Editor’s Note: The Kentucky Press Association general counsels Jon Fleischaker, Michael Abate and Casey Hinkle prepared and filed an amicus brief in this case at the request of the Metro Council. KPA’s brief is attached as a pdf. KPA General Counsel Michael Abate requested and received the court’s permission to participate in the oral arguments. His comments were mostly from the brief itself.
By Darcy Costello, Louisville Courier Journal
Officials in Mayor Greg Fischer’s administration must testify publicly in the Louisville Metro Council’s investigation into the Breonna Taylor case, David McAtee’s death and protests for racial justice, a Jefferson County judge ruled Tuesday.
And that public, sworn testimony could come as soon as Sept. 16, if the Metro Council committee conducting the probe has its way.
Fischer’s interim police chief and chief of public safety, both of whom were subpoenaed by the Metro Council committee conducting the investigation, had argued that they shouldn’t have to testify in open session because of a pending civil lawsuit filed against the cityby the American Civil Liberties Union of Kentucky and the NAACP Legal Defense Fund.
Jefferson Circuit Judge Audra Eckerle, however, wrote in her order that the Louisville Metro Government had not established it would be “irreparably harmed” by that testimony and that a civil lawsuit must not “trump elected government oversight of key, senior public officials.”
“In reality, every activity carries with it the potential of litigation,” Eckerle wrote. “Were that risk alone sufficient reason to act clandestinely, no government operation would be open or subject to review, and the Open Meetings Act would be pointless.”
Eckerle added that the testimony “plainly addresses past actions or inactions, not future opinions,” including events, decisions or directives that were already made or already took place.
The subpoenas for interim Chief Robert Schroeder and Chief of Public Safety Amy Hess — which were reissued Tuesday following Eckerle’s ruling — are the first ever sought in connection with an investigation by the Metro Council’s Government Oversight and Audit Committee.
That probe, also one of the committee’s first, was initiated July 13 following criticisms and concerns around the Fischer administration’s handling of the Taylor case and protests for racial justice.
The committee’s chair, Councilman Brent Ackerson, D-26th District, said Tuesday that Hess and Schroeder would be subpoenaed to appear before the committee for a special meeting at 2:30 p.m. Sept. 16.
After discussion, the committee opted not to subpoena the department’s lieutenant colonels and police majors.
Eckerle’s ruling comes just less than a month after Metro Government sued all 26 Metro Council members, seeking to ensure that any testimony from Hess and Schroeder be held in closed session.
She previously ruled in favor of Metro Government’s request for a temporary injunction to block Metro Council subpoenas for Hess and Schroeder.
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Her Monday ruling could be appealed to the Court of Appeals. But Fischer spokeswoman Jean Porter wrote in an emailed statement that an appeal is unlikely.
“As we previously indicated — as recently as Friday, Sept. 4 — to both the committee and the court, Chief Hess was and is willing to waive the open meeting exemption and testify in open session,” Porter wrote.
Hess’ attorney previously offered to have her testify this week or to present other witnesses, according to the city’s lawsuit.
Schroeder, meanwhile, announced Monday that he planned to retire from the Louisville Metro Police Department on Oct. 1. It’s not clear whether his retirement will affect any future testimony he might give to the committee.
Schroeder’s attorney, Joey Klausing, declined to comment Tuesday, saying he would answer a reporter’s inquiry Wednesday.
Porter said in her statement that Schroeder has said the council investigation was “not a factor” in the timing of his retirement. She declined to answer whether Schroeder intends to testify in open session.
“Since he’s named as an individual in the ACLU case, you’ll need to talk with his counsel,” she said.
The committee conducting the investigation has the power to subpoena “any officer of or appointee to a board or commission … or any department or division of Louisville Metro Government.” However, that subpoena power may not extend to former city officials.
The committee initiated an investigation in July to look into Fischer’s handling of the Taylor case, McAtee’s death and racial justice protests that have extended more than 100 days.
Hess and Schroeder were scheduled to testify Aug. 3, but their attorneys said they couldn’t testify in open session, citing state open meetings law, because of a federal lawsuit regarding LMPD’s response to protests.
The council committee disagreed with that legal interpretation and voted 10-1 to subpoena the officials.
Before the committee’s subpoenas, Hess and Schroeder were expected to discuss:
• Vandalism and the police response to it.
• Use of tear gas and/or pepper balls.
• How the media became a “target,” including the WAVE 3 reporter and cameraman who were shot with nonlethal weapons.
• Directives issued by leadership and any resulting confusion.
• Any “stand down” orders that were issued.
• How law enforcement came to be at 26th and Broadway the night McAtee was shot and killed by a National Guard member.
The committee had agreed not to veer into topics that could be covered in the ongoing investigations by Kentucky Attorney General Daniel Cameron and the FBI into Taylor’s March 13 fatal police shooting.
But attorneys said the sweeping federal civil rights lawsuit — which names Schroeder but not Hess, who is Schroeder’s superior and reports directly to the mayor — filed before the committee hearing overlapped those topics.
Hess’ attorney, David Guarnieri, argued that under the state’s Open Meetings Act, if meeting topics are expected to touch on “pending litigation,” then testimony should be taken in closed session.