Sunshine in Missouri

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.

   

Do I dream again? For now I find the vote is there inside my mind...

Last week, a reporter emailed me about a school board in the state holding a closed meeting for purposes of hiring personnel.  Certainly that is a proper purpose for a closed meeting.  But, he has been told, in his hour-long meeting, AFTER the five-minute discussion and vote to hire staff, the rest of the time was spent talking about the basketball coach.  Probably that was appropriate for a closed meeting under exception three of 610.021, too.  BUT where the problem arises is that NO vote was taken on the matter.  How is that a problem, you ask?  Well, the next day the principal, ACTING ON INSTRUCTIONS FROM THE BOARD, approached the coach and told him that his contract would not be renewed.

Huh?  How could that be, you ask?  The board did not vote on any measure in the closed meeting, so how could there be a decision made?  Well, the reporter wants to know if the sunshine law allows a vote to be avoided by an act of "consensus"?

I'm afraid that's not possible.  A board cannot act without a vote.  There can be no decisions without motions  and seconds and votes.  Any board that thinks it is acting "by consensus" is really simply skipping a step -- the step of recognizing that everyone would vote in a particular way.  The fact that a vote was not taken doesn't mean that a vote didn't happen "by consensus."  If anything, this is just sloppy board etiquette or process.  Anytime there is a recognition of board members' stand on an issue, there's been a de facto vote.

A discussion is fine.  A decision means a vote happened, like it or not.  See it or not.  But when you don't record it by roll-call vote, you've broken the law.

My new year's resolution, you ask?  Legislation to strengthen the sunshine law, of course!  2008 -- it's gonna be great!  Wishing all of you a wonderful new year!

No one knows what goes on behind closed doors...

My grandma used to say "you can lead a horse to water, but you can't make them drink."  I guess you can also lead a board member to an educational institution, but you can't make them learn.  In particular, there are board members of an educational institution in the state that seem determined to continue to violate the sunshine law.

Apparently they have regular, "private" luncheon meetings before their official board meetings.  No notice, no exceptions cited.  Well, perhaps they sit around the luncheon table, all of them, and discuss their grandchildren.  Perhaps they are talking today about Christmas shopping.  Surely, given conditions in that part of the state, they'll be talking about power outtages or darkened light bulbs.  Maybe, just maybe, if they start discussing the board's business, a light bulb will suddenly go on in the brain of one member, who'll suggest to this board that such discussions belong in the official meeting and NOT in this informal, "social" gathering for lunch purposes. 

"The term "public meeting" shall not include an informal gathering of members of a public governmental body for ministerial or social purposes when there is no intent to avoid the purposes of this chapter
..." the law says.  Social gatherings are fine.  It troubles me, though, that this statute talks about "intent."  Yes, I imagine legislators, who wrote this, were trying to say that they wanted to differentiate between a social gathering for social purposes and a business meeting masquerading as a social gathering.  But would a court then make one prove that there was an "intent" to break the law when this group of governors of this august educational institution start "accidentally" discussing public business over porridge and bread?

It wouldn't surprise me.  And it wouldn't be the first time a court has given a "free pass" to a group gathering for a meal behind closed doors.

Talk is cheap, but the price is high when it's true.

    Cell phones have become as much a necessity as your calendar and your car keys.  Unfortunately, this becomes a problem if you are a government employee.

    Let's say you are an employee of a state university.  Let's say the university supplies you a cell phone for your use on the job.  The university pays the bill.  Clearly, because the records of the state university are public under the sunshine law, those bills are public records.

    A reporter called today to note that the requested copies of the bills arrived in his office with redacted phone numbers on them.  When he questioned why those numbers were redacted, he was told they were personal phone calls made on the university-owned phones and that the numbers were redacted for that reason.

    Sorry, Charlie.  That doesn't work.  Those records are public records.  (In fact, there's case law in Missouri stating that point, so we don't have to argue about the interpretation of the words in the sunshine law about that issue.)  Unless there's an exception in 610.021 (which there isn't -- I'll save you looking for one) that says that these numbers are a closed record, all the data in those bills is open to the public.  I don't care if you have repaid the university for those calls (which maybe they have and maybe they haven't), it doesn't make that data private.  There's no exception for calls to private telephone numbers made on phones owned by a public governmental body.

    Even thought about getting two cell phones?  No, of course not.  It's cheaper to just use the university's phone, isn't it?  But what's the price you pay for being cheap?  You lose your right to privacy.  There's a cost to everything.  Talk is cheap.  Public disclosure is what can be costly....Maybe in this case, the cost is greater than you realized....

   

No matter where you turn around, it's the same sun that keeps shining down...

    Three weeks ago, there were citizens in our state who'd probably never heard of the sunshine law.  Now, I imagine there are a number of citizens in our state who are tired of reading about the sunshine law and e-mails and Governor's aides and deleting data and, well, you get the picture.

