A unequivocal vindication of the public's right of access to the actuarial analysis of the governor's 2017 pension plan in a final judgment and order issued by the Franklin Circuit Court on June 24 in Office of the State Budget Director v. Ellen Suetholz.
Less than two week after a hearing on a motion for a stay by the Office of the State Budget Director and a motion for attorneys' fees by Suetholz, Judge Phillip Shepherd denied the budget director's motion but allowed the "previously granted stay to remain in effect" while the budget director seeks injunctive relief.
In an exhaustive 19 page judgment, the court carefully analyzed the arguments advanced by the parties. Judge Shepherd considered the two year delay resulting from the budget director's legal maneuvers, including the "torrent of appellate motion practice [to which] counsel for Ms. Suetholz was duty bound to respond" following entry of his May 9 opinion, in awarding attorneys' fees concluding that the denial of her request "was a conscious, deliberate strategy to suppress public debate on an important issue of public policy. . . . "
Judge Shepherd granted Suetholz motion for attorney' fees in the amount of $71,237 and expenses in the amount of $1,596.
In awarding attorneys' fees based on a finding of willfulness, the court reasoned that the budget director "could identify no valid interest in nondisclosure and that its efforts to conceal the actuarial analysis were truly meant to protect certain government officials from public embarrassment rather than a principled belief exemptions protected the analysis from disclosure."
Characterizing the budget director's legal argument that the actuarial analysis "was preliminary to the enactment of legislation rather than final as to the Governor's proposal," as "creative," the court recognized that neither the language of the open records law nor case law support this position.
Because the actuarial analysis was generated after the governor presented his pension plan, it could not be deemed a "preliminary" record.
As for ongoing discussion of the actuarial analysis, the court observed:
"Certainly, the budget director is free to dispute or contest the conclusions reached by the actuaries. The budget director has every right to point out any problems or concerns he has identified in these actuarial studies; that is a necessary part of the public debate on this important issue. Such public debate of this important issue should be encouraged. BUT HE CANNOT STIFLE THE PUBLIC DEBATE ON THESE ISSUES, AND SUPPRESS CRITICISM OF THE GOVERNOR'S POLICIES, BY HIDING THE CONTENTS OF THE ACTUARIAL STUDIES PAID FOR BY THE PUBLIC AND THE MEMBERS OF THE KRS." (Emphasis added.)
The court declined to award penalties, or hold the budget director in contempt, "because of the court's concern that the unique circumstances of this case, such findings would only penalize the taxpayers."
No doubt, the court's final judgment will be greeted with harsh criticism by the budget director, the attorneys for the governor representing him, and perhaps the governor himself, but the reasoning of the final judgment is airtight. Simply put, it is legally unassailable.
