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AG Letter One

AG Letter One

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Published by: Anne Marshall-Chalmers on May 11, 2012
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1
CLARENCEH.HIXSON
AttorneyatLaw1336HepburnAvenueLouisville,KY40204(502)758-0936budhix@iglou.com
_________________________________________________________________________________________________________
 
May 10, 2012
Kentucky Attorney General Jack Conway
Open Records / Open Meetings decisions700 Capitol Avenue, Suite 118Frankfort, KY 40601
 
Request for review pursuant to KRS 61.880 (2)(a) and (4)
Dear Sir,The Coalition for the Advancement of Regional Transportation –CART, by Counsel, Clarence H.Hixson, seeks review and opinion of the legality of agency denial of the attached Open RecordsRequest submitted to the Kentucky Transportation Cabinet, designated OR-12-0450 by KYTC.The Transportation Cabinet on information and belief has responsive records which have beenrequested with sufficient specificity to enable the Cabinet staff to locate responsive records or togather and make available for inspection, during normal office hours, records that might yieldthe information sought. 97-ORD-6, p. 5; 08-ORD-269.The CART Open Records Requests are related to KYTC’s project: Section Four-East EndBridge Approach Design Project, Item No. 5-732.20, State Project No. 13J7 JZOI 0568364302R; NH 2653 (022). Said project was authorized by Transportation Cabinet AuthorizationNo. 105923.On April 30
th
the Commonwealth of Kentucky entered into a Deed filed of record in the JeffersonCounty Clerk’s Office DB 9879 PG 018 paying $ 8.3 million to Soterion Corporation. ThePresident of Soterion Corporation, R. Scott Jones, was then under a Warrant of Arrest for unpaid child support related costs and a Lis Pendens Notice was filed prior to the transaction.These documents were provided to the KYTC as attachments to the letter seeking to morespecifically identify responsive documents for inspection.The Transportation Cabinet has refused to permit CART by counsel to inspect any documentsand is engaged in a cat and mouse game to thwart the Open Records laws. CART’s requestsreasonably specify documents showing how KYTC vetted Sotarion Corporation so thatviolations of applicable sections of KRS Chapter 45A regarding kickbacks and conflicts of interest did not occur.Inexplicably, a copy of the KYTC property value assessment of the Drumanard Estate has notbeen made available for inspection, nor any documents explaining how a good faith negotiationoccurred where KYTC paid more than $ 5 million above the Jefferson PVA assessment value toa corporation with unknown members, beneficiaries and officers whose President could notreturn to Kentucky for fear of arrest?
 
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In addition to the Open Records law in Kentucky, the NEPA public consultation statutes areapplicable to the use of GARVEE bond funds in a federally funded project by state agents of KYTC to purchase the right of way across or under the Drumanard Estate for the BridgesProject. Thus transparency in this transaction should be insisted upon, not avoided.In addition, numerous side agreements related to this transaction raise the suspicion of fraudand self-dealing such as the right of first refusal granted to Soterion Corporation according to anpreviously submitted but undisclosed
bon fide offer 
described on page D-25 of Attachment D tothe 2003 Record of Decision (copy attached). BOOK 0136 PG 0172 The KYTC has refused:to ask Soterion Corporation for a list of members, shareholders, ultimate beneficiariesthat will receive a portion of the $ 8.3 million paid –they are secret beneficiaries that may includedecision makers or their agents in the LSIORBP,to allow inspection of records showing how KYTC vetted the sale and eliminated theKRS 45A conflict of interest and kickback issues,to allow inspection of records showing how the price for right of way acquisition wasnegotiated and approved by KYTC staff, there is a lien for contingency fees lodged by attorneyGlenn Cohen, related to negotiations with KYTC for the Soterion sale. Book 0011 PG 0038,LB01204 PG 0161 in Jefferson County Clerks Title RecordsIt is incomprehensible that an $ 8.3 million right of way acquisition occurred but none of therelated documents CART asked for were considered sufficiently identified or responsive byKYTC to our requests. We sent letters of clarification to attempt to satisfy KYTC demands thatwe name specifically the documents to be produced. The last letter from Senior Counsel J.Todd Ship, without citation of any statutory provision merely says:
“This is to advise that no records exist within the possession of the Transportation Cabinet which would effectively respond to your questions.” 
WHEREFORE, CART attaches the Open Records Request with clarification and attachmentsand requests the AG to review pursuant to KRS 61.880 (2)(a) and (4).Clarence Hixson Attorney for CART1336 Hepburn AvenueLouisville, KY 40204(502) 758-0936
cc: David Coyte, President CART; J. Todd Shipp, Office of Legal Services, KYTC; John Sacksteder,Community Transportation Solutions; Mr. Duane Thomas, FHWA – KY Division; Janis Osadczuk, FHWA,Indiana Division; Honorable John Yarmuth; Honorable Todd C. Young.
 
