Recently retired attorney general staffer, reprimanded for speaking to press, concerned about future of open records, meetings decisions
09/02/2016 08:43 PM
A 25-year veteran of the Office of the Attorney General who retired this week “under duress” after a written reprimand last month says she’s concerned that decisions on open records and open meetings appeals will be more ripe for political interference in the future.
Amye Bensenhaver, a staff attorney who worked in open records for her entire career with the attorney general’s office, retired effective Thursday, saying in her resignation letter that she “cannot survive, much less thrive, in the current office climate.” Kentucky Today first reported on her departure.
Her retirement from Attorney General Andy Beshear’s office wasn’t entirely unexpected. Bensenhaver, an employee in the state’s merit system, said she considered leaving state government toward the end of former Attorney General Jack Conway’s second term because she began to see politics creep into the open records decisions issued by the office.
“For several years I’ve had a strong sense that the independence and autonomy that was accorded and the ethical wall that surrounded the open records, open meetings process was in the process of being eroded,” she said in an interview Friday.
“And our autonomy, the deference accorded our views because of our knowledge of the law was being eroded.”
Beshear spokesman Terry Sebastian called Bensenhaver “valuable member of the Attorney General’s Office for 25 years, and we wish her the best.”
“It’s our policy not to discuss personnel issues,” he said in a statement. “Shortly after General Beshear took office, Amye indicated her intent to retire.”
Bensenhaver was reprimanded July 11 for speaking to former Danville News-Advocate Editor John Nelson for a piece on the 40th anniversary of the state’s open records and open meetings laws without first getting clearance from the office’s communications staff as well as disagreeing with aspects of appeal decisions.
In one case, supervisors said Bensenhaver drafted an appeal response in January that did not reflect an agreement reached during a meeting on the issue, then refused to sign the decision because she disagreed with it. In the other, they said after telling supervisors she would send a revised version of an open records appeal decision in May, Bensenhaver continued to disagree on another point in a follow-up email and asked whether they would want another staffer to sign the document.
The reprimand also referenced an interim review in May 2015, which questioned her decision-making, neutrality and ability to work “with management.”
Records obtained through an open records request show Bensenhaver was also reprimanded in October 2014 for swearing at a cell phone training session, which she acknowledged doing out of frustration and embarrassment in a written response. She wrote the she apologized to the instructor, who gave her her phone number at the end of the class, and questioned other aspects of the rebuke, such as staffers who did not attend the training or those who didn’t hear her swear listed as witnesses.
“Your actions in regards to Mr. Nelson’s article on the Open Records/Open Meetings Act have severely damaged your credibility and the trust that this Office must have in you as an attorney,” La Tasha Buckner, executive director of the Office of Civil and Environmental Law, wrote in the July reprimand.
“Also, your failure to cooperate with management in the issuance of Open Record Decisions, despite having been counseled on similar behavior in the past, constitute a lack of good conduct and a poor performance of work duties. These events display a pattern of conduct untenable for an attorney.”
While those are strong words, Bensenhaver recalls that she was told in a meeting to discuss the reprimand that she had “a very narrow margin of error” in the attorney general’s office. She said she was also told that more severe punishment had been considered.
“After reflection I just realized I’m not meant for these times,” she told Pure Politics. “I don’t think that the independence that I believe needs to be available to an attorney working in this area, that we were going to be given that independence and autonomy to do our jobs.”
She acknowledged violating the office’s policy on media contacts, but she disputed how her actions were presented in the second half of the reprimand.
Bensenhaver said attorneys in her branch would often debate open records or open meetings matters when discussing appeals, sometimes convincing superiors that their interpretations of the law were correct. She called that “the lifeblood” of the agency’s review process.
However, those moments became few and far between recently as supervisors weren’t easily persuaded and didn’t seek much input from staff attorneys, she said.
Bensenhaver estimates that she refused to sign at least 14 open records decisions this year.
She cited two recent examples. One involved a decision released on Dec. 30, Conway’s last day in office, that public officials who discuss public business on private cell phones.
The other was Beshear’s June ruling that the Kentucky Retirement Systems’ May meeting, which featured a beefed up state police presence to keep former board chairman Tommy Elliott from taking a seat at the board table after Bevin ordered him removed, violated the open meetings law.
Bensenhaver says she “thought it was a real disservice” that the KRS board had been found in violation based on the possibility that one of its members could have been removed by police.
What’s more, she says staffers writing appeal decisions had been placed on a five-page limit, but the KRS decision was 21 pages. The non-merit attorney who wrote the ruling, whom Bensenhaver praised, had never penned one before that, she said.
“I think much of that decision was not focused on the violation,” Bensenhaver said. “It was focused on attacking the governor’s actions.”
She says she’s now concerned that more non-merit attorneys, who work at the pleasure of Beshear, will be more likely to bend to political pressure in rendering open records decisions, which have the force of law unless overturned on appeal. Bensenhaver said she has heard that two non-merit attorneys started in her office the day after she retired.
“For a non-merit employee, and that seems to be their ultimate goal, that causes grave concerns because if they don’t do the bidding, even if they believe that interpretation of the law is politically incorrect, they don’t have the same protections that the merit system provides,” Bensenhaver said, stressing the importance of the office’s role in setting precedent in open records and open meetings decisions.
Sebastian did not address the number of non-merit attorneys working in the open records branch, but said Bensenhaver’s position would be filled by a merit employee, giving the appeals office three merit lawyers.
In response to concerns raised by Bensenhaver, Sebastian said Beshear’s office “takes its role of enforcing Kentucky’s transparency laws very seriously, and the workload during his first eight months in office has increased considerably.”
“Currently, the office is on pace to publish a record 272 Open Meetings/Open Records decisions in 2016,” Sebastian said in the statement. “This represents a roughly 26 percent increase over just three years ago. The opinions we have issued strongly enforce transparency.”
Bensenhaver’s departure follows those of former Deputy Attorney General Tim Longmeyer, who pleaded guilty to federal bribery charges in April, and former Executive Advisor Don Pasley, who resigned in May six weeks after picking up a DUI charge, of which The Courier Journal informed the office.
While she said she hates for her departure to be lumped with Longmeyer’s and Pasley’s since she left on her own terms, Bensenhaver said the exits reflect “maybe a level of arrogance and maybe a level of poor judgment.”
But her ultimate concern, as it’s been for the past 25 years, is the future of the state’s open records law.
She said she hopes Beshear “will kind of reconsider who’s guiding him, who’s giving him guidance on what would be the best course of action because I don’t think this is a good course of action.”
“I’m not the attorney general,” Bensenhaver said. “I understand I was a lowly assistant attorney general in the pecking order, but I truly believe there are some missteps and miscalculations that are being made that will affect the statutory functions of that office on a long-term basis.”
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