Sunshine in Missouri

Good Day Sunshine!

    I think I've mentioned before that one of the reasons I don't name names in my blog is because there are times I worry if I'm getting the whole story from those who call me.  We all remember that old game of telephone, where the details get fuzzier and fuzzier the further down the line the story is passed.

    For example, a caller this week was telling me about a city council that is closing meetings to discuss sending employees to out-of-town training sessions.  Can they do that, I was asked?  Of course not, I replied.  That doesn't fit within any exception whatsoever under the sunshine law.  What reason did they give that they thought permitted this, I asked back?

    The response was that the city attorney said there was private employee information involved.  For example, if the seminar was to help an employee gain skills they didn't have but needed to progress in their job, couldn't that be "individually identifiable personnel records ... or records pertaining to employees...." under paragraph 13 of 610.021?

    Well, first I always point out, that paragraph relates SOLELY to records.  It doesn't seem to give any credence to the argument that it can be used to close meetings.  It talks only about closing records.  At the same time, I know public bodies use it to close meetings all the time.  So far it's never been challenged in court.

    But, let's say, for argument purposes only, that this exception COULD be used to close meetings.  Could you then use it to close a meeting to talk about sending an employee to a remedial training program?  Well, if it is about an employee who is being told to go take training as part of a disciplinary action, I think you'd be better to close the meeting under paragraph 3 of 610.021.  (Besides, that clearly is a MEETING exception, so you wouldn't have the earlier issue I mentioned here.)  What if it is about an employee with a drinking or drug problem and you are sending them to a program to dry out?  I suspect a court would be much more open to such an argument and might agree to slip it in under this paragraph, assuming, again, that the court can get over this issue of it being a "record" exception.

    But if it is just to talk about sending Johnny out of town to take a training program on learning how to use Excel or how to do a Power Point presentation, then I cannot fathom how a city attorney could claim that this falls within any right to privacy that would warrant discussing this expenditure of public funds in a closed meeting.  Public employees give up substantial rights to privacy when they take jobs as public employees and one of those rights is that the public, who in truth is your Employer, has the right to know what the funds are used for when they are going to pay for your training.

    All I can hope is that this particular reporter got the story wrong.  If the story is right, then this is a city attorney who needs a little Sunshine Law training and quickly!

   

Ain't no sunshine when she's gone, and this house just ain't a home anytime she goes away....

    An editor in a northwest Missouri community called this week to discuss a city council that met in closed session to review the city manager's performance.  He and I discussed whether Section 610.021  does allow performance review discussions to be closed.

    But I think I caught him by surprise when I suggested that the subsequent discussion of the potential pay increase for the city manager did not belong in closed session.  I suspect this type of discussion is one of the most frequently-abused aspects of Missouri's sunshine law.

    Exception 13 specifically speaks of performance ratings being closed records.  And while perhaps one might argue that exception 3 speaks only of disciplining employees or promoting employees, not performing performance reviews, I suspect it would be a rare judge that would buy into the argument that performance reviews would not fit within this perimeter.

    But exception 13 is clear that it does NOT apply to "salaries ... of ... employees of public agencies once they are employed as such...."  Therefore, I see not a single toe hold for the argument that the salary of a public employee can EVER be discussed in closed session for any reason.

    Therefore, it seems pretty clear that the frequent habit of combining these two discussions needs to be separated for public bodies who want to ensure they are not breaking the law.  I know that will come as a shock to many public governmental bodies.  But it seems to me there is no other way to read the clear language in this exception.  To continue combining these discussions is simply playing with fire.

   

Stupid is as stupid does and all the rest of that s**t, Come on, pretty baby, call my bluff...

    I  generally use this blog to write about the actions of persons who are unnamed for the protection of the individual and also in case the facts I have been told were wrong.  So, in the spirit of most of the other entries on this blog, this one shall go nameless, to protect the not-so-innocent.

    These folks are in court.  They're arguing a sunshine law case.  The records are records of an entity created by statute of the State of Missouri.  The plaintiffs want them for a reasonable fee.  The defendants are asking a cost that the plaintiffs view as unreasonable.  In the evidence introduced in the case, a high ranking chief of staff of a certain state governor, who formerly served as the director of that certain state agency which is the subject of this lawsuit,  states in a deposition that she believes the records of this state entity, clearly an entity created by Missouri statute, are not subject to the sunshine law.

