National report gives data on records decisions, notes staff attorneys give state agencies an edge; expert says noncompliance is likely to increase

Based in part on a post by the Kentucky Open Government Coalition

The National Freedom of Information Coalition recently issued a white paper, ”Blueprint to Transparency: Analyzing Non-compliance and Enforcement of Open Records Laws in Select U.S. States.”

Kentucky is one of the states that is featured. The white paper gives recent data showing widespread violation of the Kentucky Open Records Act, and notes the disadvantage records requesters face when fighting with taxpayer-paid lawyers — an issue currently before the Kentucky General Assembly.

NFOIC reviewed open-records decisions by the Kentucky attorney general in 2016 and 2017 revealed a high prevalence of noncompliance: Almost half of open-records decisions in 2016 and 2017 exhibited a violation of the state Open Records Act (49 and 48 percent, respectively).

Former assistant attorney general Amye Bensenhaver, co-founder of the Kentucky Coalition for Open Government and primary author of open-government decisions for the attorney general for 25 years, told NFOIC that she expects noncompliance will grow because she sees "now-common impediments to access that were uncommon in the past—agency failure to conduct an adequate search for responsive records; agency rejection of requests as overbroad; unjustified agency delays in producing public records. The list of evasive tactics is growing."

Of the 511 decisions NFOIC reviewed, 74 (17%) found that an agency improperly withheld records; 60 (12%) found an improperly stated exemption. Louisville lawyer Jon Fleischaker, chief author of the records law, said public agencies often cite improper exemptions and ignore settled law.

“You have public officials that are reaching,” Fleischaker said. “And if they have a lawyer and they go to the books they’ll figure out that there are a lot of cases that say ‘No, they can’t do that. This has already been decided.’”

Also among the most common types of violations are those based on time, such as failing to respond to a request or allow inspection in a timely manner; 84 of the 511 records decisions (about 16%) exhibited a such violations, which are treated as procedural as opposed to substantive violations.

“I don’t consider, and I know Fleischaker doesn’t consider, a procedural violation a petty violation. It’s still a violation,” Bensenhaver said.

Playing with public money

Open-records decisions have the force of law, but the losing party can take the case to circuit court, and state agencies often do. Any civil penalties for violations fall on the agency, not the individual officials.

Because taxpayers cover the cost, a state agency has the resources — in the form of attorneys on the state payroll — to devote to litigation and the appellate process, allowing the state to appeal as many times as allowable to avoid or delay disclosing the records.

Unlike requesters, the public agency usually does not incur hourly attorneys fees.

“They’re using their time [on the public records dispute] instead of someplace else ... but it’s easy to hide that expense,” Fleischaker said. “It goes toward a different line item: Personnel. And nobody goes back to look at that stuff.”

Jason Riley of Louisville's WDRB-TV said some state agencies feel they are exempt from the law since penalties aren’t rigorously enforced against them: “Some agencies know how to work the system in their favor so as to not have to provide records they don’t want to provide unless a citizen or media outlet is willing to pay a lot of money and wait.”

Bensenhaver says no other state agency is as notorious for violating the records act than the Kentucky State Police. In the decisions where KSP was a party in 2016 and 2017, the attorney general found the agency in violation of the records act 19 times, or 59% of the time.

Riley found KSP was the most frequent violator of the act over the last five years​, after conducting a review​ of attorney-general decisions.

Bensenhaver, Riley and Fleischaker said the KSP frequently appeals decisions, which lengthens litigation and makes proceedings more expensive for records requesters.

“We won about $11,000 in fines and attorney fees earlier this year” from the KSP, Riley said, “but they have appealed that ruling.”

Large local governments also have attorneys on staff, but many if not most use contract attorneys and thus incur hourly fees.

House Bill 232, sponsored by Rep. Maria Sorolis, D-Louisville, would require agencies to pay attorneys’ fees if a court finds a record was willfully withheld; her HB 309 would award fees when there is no “justiciable reason” for an agency's denial of a complaint that it violated the Open Meetings Act. Neither bill has been posted for committee consideration; Sorolis is a Democrat, newly elected to a House with a Republican supermajority.

