Sunshine in Missouri

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!

When you open your eyes To a brand new morning And the sun shines Above you You pull on your breeches and say Oh well, It's the start of a brand new day

    No new sunshine law stories at the moment, but two tidbits for you, my readers.  One is House Bill 316 is moving -- it had its hearing this week and the next step is a vote out of the General Rules committee.  Calls to legislators are important, as always.

    But even more important is the (ta da!) launch of the Missouri Sunshine Coalition!  A press release follows.   IF YOU CARE ABOUT SUNSHINE IN MISSOURI, THIS IS THE PLACE TO BE ON MARCH 12!! Looking forward to seeing everyone there!

   

A new organization for people who want to promote government openness  at all levels in Missouri will hold a public reception and program on Thursday, March 12, in Columbia. The event is free. The Missouri Sunshine Coalition is seeking individual and  organization members from all areas of the public. It will hold a 2  p.m. reception and 3 p.m. program at the Reynolds Journalism  Institute at the School of Journalism at MU.

    Missouri Attorney General Chris Koster will speak at  the 3 p.m. program. Other speakers will be Charles Davis, director of  the National Freedom of Information Center, which is based at the  School of Journalism; and Mike Wood, director of governmental  relations for the Missouri State Teachers Association.

    The group's founders have met three times to elect a board of  directors, to approve bylaws and a mission statement, and to plan the  March 12 program. On Jan. 15 the group elected Jim Robertson,  managing editor of the Columbia Daily Tribune, president.

  

"Open government, from town councils to the governor's office, is an essential right of every citizen," Robertson said. "A strong  coalition that represents a variety of needs and viewpoints can help  strengthen the concept and practice of openness, and that's our goal."

    Until now, Missouri was one of the few states in the country that did  not have an organization whose mission is to promote government  transparency. This group hopes to bring together all individuals and  organizations in Missouri who want to minimize secrecy in the  operations of local and
state government agencies.  Membership in the coalition costs $25 for an organization or individual.  To RSVP for the meeting, contact Kristie Williams, kwilliams@socket.net, 573-449-4167.

Oh, I've tried to act like I don't care, but it doesn't seem fair anymore....

    If you are a long-time reader of this blog, you know its purpose originally was to document for the Missouri legislature the need for a stronger and clearer Sunshine law in the state, in the face of their accusations that there weren't that many violations of the law on a regular basis.  I've always tried to talk about situations, without naming names for the most part, that I thought showed the lack of understanding of the law by public officials.

    I've steered clear, for the most part, about talking about situations where I was directly involved.  The cases I've litigated have not appeared on the blog because I don't want to compromise my position as counsel to folks who file lawsuits under the Sunshine law.

    That has been difficult, at times.  Many of those reading this know that at times I've had high-profile clients.  And I sometimes wonder how long I dare hold my tongue after my representation of a client ceases, when the public body that was a party to the suit continues to violate the law.

    This is one of those times.  I've been encouraged to speak up about a situation going on in Jackson County involving not only Sunshine law issues, but also ethics issues.  The ethics situations I try to stay distant from -- I don't by any means claim any expertise in ethics issues, other than I believe every lawyer in the State of Missouri has a high duty to the Missouri Supreme Court to perform in as ethical a role as is humanly possible in the execution of their professional duties.

    And I did have a client involved in Jackson County politics.  But that representation has been over for more than a year -- probably nearly two years.  So perhaps I can offer a thought or two at this juncture and while I know there are those who will claim this is tied to that client, I think others will understand that this has nothing to do with matters related to that case.

    The Jackson County Legislature is in the process of selecting candidates for the Jackson County Ethics Commission.  The ethics commission is an entity created by the Jackson County Charter, and therefore it is clearly a "public governmental body" as defined by the Sunshine law.  That means everything it does must be done in public.  The selection committee is established by the county charter.  That makes that selection committee a public governmental body, also.

    The Sunshine law mandates that all meetings of public governmental bodies must be held in public and all records of public governmental bodies must be open to the public, unless there is a provision in Section 610.021 which allows closure.  Case law is absolutely clear, as is the law itself, that the exclusions in Section 610.021 must be read narrowly.  Therefore, unless there is a clear provision in Section 610.021 to close a record or meeting, you as a member of the public must be allowed access to that information or meeting.

    The commission's website has posted a sentence at present that states "Every effort will be made to maintain the confidentiality of applications, but the applications of those selected as finalists may become public. Finalists will be notified prior to their information being made public."

    That is absolutely wrong! There is nothing in the exceptions contained in Section 610.021 that would allow any of this information to be closed.  None of these persons are applicants for employment with the county.  Each of these appointments are political appointments and for them to claim in any fashion that this would be confidential is legally wrong and an affront to the Jackson County citizens, myself included.

    I cannot say that I am surprised.  My opinion of the Jackson County legislature members and its counsel is that the Sunshine law doesn't rank high on their list of priorities.  I have not always felt that way, but in the past two to three years, my opinion has changed dramatically.

    I live in Jackson County.  I expect more from my county legislature.  I am really tired of having persons in those offices whose legal shenanigans embarrass me.  I am sorry that there is no one in the county counselor's office who understands the Sunshine law or attempts to guide the legislature and the other county entities to follow the law.  I am aghast that our elected County Executive, himself a lawyer, is offering this kind of leadership to those under him.

    I expect more from those I elect to public office.  So should you.