By Tom Loftus
FRANKFORT – The state Supreme Court has rebuffed the initial legal maneuver in the Bevin administration’s appeal of a court order requiring it to disclose a financial analysis of the governor’s original pension reform plan called “Keeping the Promise.”
On Friday, Chief Justice John D. Minton Jr. ruled that the Bevin administration’s emergency motion seeking an order from state appellate courts blocking immediate release of the controversial financial analysis was procedurally improper.
Minton’s ruling, which affirmed an order of the Kentucky Court of Appeals earlier last month, noted that other procedures are available to the administration if it seeks to keep the financial analysis confidential until the courts ultimately rule on whether it is a public record.
An actuary for Kentucky Retirement Systems created the analysis on the financial impact of Gov. Matt Bevin’s sweeping reform proposal of late 2017 to restore stability to Kentucky’s troubled pension systems.
The actuary completed the analysis several weeks after Bevin released his plan.
Ellen Suetholz, a former state government attorney and a member of the Kentucky Public Pension Coalition, requested a copy of the report under the Kentucky Open Records Act. But the Bevin administration denied the request, saying the report was a draft preliminary document.
Suetholz appealed that denial to the Attorney General’s office, which ruled it was a public document. The Bevin administration appealed that decision to Franklin Circuit Court.
On May 9, Franklin Circuit Judge Phillip Shepherd ruled that the analysis was a public record that must be released. Moreover, Shepherd, who was able to review the analysis in considering his decision, said in his order that the analysis “may be embarrassing to the administration in that it reveals substantial fiscal and economic problems” in the governor’s pension reform proposal.
Rather than initially seeking an order from Shepherd staying the release of the analysis while the case is appealed, the governor’s legal team filed the emergency motion with the higher courts to block the release.
Woody Maglinger, a spokesman for the Bevin administration, said in a statement Tuesday that Minton’s decision “merely concerned appellate procedure, not whether the draft report must in fact be disclosed.”
Maglinger noted that the administration this week has filed what the chief justice said was the correct procedural step to preserve it’s right to appeal Shepherd’s decision.
Tricia Herzfeld, a Nashville attorney who represents Suetholz, said Tuesday, “The administration now has fought Ms. Suetholz’s ability to get this report at all levels of the Kentucky court system on an emergency basis. I don’t know what’s in the report, but it must be pretty important and pretty damaging to the administration or they wouldn’t be fighting so hard to keep it from her,” Herzfeld said.
Meanwhile, Shepherd issued an order on Monday taking note of the Friday Supreme Court ruling and saying that his court has never received any request asking that release of the records be stayed until an appeal of the case is exhausted.
Shepherd had stayed the release of the analysis until June 12. If the administration wants to delay release of the analysis beyond that date, it must file a motion seeking a stay with his court before the end of this week, he ruled.