    Do  these highly placed officials ever read the law?  Maybe they don't have to.  Maybe they have attorneys in those state agencies, paid by your and my tax dollars, who are able to advise them on the law.  If so, there are a few attorneys in this state agency who are not earning the tax dollars you and I are paying them.  How in the world could someone in that position make a statement that the records of a state agency are not subject to the sunshine law?

    Perhaps this highly placed state aide is getting advice from another highly placed state official, one of the highest placed state officials in our fine state.  There was a time when that more highly-placed state official seemed to have some confusion about whether emails constituted public records under the sunshine law.  The confusion runs downhill.

    Do these folks ever consider how they sound when they make a statement like that?  This is no different than the horror that was generated when another highly placed federal government official of a different political persuasion went before an investigative agency to parse the English language.  "It depends on what the meaning of the word 'is' is."  I guess in this case it depends on what the word "record" is.  Or the word "public."

    Try this word:  "Violation."  How about "knowing?"  Or how about another one of my favorites:  "Purposeful."  And "fine."

    Maybe a last word to learn:  "stupid."

   

   

Cloudy days, don't the sun ever shine anymore?

    May is nearly over.  The end of the Missouri legislative session always comes in a rush.  And it's always preceded by days when nothing happens, at least out in the open.  What goes on behind closed doors in Jeff City (like much of the other bodies I write about regularly) is a different story, of course.  it's a constant struggle to watch for those who would slip in a measure to close a public record as bills progress through the House and Senate.

    This year, it was clear a sunshine law measure would pass before the session ended. Those in government who want to close records knew they had to update the sunset provision in the exceptions that close certain operational guidelines used in case of terrorist incidents and that close information on security systems and structural plans.  Security types claim these records absolutely must be closed in Missouri to protect us from terrorists accessing this information and using it to either prevent a security response in case of an attack or to  find vulnerabilities in our governmental buildings.

   The cynic would respond that, in regard to security systems and structural plans of buildings, this information is critical to the public to understand how to protect themselves in case of emergencies.  We all need to know where the emergency exits are, and the proper exit plans from buildings in case of crisis.  Closing these records is, in fact, a security risk itself for each of us.  Similarly, the public should know the details of policies in place to protect against what the law calls "critical incidents."  That is how we gauge whether or not our government is doing its job in being properly prepared for such matters.  How can we demand that better preparations be made if we are not permitted to know what, or if, such plans are in place?

    An effort had been made to add to this proposed change in the law, which was not positive in my viewpoint, a change that would have added some benefit to the law -- language that would have tightened up the exception that closes meetings and records for "causes of action," a vague term that is greatly abused in the law.  But, in those closed door meetings, decisions were made that the changes to extend the sunset in the law would go and that the bill that included this provision to strengthen the law would die.  What does that say about our legislators?

    The sunshine law cries out for some real changes.  Just today, a citizen called to complain he's waited for months to obtain an incident from his southwest-Missouri-county sheriff, who keeps putting him off in his quest to obtain what should clearly be an open record.  He complained he's called the Attorney General's office and they have not intervened sufficiently to obtain this information for him.  The efforts of that state agency seem to him to be worthless.  (I would note that this will not win votes for the current holder of that office in his quest for a higher position in the state.  How hard is it to simply call the sheriff and tell him to turn loose of this public record to this local citizen?)

    This citizen expressed his frustration with the ineffectiveness of this law and how state legislators seem uninterested in doing anything about changing the law.  Hello!  The sunshine law has not had a strong, effective champion for its cause for some time.  Legislators tell us they want to sponsor bills, but hearings get postponed, bills do not move, and certain state legislative leaders block the progress of bills.  Sometimes I think they find this funny.

    Often, I think, these same legislators think they are "getting back" at reporters in the state.  But that's nowhere close to the truth.  The people they are really slapping in the face with their attitude is their own constituents.  They are telling their voters that they are supporters of secrecy in government and that they really don't believe that the public has a right to know what goes on in government.  They are supporting lack of accountability by public officials.  They are supporting those who would take advantage of access to the public tax coffers to spend those dollars on their own purposes, and not for causes for the public good.

