Friday, June 26, 2009

League of Cities stops releasing its records, saying it isn't a public agency

When the Lexington Herald-Leader asked the Kentucky League of Cities for a lot of records a few months ago, the league complied. Now the organization, which has expanded its business activities beyond lobbying, says it will no longer voluntarily release records.

The league "is not a public agency and not subject to the Kentucky Open Records Act," Temple Juett, the League's attorney, said in a letter to the Herald-Leader yesterday. The newspaper reported, "In all the past responses to the Herald-Leader's open records requests, Juett had stated that the league's status as a public agency had never been determined, but that the league would comply voluntarily. Herald-Leader Editor Peter Baniak said the paper will pursue the records issue through the appropriate channels."

Typically, that means an appeal to the attorney general, whose decisions in open-records and open-meetings matters have the force of law, followed by a lawsuit from the side that loses at the attorney general's office. In 1993, the office "found that the Kentucky Association of Counties, similar in its structure and services to the league, was a public agency because it received at least 25 percent of its revenues from public sources," the Herald-Leader reports. "The league receives its revenues from city membership dues, insurance premiums and loan payments. But it is unclear whether the 1993 ruling ... applies to the league."

The league wants a legal determination of its status, said Richmond Mayor Connie Lawson, who chairs the group's executive board. Another board member, Lexington Mayor Jim Newberry, said he did "not understand the league's rationale for changing its position concerning open records." The board opened its June 19 meeting at the request of the Herald-Leader.

On June 17, after the newspaper published stories about the salaries and expenses of top league executives, it asked the group for records of the group's payments to law firms. That prompted this week's letter. The league had denied an earlier request, for records of payments to the firm where Executive Director Sylvia Lovely's husband, Bernard Lovely, is a partner. (Read more)

UPDATE: Sylvia Lovely has resigned as executive director of the league.

Monday, June 22, 2009

Attorney general says county school board violated sunshine law with serial meetings

The Ohio County school board violated the state open-meetings law by having a series of meetings, each having less than a quorum of members, to discuss extending a buyout offer for the superintendent, Attorney General Jack Conway said in opinion that was issued last week and released today.

The opinion was requested by Don Wilkins, editor of the Ohio County Times News, who alleged that the board chairman coordinated the meetings in order to get at least three of the five members to support a retirement buyout for Supt. Soretta Ralph. Wilkins had asked the board to give the weekly newspaper any records reviewed during the meetings and any written accounts of the meetings, to apologize for violating the law, and to pledge to obey it. Board Chairman Barry Geary "never did admit he broke a state law governing open meetings, but he said several times he would never do it again," Wilkins wrote in the May 28 edition.

When Wilkins appealed to the attorney general, Geary admitted speaking to two other members about the proposal. Superintendent Soretta Ralph alleged that Geary had contacted other board members to discuss how they would vote on matters to be dealt with at board meetings, and provided a statement from one member saying Geary had discussed the buyout with him by telephone.

The attorney general's decision (09-OMD-93) said there was no apparent dispute about the conversations, and cited two previous decisions holding that the law's definition of meetings -- "all gatherings of every kind" -- includes telephone conversations. However, it said it is unable to determine whether the meetings were held with the intent of violating the law. It also said it did not have the authority to order the board to produce the documents he requested.

Board attorney A.V. Conway told the attorney general's office that he had no advance knowledge of Geary's discussions with other members about the issue. Wilkins reported May 28, "The attorney said three members of a board cannot discuss something outside an open meeting and then hope to come to an open meeting and vote on that issue." He quoted Conway as saying, “Perhaps I should have had a discussion with the new board members before their first meeting.” Conway is the uncle of the attorney general.

Thursday, June 18, 2009

League of Cities invites Herald-Leader to tomorrow's board meeting

UPDATE: Sylvia Lovely has resigned as executive director of the league.

The Kentucky League of Cities board has agreed to open its meeting tomorrow, at which directors are expected to discuss spending and other management issues in the wake of Lexington Herald-Leader stories about the organization that lobbies for cities and in the last 20 years has become their major insurer.

