A strange twist on an open meetings challenge in today's meeting of the Metro Council's government oversight and audit committee.

Louisville Metro Police Department Interim Chief Robert Schroeder and Public Safety Chief Amy Hess were scheduled to discuss the city's protest response with the committee but raised last minute objections to publicly testifying.

Those objection were based on a federal class action lawsuit filed by the ACLU and NAACP against LMPD and the city alleging "excessive use of force" against protesters.

https://wfpl.org/aclu-naacp-sue-lmpd-over-excessive-use-of-force-agains…

The chiefs agreed to discuss the protest response with the committee but only in a closed session conducted under authority of the open meetings exception for "discussions of proposed or pending litigation against or on behalf of a public agency."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48229

That exception has been construed on a number of occasions to permit closed session agency discussion of litigation strategy or tactics when the agency has been sued or is suing someone or something else.

It exists to ensure that the agency's legal position is not compromised by discussion in open session.

Thus, the court have declared that "the drafters of this legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics."

https://caselaw.findlaw.com/ky-supreme-court/1012466.html

Even if it wanted to do so, the committee could not have invoked the exception properly to conduct a closed session discussion of the city's response to protests with the chiefs.

Such a discussion would have "expanded the intended scope of the litigation exception and improperly concealed matters otherwise appropriate to the view of the public."

Recognizing that the exceptions to the open meetings law "must be narrowly construed and applied so as to avoid improper or unauthorized closed, executive or secret meetings," the committee refused to accommodate the chiefs', and their lawyers', unreasonable and unsupportable demands.

So the chiefs and their lawyers beat a hasty retreat, unwilling to publicly testify about a matter for which the open meetings law provides no legal shelter.

To suggest that an exception to a law rightly favoring openness can be forced upon an agency to compel a closed session turns the law upside down.

Especially where the exception could not have been legally invoked by the agency to begin with.

Whatever cards the chiefs' attorneys have up their sleeves, they should avoid playing the open meetings card to defend the chiefs' refusal to testify anywhere other than in closed session.