Attorneys profit from agency disfunction and the public foots the bill

COG2

One benefit of forced retirement is the opportunity to monitor what is happening on the state and national open government stage that extends beyond the narrow confines of my cramped office in the basement of the Capitol. Sunlight, which my co-workers and I rarely saw in the winter months, has exposed a deeply troubling level of noncompliance with the Sunshine Laws we fought -- and fight -- to defend.

Noncompliance is a pervasive problem at every level of government and in every state -- indeed, every country -- that enjoys the benefits of laws protecting the public's right to know. But the issue came home to rest for me personally when I was recently drawn into a divisive issue in Frankfort with significant open records and meetings implications. The details have been recounted in numerous articles in The State Journal.

Fundamentally, the open records and meetings issues arise from a dispute between and among the members of the Frankfort Electric and Water Plant Board's Board of Directors concerning its contract with KyMEA-- an interagency body of municipal utilities operating under a “coordinated business structure” created to meet the municipalities’ electrical needs and to enable members “to benefit from economies of scale in planning for and obtaining power supply resources.”

That dispute has escalated into a power struggle that has compromised the directors’ ability to discharge their duties and led to demands for the removal of the directors who are KyMEA critics. Allegations of malfeasance and non-feasance have been leveled by the directors between and among themselves and by city commissioners.

One thing is certain. The dispute has created tremendous employment opportunities for the legal community. Directors who are critical of the KyMEA contract first secured board approval for a $50,000 contract with an out of state law firm to review the KyMEA contract. The law firm's draft report was delivered to these critics on November 28, but this fact was not disclosed until the law firm submitted an invoice for the report five weeks later. The critics' attempt to “nullify” the report by returning or deleting it has everyone in Frankfort scratching their heads. The report was “unnullified” when it’s existence was revealed, and although the critics on the board agreed to share it with the remaining Plant Board directors, they refused to share it with Plant Board staff based on a tortured but unexplained interpretation of the attorney/client privilege.

The ratepayers who financed the report are left to wonder about its contents and why it was labeled a “draft” other than as an additional basis for avoiding open records requirements. This, of course, raises a separate but equally confounding open records issue.

In the meantime, the controversy -- festering for months – bled over to the Frankfort Board of Commissioners. A vote approving a $20,000 contract for an attorney to investigate whether the actions of these Frankfort Plant Board directors rise to the level of malfeasance, misfeasance, non-feasance, or inefficiency justifying removal was rescinded in the wake of open meetings challenges but approved again at a subsequent meeting. That report is expected in less than a month.

The question is: Will the Commission and the Board of Directors make public the reports that the public financed or will they hide behind the attorney/client privilege to deprive the public of its statutory right to know?

With this nagging question in mind, I spoke to the assembled body at the last Commission meeting. My comments were also meant for the directors of the Plant Board who have thus far resisted disclosure of their contract attorneys’ report even, as noted, to members of the Plant Board staff.

Because they have relevance beyond the immediate controversy, I include a portion of my comments here:

“Kentucky’s Sunshine Laws, both open meetings and open records, begin with a presumption of openness. The statutory exceptions to this presumption of openness, the law tells us, must be strictly construed. Even where an exception applies to the topic of discussion at a public meeting or the matter addressed in a public record, the exception should be invoked only where there is an overriding need for governmental confidentiality, codified in statute, that clearly outweighs the public’s statutorily protected right to know.

Events in the past several weeks demonstrate just how much we have departed from these ideals.

Far too much time is expended on exploring avenues to evade these laws. Far too little time is expended on complying with the laws and, in complying, giving more than lip service to the right of the public to know that its servants are indeed serving the public’s interests.

I have become especially concerned about the growing public agency practice of retaining attorneys to conduct investigations and issue reports that may be shielded from public inspection by the attorney/client privilege—a privilege that is recognized in the laws under narrowly tailored circumstances. The privilege is not intended to enable public officials to avoid scrutiny by strained construction and labored effort.

The Kentucky Center for Investigative Reporting recently exposed the Jefferson County Public Schools’ admitted attempt to avoid accountability for hastily returning disciplined teachers to the classroom by retaining a law firm to advise on the issue. The law firm hired an investigator to examine the problem and JCPS invoked the attorney/client privilege as the basis for withholding the resulting report.  The problem is not confined to JCPS.

Taxpayers (or ratepayers) are asked to finance investigations, reports, and legal analysis to which they are ultimately denied access. From the public’s perspective, actions are taken by their agencies  in a legal and factual vacuum. The principle that the ‘formation of public policy is public business,’ enshrined in the laws, is the ultimate casualty.  This is a serious affront to open government.”

On behalf of the Bluegrass Institute Center for Open Government, I called on the Commission – and indirectly, the recalcitrant Plant Board directors -- to “commit to transparency in retaining counsel to investigate and analyze the urgent issues that confront our community and in sharing the results of that investigation and analysis—not just the final action it elects to take.”

Only time will tell if the Commission or the Plant Board are moved to do the right thing.