State police presence at retirement systems' meeting violated open meetings law, Attorney General Beshear says

06/14/2016 05:55 PM

The increased state police presence at last month’s Kentucky Retirement Systems board meeting created an environment that “chilled or confined the public’s right to freely attend,” Attorney General Andy Beshear wrote in an opinion released Tuesday that found KRS violated the state’s open meetings law.

Uniformed Kentucky State Police troopers were on hand May 19 to keep Thomas Elliott, a former KRS board chairman who had been removed from his spot on the board by an executive order from Gov. Matt Bevin in April, from taking his seat at the board table.

Elliott, who relied on a separate opinion from Beshear’s office issued May 17 contending that Bevin erred in removing him before his term expired as a means to retain his spot on the board, said at the time that he had been threatened with arrest before the meeting.

But Bevin’s office disputed that, saying he was told that presiding over the board meeting would have disrupted a public meeting, a misdemeanor charge.

The opinion, penned by Beshear and Assistant Attorney General S. Travis Mayo, called the show of police force “egregious,” questioning the judgement of those who made that call and suggesting KSP “evaluate how it became involved and how to avoid doing so in the future.”

“It is not clearly established that Elliott’s participation in the public meeting as a Board member, acting in good-faith reliance on the opinion of the Attorney General, threatened the maintenance of order to warrant that he face arrest for a criminal misdemeanor if attempted to participate,” Beshear’s opinion states. “Indeed, Elliott participated as a Board member at the April 21, 2016, meeting and nothing in the record demonstrates that his actions disrupted that meeting.”

“The Board could have imposed conditions other than the condition of potential arrest to insure the maintenance of order during the meeting,” the opinion continued. “If Elliott had participated in the meeting and had caused a disruption that impeded public business, the Board could have asked him to cease his conduct or leave the meeting room. If Elliott persisted in his conduct so as to impede public business, the Board then could have requested law enforcement officers remove him from the room.”

Beshear’s opinion can be downloaded here: KRS Open Meetings Opinion.pdf

Amanda Stamper, Bevin’s spokeswoman, called Beshear’s opinion unsurprising “given his political motivations.”

“Instead of focusing on ways to move the Commonwealth forward, he continues to do the opposite,” Stamper said in a statement. “In light of Mr. Elliott’s previous disregard of the valid executive order removing him from the board, precautions were taken to ensure there was no disruption to the public meeting.”

Spokespeople for state police did not return a message seeking comment. Beshear’s opinion noted that KRS Executive Director Bill Thielen has asked KSP to refrain from attending KRS meetings in official capacity unless summoned by the pension agency.

Jim Carroll, the co-founder of the group Kentucky Government Retirees who filed the original open meetings complaint, praised Beshear’s opinion.

“We hope that this decision will ensure that future meetings will be conducted transparently and free of disruption from outside parties with no standing in the conduct of KRS meetings or any role in the board’s deliberations,” he said in a statement. “Today’s ruling signaled a victory for fiduciary independence.”

Beshear’s opinion sheds more light on the events leading up to that contentious board meeting.

Elliott said in a written statement that he met with Blake Brickman, Bevin’s chief of staff, and Thomas Stephens, secretary of the Personnel Cabinet and a KRS board member, inside Thielen’s office. Brickman told Elliott that he would be arrested and jailed if he tried to participate in the meeting, according to Elliott’s account.

But Stephens said in his written statement that Elliott was never threatened with arrest during the conversation.

However, Stephens indicated that KRS Trustee Vince Lang, a likely contender for board chairman who declined his nomination to the spot during the May 19 meeting, is under investigation for possibly violating KRS’s conflict of interest policy.

“Stephens stated that the investigation is ongoing and may call into question the Board member’s ability to serve as Chair,” the attorney general opinion says. “He states that the information will be brought to the Board’s attention at the appropriate time.”

Lang, in his written statement, said Stephens alleged Lang would have tried to use his position as board chair to influence a personnel decision involving his wife. “Lang asserts that Secretary Stephens referenced several elected officials contacting the administration on his wife’s behalf,” the opinion states.

Personnel Cabinet spokeswoman Jodi Whitaker declined to comment on the opinion.


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