"Our board must be aware of all aspects of our business, including but not limited to compensation policies and guidelines," KLC Executive Director Sylvia Lovely, right, said in an op-ed article in the newspaper today. "And, while we hold to the belief that we are not subject to the open-meetings statutes, we invite the Herald-Leader to come to our meeting on Friday."

Herald-Leader Editor Peter Baniak told the Kentucky Open Government Blog, “We’re pleased that the Kentucky League of Cities has decided to open the meeting because what the league does is of vital public interest to cities, their employees and citizens. We hope the league will continue to be transparent.”

While the league is not covered by the state Open Meetings Act, it appears to be covered by the Open Records Act, which applies to any entity that gets at least 25 percent of the money its spends in Kentucky from state or local authority. The league fulfilled the open-records requests of Herald-Leader reporter Linda Blackford.

Lovely wrote that Blackford's articles "portray an executive with a sense of entitlement to rewards that are beyond the reach of public-sector leaders in our state. None of my compensation would probably have been written about if the paper accepted the League's position that we are in a competitive insurance business and have generated revenues during my tenure on the order of private companies. The insurance program was offered as a replacement for private insurance companies which stopped offering coverage to cities in the late 1980s. We now compete with these companies for city insurance business. The CEOs of those private companies typically earn much more than I in compensation and benefits, work no harder than I do, and do the same kind of business travel for similar purposes." (Read more)

UPDATE, June 19: The KLC board voted today to create a committee to review policies and procedures. It suspended expenditures at Lexington’s Azur Restaurant, which is one-fifth owned by Lovely's husband, Bernard Lovely; suspended travel for spouses of the executive staff; and decided to replace the sport-utility BMW that is part of Lovely's compensation.

Monday, June 15, 2009

Open courtrooms help ensure fair trials

The following opinion piece has appeared in several Kentucky newspapers.

By Mike Farrell

The governor is on the witness list. The president of the state Senate may also be called to testify. One defendant, a former head of the state Transportation Cabinet, is accused of taking bribes while providing inside information to another defendant, a road contractor. Can anyone imagine a scenario in which the public has more interest, or more right, to know what is happening as the wheels of justice turn?

This is a public corruption case. If the defendants are guilty they have defrauded the taxpayers. The indictment alleged that the scheme between former Secretary William Nighbert and contractor Leonard Lawson resulted in Lawson winning state road contracts worth $130 million.

Despite the obvious stake the taxpayers of this state have in this federal court case and despite prior federal court rulings that courts must be open, a U.S. magistrate judge held a secret hearing on important motions excluding both the public and the media. He did so without issuing proper notice or publishing his reasons.

This is neither a confused area of the law nor an insignificant one. The Supreme Court of the United States settled this issue long ago. In 1980, the justices said open courts help ensure that prosecutors and judges don’t abuse their authority and that the public’s confidence in the court system is sustained. Open courts help protect the right of the defendants to a fair trial because people are watching.

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Chief Justice Warren Burger wrote. “When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.”

In 1986, the Supreme Court ruled that the right to a public trial extended to preliminary hearings, in part because they have traditionally been open. The court cited the 1807 preliminary hearing for former Vice President Aaron Burr on treason charges, which was moved to a larger courtroom because of the crush of observers.

U.S. District Judge Danny Reeves overlooked all of that when he said the magistrate’s decision to close a hearing in the corruption case was justified because of the amount of pre-trial publicity. It is the court’s responsibility to protect the defendants’ Sixth Amendment right to a fair trial. But the Supreme Court has never said that should be accomplished while trampling the public’s right to open courtrooms. In fact, appeals courts have outlined alternatives so that hearings and trials are conducted in the open, allowing the public and the media access.

Defense attorneys complain often during a high-profile trial like this one that stories in newspapers about the case will make it difficult to seat a jury capable of meeting the Sixth Amendment’s standard of a fair trial. In response, Judge Reeves already has moved the trial from Frankfort to Covington, where much of the population does not work for the state government and is less likely to have read every story as intently as people who live in Central Kentucky.

