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Legal Question Interrupts Council Investigation Of Fischer Administration; Subpoenas To Come

A planned four-hour investigative session went off the rails Monday when attorneys for Metro Government officials invited to testify under oath said their clients would not speak to the Metro Council's government oversight and audit committee in open session.

Now an unusual legal question may stand in the way of an investigation into the administration of Louisville Mayor Greg Fischer that the committee authorized last month — and city lawmakers have voted to issue subpoenas to compel city officials to testify.

Robert Schroeder, interim chief of the Louisville Metro Police Department, and Amy Hess, chief of public safety for the city, were scheduled to address the committee in a four-hour session Monday afternoon. The meeting lasted less than an hour-and-a-half and produced no new information sought by the body.

The committee plans to investigate issues including the fatal police shooting of Breonna Taylor in March; Louisville police's involvement in the fatal National Guard shooting of David McAtee in June; and the official response to protests that began in Louisville on May 28. Committee chair Brent Ackerson (D-26) said the body would delay its questioning on the first two topics due to ongoing criminal investigations into those incidents. Monday's hearing was intended to dig into questions about the protest response.

But attorneys for Schroeder and Hess argued that a federal civil lawsuit filed late last week would preclude their clients from testifying in open session. They cited an exemption that allows closed meetings for "Discussions of proposed or pending litigation against or on behalf of the public agency."

"If this body wishes to go forward today, the law mandates that it go into closed session," said David Guarnieri, an attorney for Louisville Metro Government, representing Hess. He indicated that's the only way his client would testify.

Amye Bensenhaver, an expert on Kentucky open meetings law and director of the Kentucky Open Government Coalition, said attorneys for Hess and Schroeder appear to have it backwards on how that exemption is applied.

The statute applies only to the party named in litigation, she said. The federal case names neither the council nor this specific committee, so it wouldn't apply in this case. And that's not the only issue she identified with the line of reasoning advanced by attorneys for Hess and Schroeder.

Bensenhaver said the statute also applies to agencies, not individuals, and that it's designed to allow subjects of litigation to privately discuss strategy, such as who to depose or when to file. Plus, any apparent overlap in topics between the lawsuit and the committee investigation seemed to be irrelevant, in Bensenhaver's opinion, since the exemption cited applies to strategy conversations.

"The issue of when it is appropriate for a public agency to invoke that exemption to go into closed session has been looked at a sufficient number of times to definitely send a clear message to public agencies," she said. "You can't liberally construe this exemption to apply just because the discussion that might take place is an uncomfortable one, or one that you would prefer to have behind closed doors."

Bensenhaver said she informally discussed the issue earlier in the day with Jonathan Ricketts, an attorney for the council in this matter. She described this particular situation as unusual.

During the public meeting, Ricketts objected to the other attorneys' arguments, on similar grounds to Bensenhaver. He described the interpretation as too broad.

Ackerson, the committee's chair, also disagreed with the request for closed session. He told Hess, Schroeder and their attorneys that if they were not going to participate in open session, they could leave. And they did.

Ackerson accused the administration of hiding behind litigation to keep out of the public eye.

"There will be nothing hidden from the public regarding this matter," he said, pledging to conduct the entire investigation in the open.

After Hess, Schroeder and their attorneys left, the committee members and other council members who joined the meeting discussed a number of issues related to the investigation. Some wondered why Ackerson had not shared with them ahead of time that Hess and Schroeder did not intend to testify. He said he only learned that information this morning, and wanted to bring them in to state their refusal on the record.

Ackerson said the committee members need to consider a "simple" question: "Should a civil lawsuit against this city prevent this body from seeking to get the information out there?"

Councilwoman Jessica Green (D-1) called for the committee to issue subpoenas to Hess and Schroeder to compel them to testify. Although Guarnieri suggested Hess would be more available to testify in 30 days, committee members threw doubt on that timeline.

Other council members agreed, saying issuing subpoenas would likely invite a legal challenge, so a judge would have to rule on whether the body's investigation can proceed in public.

A bipartisan vote to issue those subpoenas passed 10-1. The sole dissenter was Bill Hollander (D-9), who explained he wanted more time to study the legal issue now in question.

Bensenhaver, the open meetings expert, said she did not expect the exemption cited by attorneys in Monday's meeting to hold up in court. She said she wouldn't recommend pursuing that specific argument in court.

Regardless, she said the administration's attorneys seem to be flipping the script.

"They're trying to tell that agency to go into closed session ... it's rarely the case that you have a challenge based on an agency's desire to be open and someone arguing it should be closed," she said.

Last week, a judge ruled that Fischer and members of the council must cease all private teleconferences related to city business such as the response to COVID-19 and the protests and conform all future discussions to the Open Meetings Act. That came after a lawsuit by the Courier Journal.

A spokeswoman for Fischer, Jean Porter, said in an emailed statement that the administration understands the people of Louisville wants answers.

"We want them too, and we remain committed to sharing information as soon as we can without jeopardizing pending investigations. The Committee chair was well aware before they set up today’s meeting that there are matters that we are legally not allowed to share, and they were advised of our concerns about proceeding at this time, specifically in light of a lawsuit filed late last week where Metro employees were sued in their individual capacities. But the Committee chair proceeded nonetheless," she wrote. "We look forward to returning to Council when all concerns have been properly addressed."

Amina Elahi is LPM's City Editor. Email Amina at aelahi@lpm.org.