Mike Martindale v. Executive Branch Ethics Commission ( 2021 )

RENDERED: OCTOBER 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0581-MR
MIKE MARTINDALE APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
v. HONORABLE BRIAN K. PRIVETT, JUDGE
ACTION NO. 18-CI-00101
EXECUTIVE BRANCH ETHICS
COMMISSION APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND McNEILL, JUDGES.
LAMBERT, JUDGE: Mike Martindale, proceeding pro se, has appealed from the
order of the Woodford Circuit Court affirming the final order of the Executive
Branch Ethics Commission finding that he had violated the Executive Branch Code
of Ethics, Kentucky Revised Statutes (KRS) Chapter 11A, while he served as a
public servant and fining him $5,000.00. We affirm.
KRS Chapter 11A sets forth the Executive Branch Code of Ethics (the
Code of Ethics), which is designed to promote the ethical conduct of both present
and former public servants. KRS 11A.005 sets forth the statement of public
policy:
(1) It is the public policy of this Commonwealth that a
public servant shall work for the benefit of the people of
the Commonwealth. The principles of ethical behavior
contained in this chapter recognize that public office is a
public trust and that the proper operation of democratic
government requires that:
(a) A public servant be independent and
impartial;
(b) Government policy and decisions be
made through the established processes of
government;
(c) A public servant not use public office to
obtain private benefits; and
(d) The public has confidence in the
integrity of its government and public
servants.
(2) The principles of ethical behavior for public servants
shall recognize that:
(a) Those who hold positions of public trust,
and members of their families, also have
certain business and financial interests;
(b) Those in government service are often
involved in policy decisions that pose a
potential conflict with some personal
financial interest; and
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(c) Standards of ethical conduct for the
executive branch of state government are
needed to determine those conflicts of
interest which are substantial and material or
which, by the nature of the conflict of
interest, tend to bring public servants into
disrepute.
The Executive Branch Ethics Commission (the Commission), established in KRS
11A.060, is charged with enforcing the provisions of the Code of Ethics,
investigating any alleged violations, and initiating an administrative proceeding to
determine whether a violation has taken place. See KRS 11A.080.
Martindale worked as an Inspector I for the Public Protection Cabinet,
Department of Housing, Building, and Construction (the Department), specifically
as an HVAC field inspector, from May 1, 2010, through November 4, 2015. He
submitted a letter of resignation on October 20, 2015, in which he provided his two
weeks’ notice. In his position as an Inspector I, Martindale was a public servant as
defined by KRS 11A.010(9).1 In January 2016, the Commission received a referral
from the Department and thereafter began an ethics investigation of Martindale.
1
(9) “Public servant” means:
(a) The Governor;
(b) The Lieutenant Governor;
(c) The Secretary of State;
(d) The Attorney General;
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In its investigation, the Commission was charged with determining
whether Martindale had violated the Code of Ethics by using his official position to
obtain a financial gain, among other violations. The Commission entered an
Initiating Order in July 2016 indicating that it found probable cause to believe that
Martindale had violated the Code of Ethics and initiated an administrative
proceeding as a result. It alleged that September 11, 2015, Martindale had used his
official position as an HVAC Inspector to access confidential and personal contact
information concerning HVAC licensees who were regulated by the Department.
He accessed this information by running a report in the internal Jurisdiction Online
(JO) system and then gave this information to his wife, Velicia Martindale, who
had started TRADETECH, an online company in the business of providing HVAC
and plumbing continuing education.2 Martindale and/or his wife used this
confidential contact information to solicit licensees to take the TRADETECH
(e) The Treasurer;
(f) The Commissioner of Agriculture;
(g) The Auditor of Public Accounts;
(h) All employees in the executive branch including officers as defined in
subsection (7) of this section and merit employees; and
(i) Any person who, through any contractual arrangement with an agency, is
employed to perform a function of a position within an executive branch agency
on a full-time, nonseasonal basis[.]
2
Martindale and his wife lived together in Versailles, Kentucky, and they filed joint federal and
state tax returns.
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classes. By April 27, 2016, licensees regulated by the Department had used
TRADETECH’s online classes more than 800 times. Accordingly, the
Commission charged Martindale with violating KRS 11A.020(1)(c) and (d), KRS
11A.020(2), and KRS 11A.040(1).3
Martindale, proceeding without counsel, responded to the Initiating
Order, denying that he had used his former position for financial gain for himself
or his wife’s business and that he believed the ethics complaint was filed in
retaliation for issues he had previously raised to Roger Banks and Tim Crick.4 He
also stated that he had run the report with all of the licensee information hundreds
3
KRS 11A.020 states in relevant part:
(1) No public servant, by himself or through others, shall knowingly:
...
