Sunshine in Missouri

Do You Want to Know a Secret? Do You Promise Not to Tell?

    A caller today told me about his local city council and mayor who are creating turmoil in their fair city over real estate negotiations.

    The council is holding closed meetings to discuss, it is thought, the city's lease of real estate from a party and the subsequent lease by the city of the same real estate to another party.  If that is true, such a discussion probably falls within the provisions of Exception 2 to Section 610.021, and probably can be closed.  BUT another party has suddenly taken an interest in that real estate and with questions being raised, citizens in the community want to know what is going on.  Suddenly, it has become known that the city mayor and council have signed confidentiality agreements with one of the parties to not discuss any of these negotiations in public.

    While I cannot argue that the meetings are illegally closed, surely the city should have known that it could not sign a carte blanche confidentiality agreement with anyone.  What does this agreement say?  Citizens can't find out because it's SECRET!  Did the city violate the sunshine law signing this agreement?  We'll never know because it's SECRET!  Does it promise confidentiality beyond what the sunshine law permits?  They can't tell you because it's SECRET!

    The sunshine law was created to allow public governmental bodies some perimeters for closing matters that need to be closed for limited times and purposes.  Anything falling outside the scope of this law is probably wrong and certainly raises suspicions that it is illegal.

    But beyond that, when a public body looks around its meeting place and sees scores of citizens, angry citizens, wanting to know the truth, it should think twice before telling them to sit down and shut up.  Those are voters out there and they have a right to know about city business.  It's their business, not your business.  City officials who make a practice of taking actions in secret lose their credibility with voters. 

    Perhaps this city's officials should go back to the party who wanted this confidentiality agreement and seek release from its terms.  If they don't, perhaps it is THEIR terms they will need to worry about. 

Silence is Golden

Sometimes you don't need to say anything... others can say it all for you. 

Sunshine heat wave comin' your way

    I'm writing my monthly column for the Missouri Press Association's magazine for members today, and it dawns on me that all of you who read this blog, for whatever reason, should be aware of a case decided earlier this summer by the  8th Circuit Court of Appeals.  It's called Lindsey v. City of Orrick, Mo.  You can find it on the court's website, which is located  here.  Go to the left, where it says "search descriptions," click on that and on "party name" and type in "Lindsey." 

    It's number 11 in the list.  I'll try adding a link here  directly to the case, but earlier today I tried to follow a link someone else did and it didn't work, so you'll be able to find it either way.

    The gist of this case, in short, is that if you are an employee of a public body and you complain about violations of the sunshine law by that body, your firing is a violation of your First Amendment rights unless the court finds that managing sunshine law matters is within the scope of your duties.

    It should give some support to beleaguered city employees who know about such violations but fear losing their jobs if they complain.  What you are doing is a matter of public concern and you have a right to be heard on the issue!

You say "tomaaato," I say "tomaahto," but it's STILL NOT an employee

    A reporter called today to discuss a fire district board (somehow these folks seem to be the subject of more calls that most public bodies) that held a closed meeting last night to discuss a "personnel" matter.  They were discussing the deputy chief.

    Problem is, the guy they were talking about is a volunteer.  I don't know about your copy of the law, but my copy of the law clearly states in that exception that it relates to a discussion about an "employee."  It's right there in black and white in my book.  How about yours?  What makes someone an employee? Well, the IRS has a long set of rules distinguishing between an employee and an independent contractor.  We could talk about those, but really, folks, it's simple.  Do you pay unemployment insurance tax on this person?"  Do you withhold taxes from their wages and pay those monies to the IRS?  Did you complete a W-4 form when you hired this person?  If not, then they aren't an employee.   I don't know many volunteers who fall into that category.

    Frankly, you cannot "fire" a volunteer.  But regardless, you cannot discuss this person under exception 3 of Section 610.021.

    I would consider that fire district board members maybe don't know any better.   But I know the state fire district association sponsors an annual seminar and that the sunshine law is a part of that seminar  (heck, I've even spoken at it in the past).  So there's no excuse for these board members to be so ignorant of the law.

    Perhaps someone in the district needs to volunteer to read the law to these board members.  Or maybe they could employ someone to do that task for them.  Regardless, they need to start paying attention to the language of the law or they'll find a judge willing to educate them.  Hopefully, at a cost!
   

You can change direction, you can change your mind...but the sun's still gonna shine...

I was talking with the city clerk of a small Missouri community this morning for a client.  She's new and apparently this community doesn't see the need to help educate its clerk, the person who has responsibility for the public records, about the provisions contained in the Sunshine Law.  We talked about certain records I needed and she was most helpful and gracious to me, but she clearly had not a clue about what was public and what wasn't. 

I give her credit that she was forthcoming, as apparently she had been told to be by the mayor, in connection with this client's request.  But she kept talking to me about her concerns about the "privacy law."  I happen to know she comes to this job, in part, from a position with an ambulance district.  So I know she's thinking about the Health Insurance Portability and Accountability Act (HIPAA).  You couldn't have two laws more directly opposite each other.  This is a clerk who needs help making a mind-shift in her job.  And I hold the city council accountable for that need.   Someone on the council, and maybe that someone is the Mayor, needs to step up to the plate and help this clerk change her direction here, 'cause the wind's blowing the other way in this case.

To everything there is a season, but, regardless, there's always sunshine!

It's time for a school district in the state to stop playing games with the public.  The district recently decided to purchase land and has accepted an offer.  When a request came in for information on what other tracts of land were considered before the decision was made, the district refused to release that information.  It claims it wants to protect those who offered land to the district because the district may again be purchasing land and it will be considering those same tracts in the future.  Since those "future" negotiations are not completed, it believes it can keep secret the names of other landowners and their offers.

But the law is clear.  The district can close information relating to the "leasing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration therefor. However, any minutes, vote or public record approving a contract relating to the leasing, purchase or sale of real estate by a public governmental body shall be made public upon execution of the lease, purchase or sale of the real estate...." The contract has been executed.  The list of other offers is just that -- a list of offers considered in THIS deal and therefore subject to being disclosed.

Who knows whether those same individuals will continue to offer land for sale to the district?  Who knows what price it might be offered for at another time, or whether it might be sold before then, or whether those individuals will even still own the land at that time?  At this point in time, all of that is mere speculation for the district.  To claim that these are offers that have any effectiveness at this point in time is ludicrous.  The board is merely speculating about the future.  There's no offer until an offer is solicited, so these folks are not in any negotiations with the district now.

This is not a gray area.  Even if this was a close call, there is case law that makes it clear how this should be handled. A court said a few years ago that in situations where something could be open or closed, the sunshine law makes it clear that the ruling must be for openness.  "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."

Makes you wonder just what they are hiding, doesn't it?  Could it be there's no list to produce?  Surely that's not the case, or is it?

Only one way to find out.  Release the records.  Quit playing games.