While unsealing the transcript of the secret hearing, after attorneys for the Courier-Journal and the Herald-Leader objected, Judge Reeves chastised the media for keeping the public informed. "Everything that happens in this case ends up in the newspapers," Reeves said, according to The Courier-Journal. "There are certain things that don't need to be disclosed."

It is more than disappointing that a federal judge with a lifetime appointment shows such little respect for the role of a free press in a democratic society. Open courts are as important for public confidence in the judiciary as fair trials. Open courts help ensure fair trials. Federal judges and magistrates should understand the lessons the Supreme Court taught nearly 30 years ago.

Secrecy, the kind that occurred in this case, undermines both the First and Sixth amendments to the Constitution. Secrecy and democracy are enemies, and every judge should understand that.

Mike Farrell is the director of the Scripps Howard First Amendment Center, and an assistant professor in the School of Journalism and Telecommunications, at the University of Kentucky.

Tuesday, June 9, 2009

Mine-safety agency not living up to Obama's promises for transparency, Ky. lawyer says

The Mine Safety and Health Administration is getting heat from groups who claim the organization is withholding information that should be disclosed under the Freedom of Information Act.

OMB Watch reports that the secretive tactics of MSHA are not meeting the standards of a transparent government President Obama promised when his term began. In the past 25 years, Kentucky mine-safety attorney Tony Oppegard says, he has requested and received information from MSHA without issue. But, in October 2008, that openness stopped. Since then, Oppegard says MSHA has given him the runaround and cited several exemptions to the FOIA as reasons for withholding information, which he calls “utter rubbish.” He has denounced MSHA’s failure to disclose and reminded the agency's legal counsel of the Obama administration’s new FOIA policies.

In an article in Mine Safety and Health News, Oppegard wrote that more enforcement is needed to achieve transparency on the part of MSHA. “Miners can only hope – and trust – that when the new assistant secretary takes office, he will put a quick end to the agency’s blatant attempts to protect operators who have been charged with discrimination by miners,” he wrote. Obama has yet to name an assistant secretary of labor for coal-mine safety and health.

The subscription-only newsletter also reports that it has had difficulty extracting information from MSHA. In an editorial in the same issue, it says the agency’s secrecy is suspicious. "Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners, their families, industry and the press." (Read more) –From The Rural Blog

Tuesday, June 2, 2009

Water board is a private entity, so it can bar members from meetings, attorney general says

A Rockcastle County water system can bar members from its meetings because it isn't a public agency, Attorney General Jack Conway said in an open meetings decision last week.

"Because Eastern Rockcastle Water Association, Inc. is a private, nonstock, nonprofit corporation organized under KRS Chapter 273, ERWA cannot properly be characterized as a 'public agency' within the meaning of KRS 61.805(2)," Conway said. "Accordingly, ERWA is not required to comply with provisions of the Open Meetings Act." It cited a 1978 attorney general's opinion.

The latest opinion, which has the force of law, was requested by Barbara Castleberry, who said ERWA President David Ballinger prevented her and four other customer-members of the association from attending its monthly board meetings at a county-owned facility. “A notice that limited attendance to Board Members, Board Attorney, General Manager, and Auditor was posted on the meeting room door,” Castleberry wrote. When she and the others tried to attend the meeting, “Mr. Ballinger called the Office of the Rockcastle County Sheriff, who sent two deputies to escort the group from the meeting room.”

Catstleberry argued that ERWA is referred to as "a public governmental agency" in an agreement it made with the Western Rockcastle Water Association. That was a reasonable argument, Conway said, but "none of that language is determinative on the facts presented. ... The Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act."

In a footnote, Conway noted that a private, nonprofit corporation may be a public agency for purposes of the Open Records Act even if not covered by the Open Meetings Act. The Open Records Act applies to entities that get at least 25 percent of the funds they expend in the Commonwealth from state or local authorities. The decision is No. 09-OMD-81.

In an Open Records Decision, 09-ORD-079, Conway said the Cabinet for Health and Family Services did not violate the law by not providing copies of copyrighted material used by the Department for Medicaid Services in making determinations of clinical appropriateness.