This post has been updated.
Two top city officials cannot delay their public testimony as part of a Metro Council investigation into Mayor Greg Fischer's administration, Judge Audra Eckerle ruled Tuesday.
Eckerle wrote in her order that lawyers for the city failed to meet any of the requirements that would justify a temporary injunction, including a key argument by lawyers that Public Safety chief Amy Hess and interim police chief Robert Schroeder would be irreparably harmed by giving public testimony.
"Hess and Schroeder can testify before Metro Council without subjecting themselves or government to any harm, as long as they uphold their oath and testify truthfully, which the Court assumes they will," Eckerle wrote.
She pointed out that the two would be authorized to testify publicly in the federal civil lawsuit, which lawyers for the city cited as the reason Hess and Schroeder could not participate openly in the council investigation at this time. Eckerle wrote that testifying in a matter of weeks versus months would not constitute injury.
"This fact is especially true where, as in this case, the anticipated testimony will address past facts, and not future strategies," she wrote.
The committee seeks to investigate the Fischer administration's actions and decisions related to the fatal police shooting of Breonna Taylor, Louisville Metro Police's participation in an operation with the National Guard in which a guard member killed David McAtee and the city's response to protests. Council members agreed to focus the first part of their investigation on protests.
Eckerle also wrote that the city's lawsuit should not "trump elected government oversight of key, senior public officials" due to the public's interest in the testimony.
And she challenged the city's argument that Hess and Schroeder had the right to insist on private testimony.
While the Open Meetings Act offers an exception for litigation, Eckerle wrote that it is narrowly-defined and does not apply in this case, particularly because council is not party to the federal case. Plus, she wrote, every activity has the potential for litigation.
"Were that risk alone sufficient reason to act clandestinely, no government operation would be open or subject to review, and the Open Meetings Act would be meaningless," she wrote.
Eckerle emphasized that council's planned investigation focuses on past acts, not future opinions.
Hess and Schroeder first declined to speak under oath in open session about the city's response to protests this summer about a month ago. When council's government oversight committee subsequently issued subpoenas to compel their testimony, the city responded by suing to delay the testimony. Eckerle granted a temporary restraining order on August 11, which is no longer in effect.
Committee chair Brent Ackerson (D-26) said Tuesday evening he had reissued the subpoenas for Hess and Schroeder.
"We're going to try to get Chief Schroeder's testimony on the record before he retires on Oct. 1," he said.
A special meeting is set for Wednesday, September 16 at 2:30 p.m. in council chambers.
Late last week, lawyers for the city filed a memorandum offering Hess for open testimony "at any time mutually convenient for the parties."
Jean Porter, a spokeswoman for Fischer's office, acknowledged the offer for Hess' testimony in an email, saying it was sent to both the court and government oversight committee.
"Chief Hess was and is willing to waive the open meeting exemption and testify in open session," Porter said. "Thus, we do not see it necessary to ask the Court of Appeals to review the Court’s decision."
One major question in the matter is whether council will be able to compel testimony from Schroeder if a hearing is scheduled to take place after his retirement on Oct. 1, which he announced Monday. Porter said Schroeder told her the investigation was not a factor in his retirement plans.
She referred questions regarding Schroeder's willingness to participate prior to his retirement to his legal counsel. His lawyer did not immediately respond to a request for comment.
Kentucky law defines the committee's subpoena power as applying to "any officer of or appointee to a board or commission" whose members are appointed by the mayor and approved by the council or with a budget greater than $1 million. It can also apply to "any department or division of the consolidated local government" to testify and submit relevant documents.