The national report says, “According to a ​2010 examination of state transparency laws​, the vast majority of state jurisdictions explicitly either allow for, or mandate, attorney fee shifting in open-government dispute cases because these disputes confer a societal good, not just personal benefit . . . to ensure that plaintiffs are able to find lawyers to represent them; to attract competent counsel to seek redress of statutory rights; and to even the fight when citizens challenge a public entity.”

Ky. high court says police can't just dismiss records requests using prospective-action exemption

The Supreme Court of Kentucky ruled today that law enforcement records are subject to open-records requests even if there is a "prospective law enforcement action," and that to withhold records for that reason, a law-enforcement agency must prove that a premature release of the them would hurt its prospective action.

The state's highest court ruled in a case brought by The Kentucky Enquirer, which wants the investigative file about a murder to which the victim's widow pleaded guilty in 2009 but is now seeking a new trial, alleging she had ineffective counsel. The Gannett Co. newspaper, an edition of The Cincinnati Enquirer, has been seeking the file since the case concluded.

The ruling "is a big step forward for us," Kentucky Press Association counsel Jon Fleischaker told the newspaper organization, which supported the Enquirer's efforts. "The court handed down some guidelines for proof in an open-records case which will be very helpful to us, especially in cases like the pending action against the Cabinet for Health and Family Services. Finally, there is very useful language regarding the imposition of attorney’s fees and the circumstances under which the award of attorney’s fees is appropriate.  Those guidelines will be useful for all of us." For Fleischaker's note and a copy of the decision, click here.

The court "found that although the municipality’s response to The Enquirer request for records was inadequate, it has not been shown to have willfully violated the law, and so does not provide a basis for sanctions," Jim Hannah writes for the newspaper. "The Enquirer had asked that the municipality pay its legal bills in the case. Fort Thomas was ordered to make a good faith effort to identify those records responsive to The Enquirer’s request and either provide them to the newspaper or explain with why, under the law, they are exempt. A Campbell Circuit Court judge would then be asked to review what the city claimed was exempt to ensure the law was being followed." (Read more)

Illegal meetings held by Danville commission, court says; and by Murray regents, attorney general says

"Two rulings came this week — one in circuit court, one by the attorney general — that public agencies have violated the state’s open meetings law," David Thompson writes in his weekly missive as executive director of the Kentucky Press Association.

"In Boyle Circuit Court, a judge ruled Thursday that the Danville City Commission held an illegal session and in the much-publicized Murray State University situation, an AG’s ruling on Wednesday said the Board of Regents violated the law by discussing the MSU president’s situation the night before the board’s official meeting."

Thompson's post has a short story from Todd Kleffman of The Advocate-Messenger and draws from a story in The Paducah Sun distributed by The Associated Press. To read it, click here.

Burnside violated Open Records Act, AG says

The City of Burnside, in Pulaski County, violated the Open Records Act when it did not respond in writing to a proper request to City Council Member Frank DeNiro’s request for public records, according to the attorney general’s decision on the matter.

DeNiro requested to “’view the most current Burnside water plant plans - drawings and water lines,’” on April 4, 2012, according to the decision.

DeNiro asked Burnside Mayor Ron Jones to see the city’s water plant plans, and with no definite response, filed an open records request, according to his account of the process, which was mentioned in the attorney general’s decision.

He said he later asked to receive a written response and was told the mayor had made an inquiry to the Kentucky League of Cities. DeNiro said he then received an email that stated he could not see the plans because of Homeland Security issues.

According to email exchanges provided by DeNiro sent between Jones and workers at the KLC, the mayor was advised that the city would “have to give a detailed explanation of ‘reasonable likelihood of threatening the public safety by exposing a vulnerability,’ if they plan to deny these records.”

KLC Legal Services Analyst Kim Johnson also advised the mayor that denying records on those grounds would be difficult, too, because the requester was a city council member.

The attorney general’s office received DeNiro’s appeal on Dec. 4, and Burnside City Attorney D. Bruce Orwin responded to the appeal.

“‘The mayor of the City of Burnside informs me that neither the City of Burnside nor any of its departments have copies of these plans for the records requested by Mr. DeNiro,’” according to the Orwin’s response as stated in the attorney general’s decision.

Orwin said that the mayor said should the records be deemed acceptable for release that he would request the plans remain in city offices, with no photocopies or photos of the plans being permitted because of security concerns.

“We find that the City of Burnside failed to meet its first obligation under the Open Records Act, which is to give a timely written response to a written request to view public records,” according to the decision.

