The Kentucky’s Open Records Act aids in government accountability and transparency and supports the basic policy that free and open examination of records is in the public’s best interests. The Act itself is constantly under attack by those who don’t share in the belief that all transactions involving their government should be open to public review and scrutiny.

Pike County’s Open Records Story

In 2005, I was serving as a Magistrate on the Pike County Fiscal Court when Pike County’s water district, Mountain Water District (“MWD”), entered into a private management contract with Utility Management Group (“UMG”) a newly formed company, to operate all aspects of the water district. MWD was the first client of UMG and the original contract between them was for 5 years. During the initial term of the contract, MWD’s financial condition declined rapidly and substantially resulting in the district depleting its statutorily required bond reserves and having to borrow money just to meet its payroll obligations.

In addition to a rapidly declining financial condition, MWD was also the subject of a substantial amount of negative press and publicity including multiple reports that legislators, and in one instance a close family member of a legislator, as well as a former high ranking state government cabinet member, were benefitting financially from UMG’s contract with MWD. Rumors were also circulating that MWD board members and/or their family members were receiving financial benefits from UMG.

These red flags prompted us, the Pike County Fiscal Court, to request an audit of MWD in 2010. The audit was conducted by Kentucky State Auditor Crit Luallen, and her report, which was released on January 27, 2011, contained 8 findings that included substantial financial and operational deficiencies at the district and resulted in legislative ethics charges being filed against one of Pike County’s then-sitting legislators. The audit also reported that MWD’s private contractor, UMG, “limited the auditor’s access to its records” and “did not fully disclose to the Auditor all the records the Auditor needed to conduct a thorough examination of the management and operation of MWD”.

Believing the Kentucky Open Records Act applied to UMG due to the fact that 25% or more of its income was derived from state or local government authority funds, and wanting to show the public how UMG had been spending its money while the District finances were descending rapidly toward insolvency, the Pike County Attorney’s Office, at the direction of the Pike County Fiscal Court, sent an open records request to UMG on March 4, 2011 requesting “a list of expenditures including check number, date, amount and payee for all checks written from January 7, 2005 through present”. The request was denied and the Pike County Fiscal Court was forced to file suit against UMG under the Kentucky Open Records Act to obtain the records. 

In 2012, after the Pike Fiscal Court had already filed suit, the Kentucky legislature passed a bill (HB 496) amending the Kentucky Open Records Act to exempt companies like UMG, which acquire public funds through a bidding process. The bill became law in 2012, however when we made the request for the records, the law hadn’t been amended at that time. That fact would prove to be the difference in the end.

The battle was long and fierce. We, the Pike County Fiscal Court, initially lost at the circuit court level, but won a decisive unanimous decision at the Court of Appels where Judge Jones, Maze and Kramer unanimously ruled in our favor. Judge Maze and Judge Kramer joined in a most inspirational concurring opinion which should be on the wall of every newspaper office in Kentucky. It read:

“I whole-heartedly concur with both my colleagues’ conclusion and with the well-reasoned analysis they employ in reaching it. I write only to amplify their reference to the historical origins of the principles advanced by our Open Records Act.

Liberty cannot be preserved without a general knowledge among the people, who have a right…, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge; I mean, of the characters and conduct of their rulers.

John Adams, Dissertation on Canon and Feudal Law 118-123 (Robert J. Taylor, ed., Harvard University Press, 1977) (1765). Presidents Adams and Madison agreed on nearly nothing during their parallel political careers. However, they agreed on the public’s right to information. This fact speaks to the timelessness and universality of that right which lies at the heart of the Kentucky Open Records Act. Therefore, exceptions to the public’s right to know are rightfully few and narrowly read.

The people of Pike County, and their representatives, were entitled under the Open Records Act to seek answers regarding the conduct of UMG and its expenditure of funds. That these answers might contain “the most dreaded… of knowledge concerning UMG or others is of no consequence. On the contrary, it is all the more reason they must be given.”

The Court of Appeals decision was appealed by UMG and the case eventually ended up in front of the Kentucky Supreme Court where Chief Justice Minton, joined by Justices VanMeter, Keller and Venters, authored the published decision affirming the Court of Appeals ruling.   Utility Management Group, LLC v. Pike County Fiscal Court :: 2017 :: Kentucky Supreme Court Decisions :: Kentucky Case Law :: Kentucky Law :: US Law :: Justia

Finally in November of 2017, after more than 6 years, a representative of UMG showed up at the Pike County Courthouse with 9 banker’s boxes (approximately 36,000 pages) of copied checks. The checks turned out to be exactly what those of us on the Pike County Fiscal Court believed may be found and there were still dozens of checks missing from the UMG disclosure. 

Here's a sample of what was found when the checks were reviewed:

• Monthly payments toward a luxury automobile
• Nearly $100,00 in payments to a private company operated by the mother of the MWD Chair of the Board of Directors
• Checks for “Gift Certificates for Commissioners”
• Over $40,000 for company parties at a local hotel
• $1,000 payable to the Pike County Judge-Executive
• $2,000 Monthly “consulting” payments made to a Frankfort consulting company during and after the time the State Auditor’s examination of MWD was ongoing. 

Based in no small part to the Pike County Fiscal Court’s commitment to bring transparency to one of the largest water districts in the State of Kentucky, MWD terminated its contract with UMG and now operates independently once again. My colleagues on the Pike County Fiscal Court and I endured harsh political fallout from our willingness to stand-up and demand transparency and accountability within our county’s water district. The Pike County Attorney, Howard Keith Hall, and his assistants, Roland Case and John Doug Hays, who represented us for 6 years, deserve a great deal of credit for keeping the ball rolling and believing in our cause.

The members of the Pike County Fiscal Court who were serving at the time the Open Records Request was made and during the time it was ongoing were myself, Hilman Dotson, Jeff Anderson, Vernon Johnson, Leo Murphy, Kenneth Robinson and Bobby Varney. These men also deserve a great deal of respect for not giving up and for being willing to fight for what we all knew was right. 

Because of HB 496, and it’s watering down of Kentucky’s Open Record’s Act, it’s hard to know how many similar situations as uncovered by our utilization of the Act may be going on across the state today

Bio

Chris is a 1993 graduate of the University of Kentucky and a 1996 graduate of the Chase College of Law at NKU. He served as a Magistrate on the Pike County Fiscal Court from 2002-2014, during which time he also served on the Executive Committee, Workers Compensation Fund Board and as President of the Kentucky Association of Counties (KACo). Chris was elected Kentucky State Representative for the 93rd District in 2014 where he served 3 consecutive terms. 

Chris currently maintains a private law practice in the Tug Valley where he is licensed to practice law in Kentucky and West Virginia.