the edge and a screen cover over the top, the set up was ready for the mouse.

Each hole would have a different percentage marked next to it. Several were marked 5%. Fewer were marked 10% and maybe only one was marked 20%. On Mouse Sale Monday, or whenever, the deal was when the store owner released the mouse, which hole the mouse ducked into was the percent price discount the customer received.

 The store owner always placed a few mouse turds in the 5% holes and a drop of cat urine in the 20% hole.

The mouse almost always steered away from the cat urine and tended to go toward the sent of other mice, and the customer was happy to get 5% off.

Humans, like mice, generally prefer the familiar and friendly and avoid the strange and dangerous territory.

So it goes with lawyers and judges.  If you have any doubt about that reality, just try something no lawyer or judge has ever seen before. You will be about as attractive as cat piss to a mouse.

Consider KRS 424.990 relating to criminal and civil penalties imposed upon certain public officials..
Any person who violates any provision of KRS 424.110 to 424.370 shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500). In addition, any officer who fails to comply with any of the provisions of KRS 424.220, 424.230, 424.240, 424.250, 424.290 or 424.330 shall, for each such failure, be subject to a forfeiture of not less than fifty dollars ($50) nor more than five hundred dollars ($500), in the discretion of the court, which may be recovered only once, in a civil action brought by any citizen of the city, county or district for which the officer serves. The costs of all proceedings, including a reasonable fee for the attorney of the citizen bringing the action, shall be assessed against the unsuccessful party. 
Did you ever see that one before?

Cat piss.
--------------------

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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