    This blog blew past its second anniversary a month ago.  Has anything improved in the state in two years?  No.  In fact, in terms of having legislators who show their support for open government, I'd say we are worse off than we were two years ago.  Certainly there have been no significant changes in the law in these two years.

    Not much "happy" in this anniversary!

   

   

Give me kisses when I'm good and spank me when I'm bad

    I've been hearing a lot of grumbling lately about a lawyer who's filing sunshine lawsuits against smaller cities in the state.  Word is that at least one city has settled with him.  And some who are involved with local government are beginning to blame the sunshine law for the problems this lawyer is creating.

    Give me a break!  I have heard nothing yet to cause me to believe that it's the lawyer's fault that these cities are having sunshine law problems.  If he's asking for records that don't exist anymore, why would the city think it had any obligation to produce those records?  You can't produce records that don't exist!  It's not a violation of the law to tell him that and tell him to take a hike!

    And if the issue is that it's going to take time to produce these records, well then all the city has to do is to respond within three days of receipt of the request, advising that it needs more time.  The law says the city has a right to charge for the search time.  (They never seem to give MY clients a break on that!)  The law doesn't give them a deadline on the time it takes to find these records, other than it must be "reasonable," whatever that means.  What in the world are cities getting bent out of shape about? 

    The truth is probably one of two things:  The city is mad that it's having to toe the line on doing things legally.  Whether it's to produce records or take the proper steps to enact taxes for its local residents, city officials need to get proper advice from the city attorney and make sure officials are taking the proper steps in doing their civic duty.  Or the city has found out that it ISN'T taking these steps (or more accurately, has failed to take these steps in the past and now is being called up for its shortfall) and that it may incur some significant expense because of its shortcomings.

    And when that happens, what do they do?  Blame the sunshine law.  Oh, sure, easy target...  How about, instead, let's put the blame where it belongs.  Let's call a spade a spade.  When a city gets caught with its pants down, perhaps there's a reason it gets a spanking....

All by myself, don't wanna be all by myself anymore...

    Late last week, I got a call from someone about a vote taken by city council members concerning paying for an economic study relating to a tax increment financing proposal.  Apparently there was some dispute in the community about the developer paying for it, and the city was being asked to help fund the proposal.

    The question related to the fact that the Mayor apparently sent out an email to all members of the council asking if it was okay to agree to pay for part of the cost of the study.  This Mayor clearly had forgotten that this involved the expenditure of public funds.  A public governmental body cannot simply make those kinds of decisions by responding to information emails from the mayor.  This kind of a decision requires a vote to be taken in an open meeting.

    I suppose if some kind of emergency existed and this vote to spend money had been required for some reason where there was clear evidence that the body couldn't wait to give the proper notice and hold a meeting, there might be a basis to argue that an electronic "meeting" was required with a lack of proper notice.  But there's no evidence such an emergency existed, and even if it had, this was not the proper way to conduct such an emergency meeting.  The Mayor clearly failed on every level.

    What's even funnier is that the Mayor's hand was called by one of the very members of this city's council.  And what did the Mayor do when her hand was called?  She told the member, in a huff, that this member's vote was the sole one opposed to the measure, so it didn't matter what she thought.

    Those sound like words that someone may regret someday!  How sad that only one member of this illustrious body understands their obligation under state law and wants to do the right thing!

I'll tell him someday someway somehow, But no one needs to know right now...

    About a week or so ago, a school board in the state held a closed meeting to talk with high school principals who wanted to air their complaints about a member of that board.  Apparently the board member had been belligerent toward the principals in public and had at one point threatened their jobs.  The principals wanted the board to deal with its own and requested time on the board's agenda to discuss this.  The principals arrived with representatives from the Missouri State Teachers' Association, whom should know better than to let this discussion take place in closed session.

    The board consulted with its attorneys (through Missouri School Boards Association, no doubt) and were told (again, I'm not surprised) that this could be closed because it involved a "cause of action."  Yep, it's that potential litigation issue again.  Did anyone threaten litigation here?  I doubt any of the principals said to the board that they would sue if this wasn't addressed.  But because the board didn't want to air its dirty laundry in public, it chose to use this giant loophole in the law and stuff this turkey through it.  Just because it doesn't want squawkers in public doesn't mean this constitutes a threat of litigation.  Really, now.  Who does the board think it's fooling?  Oh, I guess it must think we, the public, are the fools in this situation.  April 1st is just around the corner, but that's no excuse for this kind of behavior.

