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Kathleen Kane

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By Kevin Zwick, Capitolwire

 

One of the two lawmakers who led impeachment proceedings in the mid-1990s has warned a House subcommittee against interfering with the ongoing criminal case against Attorney General Kathleen Kane.

 

“I’m assuming the D.A. doesn’t want the Judiciary Committee snooping around until they’re done,” said House Minority Leader Frank Dermody, D-Allegheny, who chaired the House Judiciary Committee’s Subcommittee on Courts during the 1994 impeachment of former Supreme Court Justice Rolf Larsen.

 

Dermody said Larsen had already been convicted by a lower court when the impeachment proceedings began. Larsen, who refused to resign even though he was removed from the bench and convicted, had years left in his judicial term of office, Dermody said.

 

Kane has announced that she won’t seek re-election, meaning she would be out of office in January 2017. After she leaves office she will no longer be a civil officer and can’t be impeached, Dermody said.

 

“I have doubts as to whether it’s necessary,” Dermody said, adding it would be difficult to conduct the proceedings within the time frame of Kane leaving office.

 

Kane is facing criminal charges, including perjury, in Montgomery County. Her trial is scheduled to begin in August. She has said the House impeachment process is premature and should wait until her case is settled in court.

 

Former Sen. Jeff Piccola, R-Dauphin, who was the ranking Republican House member of the subcommittee and prosecuted the Larsen case along with Dermody, told the subcommittee that there must be a bipartisan consensus before moving forward.

 

“You simply cannot go into this process without an atmosphere of bipartisanship,” said Piccola. “Both sides have to want to engage in this process … if not, you’re faced with a very difficult time in the Senate.”

 

A civil officer can only be removed after a two-thirds vote in the Senate following a trial on impeachment in that chamber. Anyone impeached is prohibited from holding public office in the future.

 

The recent attempt to remove Kane from office for reasonable cause, which failed because proponents couldn’t muster the necessary two-thirds vote in the Senate, shows the risk of not solidifying bipartisan support before moving forward.

 

Piccola also advised the committee to hire outside counsel to assist with an expansive workload. Philadelphia-based firm Saul Ewing and a small, Wilkes-Barre-based firm were hired to assist during the Larsen impeachment.

“There’s a reason it happens every 150 years,” Dermody said. “…It needs to be reserved for the most extreme cases.”

However, Dermody’s spokesman, Bill Patton, said Larsen had more than four years left on his term when the House committee was investigating him in 1993-94. He would have next stood for retention in 1997.

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Former Gov. Ed Rendell told the Senate panel scrutinizing Attorney General Kathleen Kane it would be “chaos” if they removed her from office before the state Supreme Court, with its three new Democratic members, rules on reinstating her law license.

Rendell pleaded for them to back away from the direct removal method. Although agreeing the Senate has the authority, he suggested another path.

“Guys,” he said, abruptly adjusting, “Senators, impeach her. Don’t use this method.”

Rendell said the Senate should wait until after the state’s high court rules on an emergency petition Kane filed Jan. 12. There is “almost an entirely new Supreme Court from the one that suspended her” license, Rendell said, before posing a hypothetical: what were to happen if this committee recommend that she be removed and the Supreme Court decided to reinstate her license?

“Would we have to come back to the Senate for action? How do you defend your position? Are you removing her as long as her license remains suspended?” Rendell said. “It’s a very difficult question because she’s going before a new court, (with) at least three judges who haven’t heard this issue before. I would urge you not to take action at all, but certainly not to take action until the Supreme Court has ruled on her request.”

The committee has 15 days to complete a report recommending future actions on removal.

Kane is arguing the high court’s unanimous ruling to temporarily suspend her law license was tainted by the participation of Justice Michael Eakin. A bit more than three months after the ruling on Kane’s license suspension, Eakin was temporarily suspended with pay by a disciplinary tribunal over controversial private emails.

With Eakin temporarily suspended, the six-seat high court’s makeup is now five Democrats, three of which were sworn in last week, and one Republican, the chief justice.

Rendell, who served as district attorney of Philadelphia from 1978 to 1986 and Philadelphia mayor in the 1990s, also testified that during his tenure leading the largest D.A.’s office in Pennsylvania he mostly made policy, public relations, or enforcement decisions, while leaving legal decisions up to his staff attorneys. While this was to show that Kane can perform the duties of her office without a valid law license, he admitted some of his decisions were made with both legal and policy considerations.

At one point, Rendell and committee chairman Sen. John Gordner, R-Columbia, clashed when the former governor asserted the committee is trying to remove Kane over her conduct in office, not her license suspension, so they should impeach her. Kane is facing several criminal charges in Montgomery County stemming from an alleged leak of grand jury material to a Philadelphia newspaper, covering it up and lying about it under oath. She denies any wrongdoing.

“Would we be having these hearings if someone had a suspended license because they didn’t fulfill their C.L.E. requirements? Of course not,” Rendell said. “You’re having these hearings because of the other things Kathleen Kane is charged with doing. Do it the right way. Impeach her if that’s what you believe.”

