In November 2017, I filed an open records request to obtain the suppressed actuarial analysis of an earlier pension proposal former Governor Matt Bevin called “Keeping the Promise.” The Bevin administration refused my request, arguing the record was a draft preliminary document exempt from release. I appealed to then-Attorney General Andy Beshear’s office, as is allowed by statute. After I won a favorable ruling from the attorney general, Governor Bevin sued me to keep the report from the public.
Few people are aware that by exercising your rights under the Kentucky open records statute you are subjecting yourself to the potential of being sued. I’ve made requests before, but generally the government complies after the state attorney general rules. Governor Bevin had a history of suing when the attorney general ruled against him. I was one of many people sued by the Bevin administration in Franklin Circuit Court. My case was somewhat different because I am an attorney, and I have easier access to other attorneys to represent me. Others are not so fortunate and are either forced to represent themselves or pay costly legal fees.
Sadly, I was sued at the beginning of March 2018 and the previous governor did nothing to move the case along. His administration essentially sued just because they could. Through my attorney, I attempted to gain some insight on the matter through discovery [seeing the evidence before trial], but the response was evasive. In fact, we thought we may end up in court just to request the government to comply with our requests. They were happy to allow these types of cases to sit and were called out by the judges in Franklin County for doing so. One decision by Franklin Circuit Judge Phillip Shepherd resulted in the defendant being awarded attorney’s fees due to Governor Bevin’s administration improperly withholding information about the investment of public money in a private company. The standard for awarding attorney’s fees is high, so for a judge to require our government, i.e., taxpayer money, to be used to pay for attorney fees, the behavior must be pretty egregious.
Eventually, we made a Motion for Summary Judgment and Judge Shepherd ruled that the analysis was not preliminary in nature but was an analysis of a policy that had already been announced. In addition, he determined the Bevin administration intentionally violated the Kentucky Open Records Act in refusing to release a copy of the analysis and ordered it to be released. The state was ordered to pay fees and costs to me. Unfortunately – much like every favorable ruling we had received before - this was again appealed. Governor Bevin and his team of lawyers appealed every ruling to the ridiculous extent that at one point the case was being considered in Circuit, Court of Appeals and the Supreme Court. If not for his loss in 2019, my case may have still been in court.
Within weeks of Governor Andy Beshear taking office in December 2019, he released the analysis. The case was eventually dropped and the costs and fees were paid in March 2020. As expected, the report showed that closing existing plans and moving workers into 401(k)-style defined-contribution plans would cost more and give employees less. Hopefully, the information revealed in the analysis will be used to positively shape any future discussion or legislation regarding pensions.
Bio
Ellen Yonts Suetholz is the coordinator for the Kentucky Public Pension Coalition, an affiliate of the National Public Pension Coalition. She is also a lobbyist with Working Strategies 2, LLC for various labor unions in Kentucky. She worked with her husband, Dave, at their union side labor law firm, which had offices in Louisville and Cincinnati and served over 70 unions in Kentucky, Indiana and Ohio. Ellen lives on a working farm in Henry County with her husband and twin daughters, Phoebe and Fiona.
