Sunshine in Missouri

You give me hope to carry on. And you try to show your love for me in everything you do.

    Just a quick heads up to readers in southwest Missouri:  The Missouri Sunshine Coalition is planning a get-acquainted meeting in Springfield on Thursday, June 25, from 5-7 on the Drury University campus.

    The meeting will be held at Reed Auditorium, Trustee Science Center at Drury.  Registration and refreshments begin at 5, and the program begins at 5:30.  The coalition will discuss the results of a sunshine audit of several Missouri towns in this region, and the response from local government to a simple request for the budget.  Paul McMasters, noted National Freedom of Information Act expert and a former executive director of the Freedom Forum will attend to talk about the importance of access laws.  A representative from Attorney General Chris Koster's office has been invited to attend.

    I hope you'll be able to come.  I'm really looking forward to being there.  Tell your local public officials about the meeting and invite them!  Come support this organization's efforts to strengthen the understanding of this law in the state. We'll welcome your membership in the coalition!

You gotta know I'd be a fool not to see ...Cause everyone that sees you Always wants to know you And everyone that knows you Always has a smile

    So it's budget time in a rural school district in the state.  The board is considering a prospective budget.  They hold an open meeting, but no one attends (not unusual in rural school districts), and then, after that meeting, before the next meeting at which the budget will come up for final approval, a reporter in a nearby larger town calls to request a copy of the proposed school district budget.  She wants to use it for a story prior to the meeting where it is finalized, so that the community members who weren't able to be at the meeting can know what's happening before it's too late to object.

    What response would you guess she gets?  Does the district custodian of records send her the copy of the budget without objecting to her request?  Of course not.  Nope, they tell her it's not a public records because it's not finalized.  So she can't have it.  She goes back and tells them that her attorney says it's a draft record, but it's a public record nonetheless and to cough it up.  But do they?  Of course not.  They tell her they don't intend to give it to her until it's been approved by the board.

    This story makes me laugh, because it's just one more time that it is driven home to me how important the word "retained" is in the law.  If the record is "retained" by the body, it doesn't matter whether it's been approved by the board or not.  It's a public record just because it's retained by the custodian of records of the body.  What always makes me laugh is the definition of this word used in the Hemeyer v. KRCG case which I litigated.  I knew when we hit the Missouri Supreme Court that this was the key word for that case and the definition I used in my brief, in this case from the late 1990s, came from a Webster's Dictionary in my office dated about the time I graduated from high school  (No dates mentioned here, folks!).  The fact that the Court used my definition in its decision so embarassed me I went out and bought myself a more current dictionary in the office so I'd never be using 20-some year old dictionary for such purposes in the future.

    But I digress.  This may be a stupid story, but it's light years smarter than the folks in this district who don't get that when the law says a record is public if it's "retained" that just having it in the hot little hands of their custodian of records is enough for them to clearly be violating the law.

    The public wants to see this draft record, folks.  Turn it over!

Which ever, come what may, you see I need to know tonight...

    Sometimes it seems like the questions I get on the Mo. Press Association hotline are the same over and over and over.  (Makes my job easy.  I can't believe I get paid for this!  Oh, wait... I guess I need to pay my blogsite bill.) Today was one of those days.  The question that arose was related to the way a city issues its agenda for closed meetings.  Apparently it is listing a closed meeting on EVERY open meeting notice, citing that the meeting will be closed pursuant to Section 610.021, subsections 1-21.

    I had suggested to the reporter when we discussed this the day before that she talk to the city attorney and see if he or she might be helpful in correcting this misperception of the public body that this format was appropriate.  Surely, I thought, the city attorney would be smart enough to realize that this was not a proper form to use to close a meeting.

    Well, I was wrong.  The reporter tells me today that not only did the city attorney tell her that he had decided that this was appropriate, but he said that he had been advised by the folks at Missouri Municipal League that this was correct, and that this was what they are advising cities in the state to do in regard to closed meeting notices.

