Editor's Note: You Asked is a new feature The Times-Tribune is publishing allowing readers to submit questions that they have and we will try to find the answer. Please submit questions to firstname.lastname@example.org.
In the June 23 primary, Tom O’Dell Smith was elected to serve as the 86th District State Representative.
Prior to the primary, the Times-Tribune published an article detailing Smith's court case in which Smith was convicted and sentenced for felony extortion charges on July 2, 1993 in the United States District Court - Eastern District of Kentucky.
Smith was sentenced to serve 27 months for two counts of extortion under the color of official right.
According to the official court docket provided to the Times-Tribune by the London office of the United States District Court - Eastern District of Kentucky for the case of Thomas Anthony Smith, the charges were felonies.
The Kentucky Constitution section 150 titled, “Disqualification from office for using money or property to secure or influence election - Corporation not to use money or other thing of value to influence election - Exclusion from office for conviction of felony or high misdemeanor - Laws to regulate elections", states, “ All persons shall be excluded from office who have been, or shall hereafter be, convicted of a felony, or of such high misdemeanor as may be prescribed by law, but such disability may be removed by pardon of the Governor.”
The Times-Tribune then filed a Freedom of Information Act Request with the Kentucky Secretary of State’s Office to determine if there was a pardon from the governor in Smith’s case. Kentucky Assistant Secretary of State Jennifer Scutchfield is the official custodian of public records of the office. Pardons are granted by the governor, but the secretary of state keeps the records.
In fulfilling the request which asked for, “Pardon or Partial Pardon of Thomas Anthony Smith or Thomas O’Dell Smith,” Scutchfield emailed the reporter to ask for the birthday of the individual mentioned in the request. Using Smith’s Facebook profile, the reporter was able to identify the birthday of Smith and emailed the birthday to Scutchfield.
Scutchfield then called the reporter to ask for any additional information about Smith that the reporter may have had, so the reporter informed Scutchfield of the cases in both the federal district court and federal court of appeals in 1993 and 1994 respectively.
In Scutchfield’s official response to the open records request, she stated, “The Office of the Secretary of State conducted a search of thousands of the online records regarding pardons executed by Governors of Kentucky and were unable to find an instance for a ‘Thomas Anthony Smith’ or 'Thomas O’Dell Smith'."
In her response, Scutchfield suggested the reporter contact the Kentucky Department of Corrections to determine if the individual was included in Gov. Andy Beshear’s executive order in December 2019 which restored the civil rights of voting and holding office to 140,000 individuals.
Following the suggestion by Scutchfield, the Times-Tribune then called and emailed with the public information officer of the Kentucky Department of Corrections, Katherine Williams. Williams issued a statement to the Times-Tribune which states, “We have no record of Thomas Smith in our system ever applying for restoration. However, his case is from the 1990s and predates our electronic database. Due to his federal charges, he does not qualify for automatic restoration of his civil rights. If he would like his rights restored, he would need to send in an application through our department.”
The Times-Tribune sent an email to the Kentucky Governor’s Office communication director July 7 to ask if the office could confirm if the executive order issued by Gov. Andy Beshear included Smith, but as of publication had not received a response.
Because neither the Kentucky Secretary of State’s Office nor the Kentucky Department of Corrections Office were able to provide records documenting a pardon or restoration of civil rights for Smith at the state level, the Times-Tribune began looking for a federal pardon issued for Smith.
The United States Department of Justice provides an electronic list of individuals who have received, been denied or had their applications for clemency or pardon administratively closed since 1989 on its website.
After searching for Thomas Smith, two Thomas Smiths had their application for pardon administratively closed in 1994 and 1999. One Thomas Smith had their application for pardon denied in 2008. One Thomas Anthony Smith had their application for pardon denied in 2011.
According to the website, no applications for clemency or pardon for any of the Thomas Smiths listed have been approved.
If a case is administratively closed, that means no presidential action was taken, according to the website.
The Times-Tribune submitted a Freedom of Information Act request to the Office of the Pardon Attorney on July 2 to verify if any of the Thomas Smiths on the Department of Justice website are Tom O'Dell Smith, the newly re-elected state representative.
In addition to the filed requests, the Times-Tribune contacted the American Bar Association to get clarifications about Kentucky election law. The reporter spoke with the chair of the Committee on Elections law who directed us to Joshua Douglas at the University of Kentucky.
Douglas, a professor of law at the University of Kentucky, is an expert in election law, voting rights, constitutional law, civil procedure and judicial decision making. Douglas referenced the Kentucky Revised Statutes, particularly the administrative regulations for restoration of civil rights to eligible felony offenders, to reiterate that someone in a situation like Smith would most likely need to apply for civil rights restoration. That application, according to the statute, would be submitted to the Department of Corrections.
As stated earlier, the public information officer of the Kentucky Department of Corrections, Katherine Williams issued a statement to the Times-Tribune which states, “We have no record of Thomas Smith in our system ever applying for restoration.”
Part of the filing requirements to be considered as a candidate is to file a Notification and Declaration form. Part of this form states, “that I meet all the statutory and constitutional qualifications for the office which I am seeking.”
The form also states, “... if finally elected I will qualify for the office.”
The Times-Tribune filed a Freedom of Information Act request with the Kentucky Secretary of State to obtain a copy of the Notification and Declaration form signed and submitted by Smith.
The Times-Tribune made several attempts to contact Smith and his campaign for comment, but did not receive a response.
Smith was contacted by phone eight times beginning May 28 for comment. Smith’s campaign was contacted an additional seven times by phone beginning May 27.
ANSWER: We’re still not sure, but we are trying to find out.