A special prosecutor from the Attorney General’s office could soon be determining whether the Fayette County Commission violated the Open Meetings Act.

The issue that has drawn the state into the fracas concerns the County Commission’s actions during its Aug. 1 workshop meeting. The commissioners said they were going into an executive session to discuss a legal issue and a real estate matter. The problem, though, is the county did not have an attorney present to discuss the legal issue.

“The attorney/client privilege only permits an executive session when the attorney for the commissioners is present and then only to discuss litigation. Further, it cannot be used when there is a mere threat of litigation, but the litigation must be ongoing or the government entity must show a realistic and tangible threat of legal action against it or its officer or employee,” wrote Senior Assistant Attorney General Stefan Ritter.

The issue came to the Attorney General’s office after Commissioner Peter Pfeifer wrote a letter asking for an opinion on the issue. Pfeifer also addressed the issue with Solicitor General James Inagawa, but Inagawa is deferring the issue to the state.

“I discussed this with (District Attorney) Scott Ballad, and we both agreed it would be a conflict of interest for us to investigate,” Inagawa said.

He forwarded the matter to the Attorney General’s office and said the state could appoint a special prosecutor to look into the case.

After discovering the state was looking into the matter, the County Commission used part of last Wednesday’s meeting to try and fix the problem.

Commissioner Eric Maxwell asked that the minutes for the Aug. 1 meeting be amended to reflect that the County Commission discussed real estate and personnel matters in executive session.

Maxwell said he remembered that at the Aug. 1 meeting he had left the dais and moved away from the microphone and said the legal issue was really a personnel issue.

The problem is the meeting was not held in the main commission meeting room, but in the smaller conference room, so there was no dais and microphone for Maxwell to leave.

Contacted Friday, Maxwell did admit the meeting took place in the smaller room, but said he was sure he mentioned the personnel issue.

The County Commission also voted unanimously to amend the legal affidavit it signed after the Aug. 1 meeting. The affidavit now reads the county discussed real estate and personnel issues, instead of real estate and a legal issue.

Pfeifer also had a problem with interim County Attorney Don Comer being appointed by interim Administrator Jack Krakeel. Krakeel announced the appointment at a public meeting Aug. 9.

“I did not think that Mr. Krakeel had the authority to hire an attorney who would represent the commission without a public vote by the commission. I did not know the answer with certainty at that time. I have since come to be certain that he does not have that authority,” Pfeifer said.

The commission chose to address that issue last Wednesday and voted to retain the services of Don Comer to assist the county in legal matters. The issue has caused some hard feelings on the board. In an email to Pfeifer, Chairman Jack Smith lowers the boom.

“The issue that concerns and upsets me is the fact that one of you thinks we did something illegal and did not say or do anything — either before, during or after the meeting — that would indicate such. I believe failure to make such thoughts known to the other board members is totally irresponsible and inappropriate behavior. I believe it is a clear violation of your fiduciary responsibility to this county when you knowingly allow the rest of the board to commit a purportedly illegal act,” Smith wrote.

Smith said he knew what Pfeifer’s motive was in the matter.

“From all indications, it appears the intent was to cast this board in a negative manner or for one’s on (sic) aggrandizement or political benefit. ... If you are guilty of such wanton action, shame on you!”