    Surely this is incorrect.  I cannot believe that is a correct statement of MML policy.  I disagree with those folks a lot, but Patrick Cronan and I often find that we are not too far apart in how we interpret the sunshine law on basic issues.  I hope I don't find that this is really what Pat is telling MML and that it is being communicated from them to its members.

    The sunshine law is very clear on this issue.  Section 610.022 subsection 2 states:  "A public governmental body proposing to hold a closed meeting or vote shall give notice of the time, date and place of such closed meeting or vote and the reason for holding it by reference to the specific exception allowed pursuant to the provisions of section 610.021...." (Emphasis added by me.)

    When you list all 21 exceptions (to be 22 after August 28, 2009), you are NOT referencing the "specific exception" for your meeting.  Indeed, a number of the exceptions in Section 610.021 would never apply to a meeting.  This type of fast and loose play with the sunshine law language is just typical of the way public bodies in the state interpret the sunshine law on a daily basis.    Indeed, when the time comes in the meeting to vote to go into closed meeting, the law is even more specific --   Section 610.022 subsection 1 states: "The vote of each member of the public governmental body on the question of closing a public meeting or vote and the specific reason for closing that public meeting or vote by reference to a specific section of this chapter shall be announced publicly at an open meeting of the governmental body and entered into the minutes."

    I bet 99 percent of these public bodies who use what I call the "blanket exception" language don't do what this law requires -- vote on closing a meeting under a specific exception.

    it's time for the Missouri Municipal League and its member attorneys (I guess that includes me, so here I am, folks, starting the process) to speak out and call out cities doing that.  This is NOT what the law says cities are to do.  I know there are many issues under the law about which MML and I will disagree  If this is one, then it's time the Missouri Attorney General's office stepped up to the plate and dealt with this confusion.

    Public bodies need some pressure to know what the law means and an incentive to follow it!

   

Got a secret Can you keep it? Swear this one you'll save Better lock it, in your pocket Taking this one to the grave

    The city council is meeting in open session.  Appearing before the group is a former city official, now terminated, who comes to argue certain matters relating to his termination.  He and his attorney bring certain documents to the meeting, present them to the council in open session and discuss those same documents at the open meeting.

    Afterward, a reporter asks for the documents, and is told the city doesn't think they can make them public.  (Although, I have to note, the reporter says EVERYONE ELSE in town who wanted a copy got one!)

    How in the world can a reasonable person think that a document which is discussed in a public meeting is not a public record?  It is part of the minutes of that open meeting.  It's a record that both the former official, who brought it up in an open meeting, and the public body, who chose to discuss it in an open meeting, have chosen to waive their privilege to close.

    Folks, it's open.  The cat's out of the bag.  There cannot be any expectation of privacy when you talk about matters in an open session.    So turn it over, already!

And your eyes, they tell me how much you care

    I apologize I've been missing in action for some time.  Keeping up with my regular practice during the legislative season, when I must keep on top of what's happening with our legislators in Jeff City, overwhelms me.

    Which is the reason I'm posting tonite.  All of you who regularly follow this blog need to know that House Bill 316, the sunshine law  bill sponsored by Rep. Tim Jones, which has cleared the House of Representatives, has a hearing on Tuesday afternoon, May 5, at 1 p.m. before the General Laws committee of the Senate.

    The bill is not perfect.  There will likely be a Senate substitute for the bill that cleared the House.  There are still many opportunities to "fine tune" the language in the bill.  The important thing right now is to keep this bill moving.

    If you are interested in this bill, you are welcome to attend the hearing.  If you can't do that, a call or even just an e-mail to your local Senator is in order, expressing your feelings about changes needed in the law.

    Every one of you can help make a difference in this bill moving.  Time is short.  The session ends in two weeks.

    Thanks to all of you who care!

I can't even scream I can't even let it out I can't see the blood running down my face again. Away, make it go away!