    Do you know what worries me?  For once the sunshine law is, dare I say it, in the spotlight, and yet I view this turn of events with trepidation.  I'm afraid it is getting so much attention, with a new story nearly every day, that citizens will begin viewing it as a political ploy.  As simply another political game played between the Democrats and the Republicans.  Any value that might be gained by this turn of events may be lost by the fact that everyone may soon be tired of  hearing about sunshine law violations.  Everyone might decide this is just another way to get the upper hand politically.

    State records are critical.  This country was founded on the rights of citizens to be involved in their government and monitoring actions of public officials in meetings and through inspection of public records plays a key role in that process.  When politicians began playing games with this right, it loses its purity as a principal of good government.

    And when citizens get tired of hearing about the sunshine law, will they discount the importance it plays in keeping our government on a sound basis?  Will state legislators not want to strengthen this law because it is "yesterday's issue" and not relevant to what is happening in the state in the immediate future? 

    I just hope I won't regret tomorrow that today the sunshine law is a page 1 issue in my newspaper.

    Meanwhile, there's an interesting situation that has developed in the central part of the state.  A key public figure faced a criminal charge.  Who it was and what the charge was is probably not as important as what happened.  The wheels of justice did not, in this case, grind slowly.  They, in fact, gave our own Carl Edwards a run for his money, so to speak.  This case reached the finish line before those observing it had "left their gates," so to speak.  Records normally open to the public in this case were closed almost literally within minutes of being created and open to the public.  The case was over and the records, if they existed, were closed, according to the official statement.

    That is surely not what the legislature intended in allowing for closed records in cases of suspended imposition of sentencing.  Indeed, the Missouri Supreme Court has said that official records are only closed "following successful completion of probation...."  If that is what happened here, this case must hold a statewide record for the shortest duration of probation in history.  (See the attached Yale decision.)  Download Yale.doc

    There will be a discussion, I predict, about this as a case of the court taking care of its own.  As an officer of the court myself and as a believer in openness in government, I hope I am not embarrassed by my brethren at the bar before this is over.

Life's a game!

    I learned a long time ago that you cannot take yourself too seriously.  If you cannot laugh at yourself, you are doomed to have no friends and spend your days under a black cloud.

    In that vein, the Missouri Democrats  have invented a hilarious game that I have to post for folks who might have missed it.  I am not posting this because of any political motives.  Feel free to play this game and imagine your local politicians who you'd like to catch in the sunshine law spotlight.  I have a number of candidates for the next version of this game.  Some are Democrats!  Others are Republican.  There's plenty of blame to go around.

    But it's a great way to entertain yourself between reading my blog entries!

    Go get it!  http://www.bluntdocumentdestroyer.com/

I've got to find a way just to hear those little things you say

    Late last week, a city's planning and zoning commission met for a regularly-scheduled, properly noticed meeting.
    The meeting ended and the commissioners began gathering up papers.  Members of the public attending the meeting also left, concluding the meeting was finished.
    Perhaps one of those citizens, in leaving the room, took along with him or her the brains of these commissioners.  Because these commissioners began talking among themselves about the meeting and suddenly realized they had failed to take up an issue that they wanted to discuss.  Yes, there was a quorum in the room while this "chatting" was going on.  No, they were not in a formal "meeting" setting when this "chatting" was going on.  Can you say "violation of the law"?
    So, someone on the commission decided they needed to fix this problem and so fix it they did.  At least, they got themselves into a further fix in the process.  Because the fix was to simply resume the meeting, now an illegal meeting without proper public notice, to further discuss this matter of public business after the public had gone. 
    Probably they thought this was just a "little thing."   But it's not such a little thing to someone who came to the meeting and wanted to hear that particular discussion, then missed it because it appeared to the public that the meeting was over.  In fact, an action like this just makes it appear someone is trying to hide something from the public.
    Someone needs to "fix" these commissioners' lack of understanding about the law.  If they can read and understand the city's planning and zoning rules, there's no reason they can't read and understand the sunshine law.  Each law is critical to the responsibilities they have undertaken.
    One of my favorite advocates of the sunshine law opined the other day, "The Sunshine Law is intended to turn the lights on public officials not knock the daylights out of [the public] when the switch was turned on."  I laughed when I read that line, but the truth is that when I see situations like this, I think perhaps getting a giant club and using it to enlighten some of our public officials to the provisions in the sunshine law might not be a bad idea.  Beating a little common sense into their heads is one tactic we haven't tried.  Attempting to legislate fines and penalties clearly isn't working.

    MY FINAL THOUGHTS:  And I add these are MY thoughts and not the thoughts of any other person, statewide association or organization of any race, color or creed, or reader of this blog:  1)  The sunshine law already covers emails; and 2) Public bodies already have to sort the "spam" from the records relating to public business that comes into their U.S.Postal Service mailbox every day.  Why are we acting like what is going on statewide is so difficult?