(c) Use his official position or office to obtain financial gain for
himself or any members of the public servant’s family; or
(d) Use or attempt to use his official position to secure or create
privileges, exemptions, advantages, or treatment for himself or
others in derogation of the public interest at large.
(2) If a public servant appears before a state agency, he shall avoid all conduct
which might in any way lead members of the general public to conclude that he is
using his official position to further his professional or private interest.
KRS 11A.040(1) states: “A public servant, in order to further his or her own economic interests,
or those of any other person, shall not knowingly disclose or use confidential information
acquired in the course of his or her official duties.”
4
Banks and Crick were Martindale’s supervisors when he worked for the Department. Banks
was the Assistant Director/Acting Director, and Crick was the Field Operations Manager, of the
HVAC Division of the Department.
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of times as it was in the scope of his job duties; other inspectors and managers ran
these reports as well, he assumed. He denied sharing any information with
TRADETECH and stated that his wife had obtained her information from a list on
the Department’s website.
The assigned Hearing Officer held an administrative hearing on
August 30 and 31, 2017. Martindale continued to claim that the ethics complaint
was in retaliation for reporting issues with the hiring of Greg Birge as well as other
complaints. In his opening statement, he stated that he “at no time ever gave any
information to anyone, and this is all due to retaliation and it started with Tim[.]”
During the second day, the Hearing Officer told Martindale “to confine your
questions to this issue and this issue only – is whether or not you can refute the
allegations that you were using your position as an employee to benefit yourself
economically or your wife’s business. That’s the issue.”
Pursuant to the Hearing Officer’s direction, the parties filed written
closing statements setting forth their respective positions. In its filing, the
Commission pointed out that Martindale “provided no evidence that he or his wife
obtained the contact information for the HVAC licensees independently from his
use of the JO system. If Mrs. Martindale had gathered the contact information for
38,000 HVAC licensees throughout the Commonwealth, common sense would
dictate that she would have records to show her efforts.” Based upon the evidence
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presented, the Commission asserted that it had proven Martindale had violated the
listed sections of the Code of Ethics and, as a penalty, recommended a $5,000.00
fine, a public reprimand, and the issuance of a cease and desist order with the
instruction that he return the JO reports he had uploaded from the system.
In his closing statement, Martindale argued that the Commission had
not supplied any “real” evidence, such as evidence that running these reports was
not in his job description or that he had broken any policy. He described the
information submitted at the hearing by the Commission as hearsay. In addition,
Martindale stated that the ethics complaint was brought purely in retaliation after
he submitted his letter of resignation on October 20, 2015, which had included
allegations against the Department. He also disputed much of the testimony and
evidence submitted at the hearing. In its reply, the Commission pointed out that
Martindale failed to defend against the charges but used his opportunities at the
hearing and in his closing statement to inappropriately focus on his retaliation
claim against the Department.
The Hearing Officer entered his findings of fact, conclusions of law,
and recommended order, after which both parties filed exceptions. The
Commission then entered a final order on March 19, 2018. In the final order, the
Commission found that Martindale’s actions constituted a “clear violation” of KRS
11A.020(1)(c) and (d), KRS 11A.020(2), and KRS 11A.040(1). It stated that:
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By his corrupt actions, Martindale betrayed the trust
accorded to him by the HVAC division, disclosed
confidential information obtained in the course of his
official duties to further his own economic interests,
financially benefited from his misdeeds and thereby
obtained a financial gain, and in so-doing acted in
derogation of and contrary to his duties as a trusted field
inspector.
As a penalty, the Commission imposed the maximum monetary penalty of
$5,000.00:
In reaching this conclusion, the Commission states that
the violation was a serious one in that Martindale took
advantage of his position of trust as an Inspector and
exploited it to the financial benefit of his wife, and hence
for himself in derogation of his duties as an inspector.
From the evidence presented in this case, Martindale
accessed the [JO] site in early March, 2015. Thereafter,
in September 2015, Martindale swept up all the HVAC
licensee data from the JO system, sorted by birth month.
This was a flagrant and repeated violation. Finally, there
is clear and convincing evidence that Martindale
substantially profited from his misdeeds, in that as
calculated by the Commission his wife’s business
grossed approximately $15,000. Although Martindale
disputed this amount in his response, he did not present
any evidence at the administrative hearing that this
amount was incorrect or failed to take [into] account any
related expenses.