    Just one more example why we need the changes in House Bill 2210.  The General Laws Committee passed it out of committee yesterday.  This needs to get to the House floor and get some wings of its own.   This bill contains some simple, minor changes in the law, of which this is one.  Time for this legislative session is running out.  If you care about this bill, call your legislator and ask them to help it get moving.

Don't want any arrest, don't want to be the guest of the sheriff....

    A reporter called today to check to see whether information on who is in jail is a public record.  The paper understands a person arrested has bonded out and wanted confirmation of that fact.  The sheriff is refusing to release this information and has advised the paper that their information on who is in jail is not public information.

    Huh?  This one is pretty basic, folks.  The sheriff is a public body.  The county jail is, I assume, under the custody and control of the sheriff's department.  I am just certain there's a record of who is contained therein.  Those records are public records. They are open to the public unless something specific in the law closes those records.  Those are actually administrative records, not "law enforcement" records, I would argue, and therefore the law requires them to be open unless they are specifically closed under an exception in Section 610.021.

    But EVEN if they are law enforcement records, they are records of arrests, NOT "investigative reports" which are subject to closure for certain periods of time.  There is no portion of the statute that specifically closes records on who is in jail, and if a record is not specifically closed under the law, then it's open.

    Even more fundamentally, the issue of "secret prisons" is a third-world-country issue.  It's what our founding fathers left Europe to come to this country to avoid.  When we start claiming that the government has a right to arrest people and then not tell the public whether they are in jail or not, we've turned our backs on one of the basic freedoms that this country was founded upon.

    Time for this member of a law enforcement agency to do a little reading of the law!

Someone told me it's all happening at the zoo!

I don't too often let others write on my blog ... comments are a lot of work for folks who have other jobs!  But occasionally someone writes something I feel the need to share.  Today's offering is from Patrick Martin, publisher and editor of the Jefferson County Leader, in Festus.  Patrick is fed up with the email controversy.  Patrick is a dutiful student of the sunshine law and a strong advocate of openness in goverment.  You'll enjoy his thoughts!