    Brick wall, meet head.  Head, meet brick wall. Bang, bang, bang.

    Honestly, some of the attorneys for cities in this state are unbelievable.  I am the first lawyer in the world to admit I don't know everything.  Heck, some days I think that I don't know anything.  But at least I'm willing to read and try to find out the answer for my client.  And I know enough to know that if I have a question about what a statute means, I need to go read the case law that relates to it, rather than claim that what I'm being told is wrong just because I don't see that interpretation in the words of the statute.

    This week a newspaper in the state requested a copy of minutes of a city council meeting where a settlement was approved.  There's no question that the settlement has been approved.  In fact, a copy of the settlement has been released to the paper.

    The paper asks for a copy of the minutes of the meeting where the settlement was approved. The city attorney says, No, those minutes have not been approved by the city council yet.  The paper calls me.  I tell them to go tell the city attorney that the draft minutes, which the paper has been told are still in handwritten form, are a public record and need to be released to the paper.

   The city attorney responds, Where in the statute does the word "draft" appear?  Is this the opinion of your attorney?  I don't see anywhere in the law where it says draft minutes must be made public, he is adamant.

    Right.  The word "draft" is not there.  Neither is the word "stupid."  Does the statute have to say "read the cases" in order for you to understand that that's how statutes are interpreted?  That's part of Law School 101, my friend.

    And case law is clear; in fact there are two cases on this subject.  One says a draft report of a federal agency is a public record.  Another says a temporary record created by a sheriff's department is a public record if it is being retained by the public governmental body when the request for access to it is made.

    Both cases are in the Sunshine Law book published by the Attorney General's office.  Perhaps it might be a good idea for this attorney to go read those cases if he expects to advise a municipality about the sunshine law.

    The training by our new Attorney General's office can't start soon enough.  And be sure to invite municipal lawyers when you plan the events.  At least one really needs the instruction!

   

Brother Love's Travelling Salvation Show Day 2

    Another day, another call, another reason for you to be at the meeting Thursday of the Missouri Sunshine Coalition.

    This city's city council finally released closed session meeting minutes for the past year.  Minutes of ten closed meetings, all allegedly related to the "real estate" exception, Section 610.021 (2).  But were they discussing "leasing," "purchasing," or "sale" of real estate in those ten closed meetings?

    No, of course not.  They were discussing the right to serve rural water customers, both present and future.  That was deemed of such controversy that this city council decided they didn't have the nerve to discuss those issues in open session.  So they broke the sunshine law in order to avoid going public with this discussion.

    We need some enforcement of this law now.  We need strict liability for violations of the law.  State municipal organizations that oppose strict enforcement are working to keep activities like this happening in your state.  They're working to allow city officials to continue to hold closed meetings illegally and they are using YOUR tax dollars to lobby against sunshine and House Bill 316 in Jefferson City.

    We need citizen support for this bill moving out of the Rules Committee and onto the floor.  We need Rep. Michael Parson and Speaker of the House Ron Richard behind it.  We need for the state to quit ignoring city and county officials who refuse to follow state law because they would rather avoid having to discuss public business in public.

    See you Thursday! 

Brother Love's Travelling Salvation Show

    The city clerk in a city known for its penchant for violating the sunshine law is backtracking from its claim that its bills for legal services are closed records, having been confronted with the fact that a Court of Appeals in this state ruled a number of years ago that invoices for legal services are open records under the sunshine law. Wouldn't you think a city attorney would know enough to advise its own clerk of that fact without having to have it brought in by the party requesting the record?

    The sunshine law continues to be one of the most-ignored laws in this state.  But this week marks the beginning of an effort to change that across the state.  Thursday is the launch of the Missouri Sunshine Coalition. This is the beginning of an effort to increase awareness across the state of this law.  But it will take the effort of many people to make this happen.

