Sunshine in Missouri

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.

I can't find the right words to say. My meaning's not quite getting through. The right words are so hard to say...

    Sometimes I find fascinating what folks who are members of public governmental bodies say about their meetings.  Do they ever listen to themselves?  It's one thing to argue they don't read the sunshine law to know what to do. But when they open their mouths and say one thing, when they argue they are doing another, well it's enough to make you wonder.

    For example, a city council in the state has held a closed meeting to talk about a personnel issue.  The issue relates to a city councilman.  But you cannot close a meeting to discuss the actions of a member of the council, so in order to try to fit within an exception, the situation has been couched as a discussion of a matter involving an employee and the councilman.

    "I cannot get into the facts of the situation obviously, but there was an employee issue brought to the attention of the Mayor ... that involved allegations regarding a councilman," is what they are saying.  Okay, so are they discussing the employee in the closed meeting?  Because, you'll remember, they can only close a meeting to discuss an employee matter if it is about one of four things -- Hiring, Firing, Disciplining or Promoting the employee.

    "The purpose for bringing the matter to the council was for multiple purposes: first because it involved a city employee and a councilman, the mayor ... can reasonably address concerns regarding the employee but as an elected official, ha[s] no jurisdiction over an individual councilman. Hence the redress is that the matter be taken to the council as a whole which affords the ...  councilman the opportunity to address the council body and for them to make what determinations they deem necessary or expedient," the city official said.

    Sounds to me like they are talking about two things -- the concerns regarding the employee and the concerns regarding the councilman.  If they really are planning to fire or discipline the employee, then that was proper for a closed meeting.  Since the councilman is NOT an employee, the part about the councilman did NOT belong in closed session.

    And the law is clear that "public governmental bodies shall not discuss any business in a closed meeting... which does not directly relate to the specific reason announced to justify the closed meeting...."  Since the part about the councilman's actions cannot be discussed in closed session, the speaker here has just announced in public that the body has violated the law.

    My Grandma always said God gave us two ears and one mouth for a reason.  Sounds like this city official might want to think about closing that one mouth, after he or she has pulled his or her rather large foot out of it....

Take me out to the ball game... but this group's already got the Cracker Jacks...

    After two years of blogging, there are days it's hard to find something new to blog about.  How many times can a person complain about the same acts of public governmental body members, who repeat over and over the same violations of the law?

    But this is a slow Sunday and we're in the midst of legislative season, meaning there are distractions in Jefferson City that keep me from focusing as much on my blog as I'd like, so while I'm thinking about a call last week and have a few moments, perhaps it's worth sharing.

        The city council gathered, and certain members were unhappy with the local mayor.  Impeach her, they were thinking.  So the council called a closed meeting.  Under what exception?  The personnel one (610.021.3), of course.  Nevermind that the mayor is not someone who can be hired and fired by the city council.  Impeachment is NOT the same as hiring and firing.  The mayor is not an employee.  This is not a proper subject for a closed meeting under the sunshine law.

    And, of course, it turns out the city attorney, who apparently needs sunshine law lessons himself, condoned the action.  Get that man a sunshine law handbook.  Get him some training on the law.  This is not the kind of advice the city council needs.

    Oh, but there's more...   This same attorney told the city council members it was illegal to talk about what goes on in a closed meeting.  Well, if he doesn't know that impeaching the mayor is not legal, why would one expect him to understand that there is nothing -- not one word -- in the sunshine law that prohibits members of the body from talking about what goes on in a closed meeting.

    Two strikes. 

    And then, when the city attorney talks about this with the local reporter, he advises that he believes "it's a major concern about do the members understand the level at which a piece of information can be distributed or should not be distributed..."  Only problem is that there's nothing in the sunshine law regulating when information "should not be distributed."  I think this attorney is confusing his own opinion with the law.  I think he's decided that it's too difficult to explain the law to the city council members, so it's just easier to give them his opinion and to substitute that for the law.

    He is doing his clients no favors.  He is giving them bad advice as to what the law says and he is in some cases making significant errors.

    Perhaps it's time for a relief hitter here, before this city council strikes out...

Doctor Doctor give me the news...I've got a bad case of sunshine law blues!

    A letter from a general counsel of a privately-owned hospital crossed my desk last week.  The institution holds a special place in my heart...it's where I started life a few years ago (How many?  Doesn't matter to this story!).

    He was responding to a newspaper's sunshine law request.  The newspaper wanted access to certain records relating to the contract the hospital has with a local county to provide ambulance service.

    The letter raises a lot of issues and the newspaper is in the process of addressing those issues further.  But one sentence in the letter just stands out.  If it reflects the quality of the work this general counsel does, the hospital better check itself into its emergency room, because it needs emergency care.  "...[T]he ambulance district is a quasi public governmental body..." the letter says, referring to a county's ambulance district.

    I believe, unless I'm mistaken, this county's ambulance district is an entity created by Missouri statute.  If I'm right, then for this attorney to say it's a "quasi" public body makes me wonder about the quality of the rest of the legal conclusions he's reached.

    Maybe the hospital better keep the phone close.  It may need to call 911 sooner than it thinks!

A, B, C. Easy as 1, 2, 3. Simple as do, re, me. A, B, C, 1, 2, 3, Baby You and Me

    It is time for a university board in the southwestern part of the state to go to school -- sunshine law school, that is.  Perhaps some of these bills being filed in Jeff City to require mandatory sunshine law training can specify that the bill especially applies to institutions like this fine one.

   The board is busy looking for a new chief administrator.  Perhaps they are asking him or her if he or she is capable of performing the duties of the job.  Perhaps what they should be asking the candidates is if they have ever heard of the Open Meetings/Open Records law and could take a few minutes to explain its basic principles to the board members.

    Today's story is that they met to select a firm to investigate the backgrounds of the candidates.  (Again, let me suggest they add the sunshine law issue to their list to be investigated.  Seriously, folks!  You've made this blog before.  It's time you dealt with this problem you have!)  They selected a firm to do this task in closed meeting.

    Pray tell me what exactly the hiring of a private investigator has to do with "Hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded"?  Do you see anything in that proposal that involves "personal information about the employee"?  Seems to me to be pretty clear that we're talking about a private investigation firm, NOT a potential employee.  But then, what do I know?  Maybe there's some secret code contained in that sentence that only highly educated members of the board of governors of an institution of higher education can decipher that I can't. 

    You know, perhaps it's time we re-wrote the sunshine law in English that most of the rest of us can understand.  More akin the lines of "See papers.  See people who pay for papers.  See people who want to see papers.  Give them to those people.  They paid for them."  Or perhaps "I need to talk to you.  We need to talk to you.  You pay for our meeting.  You should be there.  He should be there.  She should be there.  Everyone should be there."

    This institution needs a little higher learnin' of its own.  "You went to school to learn boy, the things you never never knew before."  Perhaps start with this fact: It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law.