MOORE, JUDGE.
Betty Whitaker appeals the Franklin Circuit Court's order denying her motion to dismiss the indictment against her. After a careful review of the record, we affirm because Whitaker's double jeopardy rights were not violated and the Commonwealth did not welsh on its bargain.
Whitaker was employed by the Commonwealth of Kentucky as a "Mine Safety Analyst I, Energy and Environment Cabinet, Department for Natural Resources, Office of Mine Safety and Licensing." Following an investigation, she was charged by the Commonwealth's Executive Branch Ethics Commission (Commission) of violating KRS
Whitaker ultimately entered into a settlement agreement with the Commission, wherein she admitted that she committed violations of KRS 11A.020(1)(b), (c), and (d); she agreed "to pay the Commission a civil penalty in the total amount of one thousand five hundred dollars ($1,500.00) on or before August 28, 2009"; and she agreed that once the Commission's final order was entered, she waived "all rights to any further administrative process or appeal pursuant to KRS 13B.140 thereon." Additionally, the settlement agreement provided that both parties agreed "that the acceptance of this Settlement Agreement by both parties, and the fulfillment of its express terms, is in full accord and satisfaction of the herein referenced Executive Branch Ethics Commission v. Betty Sue Whitaker, Agency Case No. 09-001." Subsequently, the Commission entered a final order dismissing the matter on the basis that it had been settled.
The Commonwealth then indicted Whitaker on twenty-eight counts of tampering with public records pursuant to KRS 519.060. Each count alleged that Whitaker falsified reports regarding various mines and caused the reports to be filed and entered with the Kentucky Department for Natural Resources, Office of Mine Safety and Licensing.
Whitaker filed a motion to dismiss the indictment and an amended motion to dismiss. She alleged that the indictment violated her double jeopardy rights under the Kentucky and United States Constitutions. Specifically, Whitaker argued that the subject matter of the indictment and the subject matter of the Commission's prior ethics complaint against her in Executive Branch Ethics Commission v. Betty Sue Whitaker, Agency Case No. 09-001, were the same and that she had already been punished for the same charges, pursuant to the settlement agreement in the case involving the ethics complaint. Whitaker also contended the settlement agreement provided that both parties agreed there was "full accord and satisfaction" of the issues between the parties, and she asserted that the Commonwealth should be required to keep its promises.
The Commonwealth opposed both the motion to dismiss and the amended motion to dismiss. A hearing was held on the motion, and the circuit court denied the motion to dismiss, holding that the proceedings by the Commission against Whitaker "were civil in nature, and that the civil penalty imposed by the administrative agency did not implicate the penal or criminal jurisdiction of state government." The court found that the decision in Turbyfill v. Executive Branch Ethics Commission, 303 S.W.3d 124 (Ky. App. 2009), as modified (Ky. App. 2010), was controlling because in Turbyfill, this Court held that the Ethics Commission's proceedings were civil, rather than criminal. The circuit court also noted that the Commission is "an administrative agency that has no power to waive, settle, or compromise the position of the Commonwealth in any matter outside the scope of its administration of the ethics statute codified at KRS Chapter 11A."
The Commonwealth made an Offer on a Plea of Guilty, which stated that if Whitaker entered conditional guilty pleas on all of the counts, the Commonwealth would recommend a sentence of five years for each count, to be served concurrently, for a total of five years of imprisonment. The guilty pleas would be conditioned on Whitaker's right to appeal the issue "of whether her indictment violates double jeopardy as same subject matter in Commonwealth of Kentucky Executive Branch Ethics Commission, Case No. 09-001." The Commonwealth also would recommend that Whitaker pay a $3,500.00 fine and investigative costs of $8,200.00.
Whitaker moved to enter a conditional guilty plea in accord with the Commonwealth's Offer on a Plea of Guilty. The circuit court entered its judgment, stating that Whitaker had entered her guilty plea to the twenty-eight counts of tampering with public records.
Whitaker now appeals, contending that: (a) the circuit court erred when it held that the indictments did not violate her double jeopardy rights; and (b) the circuit court erred in failing to dismiss the indictments pursuant to Workman v. Commonwealth, 580 S.W.2d 206 (Ky. 1979).
Whitaker first contends the circuit court erred when it held that the indictments did not violate her double jeopardy rights. She alleges she was previously penalized by the Commission pursuant to the settlement agreement in the ethics complaint case, when she agreed to pay a $1,500.00 civil penalty and she received a reprimand, so her criminal conviction places her in double jeopardy.
