A circuit court judge is expected to rule next month on whether city officials can publicly testify in a Metro Council investigation.
Judge Audra Eckerle granted a temporary restraining order about two weeks ago, delaying testimony. That came after two Louisville Metro Government officials refused to testify in open session during a special hearing hosted by the council's government oversight committee, leading the committee to issue subpoenas to them.
The committee plans to focus the early part of its investigation on the response by the administration of Mayor Greg Fischer to protest activity in Louisville since late May. But the committee has so far failed to obtain testimony from city leaders.
Fischer's administration is arguing that a separate federal civil lawsuit bars officials from testifying under oath and in public with the committee before the lawsuit is complete. The suit, which alleges Louisville police used excessive force against protesters, names interim police chief Robert Schroeder, one of the subpoenaed city employees, as a defendant.
Now Eckerle must decide whether that argument is valid.
The original temporary restraining order said a subpoena for public safety chief Amy Hess could not be enforced; a subsequent order on August 17 said the same for Schroeder.
Eckerle said Monday she would provide a decision soon after receiving all remaining pleadings from attorneys by Sept. 2.
"Once I get your pleadings, I will issue a ruling promptly," Eckerle told attorneys during an oral arguments hearing. "I know the matter has some urgency to it."
David Guarnieri, representing the Louisville Jefferson County Metro Government, said there is a risk of "irreparable harm" if the chiefs are required to testify openly. By law, irreparable harm means that which cannot be returned to a prior state nor which can be corrected by monetary compensation.
If the injunction is dissolved, Guarnieri said, "those witnesses will either be compelled to give testimony in open session that can never be undone or face contempt sanctions for disobeying a subpoena."
Attorney Michael Abate, general counsel for the Kentucky Press Association, said the litigation exemption to the Open Meetings Act would not apply in this case.
"The testimony here doesn't fall on probing litigation strategy, it falls on oversight of key senior public officials in their role in one of the most important crises our city is faced in a generation," he said. Abate does not represent either party in the case.
Jonathan Ricketts, an attorney for the council, agreed with Abate's argument and said council members believe testifying on the facts of past events should not impact the civil lawsuit. He urged Eckerle to reach a decision soon.
"This is an important matter for the Metro Council and therefore an important matter for the taxpayers and the voters," Ricketts said. "And this information needs to get to the public as soon as possible so that we can let the public know that the Metro Council, that this government is doing its job."
Ricketts and an attorney for Schroeder are expected to file additional pleadings by next week.
Disclosure: Attorney Michael Abate has represented Louisville Public Media in litigation in the past.