In addition, the Commission ordered Martindale to immediately cease and desist
using the data obtained from the JO system; ordered him to submit all copies of the
data downloaded between March 22, 2015, and September 11, 2015, to the
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Commission, which would transmit the data files to the Department; and issued a
public reprimand.
Martindale opted to exercise his right to appeal the Commission’s
final order in an original action filed in the Woodford Circuit Court pursuant to
KRS 13B.140. He sought the following relief:
For this case to be heard and the final order to be
dismissed based on the facts the Ethics Commission
never provided any evidence I downloaded, printed or
provided any documentation to anyone. All of the
information is based on What If and Hypothetical. And
for the Ethics Commission to face charges for bring[ing]
and pursuing a case brought on false allegations once
they were informed and failing to Serve the
Commonwealth of Kentucky when they failed to
investigate my case I had brought to them that this was a
result of direct retaliation against me being a so called
WHISTLEBLOWER. And allowing an individual Greg
Birge to continue to work for the [Department] after they
were informed he was hired illegally by Roger Banks and
Tim Crick.
In its answer, the Commission stated that Martindale’s complaint failed to state a
claim upon which relief could be granted and that it should be dismissed.
The court set up a briefing schedule for the parties to present their
cases. Martindale’s brief focused on his belief that he had been subjected to
retaliation for his complaints about problems in the Department. He also stated
that he had not misused or sought personal gain through his position with the
Department and that the Commission’s evidence was circumstantial. In its brief,
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the Commission argued that it had not acted arbitrarily and that substantial
evidence established that Martindale had violated multiple provisions of the Code
of Ethics by accessing confidential information through his position with the
Department. The court held a hearing on September 11, 2019. Martindale
continued to argue the Commission did not present any evidence at the
administrative hearing. He claimed the information he obtained was of public
record and that the Commission’s witnesses lied at the hearing. He again brought
up his retaliation claim regarding an ethics violation that he reported. The court
entered an order affirming on April 2, 2020, and this appeal now follows.
KRS 13B.150 sets forth the process of judicial review from decisions
made by an administrative agency:
(1) Review of a final order shall be conducted by the
court without a jury and shall be confined to the record,
unless there is fraud or misconduct involving a party
engaged in administration of this chapter. The court,
upon request, may hear oral argument and receive written
briefs.5
(2) The court shall not substitute its judgment for that of
the agency as to the weight of the evidence on questions
of fact. The court may affirm the final order or it may
5
This subsection was amended, effective February 2, 2021, to state:
Except as provided in KRS 452.005, review of a final order shall be conducted by
the court without a jury and shall be confined to the record, unless there is fraud
or misconduct involving a party engaged in administration of this chapter. The
court, upon request, may hear oral argument and receive written briefs.
Challenges to the constitutionality of a final order shall be reviewed in accordance
with KRS 452.005.
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reverse the final order, in whole or in part, and remand
the case for further proceedings if it finds the agency’s
final order is:
(a) In violation of constitutional or statutory
provisions;
(b) In excess of the statutory authority of the
agency;
(c) Without support of substantial evidence
on the whole record;
(d) Arbitrary, capricious, or characterized by
abuse of discretion;
(e) Based on an ex parte communication
which substantially prejudiced the rights of
any party and likely affected the outcome of
the hearing;
(f) Prejudiced by a failure of the person
conducting a proceeding to be disqualified
pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.
KRS 13B.160 provides for a further appeal in this Court: “Any aggrieved party
may appeal any final judgment of the Circuit Court under this chapter to the Court
of Appeals in accordance with the Kentucky Rules of Civil Procedure.”
This Court’s standard of review in an appeal from an administrative
action “is limited to determining whether the decision was erroneous as a matter of
law.” McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860
(Ky. 2001). The former Court of Appeals held that “judicial review of
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administrative action is concerned with the question of arbitrariness.” American
Beauty Homes Corp. v. Louisville and Jefferson Cty. Planning and Zoning
Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). In Parrish v. Commonwealth, 464
S.W.3d 505, 509-10 (Ky. App. 2015), we further explained our role in the
appellate process:
A party aggrieved by the circuit court’s final
judgment may then appeal to the Court of Appeals. KRS
13B.160. In reviewing an agency decision, we must be
ever mindful of our limited role. If the agency’s decision
is supported by substantial evidence, we must uphold that
decision, even if there is conflicting evidence in the
record and even if we might have reached a different
conclusion. 500 Associates, Inc. v. Natural Res. & Envtl.