    If you read this blog, you care about this law.  You need to be at the launch of this group on Thursday, at 2 p.m., in Reynolds Auditorium at the MU Journalism School.  Come and bring a friend.  If you cannot be there, you need to send in your $25 to join this group.  The most important factor in making this effort a success will be in showing that the group has members -- that citizens care desperately about the sunshine law.  This is one way to show that you care!

    Come. Let's make this happen in Missouri!  See you there!

Seek the sweet salvation For what we've done Give up resisting one by one One by one

    This one is too good to hold, although it was just yesterday I updated the blog!

    The mayor is busy redecorating and renovating his office and the adjoining space.  The reporter comes by and stops to check on what's happening.  It catches the reporter by surprise.  This project hasn't been discussed in the city council meeting.   Asked about it, the mayor reassures the reporter that it's fine for him to be doing this project.  After all, he "cleared it with the city council," he assures the reporter.

    Just how did that happen, the reporter inquires?  Well, the mayor reassures, he had the council persons come by  one-by-one, showed them the plans and got their okay to proceed.  So they didn't need to vote on it in open session because they'd already approved it.

    I guess they forgot a public body cannot take action except through a vote of the public body, and that votes are taken at MEETINGS, which doesn't include one-by-one meetings to cast your vote in the mayor's office.

    Honestly, and people question why we need strict enforcement of this law?  Are violations that frequent?  Are people truly ignorant of the law?  How else are we going to drive home the fact that this is a law that needs to be read, understood and taken to heart unless we shift to strict enforcement?

    House Bill 316 will make that change.  And it proposed a huge reduction in fines for the strict violation standard.  Why, a judge could even decide a fine of ten cents was suitable for violating the law.

    It's time we put some teeth in this law, even if they are worn-down dentures!

I don't care, what they see Don't really bother me And I don't care, what they say There's got to be another way

    So much this time of year going on in regard to the sunshine law:  Legislation in Jeff City (HB 316), the start-up of the Missouri Sunshine Coalition on March 12, and the wrap-up of the investigation of the e-mail scandal of state officials.

    In the meantime, life goes on and so do sunshine law violations.  A medium-sized city in the state, known for its confusion about sunshine law issues, recently held a closed meeting, citing the exception for personnel matters.  During the meeting, one councilman objected to the discussion being in the closed meeting because they were discussing budgetary and financial concerns and not discussing actual individuals who might be laid off. After taking what they called a "poll"  (and that differs from a vote exactly how?) on whether to go into open session, they continued the closed meeting to discuss whether to close the city pool to save money.   In fact, they even took a vote in this closed meeting about whether to close the pool, still under the "personnel" exception.

    After the meeting, the councilman who complained decided he needed to go public with the activities that happened in the closed meeting.  Of course, others on the council are complaining and have attempted to censure the councilman who blew the whistle.

    There's nothing in the sunshine law that requires a member of a public body to keep confidential matters which are discussed in closed meetings.  And I believe that cities that attempt to pass local ordinances punishing elected officials who go about about illegal activities in closed meetings are violating one's constitutional Freedom of Speech.

    Regardless, in this case, if the public body wants to save money, they might make sure they don't violate the sunshine law.  There are fines which could be assessed against members of a public body that violate the law, according to the law.  And the potential penalty of having to pay for attorneys fees of a party who sues you for doing just that.  Plus, just defending these lawsuits, if you get sued, is expensive enough.

    Why do public bodies think they have to talk in closed session about financial problems, anyway?  It's the community's tax dollars they are talking about.  Doesn't the public have a right to know about financial concerns within the community?  And most of the time, the community knows that layoffs are possible.  The community is talking about the subject in the local coffee shops and other gathering places.  Why not just be the leaders you are elected to be and confront these problems openly?

    Do you care about the sunshine law?  Are you tired of your governmental officials ignoring it?  Then come to the initial meeting of the Missouri Sunshine Coalition on Thursday, March 12, at 2 p.m. at Reynolds Auditorium in Columbia at the MU School of Journalism.  Call Kristie at 573-449-4167 for more information.  See you there!