Daily Independent (Ashland, KY)

December 7, 2012

Judge: Law was not violated

Carter Fiscal Court meeting didn’t breach ‘impossibility standard’

Kenneth Hart
The Independent

GRAYSON — Even though he essentially agreed with the plaintiffs’ contention that Carter Fiscal Court violated the state’ Open Meetings Law by refusing to move its May 29 meeting to a larger room to accommodate an overflow crowd, a judge has determined that, based on existing case law, an actual violation of the law did not occur.

In a ruling handed down Thursday, Special Judge John David Preston said based strictly on statutory language, the court ran afoul of the Open Meetings Law by not having the May 29 session in a place that was convenient to the public or conducive to public participation.

However, Preston also determined the court had not breached the “impossibility standard” established by the Kentucky Supreme Court in 2004 in its ruling in another open-meetings case, Knox County vs. Hammons.

In that case, Preston wrote, the high court held the Open Meetings statute “did not impose upon government agencies requirement to conduct business only at the most convenient times,” but was designed “to prevent governmental bodies from conducting their business at such inconvenient locations as to effectively render public participation impossible.”

While conceding the burden of proving something “impossible” was an extraordinarily high one, it was the one the 2004 case imposed upon the plaintiffs in the Carter case, Renee Stewart and County Attorney Patrick Flannery, and, it was one they failed to meet, Preston wrote.

Preston ordered the case dismissed with prejudice. The plaintiffs can appeal the ruling to the Kentucky Court of Appeals if they so choose.

Stewart’s and Flannery’s suit against the court was essentially an appeal of a ruling by the Kentucky Attorney General’s Office. In that ruling, the AG’s office stated it was unable to conclude from the evidence at hand Carter Judge-Executive Charles Wallace’s refusal to move the May 29 meeting constituted an Open Meetings Law violation.

The meeting drew such a large crowd because the principal item of business on the agenda was first reading and approval of legislation establishing the highly controversial Northeast Regional Jail Authority with Boyd County. Stewart’s and Flannery’s lawsuit sought invalidation of the legislation due to the alleged open meetings violation.

Preston, who was appointed special judge in the case after Carter Circuit Judge Rebecca Phillips recused herself, heard evidence from both parties in the matter during a bench trial Nov. 29.

Stewart testified she was not present at the meeting, but was able to conclude from viewing video footage that the meeting room, in the former Carter District courtroom on the second floor of the county courthouse, was packed to capacity and people were unable to get into the room for the meeting because of the crowded conditions and that several left because they were unable to see or hear what was taking place from the hallway.

Stewart also testified the video showed one of the chuch-style pews in the meeting room breaking under the weight of those sitting on it.

Flannery testified he twice recommended to Wallace and the court that the meeting be moved to the former Carter Circuit courtroom on the third floor of the  courthouse, which has a larger seating capacity. Although there was some discussion of moving the meeting, no action was taken to do so, according to Flannery.

Wallace testified the meeting wasn’t moved to the third-floor courtroom because that room hadn’t been cleaned and had been closed off and because that room didn’t have a PA system. He also testified that everyone who wanted to be heard on the regional jail issue was heard and no one had complained to him that they had been unable to attend and observe the meeting.

The Carter and Boyd fiscal courts have both approved legislation establishing the regional jail authority. However, implementation of the authority is on hold pending the outcome of another lawsuit filed in Franklin Circuit Court by the Kentucky Jailers Association.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.