“That’s apples and oranges, governor,” Gordner said.

“No, it’s not apples and oranges. It’s a suspended license,” Rendell said.

Rendell’s approach to interacting with the committee was almost gladiatorial, creating a noticeable contrast to the previous two hours when the committee grilled Kane’s chief of staff, Jonathan Duecker, who had at least one heated exchange with Senate President Pro Tem Joe Scarnati, R-Jefferson.

Duecker, who described himself as an “objective loyalist” to Kane, said he was testifying to give a different perspective on the office’s functions compared to the testimony provided by four of the Office of Attorney General’s top lawyers in November.

“The practice of law is narrow to all the other things we do in the office,” he said. “I’m not part of any of the three legal divisions within the office. I am in charge of, at the direction of the Attorney General, everything else. So I get to see things, frankly, that our attorneys have historically never seen, never want to see, never ask to see, were not interested in seeing. I can’t answer why they don’t understand or don’t see what the full scope of authorities, responsibilities and duties are for the office in general.”

 

He pointed to the Supreme Court’s suspension order which specifically mentioned the order was not removing her from office. Duecker argued the wording showed the court “understands and recognizes her vast responsibilities outside of the practice of law.”

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MC  Kathleen Kane

Attorney General Kathleen Kane contracted with Maryland’s former top law enforcement officer to pour over thousands of illicit emails, giving full subpoena and grand jury power to look for violations of criminal, civil or ethics law.

Taking the stage at the National Constitution Center in Philadelphia, Kane believes she has the authority to make the appointment, and issued a warning to those who disagree: “And to the few who challenge it, including some members of my own staff, I pose a simple, three-pronged question: Are you a white male? Are you or one of your buddies in this email network? Are you trying to get my job without the benefit of having to run for it and being chosen by the people of Pennsylvania?”

Doug Gansler, the former attorney general of Maryland now of the law firm BuckleySandler LLP, was appointed to lead a team of investigators and has “the sword of prosecutorial powers to do so,” said Kane, the embattled first-term Democrat. She is facing several criminal charges for allegedly leaking grand jury material and lying about it under oath and had her law license suspended in October.

“You would imagine the way you create a team is by delegating your own authority to prosecute, but she doesn’t have the authority to prosecute,” said Bruce Ledewitz, a law professor at Duquesnse University School of Law. “It would seem she would be precluded, but no one could say for sure because we are in uncharted waters with everything she does.”

Gansler, a Democrat, isn’t licensed to practice law in Pennsylvania. In 2003 he was formally reprimanded by the Maryland Court of Appeals for making extrajudicial remarks to the media when he was the Montgomery County State’s Attorney during some high-profile investigations. Those remarks “had a substantial likelihood of depriving several criminal defendants of fair trials,” according to Maryland Judge Lynne Battaglia, who wrote the court opinion. Gansler has said the reprimand was in retaliation for his criticism of a Montgomery County judge.

He and his team will conduct a wide-ranging investigation into emails that are demeaning to minorities, women, the LGBT community and religious groups, and were sent or received by judges, prosecutors, defense attorneys and law enforcement officials on government computers, Kane said.

The scope of the investigation is “intentionally broad because we don’t know what’s in there,” Gansler said. “We are there to look at the facts and only the facts and where ever they take us.”

He later added, “I think there’s ample reason to believe that, based on what has been released to the public, based on the fact that public officials have lost their jobs, resigned their jobs, based on the representation made by people who have seen the emails … that this is far more than a fishing expedition.”

The firm will be paid by OAG funds.

Kane is currently managing the Office of Attorney General without a valid law license, but has delegated some authority to her deputies, including wiretap authority. Other duties are being “executed” by First Deputy Bruce Beemer as the office potentially faces a “myriad of legal challenges” from defense lawyers challenging the authority of the office.

Gansler said appointing special prosecutors is “by definition not practicing law because she is saying ‘you guys will be practicing law, I’m doing my administrative function.’”

However, it could lead to legal challenges.

“The special prosecutors will begin by investigating,” Ledewitz said. “If at some point they act like prosecutors, either by seeking a warrant or filing criminal charges, the object of those actions will challenge their authority.”

