The Kentucky Attorney General’s Office has issued an opinion stating the City of Union “violated the Open Records Act,” which guarantees public access to government records (with some exceptions), in spite of the city’s insistence to the contrary.
Specifically, the AG’s office contends the city failed to 1) respond to a request within five business days as required by law, 2) adequately provide reasoning for redactions in the records requests and 3) perform an adequate search for records.
The opinion came down from the attorney general’s office on May 28 as a result of a complaint made by former City Commissioner Brian Garner, who was ousted from his seat on the commission earlier this year following a legal battle that ensued after the Boone County Clerk’s office distributed the wrong ballots to two polling sites during the November election.
Records shared with LINK nky by both Garner and Mayor Larry Solomon indicate that Garner had made eight open records requests to the city between Feb. 4 and April 23.
The city and the special attorney it had hired to deal with the issue, Jeff Otis, later responded to the AG’s ruling with a letter claiming, essentially, that the AG didn’t have all of the facts surrounding Garner’s requests.
The AG then sent a form response letter reaffirming its decision, citing the part of Kentucky law that mandates the attorney general not to reconsider its decision outside of court.
Solomon later told LINK nky that “we knew that they’re not going to change their decision,” but the letter was a way “to put a statement on for the record,” providing a deeper picture of the situation.
Both Solomon and Garner stated they were not interested in taking the matter to court.
Garner made the specific request that led to the complaint at the end of March for records of communications and meeting notes related to the appointments of replacement commissioners.
Garner, along with Eric Dulaney, were snubbed for appointments in February, even though they both won elections for seats on the commission, according to the election results before the court case.
“When we talk about ‘the City’ violating the law, we’re really talking about Mayor Larry Solomon and the commissioners he appointed after the election was thrown out,” Garner said in an email statement. Later on in his statement, Garner argues, “This wasn’t some bureaucratic oversight—these were deliberate choices to withhold information from the public.”
Documents from Garner, the city and the AG’s office allow one to sketch a timeline leading up to the AG’s decision.
Garner made his request to City Clerk Tammy Wilhoite on March 19, requesting various forms of communications from the city and commissioners, including phone logs. Wilhoite responded on March 25, providing part of Garner’s requested records but stating that “there are no phone logs” but that he could “reach out to [the] Mayor and Commissioners to request phone logs.”
The city grants elected commissioners a stipend to purchase phones in their roles as officials, rather than giving them phones outright. Commissioners aren’t required to spend the money on phones, so they instead use their personal phones to communicate with each other, the public and city staff.
Garner submitted an amended request on March 26, expanding the time frame for some of the records. The city responded the following day with some of the phone records, but Garner argues the records provided were incomplete. Garner sent an email to Wilhoite on March 28 inquiring as to the purported incompleteness of the records.
Although Garner admits that the “omissions are likely accidental,” in a subsequent April email, he notes several discrepancies in the phone logs, namely that logs showing calls between Commissioners Doug Bine, George Eldridge, John Mefford and the mayor didn’t match – the logs showing outgoing and incoming calls between commissioners and the mayor didn’t line up.
Then, on April 2, Garner received an email from Otis, who had been contracted by the city specifically to handle Garner’s records requests and any legal actions that might follow at a rate of $150 an hour, according to city records.
Otis does not work as Union’s city solicitor – that role is occupied by Greg Voss – but he is active in municipal law in the region. He represented the City of Elsmere when that city council attempted to remove former Elsmere Councilwoman Serena Owen from office. He was accused of offering Dr. Ed Conner, who appeared as a custody expert in a case involving former attorney Ben Dusing, $5,000 to change a custodial evaluation involving Dusing. Dusing later denied he ever asked anyone to bribe Conner.
“Mrs. Wilhoite will not be responding to the issues and/or questions that
you reference in this specific email request,” Otis writes in his email. “Mrs. Wilhoite has met her legal obligation to you and owes you no further duty in this matter.”
Otis goes on to write that any more questions related to the records requests should be directed to him, rather than city staff.
“It is not appropriate for you to engage the City Clerk with what your opinion of the law is or is not,” Otis writes. “It is inappropriate for you to push your interpretation of the law upon her to get whatever it is that you want. Ultimately, it is not up to Mrs. Wilhoite to determine if your interpretation of the law is either correct, or incorrect.”
Otis concludes his email by stating that the city’s response to Garner’s request was in accordance with the law and, thus, complete.
“You will not receive any additional records pursuant to the March 19, 2025 request,” Otis writes.
Garner emailed Otis back, pointing out the purported discrepancies in the logs. Later that same day, Wilhoite emailed two phone logs she’d since received from Bine. Garner argues that this demonstrates the city inadequately searched for the appropriate records, but Bine argued to LINK nky that this was more due to timing. According to Bine, his carrier’s phone logs and statements had not been generated in time for the initial request, but he sent them over as soon as he had them.
Garner continued to email city staff members and Otis for the remainder of April. On April 15, Otis sent an email that reflects Bine’s reasoning: “I was under the belief that Ms. Wilhoite supplemented this Open Records Response with additional call logs as they became available.” Garner reaffirmed his position that the city’s response to his request was incomplete in an email to Otis on April 18.
Solomon later affirmed this.
“What I was told was that his billing came at a different time than ours,” Solomon said, “and so he only had part of it. As he got the billing, he provided it to Tammy, and she provided it to Mr. Garner.”
In any case, the AG’s office would eventually dock the city for failing to produce the records faster.
Garner appealed to the Attorney General’s Office at the end of April, and the office tendered its opinion on May 28.
For his part, Bine contended the incompleteness of this record’s response was due to error, he said, “nothing nefarious.”
“There’s no there, there,” Bine said. “There’s not anything nefarious going on. There’s no shadow government going on behind the scenes.”
Bine admitted that the redactions he made to his phone logs may have contained errors; part of the AG’s opinion is that city failed to provide adequate reasoning for its redactions.
Looming behind all of these conversations is the prospect of political back-channeling, the risk that commissioners and the mayor as a group could be communicating about (and deciding on) city business outside of a public meeting.
While it’s permissible for commissioners to simply talk one-on-one outside of a meeting, three or more commissioners (i.e., a majority) talking about city business outside of a public meeting is illegal. This rule is designed to head off corruption among elected officials. One such scandal gripped Cincinnati in 2019 when five of its council members conducted public business over text message outside of public meetings.
While Bine admitted he contacted Commissioner John Mefford, “Commissioner Mefford and I have been friends for 12 years, 13 years,” Bine stated, saying that they meet frequently in a friendly capacity to chat and socialize without discussing city business. They were friends prior to holding office, Bine said.
Bine believed the situation was more fallout from the results of the dissolution of the city government earlier this year, a view Solomon shared, calling the accusation of serial communication “not true.”
“If one of the commissioners calls me and asks my point of view, I tell them,” Solomon said. “But I’m not getting consensus. That’s a cheap shot.”
Solomon maintained that the city had a made a good faith effort to furnish all of the communications Garner requested.
Starting July 1, Solomon said, the city will begin issuing separate cell phones to the elected officials to avoid problems like this in the future.