Attorney tries to spin outcome of Supreme Court ruling, but facts speak for themselves
Published 1:15 pm Saturday, October 21, 2017
By JOHN NELSON
It was my hope to be present for the Danville City Commission meeting in which it finally was forced to publicly admit — or at least acknowledge — a violation of the state’s Open Meetings Act in the summer of 2012. Even though the members are not all the same as were seated at the time of the violation, they followed the leaders in the filing of repeated unwise and unnecessary appeals, all of which failed. I’m now glad I wasn’t there.
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City Attorney Stephen Dexter appears to have attempted to snatch victory from the jaws of defeat. He was trying to justify the city’s prolonged fight against an attorney general’s ruling that Danville violated the open meetings law when it voted in closed session to purchase the BISCO building five years ago at auction. The Advocate-Messenger requested that ruling, and the city chose to sue the newspaper to get it overturned. A recent decision from the Kentucky Supreme Court finally put a stop to the nonsense, but not before the city spent more than $66,000 in legal fees, and the newspaper paid more than $100,000 in its defense.
In his follow-up report to the commission almost two weeks ago, Dexter began by misrepresenting the newspaper’s approach to the complaint, saying, according the The Advocate’s reporting, “The charges, as they arose, were that the city met in some covert operation, with some nefarious clandestine purpose of buying property without public input. Those were the claims.”
Really? Here’s how the state attorney general described the claims in its initial ruling: “The Advocate-Messenger does not dispute the propriety of the closed session discussion of the ‘various alternatives’ relating to the purchase of the BISCO Building or assert that the commission failed to ‘state the specific exception contained in the statute which [it] relied on in order to permit a secret session.’ Instead, the newspaper alleges that the commission carried the scope of the permissible secrecy too far …” by approving the purchase behind closed doors.
That doesn’t sound like an allegation of conspiracy.
Perhaps the Commission became as convinced as was Dexter, but there is no spin that can change the outcome of this case. Danville lost the attorney general’s ruling; lost in circuit court twice; lost in a unanimous decision by the Kentucky Court of Appeals; and lost in a unanimous decision by the Kentucky Supreme Court, all of whom concluded the city violated the law. And the Court of Appeals found the violation egregious enough to award the newspaper its attorney fees, a rare decision against a public agency. That part of the lower court’s decision was overturned, a disappointing but expected turn of events.
Dexter described the issue as something new, and it was. He also described it as “gray.” Well, it wasn’t gray to the newspaper or to any of the courts who issued unanimous rulings. Perhaps it was confusing to the city, and that’s why the Supreme Court in its decision “edified,” or explained, to the city how to proceed when it wants to buy land at auction without violating open meetings law.
To accept that there was something “gray” in the law by the court’s interpretation, or that what the city did was somehow “lawful,” requires tying one’s brain in a knot, an infuriating exercise. The only confusing interpretations of the open meetings law came from the city, and despite having it explained over and over by authorities on the subject and the judges who backed them up, Danville chose to kick and spend its way to the state’s highest court in pursuit of an elusive legislation from the bench.
Dexter also somehow has managed to spin the city’s perpetual appeal strategy as some kind of response to an imaginary statewide outcry from cities worried about their ability to buy property at auction. Funny we never heard about that outcry in any statewide reporting. Sure, their lobbying agencies eventually filed briefs in support of Danville’s position, but that’s what special interests do: actively participate in any effort to advance their special interests, especially when asked to do so by one of their members.
In roughly 40 years of covering small towns, I didn’t encounter a city buying land by auction until that Saturday in 2012. I suspect it will be a long time before I encounter it again, despite the silent outcry echoing in the chambers of Danville City Hall.
The truth is it was no secret Danville was interested in the BISCO building, and keeping that interest under wraps was an exercise in futility. The city had occupied the building for years through a lease, had made overtures to the owner and had received overtures from the owner. A relative of one city commissioner was even trying to act as a go-between. And the city had budgeted to buy a building. Those facts were lost on no one.
The revelation of the city’s interest did not affect the price negatively — according to witnesses at the auction, it kept the price down. One potential bidder told the newspaper that once it became apparent the city was bidding, others backed off. The courts couldn’t have known that background or used it in their decisions, but it weakens the city’s argument that the price of the property would have been negatively affected — at least in this instance — had it been more transparent about its intentions.
It was never the newspaper’s intention to ask that the sale be voided because of the illegal action during the meeting. But it could have, and the Court of Appeals wondered why it hadn’t. All the newspaper wanted was for the city to admit it had made a mistake and to promise it would be more responsible in the future. When it became apparent the city would double and triple down on its position, the newspaper asked for attorney’s fees and became more suspicious of the city’s original intentions.
In the end, the city lost its argument in as many ways as anyone can spin it. And it caused great expense to a local taxpaying business, the oldest private business in the city, not to recover any loss, but simply to make a point. I wonder what other local business the city would go to such lengths to fight. I suspect none.
John Nelson is editorial director for Landmark Community Newspapers. He served as executive editor of The Advocate-Messenger from June 1997 to February 2016.