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MC  Kathleen KaneAttorney General Kathleen G. Kane has realigned her executive office to strengthen her commitment to public safety by continuing to prosecute drug dealers and child predators, protect consumers, seniors and veterans from fraud, and expose public corruption.
Blake Rutherford has been appointed Chief of Staff, effective December 15. Rutherford, 36, formerly served as Vice President of McLarty Companies, led by former White House Chief of Staff Thomas F. “Mack” McLarty. Prior to joining McLarty Companies, Rutherford was Chief of Staff to the Attorney General of Arkansas. During his tenure in Arkansas, the office established a Cyber Crimes Unit to fight Internet predators, and developed a wide-ranging Consumer Protection initiative and website intended to protect consumers against scams and fraud. From 2006 to 2010, Rutherford served as Director of Public Communications at Stone Ward, a full-service advertising and public relations firm. Prior to that, he was an attorney serving in private practice with the firm of Wright, Lindsey & Jennings LLP. Rutherford is a graduate of Middlebury College and the University of Arkansas School of Law. He lives in Philadelphia with his wife, Jessica Dean, who is the evening news co-anchor of CBS Philly.
“We are excited about adding Blake to our team. He has demonstrated his commitment to public service, and he brings extensive experience that will benefit this office and the Commonwealth in the coming year and beyond,” said Attorney General Kathleen G. Kane.
In addition, Attorney General Kane recently appointed Mike Stefan as her Legislative Director and hired Cathryn Hinesley as an Assistant Press Secretary to provide media relations and speech writing.
Renee Martin, who has been Acting Communications Director for several months, will return to her duties as Education and Outreach Director in January. This section of the office is staffed with agents across the state who work to educate Pennsylvanians of all ages about the myriad of services available to them through the Office of Attorney General. Attorney General Kane has selected a permanent Communications Director and more information about the new director will be announced when the employment process is completed.
Chief Operating Officer David Tyler has accepted a position outside the agency. His last day with the Office of Attorney General is December 12. During his tenure, Tyler provided critical assistance in passage of legislation that expanded the state’s prescription monitoring program; modernized operational processes and practices throughout the agency, saving more than $7 million; and created a robust Legislative Affairs office that will continue to serve all Pennsylvanians.
“We thank David for his service and wish him the best of luck in his new position. We look forward to our continued working relationship,” she said.

 

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MC  Kathleen KaneAttorney General Kathleen Kane has issued administrative subpoenas throughout the shale industry in Pennsylvania, broadening her review of natural gas royalty payment practices beyond Chesapeake Energy Corporation.
Sources confirmed administrative subpoenas have been issued throughout the energy industry for information about royalty calculations and payments in what is seen as an industry-wide survey to look at practices of such companies operating in Pennsylvania.

The Office of Attorney General’s Bureau of Consumer Protection Antitrust Section issued the subpoenas. Kane spokesman J.J. Abbott and a spokesman for the Marcellus Shale Coalition declined to comment on the matter.

Landowners have complained to legislators that Chesapeake, the largest drilling company operating in Pennsylvania, was deducting “excessive” post-production costs from royalty payments, causing those payments to drop below the mandated one-eighth minimum guaranteed royalty.

Responding to constituent complaints, Gov. Tom Corbett and Sen. Gene Yaw, R-Lycoming, asked Kane earlier this year to review Chesapeake’s royalty payment practices.

The 1979 Guaranteed Minimum Royalty Act says royalty payments must be 12.5 percent, or one-eighth, of the production value. However, the law says companies are allowed to tax leaseholders for post-production costs, which include things like adding compression, dehydration, gathering, and transportation.

Legislative efforts to address the issue and clarify the minimum royalty payments stalled a few months ago. The industry pushed back hard against legislation they said amounted to lawmakers trying to tamper with private leases. The industry believes companies are responsible for the costs of bringing the gas to the surface, but companies and leaseholders share the cost of preparing and delivering the gas to market, pursuant to terms of a lease.

Rep. Garth Everett, R-Lycoming, who sponsored one of the bills, has said rural Pennsylvanians signed “company leases” with little legal knowledge, unaware of the specifics of the agreement they signed. He called the leases “one-sided” in favor of industry.

“The legislation needs to provide relief, not only to those with one-eighth leases, but to those with higher percentage agreements. This must include not just rules on how royalties are calculated but also remedies for land owners who feel that their royalties are not being calculated correctly,” said Everett.

Everett’s bill, House Bill 1684, was passed by the Environmental Resources and Energy Committee with bipartisan support. It seeks not only to remedy the lease payments, but to ensure that drilling companies do not deduct excessive and unwarranted post-production costs from the payments as well. The Pennsylvania Supreme Court in 2010 issued a ruling suggesting that the General Assembly further clarify the 1979 law on how royalty payments are calculated, and the legislation would do that.

The Oklahoma City-based Chesapeake last August settled a federal class-action lawsuit filed in Scranton brought by more than 1,000 leaseholders for no less than $7.5 million to cover the cost of post-production deductions.
In broadening her office’s investigation, Kane issued administrative subpoenas, which differ from traditional subpoenas and are considered controversial because judicial oversight is not required.

Pennsylvania’s Administrative Code gives state departments, as well as independent and departmental commissions subpoena power to require “the attendance of witnesses and the production of books and papers pertinent to any hearing before such department, board, commission, or officer, and to examine such witnesses, books, and papers.”

Refusal to comply with the administrative subpoena could result in a contempt of court charge, according to the administrative code.

Kane, a Democrat elected to office in 2012, campaigned on aggressively monitoring the natural gas industry in Pennsylvania.

Kane’s office in January filed charges in criminal court against XTO Energy, an Exxon-Mobil subsidiary, for alleged violations of state environmental laws. In June, she filed numerous criminal charges including fraud and conspiracy against a Marcellus Shale waste hauling business in Northumberland County.

–Kevin Zwick, Capitolwire

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