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KRS 61.880 Denial of inspection -- Role of Attorney General.
(2) (a) If a complaining party wishes the Attorney General to review a public agency's denial of arequest to inspect a public record, the complaining party shall forward to the Attorney General acopy of the written request and a copy of the written response denying inspection. If the publicagency refuses to provide a written response, a complaining party shall provide a copy of thewritten request. The Attorney General shall review the request and denial and issue withintwenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision statingwhether the agency violated provisions of KRS 61.870 to 61.884.(4) If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or themisdirection of the applicant, the person may complain in writing to the Attorney General, andthe complaint shall be subject to the same adjudicatory process as if the record had beendenied.
TIMELINE OF SOTERION CORPORATION PURCHASE OF DRUMANARD ESTATEMary Peabody Jones Fitzhugh is one of three daughters of Lawrence L. Jones Sr.He left an estate valued at some $ 60 million dollars that funded two trusts for his children.The "Daughter's Trust" was formed in 1933 to provide income to his three daughters. Mary PeabodyJones Fitzhugh former owner of Drumanard Estate was the last of the three surviving daughters to passaway when she died in 1997.
Ten years after her death,
the terms of a mediated amendment of the
ʻ
Daughters
ʼ
Irrevocable Trust wereattacked by various relatives in cases which are still before the court in Jefferson County. (
MIDDLETON,CHARLES G. III, ET AL VS. PNC BANK, N.A., Jeff Circuit Court, 07-CI-010053)
(See also 08-P-004886Jeff Probate Court).Mary Jones Fitzhugh owned some or all of the Drumanard Estate since November 1963. Deed Book 3856Page 456 and before the Historic registration of the site which seems to have occurred in 1988 or so. Atthat time, the Jones family was evidently aware of the potential for a route of the East End Bridgeapproach to pass through the property.R. Scott Jones, President of Soterion Corporation seems to be related by blood to Mary Peabody JonesFitzhugh, and other members of the Jones family have signed documents for Soterian transactions,including Norton Jones, and Mary Jones.In July 1997, Soterion Corporation purchased Lots 50 and 51 in Mockingbird Hill Subdivision for$ 675,000 signed by Robert Scott Jones as Vice President.September 1997, Robert Scott Jones and Yvette Jones purchase Lot 37 Locust Hill for $ 325,000 in theirown names . Book 6943 Page 0148.Mary Peabody Fitzhugh died November 18, 1997 and the Court appointed PNC Bank as Executor.Jefferson Probate Case 97-P-05025.March 27, 1998 Federal Notice to produce EIS for Bridges Project.According to the signature on the documents, Attorney Gordon B. Wright helped Mary Peabody Fitzhughand Lawrence Jones III prepare her final Will in 1996. WB 302 PG 168. After her death, Wrightrepresented her Executor PNC Bank to settle the estate. Lawrence Larry Jones III was nephew of Mary

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