By failing to respond in writing, the city of Burnside also committed a procedural error. And, since the city misrepresented the advice it received from the KLC, the city’s conduct was seen as “a substantive denial of inspection.”

“At no time did the City either make the required written response or justify the withholding of any records under a specific provision of” Kentucky state law, according to the decision.

The attorney general’s office stated that it did not have enough information to say why Burnside would not be in possession of the records and referred the matter to the Department of Libraries and Archives to take action should it be deemed appropriate.

AG says Danville solons broke open-meeting law by deciding secretly to buy a building

UPDATE, Oct. 23: The city has appealed the decision to Boyle Circuit Court, The Advocate-Messenger reports.

The City of Danville violated the state Open Meetings Act by taking action in closed session to buy a building and failing to respond to a complaint about it from the local newspaper, Attorney General Jack Conway has ruled in a decision both sides received yesterday.

"The disputed action in an executive session took place July 23 during a City Commission meeting. There was no public vote regarding purchasing the building during open session that day," reports Stephanie Mojica of The Advocate-Messenger. "It wasn’t until Aug. 13 that commissioners publicly approved the purchase . . . a decision that has stirred some controversy, partially because Commissioner Ryan Montgomery’s father, Mike Montgomery, conducts business with the property’s now-former owner,  Mitchell Barnes of Lexington. On Aug. 13, commissioners said they had reached a 'consensus' during the July 23 executive session that allowed City Manager Ron Scott to move forward with plans to hire a bidder and secure the property through auction. However, a consensus is still a vote, according to the attorney general’s decision."

The commission had told the attorney general's office, "The Commissioners collectively stated to the City Manager that they could potentially approve of a purchase of the . . . building if the sale price was less than the appraised value" and that all of them supported the City Manager hiring "a professional bidder as its agent … so as not to showcase that it was the City bidding." The commission argued that it acted as the Florence City Council did when it agreed in closed session to settle a lawsuit, then approved the settlement at a later, open meeting. Conway's office said that didn't apply "because the appeal before us does not involve a settlement conference in litigation," and noted that "a commitment or promise to make a positive or negative decision" constitutes "taking action" under the open-meetings law. It also faulted the city for not responding to a follow-up complaint the Advocate-Messenger filed Sept. 14. For the decision, click here. For the story, go here.

Mount Olivet violated both open-meetings and open-records laws, attorney general rules

By Taylor Moak

The Mount Olivet City Council violated the Kentucky open meetings and open records acts in its actions surrounding special meetings and a request for documents, the attorney general’s office ruled in August.

The first attorney general’s decision about the council, which was released Aug. 24, said the council violated the Open Meetings Act for not complying with notice requirements before holding a special meeting on July 16.

The council also committed a violation for failing to issue until Aug. 8 a written response to two complaints made July 26, and it committed a violation if public business was discussed in an “admitted meeting of a quorum of members without proper notice,” according to the decision.

The second decision, released Aug. 30, said the council violated the Open Records Act when it did not respond in a timely manner to an open records request.

Tony Beach, a resident of Robertson County, where Mount Olivet is the county seat, filed the appeals with the attorney general’s office.

Beach said he had been attending the city council meetings to hear discussion of plans to annex a new school that is a few miles outside of the city limits. The proposed annexation would also include his home.

“I started going to the meetings because I don’t want to be within the city limits,” Beach said.

He said over the years, the city has not been run in an organized fashion.

Over the summer, he went to attend a meeting of the city council where plans to replace a vacant city council seat would be discussed.

But he said the special meeting wasn’t advertised, and he was told that it wasn’t a special meeting. He said he was allowed to stay at the meeting, but he filed a complaint after that meeting because the people of the city did not have an opportunity to attend the meeting.

When he asked for the minutes of the meeting, the council couldn’t produce them, Beach said.

In his July 26 request to the council, Beach asked for eight items, including the minutes from the July 16 and July 23 special meetings, and all emails, correspondence, minutes or notes from meetings pertaining to current or future annexation plans. Beach also requested the names of any news media that have requested to be notified of the council’s special meetings.

Beach said in an appeal letter that he filed with the Attorney General’s Office that he never received a written response to his request, but when he attended a council meeting on August 6, he was handed two of the eight items he requested without explanation.