Prot. Cabinet, 204 S.W.3d 121, 131 (Ky. App. 2006).
Substantial evidence does not mean that the record
could not support any other conclusion. “The test of
substantiality of evidence is whether when taken alone or
in the light of all the evidence it has sufficient probative
value to induce conviction in the minds of reasonable
men.” Kentucky State Racing Comm’n v. Fuller, 481
S.W.2d 298, 308 (Ky. 1972). If there is substantial
evidence in the record to support the Board’s findings,
they will be upheld, despite other conflicting evidence in
the record. Kentucky Comm’n on Human Rights v.
Fraser, 625 S.W.2d 852, 856 (Ky. 1981); see also KRS
13B.150(2). We may not reinterpret or reconsider the
merits of the claim, nor can we substitute our judgment
for that of the agency as to the weight of the evidence.
Id. We further note that “[i]n its role as a finder of fact,
an administrative agency is afforded great latitude in its
evaluation of the evidence heard and the credibility of
witnesses[.]” Aubrey v. Office of Attorney Gen., 994
S.W.2d 516, 519 (Ky. App. 1998); see also McManus v.
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Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky. App.
2003).
With this in mind, we shall consider Martindale’s argument.
As he has throughout this process, Martindale bases his argument for
reversal on his disagreement with the Commission’s findings of fact. He asserts
that the Commission did not introduce any evidence that he had downloaded,
printed, or provided any documentation to anyone; that any evidence submitted
was circumstantial; and that the ethics charge was brought in retaliation for his
being a whistleblower. We agree with the Commission that the final order was
supported by substantial evidence introduced at the administrative hearing.
We have reviewed the testimony and evidence introduced at the two-
day administrative hearing, and we hold that the findings of the Commission in the
final order were not arbitrary and that its conclusion that Martindale violated
several provisions of the Code of Ethics was proper:
42. In reviewing the unchallenged clear and
convincing evidence, it is clear to the Commission that
Martindale was (1) a public servant at the time the
violations occurred and (2) he violated KRS 11A.020(c)
and (d), KRS 11A.020(2), and KRS 11A.040(1) on
multiple occasions beginning in March, 2015, when he
conducted a test run of his access to all of the JO licensee
records. Thereafter, in September 2015, Martindale
made twelve (12) open records requests6 and effectively
exported to an Excel file all of the HVAC licensee
6
Searches within JO are referred to as open records requests. These should not be confused with
Open Records Requests pursuant to KRS Chapter 61.870 to 61.884. (Footnote 6 in original.)
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information, sorted by birth month. The evidence is also
unrefuted that Martindale had no work-related reason to
access all of these records. As noted by Banks and Crick,
if an Inspector was using the [JO] program, it would be
for the limited purpose of checking the license of an
individual HVAC licensee or to determine which
installation permits needed to be approved.
43. The link between Martindale’s unauthorized
access of this data and its use by TRADETECH is also
unambiguous. In late September, advertising flyers were
sent to HVAC licensees advertising the availability of
TRADETECH’s on line courses. Notably, some of these
emails were sent to the personal email address of the
licensees, information that would not be available to the
general public through a routine open records request.
The circumstantial evidence is therefore overwhelming
that Martindale used his official position as a Field
Inspector I to access the [JO] data system to his own
benefit or to the benefit of others (specifically his wife).
Martindale also personally profited from his actions in
that his wife sold to HVAC licensees online courses at
twenty dollars ($20.00) per two-hour course. As to this
issue it should be once again noted that TRADETECH is
an unincorporated entity and Michael and Velicia
Martindale file joint tax returns.
In upholding the final order, the circuit court stated that “[t]he
evidence presented at the hearing was detailed, and of enough volume to support
the Commission of meeting their burden of proof and findings by a preponderance
of evidence.” The court also recognized that Martindale was hindered by
proceeding without legal counsel, in that “[t]he evidence he presented at the Ethics
Commission hearing, as well as tendered to this [c]ourt shows that he does not
understand the nature of these procedures, and that he may have wanted to try
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other avenues for relief.” Accordingly, the circuit court did not commit any error
in upholding the final order of the Commission.
For the foregoing reasons, the Woodford Circuit Court’s order
affirming the final order of the Commission is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael Martindale, pro se Michael W. Board
Versailles, Kentucky Kathryn H. Gabhart
Frankfort, Kentucky
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