Fourteen votes of the recently convened Metro Council Court would be needed to remove Councilman Dan Johnson from office, according to a ruling released Wednesday by council president David Yates, the presiding officer of the trial that will determine Johnson’s fate.
Councilman Yates released the ruling on this matter after a pretrial hearing of the 20-member Council Court on Wednesday afternoon, in addition to several other motions made by Johnson’s attorney and the attorney of the Charging Committee of five council members that called for the proceedings to remove Johnson from office after multiple allegations of sexual harassment emerged this summer.
In the two other removal trials of Metro Council members over the past six years, a two-thirds vote of the 20-member Council Court was needed to remove a member, which amounts to 14 votes. However, the state legislature voted this year to approve an amendment to the state law governing this removal process, keeping the two-thirds vote requirement but striking the reference to a sitting court of the council, instead inserting the entire council.
In his motion to Yates three weeks ago, Johnson’s attorney, Thomas McAdam, argued that this change to the state law meant that 18 votes of the Council Court would be needed to remove Johnson, as this was two-thirds of the 26 members of the entire council. Deborah Kent, the attorney for the five-member Charging Committee prosecuting Johnson, countered in a motion that McAdam was correct about the 18-vote requirement for removal, but argued that members of the Charging Committee and Johnson himself could also vote on whether or not he is removed from the body.
In his ruling, Yates disagreed with both sides and re-instituted the same voting process for removal that had existed in the past, saying that the new language of the statute “results in a ridiculous or absurd result.” To make his point, Yates cited how the same statute now appears to make it impossible to remove the mayor of Louisville from office: If 18 votes are needed to remove a mayor, and a charging committee to remove a mayor must have at least 10 council members, that means the Council Court would be made up of less members than the number of votes needed to remove that mayor.
Yates stated in his ruling that this interpretation of the statute “created an absurdity when examined from the perspective of a mayor’s removal,” calling the end result of a mayor being impossible to remove “ridiculous.” He added that neither Johnson nor the members of the Charging Committee could vote, concluding that Johnson could only be removed if 14 of the 20 members of the Council Court voted to do so.
Kent said that she would not challenge Yates’ ruling, but McAdam suggested that if Johnson was removed by a vote totaling less than 18 members, he could challenge such an action as a direct violation of state law in a lawsuit.
In one of his rulings on the other motions, Yates stated that McAdam was allowed to enter photographs into evidence from the event in which Councilwoman Jessica Green alleges that Johnson intentionally grabbed her butt. However, Yates denied McAdam’s motion to disqualify Yates as the presiding officer of the Council Court.
Yates also stayed the motions of Kent to exclude evidence she deemed irrelevant or involving the alleged bias of council members or leaks to the media, ruling that the Charging Committee “may raise these objections at the time of the proffer of specific items of evidence which it deems objectionable,” which Yates will rule upon at the Council Court meeting next Wednesday.
Kent had filed a motion for summary judgment to remove Johnson, and McAdam had filed a motion to dismiss the case, but Yates scheduled for those two motions to be taken up by the Council Court at the first official day of the trial, on 1 p.m. next Wednesday.
In the pretrial hearing, McAdam argued that he is entitled to obtain the “boxes” of council records that Kent obtained over the past two months through open records requests, saying it is not fair that the attorney for the Charging Committee has such records and he does not. Kent argued that she paid over $400 to receive those records, and if McAdam wants them he can file his own open records request any time he wants to.
Yates has not yet ruled on whether McAdam has the right to subpoena 19 witnesses in the case, which includes seven members of Metro Council, at least two employees of Greater Louisville Inc. and Mayor Greg Fischer. His list of witnesses he seeks to subpoena also includes Erin Hinson — the legislative aide of Councilwoman Angela Leet, who alleges that Johnson exposed his buttocks to her in a parking lot last year when his pants fell down — and the Courier-Journal reporter Phillip Bailey, who first reported the incidents involving Green and Hinson.
After the hearing, McAdam told reporters that Yates “misread the statute” regarding his ruling that it would take 14 votes to remove Johnson, “saying “he has a right to his opinion, but he doesn’t have a right to his own law.” McAdam declined to weigh in on Yates’ interpretation of the removal process for a mayor being rendered absurd by the legislature’s recent amendment, saying he is not trying to remove the mayor.
Citing Yates’ ruling to also some photos into evidence, McAdam said that “all in all, his rulings were, I think, balanced. Each side got less than what they asked for.”
McAdam is seeking to subpoena Bailey to gather information from his communication with witnesses or confidential sources that he had during his reporting on Johnson. Asked what should happen if Bailey doesn’t comply with his subpoena and testify, McAdam said, “I would ask that he be held in contempt and I’d ask the Circuit Court to bring him in and show cause why he shouldn’t be incarcerated.”
McAdam added that Bailey should go to jail in that hypothetical situation “until he decided to talk.”
“There’s plenty of precedent for that,” said McAdam. “There’s no privilege to refuse to disclose a reporter’s sources. That’s something reporters in their conceit make up. It’s not the law in Kentucky, it’s not the law anywhere in the world. He has to testify, if he has information that’s important.”
In particular, McAdam wanted information from Bailey’s interviews with Green since this summer, questioning whether the councilwoman “told the same story each time. I have a feeling that she hasn’t. I have an idea that the story keeps getting bigger and bigger. So, that’s how you challenge somebody’s testimony.”
McAdam has previously threatened to sue The Courier-Journal unless the paper pulled three articles about Johnson’s alleged sexual harassment. Responding to McAdam’s comments about Bailey on Wednesday, the Courier-Journal’s executive editor Joel Christopher told IL that McAdam “is making an empty threat not supported by law, and it’s a transparent attempt to distract people from the serious allegations against Dan Johnson.”
“I can’t imagine a subpoena would ever be approved, but if it were the Courier-Journal would fight that sort of fishing expedition with every resource available to us,” said Christopher. “I’m confident we would prevail.”
During Johnson’s press conference in June when he resigned from the council’s Democratic caucus, McAdam refused to taken any questions from Bailey, saying that he did not recognize the reporter wearing clothes or without a gun. McAdam only expanded on that bizarre statement by saying, “I’ve seen a picture of you with your pistol.”
This story has been updated with an additional comment from Christopher.