W. Kelly Caudill, an attorney from Maysville, represents the city council. In his Aug. 13 response to the attorney general, Caudill said of the July 23 meeting that “some council members met for the purpose of introducing themselves to a prospective new council member who was interested in filling a vacancy on the council. That council and the mayor did not conduct any city business.”

Caudill said he advised the mayor and the council “that any time there is a quorum that they must comply with the Open Meetings Act and treat same as a special meeting providing at least 24 hours notice.”

In his response to Beach’s request, Caudill said the city council “must respectfully deny same as they are in the excess of what the statute requires.”

A worker at Caudill’s law firm said she spoke with Caudill and “he indicated that he has no comment.”

Beach said the attorney general’s decisions puts the city council “on notice that someone is watching” and his primary focus remains not being annexed into Mount Olivet.

“My biggest concern is being annexed into a city that doesn’t know how to be ran correctly,” Beach said.

Hustonville officials refuse to release text of proposed ordinances after first reading

Here's one we've never heard before: A city refusing to provide the text of proposed ordinances on which its city council has held first reading. It is happening in Hustonville, the small Lincoln County town on US 127 between Danville and Liberty, reports Ben Kleppinger of The Interior Journal of the county seat of Stanford:

"Hustonville City Council has passed first readings of five ordinances aimed at curtailing certain behaviors within city limits, but the city has refused to release the text of the ordinances to the public. The ordinances were read aloud by Mayor Marc Spivey at the city's Aug. 7 regularly scheduled meeting. City Attorney Carol Hill refused to give the weekly newspaper copies of the ordinances, claiming they are "preliminary documents," and City Clerk Rita Clem denied a written open-records request, saying "The Open Records Act only governs access to the existing records and not to records that will be created in the future."

Kleppinger reports, "Kentucky Press Association Attorney Jeremy Rogers, who specializes in open meetings and open records law, said there's no question ordinances that pass first reading are open record. Rogers said Hustonville's argument that the ordinances do not exist doesn't make any sense because they have all already received first readings. . . . There's nothing preliminary or private or secret about it. They've read it in an open meeting."

The newspaper is appealing denial of its open-records request to Attorney General Jack Conway. The ordinances deal with littering, illegal parking, jaywalking, wearing of masks and one that would ban "formation of any type of line and/or congregating on the sidewalks, streets or any other public property." (Read more)

Disclosing total fees for sewer project does not invade customers' privacy, attorney general rules

The City of Danville violated the state Open Records Act substantively and procedurally when it failed to respond timely and gave an invalid reason for refusing to reveal fees generated by a sewer project, the state attorney general's office has ruled.

On Oct. 12, Clay Moore requested “one copy of the revenue received by the City of Danville, by month for 2009, 2010, and 2011, to date, from commercial and residential sewer fees generated from the Mocks Creek Sewer Project for Northpoint [Training Center], Hunt Farm Subdivision and residential customers of Gwinn Island.”

Moore did not receive a response within three days as the open-records law mandates, and he appealed to Attorney General Jack Conway. On Oct. 31, 19 days after the original request, the city clerk issued a response denying the request on grounds of privacy, the exemption found at KRS 61.878(1)(a). Conway ruled that “disclosing the requested aggregate information would not identify the water and sewer usage of specific individuals,” so “that information cannot properly be characterized as personal.” The law says the exemption applies only in case of “a clearly unwarranted invasion of personal privacy.”

The attorney general noted a similar case prompted by the city's refusal to let Moore see similar records, and stressed that “the interest of the public in ensuring that the Department has and fairly enforces uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.” He noted that the city had “generic billing information without individual customer names which could be used to verify billing methodology and calculations.”

AG declares Pike utility's records open

The records of a controversial utility in Eastern Kentucky are covered by the state Open Records Act "because two public agencies supply at least 25 percent of the funds it expends in the state," The Associated Press reports. "Deputy Attorney General Patrick Hughes wrote that Utility Management Group, based in Pike County, must turn over records requested by the Pike [County] Fiscal Court."

Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.

Hopkinsville paper publishes public officials' pay, makes readers aware of records

Many Kentuckians are not aware they can file open-records requests to obtain information they are entitled to see, such as salaries of public employees, reports Dave Boucher of the Kentucky New Era in Hopkinsville.