"We used to get a lot of letters to the editor written the old-fashioned way, on lined paper or nice stationery, in handwriting that you could read.
Not so many come in that way anymore. Now we get about 80 percent of them on e-mail, which is faster than a letter, costs nothing and best of all, is typed so we don’t have to guess when writers have shaky penmanship.
For example, in a handwritten letter, the word “orange” might look more like “orangutan.” That makes quite a difference.
So e-mail, for the most part, is good. It saves time, saves the writers money and the possibility of having their letters turn out to be about large zoo critters instead of citrus fruit.
Now, would someone tell the state of Missourah that e-mail, like most modern conveniences, is supposed to save us time and money – not cost us?
The boys and girls in Jefferson City, in a never-ending attempt to posture and embarrass each other, have latched onto e-mail as their latest weapon to prove to voters that the (fill in the party you don’t like) are a bunch of secretive and probably criminally bad people who don’t respect your right to open government.
Meanwhile, the (fill in the party you do like) are the champions of freedom and openness and all that is right in the world.
And that large sucking sound in the background is tubloads of our money being thrown down a rathole while they dance their little election year dance.
It began with the man who would be governor, Attorney General Jay Nixon, a Democrat, appointing an investigative panel which demanded that the man who no longer wants to be governor, Republican Matt Blunt, turn over e-mails sent and received in his office because they are public records.
The gov responded that it will cost Nixon (and us) about $540,000 for Blunt’s staff and lawyers, some of whom bill at $300 per hour, to comb through the e-mails and edit out the things that are exempted from public scrutiny.
When this began, of course, Nixon figured he was running against Blunt this November. Now that the gov has announced he won’t run again, it would be too transparent to drop the case, so the Jaybird soldiers on. And lame duck Blunt, with no voters to answer to anymore, can be just as in-your-face to Nixon as he pleases.
Asking for a half a million bucks to produce public records is a pretty serious in-your-face maneuver.
The Republicans, in a completely unrelated but highly coincidental request, now have asked Democratic Secretary of State Robin Carnahan for her e-mails. Carnahan, perhaps sensing these are hard times, replied that information would cost only $91,000.
Both parties are outraged that Missourians should be gaffed for access to records which should be public!
Let’s come back to the planet Earth for just a minute. As a long-standing member of the press, I can tell you that Missouri’s Open Meetings Law, which was established and subsequently tweaked over the years by both parties, has holes in it you could drive an ocean liner through. Sideways.
For example, there is a provision that says meetings and records may be closed if they involve litigation. I have seen numerous meetings and discussions closed because “we might get sued.” The Missouri Press Association attorney, Jean Maneke, who knows more about this law than any living person, has said she believes the “threatened lawsuit” is not a legitimate reason for closing a meeting or record, but open meetings advocates lack the case law to prove it.
“It is frequently used because they think they can get away with it,” Maneke said.
The public’s (or a newspaper’s) only recourse is to sue, which is very time-consuming and expensive. Even if the suit is successful, the Open Meetings Law has no meaningful penalties to levy against offenders. So the winners are really losers and the offenders are winners!
This watery law, with the splendid-sounding name, was passed by none other than the Democrats and Republicans who now thunder for justice and openness in its name!
Good luck to them. It’s like going to war with a waffle iron.
Closed government, back-door decision-making and insider trading of favors have been  long-standing traditions in this state. The Open Meetings Law is window dressing to distract from those traditions.
Now that they have to apply that weak-kneed statute, it’s pretty funny to see the top people in state government fuming about openness. Funny, except that they are throwing our money out the car window as they drive around the state telling horror stories about each other.
Somehow, their strategists think the public is going to buy all this. They must think we are orangutans."

Tale as old as time, tune as old as song, learning you were wrong...

    I don't usually name names in this blog...I always give the benefit of the doubt to the public body.  But when it happens to me, I never hesitate to name names, so today the award goes to the Springfield, Mo., Police Department.  A woman on their front desk desperately needs some sunshine law training.

    I walk in last Thursday to request an incident report, and request the specific report by number.  You can see her call it up on her computer screen and look at it, then she turns to me.  "Your name is?" she asks.

    Immediately I'm not a happy camper.  I could tell her the report involves my son.  I could tell her the report involves my client.  Both are true and I know they would generate immediate cooperation. But I choose to do neither, because, as you can imagine, I am always incensed when I find a public governmental body flaunting the law and harassing private citizens for asking for a public record which they have every right to ask for.  Nothing in the sunshine law allows a public body to ask the name of the person seeking the record!  So I reply, "Oh, my name isn't in it."

   You can immediately see her freeze up.   "So then, why do you want it?" she asks.  I can't believe those words came out of her mouth!  Wrong response again, sweetie.  It doesn't matter why I want it, because again, it's a public record!  So, feeling more and more the need to drive this point home, I frankly tell her, "Because I'm a member of the public and this is a public record."

    She is not going to back off.  "It's an ongoing investigation and I can't release it to you," she says.  By now, I've decided it's time to give this woman a lesson in the law.  "I don't want the investigative report.  All I want is the incident report and it's a public record," I respond.  I demand she talk to her supervisor.  And she goes to get an officer.

       Another woman comes out and also inspects the report.  This spokesman for the department then again says to me "It's under investigation and I can only give you the incident report."

       "That's all I have asked for," I respond, "and it's a public record."  So then she hands it to me, at last.  I ask if there's a charge and they say no.  I'd have given them a dime for the one-page report, if they'd insisted, but they spent more time arguing with me over whether I had a right to a public record than they did searching for this report.

    Springfield is the third largest metropolitan area in the state.  Its police department has an excellent website, with a wealth of information available.  The department says it is committed to providing quality service to the community through "personal integrity, fairness, open communication and a helpful attitude."  I am sure it strives hard to achieve all of those things.  But perhaps a little sunshine law training is in order for its front desk personnel, so that it doesn't find itself violating the law on a regular basis. 

    Citizens shouldn't have to enforce the law against the local law enforcement.