For those of us who have followed the long and singularly contentious legal battle waged by former State Budget Director John Chilton, as proxy for former Governor Matt Bevin, against open records requester Ellen Suetholz, we have finality.
In the last chapter of this long and often fractious story, the Kentucky Court of Appeals on March 3 granted the parties' Joint Motion to Dismiss the Appeal submitted under the terms of a February, 2020 settlement agreement.
On February 12, current State Budget Director, John Hicks, entered into the agreement with Suetholz. Under the settlement:
• the parties agreed to file a Joint Motion to Dismiss the Appeal in the Kentucky Court of Appeals;
• the Budget Director agreed to pay Suetholz's attorneys' fees and costs totaling $72,833, "the amount awarded in the Final [Circuit Court] Judgment;" and
• the parties agreed to "release all claims, liabilities, suits, costs, expenses, and attorneys' fees" that might have been asserted.
In an unusual sequence of events, on December 20, 2019, Gov. Andy Beshear released the disputed record: the actuarial analysis of former Gov. Bevin's "Keeping the Promise" pension reform plan.
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Suetholz originally requested the actuarial analysis in November 2017. Bevin administration officials resisted disclosure of the analysis, asserting that it was a preliminary document.
Then-Attorney General Beshear and Franklin Circuit Court Judge Phillip Shepherd rejected this argument.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2018/18ORD028…
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In affirming the public's right of access to the analysis, Judge Shepherd concluded that the actuarial analysis was not preliminary to any pending agency action. "The Governor made his policy recommendation public, and likewise he is required to make the tax-payer funded economic analysis of it public."
"It is the Governor's recommendation that is at issue here, not the General Assembly's enactment of legislation." The disputed record "merely provided economic analysis of that recommendation."
He concluded, "Because the stakes are so high, the need for full public disclosure of all relevant information to inform public debate is equally high."
The analysis confirmed that short term savings resulting from Bevin's pension "promise" would have stalled recovery of the pension and ultimately cost the state far more.
Other open records cases initiated by the Bevin administration have been, or are in the process of being, settled.
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It behooves the parties, as well as the public, to ensure that in settling these cases, Gov. Beshear acknowledges that the arguments advanced by his predecessor, which he — and in some cases the courts — previously rejected, have no legal merit and will not be advanced in his administration to impede access to similar records.
With reference to future access to actuarial analyses, an amendment to the otherwise innocuous HB 194, raises new and serious concerns about legislative efforts to assert absolute dominance over the actuarial process and the timing of release of the resulting analysis.
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The House passed HB 194 by a vote of 60-35 on January 28. It was assigned to the Senate State and Local Government Committee on January 31 but has not moved since.