In a recent weekend issue of the paper (Aug. 27-28), Boucher reported that he filed 20 records requests to acquire information on city and county employee salaries. Al Cross, director of the Institute for Rural Journalism and Community Issues, told Boucher that public officials in rural places "can feel like a request to know their salary is an invasion of privacy," a feeling that stems from rural community culture in which a public office can be regarded as a private possession.

People simply don't understand what types of information they are entitled to see, Cross told Boucher. According to the Kentucky Open Records Act, any agency that receives at least 25 percent of its funding from public sources is subject to a request, Boucher writes. There are some exemptions, including "unwarranted invasion of personal privacy" and classified information, but salaries are not on that list. (Read more)

AG says Adair County hospital board violated open-meetings law , as newspaper alleged

Adair County Hospital's board of directors was wrong to hold a closed-session discussion about the future of an interim CEO because the discussion was about his retention, not posible discipline or dismissal, the Kentucky attorney general's office found. It also concluded the hospital board did not have sufficient cause to discuss a report by Spectrum Health Partners in private.

Adair County Community Voice Publisher Sharon Barton submitted a written complaint to the board chairman March 30 alleging the violations. To remedy the matter, she asked for a copy of the PowerPoint presentation that had been viewed during the meeting as well as any minutes, notes, records and any other documents that had been reviewed.

The board replied that it was "clearly entitled to discuss this issue in executive session" because it was a personnel issue and so exempt from public discussion.

Assistant Attorney General Amye Bensenhaver disagreed, saying the personnel exemption applies only to discussions that might lead to the appointment, discipline or dismissal of an employee, member or student. "This exception shall not be interpreted to permit discussion of general personnel matters in secret," she wrote. "The board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee."

Bensenhaver also said the board should not have discussed the Spectrum report in closed session. The board was obligated to give notice "in regular open meeting ... of the general nature of the business to be discussed in closed session," she wrote. In correspondence, the board said that the report "contained information on specific individuals that might lead to discipline or dismissal" or might lead to litigation. "Even with this additional information, we believe the board's ... compliance fell short of the statutory requirements," Bensenhaver wrote on behalf of Attorney General Jack Conway.

Two Danville city commissioners walk out during closed session, refuse to comment

Two Danville city commissioners walked out of a closed-door meeting last night, leaving the other two and the mayor to discuss a personnel matter that the absentees either didn't want discussed or thought should be discussed in public.

Kevin Caudill and J.H. Atkins, who voted against holding the closed session, left it after 45 minutes and "refused comment on either the purpose of the meeting or their reasons for leaving," David Brock reports for The Advocate-Messenger. "When the remaining commission members returned from executive session about 20 minutes later, no action was taken."

The Advocate-Messenger quoted from the personnel exception to the state Open Records Act: “Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee’s, member’s or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.” Then the paper added in conclusion: "The lengthy closed-door session was not the first in which one of the stated subjects was possible firing and no action was subsequently taken." To read the full story, click here.

AG says Bowling Green should have given paper names of applicants for commission seat

Attorney General Jack Conway has ruled that Bowling Green officials should not have kept secret the names of people who wanted the City Commission to appoint them to a vacant seat on the commission, which has since been filled.

The opinion was issued to the Bowling Green Daily News, which wanted the names before the seat was filled and appealed the denial to Conway. In its story, the newspaper highlighted the reasoning of Assistant Attorney General Amye Bensenhaver: “The public interest in the identities of persons seeking appointment to elective office is often greater than that of the public interest in the identities of persons seeking public employment,” which may be considered confidential.

The city argued that making the applicants' names and resumes public “may work to prevent others from submitting resumes should this process be followed again,” but the attorney general's office said the applicants “forfeited a greater measure of their personal privacy when they ‘threw their hats in the ring’.” For the story on Conway's decision, by the Daily News' Andrew Robinson, click here.

AG tells Retirement to give local watchdog data about Rockcastle County magistrates' benefits

The Kentucky Retirement Systems violated the state Open Records Act when it refused to confirm the eligibility of local-government lawmakers for state retirement benefits, the attorney general's office ruled in a decision last week.

The opinion upheld an appeal by Michael Sheliga of Rockcastle County, a local government watchdog who had asked for "records verifying the eligibility of local officials to participate in the systems," and the numbers of Rockcastle County magistrates who had received benefits and claimed full-time work that makes them eligible for benefits, but not their names, the decision said. "It is our understanding that county officials, usually the county treasurers, are required to submit monthly sworn statements to Retirement certifying that employees, including magistrates, have, in fact, worked 100 hours."