In her criminal case, Whitaker was charged with multiple violations of KRS 519.060, which provides:
11A.020(1)(b), (c), and (d), which provide:
"Both the Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution secure an individual's protection against double jeopardy. The Fifth Amendment specifically states that no person shall `be subject for the same offence to be twice put in jeopardy of life or limb.'" Simpson v. Commonwealth, 159 S.W.3d 824, 826 (Ky. App. 2005) (internal quotation marks and citation omitted).
Whitaker cites Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Turbyfill, 303 S.W.3d at 124, in support of her double jeopardy claim. In her appellate brief, she asserts that Kurth Ranch stands for the proposition that "the [D]ouble [J]eopardy [C]lause prohibits both the imposition of criminal charges and civil punitive penalties." Whitaker then notes that in its Kurth Ranch decision, the United States Supreme Court referred to its prior decision in Halper. Whitaker continues, discussing the Supreme Court's holding in Halper, and she argues that the Halper "fact pattern is directly relevant to [her] issue before this Court." However, we note that Halper was abrogated by Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).
As for her reliance upon Kurth Ranch, that case involved the question of whether a tax could be characterized as punitive, in a way that the tax violated one's double jeopardy rights. Kurth Ranch, 511 U.S. at 778, 114 S.Ct. at 1945. The Court in Kurth Ranch noted that "tax statutes serve a purpose quite different from civil penalties, and Halper's method of determining whether the exaction was remedial or punitive simply does not work in the case of a tax statute." Kurth Ranch, 511 U.S. at 784, 114 S.Ct. at 1948 (internal quotation marks and citation omitted). Therefore, because Kurth Ranch involved a tax statute, which is very different from the civil penalty that Whitaker was ordered to pay, Kurth Ranch is inapplicable to the present case; Whitaker's reliance upon it is misplaced.
Finally, Whitaker cites Turbyfill in support of her double jeopardy claim. In Turbyfill, the issue was whether the Kentucky Executive Branch Ethics Commission, i.e., the same Commission that is involved in the present case, had the "authority to pursue an administrative proceeding for the purpose of sanctioning . . . Turbyfill, who was previously pardoned by" the Governor. Turbyfill, 303 S.W.3d at 126. "Turbyfill filed a motion to dismiss with [the Commission's] hearing officer arguing that the violations alleged by the [Commission] were the same charged in the criminal indictment and, therefore, were encompassed within the Governor's pardon." Turbyfill, 303 S.W.3d at 127.
The Court in Turbyfill concluded and reasoned as follows:
Turbyfill, 303 S.W.3d at 129-30 (internal quotation marks omitted).
Whitaker cites Turbyfill, but claims it is distinguishable from her case. She alleges it is distinguishable because Turbyfill was indicted criminally and pardoned by the Governor before the Commission brought its ethics complaint against Turbyfill, while in Whitaker's case, the Commission brought its ethics complaint against her and the parties settled that case by agreeing Whitaker would pay a $1,500.00 civil penalty and be subject to a public reprimand before she was criminally indicted. Nevertheless, we find the reasoning in Turbyfill on point and applicable to Whitaker's case because the civil action in Turbyfill involved violations of the same statute that Whitaker violated, i.e., KRS 11A.020, and because Turbyfill also involved the application of KRS 11A.100, which was the statute pursuant to which Whitaker's settlement agreement was entered. Thus, for the same reasons that the Court found the civil penalty in Turbyfill was a civil remedy, rather than a criminal penalty, we hold that Whitaker's civil penalty was merely a civil remedy, rather than a criminal penalty. Consequently, her double jeopardy rights were not violated by the criminal indictment.
Finally, Whitaker alleges that the circuit court erred in failing to dismiss the indictments pursuant to Workman, 580 S.W.2d at 206, because in Workman, the Supreme Court held that "the government should [not] be allowed to welsh on its bargain." Workman, 580 S.W.2d at 207. Whitaker contends that the settlement agreement she entered into with the Commission stated that both parties agreed that the fulfillment of the agreement's terms was in "full accord and satisfaction," which proves that both the Commonwealth and Whitaker intended the document to resolve all issues between them. The Commonwealth argues that this issue was not preserved for appeal because it was not specified in Whitaker's conditional guilty plea and, alternatively, that Workman is inapplicable.
In Dickerson, the Kentucky Supreme Court stated that on appeal from a conditional guilty plea, issues will only be considered if they:
Dickerson, 278 S.W.3d at 149.
In the present case, the issue concerning the Workman case was not expressly set forth in the conditional plea documents. However, that issue was brought to the trial court's attention in Whitaker's amended motion to dismiss, which was filed before she entered her conditional guilty plea. Therefore, pursuant to Dickerson, we will consider the issue.
Whitaker asserts that by indicting her, the Commonwealth is attempting to welsh on its bargain, which is not permitted under Workman.
Accordingly, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR.
