Fischer team wrong to demand closed-door testimony in Metro Council probe, attorneys say – Courier Journal

In an interview, U.S. Rep. John Yarmuth talked about the Louisville Metro Council's move for a no-confidence vote on Mayor Greg Fischer. Louisville Courier Journal

Louisville Mayor Greg Fischer's administration has "no right" to insist that city officials deliver testimony behind closed doors in the Metro Council's investigation into the Breonna Taylor protests, attorneys with the Kentucky Press Association say.

The Open Meetings Act exemptionthat Fischer's attorneys are claiming doesn't apply in this case, the attorneys write, and if it did, that would be a "radical re-writing" of the law.

In a blistering brief filed in the pending lawsuit between Metro Government and the Metro Council, the First Amendment attorneys argue that Fischer is asking for a "breathtaking expansion" of the law that could hinder the public's ability to view future meetings.

"Any number of public policies or subject matters could give rise to litigation," write attorneys Jon Fleischaker, Michael Abate and Casey Hinkle, who have also represented The Courier Journal in open government cases.

"If the litigation (exemption) extended to the facts underlying a public agency's actions, then an agency could hold all discussions of proposed policy alternatives, or all oversight hearings, behind closed doors on the theory that they might get sued," the attorneys add in the "amicus curiae," or friend of the court, brief.

Earlier: Metro Government sues to block council subpoenas in Taylor protest inquiry

Fischer's team has argued that testimony from Chief of Public Safety Amy Hess and interim LMPD ChiefRobert Schroeder ought to be delivered behind closed doors because afederal civil rights lawsuit filed July 30over the police department's response to peaceful protestersoverlaps with the topics of discussion in the Metro Council's probe.

But the Metro Council's Government Oversight and Audit Committee conducting the investigation disagreed with that legal argument and subpoenaed Hess and Schroeder.

The Fischer administration is fighting those subpoenas in court, and a hearing on the case is scheduled for Monday before Judge Audra Eckerle.

Fischer's spokeswoman, Jean Porter, said in a Friday statementthat"We don't think (the Kentucky Press Association's) filing adds anything new to the positions of the parties. We look forward to presenting our case to Judge Eckerle on Monday."

Earlier this week, a resolution calling for a no-confidence vote in Fischer was filed by all seven Metro Council Republicans, who said they felt they had no choice but to do so after Fischer "stonewalled" the committee's investigation. Fischer has dismissed the resolution as a political game.

The scope of the probe itself is wide-ranging and expected to include Fischer's handling of the Taylor case and David McAtee's death, along with the city's response to protests for racial justice that have gone on nightly in downtown Louisville since they began on May 28.

The first piece the committee planned to probe so as to avoid interfering with the ongoing investigations into Taylor's death by the state attorney general and the FBI was how the police responded to early protests.

Related: Would Fischer no-confidence vote undercut council's Taylor probe?

Topics agreed upon by attorneys for the Aug. 3 committee hearing where Hess and Schroeder were expected to testify included, among other things:

But while Hess and Schroeder were in council chambers on Aug. 3, their attorneys said both would be unable to testify unless the committee went into closed session.

"When we compare the allegations in the civil rights lawsuit just filed on July 30 with the topics on today's agenda ... there is absolutely a complete overlap," attorney David Guarnieri, who is representing Hess, said, going on to argue that since the topics touch on "pending litigation," the testimony should be in closed session.

A lawsuit challenging the subsequent subpoenas, filed Aug. 11, adds that Hess and Schroeder have "nothing to hide" and are willing to testify in executive sessionor in open session at a time when "doing so will not adversely impact" the pending civil rights lawsuit regarding the city's response to protesters.

(A judge has since granted temporary restraining orders blocking the subpoenas from being enforced for Monday's specially called committee hearing.)

That legal argument, however,is fundamentally flawed, the Kentucky Press Association attorneys write, because none of the exemptions to the Open Meetings Act applies.

See also: Metro Council rejects 'buffer zone' ordinance for health care facilities

In theirbrief, attorneys cite a 1997 court case andwrite that the "litigation exemption"only extends "to matters commonly inherent to litigation, such as preparation, strategy or tactics."

That doesn't include facts that may come up in litigation, they add.

Plus, that exemption can be claimed only by public agencies involved in a lawsuit meaning that, since the Metro Council is not a party to the suit, it could not claim it.

In fact, Metro Government, the entity being sued, isn't even subject to the Open Meetings Act.

"Neither the mayor nor the LMPD is required to open its meetings to the public," the brief says. "Thus, Metro Government cannot avail itself of any of the exemptions under the Act if asked to testify before an agency subject to that law."

Darcy Costello: 502-582-4834; dcostello@courier-journal.com; Twitter: @dctello. Support strong local journalism by subscribing today: courier-journal.com/darcyc.

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Fischer team wrong to demand closed-door testimony in Metro Council probe, attorneys say - Courier Journal