Louisville Metro Councilman Pat Mulvihill is now the top lawyer at the Transit Authority of River City — and he’s keeping his council seat, too.
Mulvihill has represented District 10, which stretches from Germantown south to Watterson Park, since 2015. The Democrat draws a $48,790 annual council salary.
J. Tyler Franklin
Councilman Pat Mulvihill
Though city lawyers have concluded Mulvihill can legally hold both jobs, council members and ethics experts say such a move creates the perception of a conflict of interest. At TARC, Mulvihill reports to the executive director, who is appointed by Mayor Greg Fischer. That means he in essence is working at Fischer’s discretion. This, critics say, could muddy his ability to be an impartial voice for his district.
“It causes concerns,” said Metro Council President David James, also a Democrat. “Constituents could wonder if he is voting what he thinks is right or if he is voting for what the mayor wants.”
Mulvihill worked as Fischer’s general counsel and director of legislative affairs from 2011 to 2014. A spokesman for Fischer did not respond to a request for comment.
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Mulvihill said he doesn’t see the two jobs as a conflict, and he intends to recuse himself as a councilman from anything connected to TARC.
“Before I took the job, I tried to do as much due diligence as I could,” Mulvihill said.
When asked his salary for the TARC role, which he started this week, he said that could be obtained through an open records request.
TARC has been engulfed in scandal in recent months. The agency’s former executive director, Ferdinand Risco, resigned earlier this year after being credibly accused of sexual assault and harassment, and misappropriating agency funds. The council is currently investigating TARC for issues related to the scandals brought on by Risco.
The opinion of the Louisville Metro Ethics Commission states that Mulvihill should recuse himself from any discussion, decision making or voting related to any matter involving TARC that comes before the council.
The commission stated that although the city’s Ethics Code does not ban holding simultaneous positions of an employee of TARC and a councilmember, “the public may reasonably conclude this is a conflict.”
Last week, Fischer announced a new executive director for the agency — Carrie Butler, the former general manager of the public transit system in Lexington. Fischer had appointed interim co-executive directors to lead the agency while a new leader was hired, and a TARC spokesman said they hired Mulvihill.
A ‘Terrible’ Public Perception
When council members take jobs for other public entities it sullies their ability to be impartial and calls into question the validity of votes, positions and representation, said Richard Beliles, the state chair of Common Cause, a national nonpartisan government watchdog group.
“It’s a problem,” he said.” I think it’s a decision that should be reversed.”
Eric King, a spokesman for TARC, said the agency isn’t focused on the perception of a conflict of interest, but instead on if someone is qualified — and he said Mulvihill is.
Mulvihill’s mother, Mary Margaret Mulivhill, is credited with playing a pivotal role in the creation of TARC in the 1970s when she served as a city Alderwoman. She died late last month.
“It’s really full circle for him,” King said of Mulvihill’s hiring.
Mulvihill obtained opinions from the Kentucky League of Cities, the Jefferson County Attorney and the Louisville Metro Ethics Commission that “opined favorable to his service,” King said.
The three agencies found no legal standing that would prevent Mulvihill from serving both as a council member and as a top executive for TARC, a review of the opinions show.
But the opinion from the Jefferson County Attorney’s Office, where Mulvihill has twice worked in the past, warned that accepting the job at TARC could lead to his Metro Council seat being vacated if a court found the two positions incompatible.
Beliles, a longtime ethics expert in Kentucky, said legal opinions aside, the situation “just looks bad.”
Councilman Brent Ackerson, a Democrat who chairs the council’s Government Oversight and Accountability committee, said even if it’s legal for Mulvihill to serve both as a council member as TARC general counsel, it “has a terrible public perception.”
The council has a role in several aspects of TARC’s operations: it votes to approve TARC board appointees, which are recommended by Fischer. The council also approves the transit authority’s budgeted spending from a mass transit trust fund, which holds occupational tax funds and accounts for a bulk of the agency’s annual budget.
Louisville Attorney Peter L. Ostermiller, who specializes in ethics law, said Mulvihill would be wise to abstain from voting on any matter that relates to TARC.
“They wouldn’t have the interest if they don’t vote,” he said. “But that requires the person to be very diligent.”
Such recusal is necessary on the council’s actions and any action taken by TARC that will be submitted to the council, said Richard Briffault, a professor of legislation at Columbia Law School.
“One way or the other, he won’t be able to do the job he is supposed to do,” he said.
And if he can’t participate on the council, he is ultimately silencing his constituents, Briffault said.
“He’s denying his voters their say.”
This story has been updated to include comments from Councilman Mulvihill, who returned a call after publication. Contact Jacob Ryan at jryan@kycir.org.