The Attorney General’s Office said Thursday that the Frankfort City Commission engaged in "prohibited conduct" leading up to the dismissal of City Manager Keith Parker but didn't violate the state's open meetings law.
Assistant Attorney General James Herrick wrote in response to a State Journal complaint that the commission did not violate the open meetings law because of “insufficient evidence of intent” to do so.
The distinction that the office makes between engaging in prohibited conduct and doing so with intent upset former Assistant Attorney General Amye Bensenhaver, a Frankfort resident who spent decades writing open government opinions for the AG's office.
“The net effect of the attorney general’s decision is to give a free pass to officials who engage in illegal secret discussion of the people’s business but self-servingly deny that they intended to violate the law,” Bensenhaver wrote. “... The next time I’m pulled over for speeding, I’ll argue that I didn’t intend to speed.”
The State Journal alleged a series of "less than quorum" meetings between elected officials before the 3-2 vote to fire Parker.
Parker and Kentucky Capital Development Corp. President and CEO Terri Bradshaw said Commissionern Scott Tippett told them in separate conversations before the Aug. 10 meeting that the mayor "had three votes" to fire Parker.
Tippett later said that what he "may or may not have said" was "opinion and anecdotal in nature."
The city defended itself against the newspaper's complaint without denying that the calls constituting a "rolling quorum" took place outside of the public eye, claiming that calls were only meant to “educate” board members on the issue. They also said that discussions were limited to actions that Parker might have taken and not an explicit discussion of how any board member might vote on his firing.
The commission, through outside law firm Sturgill Turner, also asserted that it had no intention to violate the law.
For the Attorney General's Office, that ended up being the winning argument, though it advised the city to not engage in similar conduct again.
“This Office has not hesitated to find a violation of the Act when there is evidence that the members of a public agency intended to circumvent the Act,” Herrick wrote. “However, when evidence on this element is lacking, this Office has acknowledged its inability to determine the members’ intent. In those circumstances, this Office has found that the meetings ‘otherwise fell within the zone of conduct prohibited by KRS 61.810(2)’ to advise agencies that similar conduct should not recur.”
Mayor Bill May and City Attorney Laura Ross have not responded to the newspaper's request for comment on the AG's opinion.
The State Journal or the City of Frankfort could appeal the decision by taking action in the Franklin County Circuit Court.
"We will consult with legal counsel in the days ahead and make a decision on whether to appeal this disappointing opinion," said State Journal Publisher Steve Stewart. "While at least three of the perpetrators of the prohibited conduct will leave office shortly, the precedent set by the AG's opinion is chilling and would benefit from a circuit judge's review."
Two other open meetings complaints — from commission candidate Kyle Thompson and incumbent Commissioner Katrisha Waldridge — have also been filed recently. Thompson's complaint largely mirrored The State Journal's, with additional information from Bradshaw, while Waldridge's challenged the contents of the closed session at the Aug. 10 meeting where the commission fired Parker. The newspaper and Thompson challenged the events leading up to the meeting.
The city has rejected both complaints, according to Thompson and Waldridge.