The systems had denied the request, on the basis of a law requiring individual retirement accounts to remain confidential. That applies to a record "even if it does not identify a specific member," the agency argued on appeal. It also contended that disclosing the records would pose "a substantial likelihood of member identification." In negotiations with Sheliga, the agency refused to give him records with personal identfying information redacted, and on appeal claimed it was not subject to the Open Records Act.

The attorney general's office, in the decision written by Assistant Attorney General Amye Bensenhaver, rejected all those arguments. It said the law makes confidential only "specific data regarding a current, former, or retired member," and "is not intended to cloak all other records maintained by Retirement in secrecy." It said that while Sheliga "muddied the water" by giving Retirement the names of officials whose eligibility he wanted to confirm, an open-records request "should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government," in the words of a Rhode Island court decision cited by the Kentucky Supreme Court in 2008.

The retirement agency has 30 days from the date of the decision, Feb. 21, to appeal to Franklin Circuit Court.

City violated Open Records Act by denying request for inspection and charging for copies

The Office of the Attorney General has ruled the City of Hurstbourne in Jefferson County improperly tried to bill a citizen for records he had specifically asked to inspect. The ruling also held the city violated the state Open Records Act by failing to adopt and post procedures outlining access to its records.

Jose Magana asked the city to inspect records of citizen complaints from Jan. 1, 1995, to the present. Instead, the city began making copies of those records and conditioned his right to inspect them on payment of 10 cents per page. The attorney general said the city subverted the intent of the law when it conditioned Magana’s right to inspect the records on prepayment for copies of these records in the amount of $170.

In answering Magana's appeal, the city argued that he had not specified a request to personally inspect the records. The attorney general found otherwise, citing Magana's October 18, 2010, letter to the city requesting access to city records "for the purpose of inspection.”

The decision, issued Feb. 25, notes that "in a line of decisions issued by this office, the Attorney General has recognized that the 'public has an absolute right to conduct on-site inspection of public records.'" The city prepared copies of the records, according to the decision, under the mistaken idea that the choice to prepare copies or allow personal inspection rested with the city, which is mistaken.

The opinion also notes that the requirement to adopt and post policies governing access to city records is "not a courtesy extended to citizens" but a legal requirement and suggests the city promptly adopt the required procedures.

Free open-government seminar in Bowling Green

The Barren River Area Development District will sponsor a free open-meetings and open-records seminar Wednesday, March 30, from 1 to 3:30 p.m. CDT in the district office at 177 Graham Avenue in Bowling Green. The seminar will be conducted by Assistant Attorney General Amye Bensenhaver, who writes a majority of the attorney general's decisions on open meetings and open records. She will be joined by Jeremy Rogers of Dinsmore & Shohl, a leading media law firm.

The seminar is designed to educate public officials about the two laws but is open to anyone who notifies the area development district in advance. Contact Ashley Lawrence at 270-781-2381 (fax 842-0768) or alawrence@bradd.org.

The seminar was prompted by a series of open-government controversies involving the fiscal court of Butler County, which is part of the district. To head off further legal action against them, the judge-executive, magistrates and county attorney agreed to request training from the attorney general's office in open-government laws. Bensenhaver said the office felt that it would be useful to expand the seminar to all public officials in the district. Many local officials are newly elected and unfamiliar with the laws.

City council can't act on an issue because too many members have a conflict of interest

The Lancaster City Council found itself with a dilemma when three of the six members and the mayor had to recuse themselves from discussing an issue involving a school because they work for the county schools.

Garrard County Superintendent Donald Aldridge appeared before the council to discuss a leaky water pipe that "had cost the school district thousands of dollars," reports Ben Kleppinger for the Danville Advocate-Messenger. City Attorney Leonard Smith pointed out that three members of the council are teachers in the school system and the mayor is the school district’s community education director and they should all recuse themselves from the issue. "My recommendation is to not even ask questions, because you could have the appearance of conflict by asking the wrong question," Smith told the council.

Superintendent Aldridge was asking the council for a budget adjustment to cover the expense of a pipe that had leaked 700,000 gallons of water into the ground before being fixed. Smith told Aldridge and the council that Aldridge did not have any basis to make a change. "There’s nothing we can do about it and the school board’s stuck in the middle," said Smith.

