By Benjamin S. Rossi
12:03 PM EST, December 5, 2012
Following Jessamine County Circuit Court Judge Hunter Daugherty’s recommendation, the county attorney’s office has conceded to a request by former EMS employee Andrew Wood for several documents surrounding his lawsuit and others that are related and in appeal.
“It’s not a good use of tax-payer money to continue this litigation any further — not that we’ve used any up to this point — but further litigation would be irresponsible,” Jessamine County attorney Brian Goettl said. “We are satisfied and feel the judge did agree with us on the key points we presented that were important, and though we don’t have a written judgement, the oral decision suffices our original concerns.
“The documents he requested, those which exist, will be made available to Mr. Wood for him to look through once we’ve worked it out with the fiscal court.”
Last Thursday, Daugherty denied the county attorney’s request for a summary judgment aimed at overturning the attorney general’s opinion that stated the county violated the Open Records Act.
“It’s definitely a victory for us today that the judge sided in our favor,” said Robert Cowan, Wood’s attorney. “But there are other things going on that we cannot comment on now.”
The case revolves around the Kentucky Office of the Attorney General’s (OAG) opinion released Aug. 16 that stated the fiscal court, represented by the county attorney’s office, violated the Open Records Act for a second time this year by not handing over documents to Wood.
Both sides stated after the oral recommendation by Daugherty that it was a victory in their favor, Wood getting he requested and the county attorney’s office stating the recommendation cements the fact that
its office is not the custodian of records for all county departments.
This was the second time this year that the OAG stated the county was in violation of not handing over records to Wood, who is currently suing the county for alleged wrongful termination and violation of his civil rights because of his support of a sexual-harassment claim filed by another former EMS employee Tina Griggs.
The sexual-harassment claim was against EMS director Jerry Dominion and was dismissed, but it is currently being appealed — also by Cowan.
Wood filed a complaint with the OAG and stated he sent an open-records request by fax to the county attorney’s office on May 24 that sought multiple documents including any records of his employment hearing as well as emails and memos regarding himself, Griggs and Domidion. He also sought any disciplinary actions concerning paramedic Christie Weifenbaugh.
The county attorney’s office claims that it never received the request from Wood and that the OAG should have waited to issue a law-binding opinion before the validity of the claim could be determined.
Attorney Joseph Allison responded to the OAG stating the county attorney’s office did not even know about the open-records request until the OAG’s opinion was released but even if it had the request would be denied because the county attorney’s office is not the custodian of those records.
Cowan presented a time-stamped fax confirmation receipt, the same that was sent to the OAG in Wood’s complaint.
Daugherty said he agreed with the OAG and he felt the records Wood requested were completely reasonable and that he would prefer to see the county attorney’s office work it out with the plaintiff instead of returning to his courtroom.
Goettl’s original concerns were that the OAG’s opinion would set a precedent in which his office would be responsible for all open-records requests made to any county department it represents.
The whole appeal basically boils down to a misunderstanding in a letter to Wood’s attorney, Cowan, in which he interpreted that any further open-records request should be sent through the county attorney’s office.
“That was a courtesy letter between lawyers, not for Mr. Wood or anyone else that would file an open-records request,” Goettl said. “At the time we did not know that Mr. Cowan was representing Mr. Wood. We are not the custodian of many of the records Mr. Wood asked for, and he could have gotten them by going to those departments and making the request.”
Daugherty agreed that the letter from Allison to Cowan created a perception that the county attorney’s office, acting as counsel for the fiscal court, gave the appearance of gathering those documents for Wood.
The county attorney’s office, represented by Allison, contented in court that it is not the office’s responsibility nor is it the custodian of those records.
Daugherty agreed but reiterated that he believed this issue could be dealt with outside of his courtroom if the two parties came to an agreement.
Wood also had the option to sue the county for $25 a day for every day the records were not provided.
Daugherty asked Cowan if that was their intent, and Cowan said Wood only wanted the documents he requested.
Wood’s case against the county is in a state of discovery.