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.”

Kevin Wheatley

Kevin Wheatley is a reporter for Pure Politics. He joined cn|2 in September 2014 after five years at The State Journal in Frankfort, where he covered Kentucky government and politics. You can reach him at kevin.wheatley@charter.com or 502-792-1135 and follow him on Twitter at @KWheatley_cn2.

3 Comments

Comments

  • viewer wrote on September 03, 2016 11:49 AM :

    Good morning friends. Game day is here. Go Cats! I will not get into the weeds here, but I will give a few thoughts and opinions.

    First, I would like to send my appreciation out to Amye Bensenhaver for her years of service, for all she did for transparency, for all the courage she has shown over the years trying to do the right thing no matter who was on the other end of a request or who it would hurt if the truth was eventually found out.

    It is never about the money or power with people like Ms. Bensenhaver. It is about doing what is right. It is about taking your job seriously, and understanding that sometimes your job and the role you play in that position effects us all. Amye Bensenhaver’s competence and integrity should be the standard in any government office, but as we have witnessed over the years, government employees learn rather quickly that transparency and integrity are only campaign gimmicks to keep the career politicians in power.

    The good news is we have reached a point, in this state, where there is no where to run. There is no where to hide. These career politicians’ actions over the course of many years have taken its toll, from the General Assembly itself to our state run universities to our public health system.

    Our congressional delegation says that Washington is broken. That implies that we have everything under control here in Kentucky. Our candidates running for state houses say that Frankfort is broken. This implies that all is well in Washington. The truth is the people we send to the General Assembly and to Congress are bought and paid for. There is no denying that simple remedies can cure a lot that is ailing us, but our politicians need the money to run these ads to make themselves look like leaders.

    Until our elected politicians or the candidates who are trying to unseat these career politicians step up, speak English, and show some common sense, we are going to keep having the likes of Amye Bensenhaver being forced out for standing up for what is right. Amye Bensenhaver took the fall for us all, for trying to do what is right. For doing what she believed. For taking her job seriously. We all have a responsibility to defend her and others who are put on the spot everyday, when they go to work. Those who fear retribution. Those who have to choose between a pay check to feed their families or doing the right thing for our families.

    Anytime a state employee doesn’t feel confident, we lose something. When a state employee begins to realize that integrity is not valued or that they can give the public the run around, we have got problems. The majority of state employees are dedicated and honest, but I have seen way too many who skirt the law, who put party above good government, who put their bosses’ next election above the public’s best interest, and in some instances put their own “on the side” financial deals above the public’s interest, all because it is so common place today in government. There is nothing new about Tim Longmeyer and what he admitted to doing. The only thing unique about Mr. Longmeyer is that he allowed the Feds to catch him. There are 30 or more Tim Longmeyers on the state payroll today. Some of them will be known soon, but not enough of them will be brought to justice. Corruption, crony capitalism, and political cronyism in government ranks is rampant today. This is in all departments and at all levels.

    We republicans have to begin to understand how important the Attorney General’s office is. We have never really went after this elected office. I would like to see either John Tilley or Robert Benvenuti make an announcement that they will run for this office. The sooner the better. So we can begin to take the action, from Paducah to Pikeville, for once and all, to bring integrity back to this office. The viewer.

  • viewer wrote on September 03, 2016 12:32 PM :

    Staff departure hurts Andy Beshear’s credibility as a government watchdog. By Tom Eblen. Herald Leader

    http://www.kentucky.com/news/local/news-columns-blogs/tom-eblen/article99643522.html

  • Dee W. wrote on September 05, 2016 11:16 PM :

    Andy Beshear should be the one that steps down. That reprimand was quite outrageous, to put it mildly. She just gave general information in regard to general questions in the article. Apparently Stumbo worked with better work ethic in that office than Beshear has…quite a bad environment there indeed if this lady felt so intimidated that she had to quit.

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