With the water-bill issue behind him, writes Kleppinger, Aldridge asked Smith how he could ever bring an issue to the council if the council is rendered powerless by his presence. "Maybe you could fire two or three teachers and that will fix your problem," Smith joked, before explaining that other issues might not be as controversial and the council could handle them without having to recuse themselves. (Read more)

1 of 3 rulings regarding Butler County says public has no right to take part in official meetings

State law does not give members of the public the right to participate in open meetings of public agencies, Attorney General Jack Conway ruled in the most substantive of three open-meetings decisions involving the Butler County Fiscal Court and Robert D. Cron, who was a candidate for county judge-executive in 2010 and has persistently dogged open-government issues in the county northwest of Bowling Green.

Cron accused the fiscal court of violating the state Open Meetings Act by instituting a new procedure requiring visitors to identify themselves and have their issues placed on the meeting agenda before having an opportunity to address the court. The attorney general disagreed, saying the law does not provide a statutory right for the public to participate in public meetings or address members of a public agency.

Cron fared better in the other two cases. In one, he alleged that the fiscal court held a closed meeting to discuss hiring a part-time employee on Jan. 6, 2011, and failed to respond to his complaint within three days. Attorney Richard J. Deye replied that much like a recent case in Knott County, the meeting was improper and the fiscal court promises not to do it again.
In the third ruling, the AG's office could not decide conclusively if the fiscal court violated the law when it changed the time of a meeting from 6 p.m. to 5:30 p.m., "but the weight of the evidence suggests that it did." Cron complained that the court did not properly announce the time change. The court and Cron agree about "the sequence of events which resulted in the other complaint," but disagreed about the legal implications.

Online paper highlights procedural open-meetings violation but forgoes complaint

An online newspaper based in Louisa prominently noted the Lawrence County Fiscal Court's violation of the state Open Meetings Act in a story this week, but said in the article that the paper would "not file a complaint because the mistake was obviously not intentional." The first paragraph of Roberta Blevins' story in The Levisa Lazer said the new set of magistrates held their first meeting and handled routine transition business. The next three paragraphs read:

The special meeting was not advertised nor was the press sent an agenda or notice of the meeting, said Michelle Miller, who is remaining as secretary in the judge’s office under new Judge/Executive John Osborne. She said she understands this is a violation of the Kentucky Open Meetings Law.

Ms. Miller said the special meeting was announced at the swearing in ceremony last week, but formal notification was not made. The courthouse was closed Thursday and Friday of last week because, Ms. Miller said, state computers are shut down during those days and business cannot be done which comes from the state. This could be the reason notice was not officially given for the organizational get together, she said.

The Lazer management has decided to not file a complaint because the mistake was obviously not intentional.

A "complaint" could take the nature of an appeal to state Attorney General Jack Conway, who could rule that actions taken at the meeting were null and void because the meeting was not legal. The open-meetings violation was not mentioned in the story's headline, which reported that the court named a former magistrate as road foreman.
 
The story ended with another meetings issue, noting that "Several citizens have complained that the meetings are not held at a time when they can attend." The court meets at 10 a.m. twice a month. "Osborne has said he will look into changing the meeting time if enough people request a move to an evening hour so that working men and women can attend if they so choose," Blevins writes. (Read more)

Butler County Fiscal Court loses open meetings appeal

Butler Circuit Court Judge Ronnie Dortch has denied an appeal filed by the county's fiscal court on an open meetings case originally filed by local citizen activist Robert Cron.

Cron had appealed to the state attorney general over a series of private meetings between four members of the fiscal court and Sheriff Joe Gaddie last year to discuss the budget for the sheriff's department.

The attorney general's office ruled in March that the meetings violated the state's Open Meetings Act. The fiscal court appealed the ruling to the circuit court, which in a brief statement turned down the appeal. However, Dortch said he found no willful intent to violate state law by the fiscal court. That precluded any award of attorney's fees or court costs.

Cron ran an unsuccessful campaign for judge-executive in the recent election.

This is not the first time Butler County Fiscal Court has disregarded its obligation to the law and to the residents of the county by holding secret meetings. In January 2009, the attorney general held that the fiscal court's finance committee had violated the open meetings law by not giving public notice of its meetings.