Sunshine in Missouri

This is the time to remember, these are the days to hold on to...

    Well, mercy, as my wonderful grandma used to say!  Just when I think things are quieting down across our fair state, more chaos breaks out involving the sunshine law.  Most of you know what I mean.  If you don't, you can sample it here, here  and here.

    I don't claim any special knowledge about the facts here.  I'll leave that to the full-time reporters, whose job it is to ferret out the story.  I do, however, ponder what this means for the sunshine law in our state.

    The law needs revisions.  This need is ongoing.  The more the law is used, the more we see how it needs to be fine-tuned.  The language it contains is always rife for interpretations and misinterpretations.  Changes are needed.

    We need to make sure the law is clear that e-mails are covered.  Despite some who question this, I do believe our governor understands this and also that he supports sunshine law principles, as seen in his recent call for openness in other areas.  He helped write the state requirements on records retention when he was Secretary of State.  Those may need either updating or placed in another place in state law.   

    I think changes need to be put into the law that would open for more public examination information collected in the selection process of those candidates for the highest offices in public governmental bodies in our state, at whatever level they exist.  These are persons whose decisions affect all of us and their selection needs to be subject to the highest public scrutiny possible.

    As always, I think we need to require those in public bodies to honor and observe the principles which are the basis for the sunshine law.  No other law in the state mandates that one must have some intent to break the law before any penalty can be imposed.  Our criminal laws would be worthless if prosecutors could only prosecute criminals who either knowingly or purposely broke the law.  Why is there a different standard for the sunshine law?  And why do we let persons elected to uphold our laws in the state ignore this law repeatedly and not be penalized?

    I trust that Governor Blunt, Attorney General Nixon, leaders of both the House of Representatives and the Senate, legislators who are Democrats, Republicans, and those who were Republican but are now Democratic, will this year answer the call to pass legislation to strengthen this law.  It's an issue every single elected official should be able to support.

This living is not so hard as it seems

    An editor sent me a note today about some city government officials in his area.  They are frustrated that the public - -they mentioned attorneys, chiropractors, and others -- ask for access to public records in their efforts to develop new business.  It's just too much work -- an annoyance, they say to this editor.

    My heart just aches for these poor souls. Their lives are so hard, they think.  It sure would be easier if we didn't have to put up with those taxpayers out there, wouldn't it?  They're just a nuisance, aren't they?

    Most business people understand pretty quickly that if their customers aren't put first, they go elsewhere.  Unfortunately, these taxpayers cannot take their "business" elsewhere.  Perhaps if they could, the city officials would better understand the relationship between those who want access to public records and those who pay their salaries.

    "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." the law says.  The law is pretty specific.  Open to the public means all members of the public. Not just members who are favorites of those holding the records.

The beat goes on and on and on...

     Twice recently I've had calls from reporters wanting to discuss those packets that public bodies give to their board members at meetings.  The packets routinely contain information regarding topics to be discussed at the meeting.  Both times the reporters were told the packets were not available to the reporters.  (These materials relate to matters "under discussion," to matters under "deliberation," one reporter was told.) But it's a funny thing ...I don't see those terms included in my sunshine law book in the exceptions to the mandate that all records are to be open to the public.

    (Oh, by the way, this second body was a school board.  Need i say more?)

    Those packets contain records retained by the public body.  Records are records, folks.  And records must be made available to the public upon request UNLESS any of those records have been closed under one of the exceptions contained in Section 610.021.

    BUT WAIT!  THERE'S MORE!  Another reporter today called to tell me about another board -- another school board, of course -- that took up the issue of bids for the purchase of a mower.  Bids had been opened.  Did the board accept a bid?  No.  Did the board announce it was refusing all bids?  No again.  Instead, the board decided to discuss this in a closed meeting.  And their reasoning?  Well, they didn't want to discuss it in public for legal reasons, one member indicated.  Had they been sued or was someone threatening suit?  Of course not, although I suppose anyone can file suit for any reason at any time, but that's NOT the intent of the first exception in Section 610.021.

    The beat goes on and on.  The excuses go on and on.  The drum keeps pounding a rhythm to your brain, but the brains of these folks obviously just don't get it.  Sometimes I feel like a broken record around here.

Show me a river so deep, show me a mountain so high, show me a school board with a brain....

    There aren't any scientific studies that I know of to support this perception, but if I had to put money on the most frequent sunshine law violators in the state, my money would go on school boards.  Somehow, it seems like the complaints go on and on.

    This week, a board in the state received a request for access to its school dress code.  The requester was told that a request had to be filed in writing in person at the school board headquarters and copying charges paid in advance before the policy would be released to the requester.

    (Imagine if every student's parent had to fulfill that requirement before the information was released.  That would be a district a little short on the headcount for funding from the state, I'd wager a bet.)

    Where in the world do such concepts come from?  It's district policy, the requester was told.  Don't these districts even crack open the sunshine law books they surely receive from the Missouri Attorney General's office?   What do they think the term "open" record means?  Show me where in the sunshine law it says a public body can demand requests for records must be in writing?  Show me where in the sunshine law it says a public body can demand someone making a request for a record must do so in person?

    Show me a school board in the state that understands that this is the public's information, not theirs....

   

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

    One might think, with the lack of entries on this blog, that sunshine law issues in the state have disappeared.  But you'd have to be blind and deaf to think that.  At the moment, our state officials seem to be fascinated with the sunshine law and frankly, it is breathtaking to try and keep up with all the discussion.

    Just today another newspaper took up the call for a special sunshine unit.  It's exciting to watch that discussion although I realize, especially after watching the shield law bill make its way to nowhere twice over the last two years, that having a discussion and accomplishing a task are two different things. "Cause people like to talk Lord don't they love to talk...."

    Speaking of Dolly Parton, life goes on and sunshine law issues continue to frustrate.  Twice in recent weeks I've had discussions with callers regarding what appear to be meetings of fewer than a quorum of the members of a public body.  Just today, a reporter called about a superintendent who wants to schedule individual meetings with school board members on a regular basis to discuss matters of pertinence outside of the board meeting.  Clearly, it is not a violation to hold a meeting with an individual board member.  But when a series of meetings are planned in order to make certain that the discussion at the board meeting goes smoothly (or isn't held at all), in short, to avoid public discussion of public business, there's the potential for a court to find that the law has been violated.  "(I)t is the intent of the legislature that the sunshine law would apply to meetings of groups of less than a quorum of a public governmental body where a quorum or more of the body was attempting to avoid the purposes of the sunshine law by deliberately meeting in groups of less than a quorum in closed sessions to discuss ... public business...." said the Western District Court of Appeals in Colombo v. Buford, a 1996 decision.

    Many of us who are interested in these cases have long looked for an opportunity to take this language and turn it into a decision, but haven't been presented with the right set of facts.  It's not for want of trying, however.  Indeed, Attorney General Jay Nixon attempted to litigate this very theory with the Missouri Higher Education Loan Authority in 2006, and eventually reached a settlement with that group in connection with such an action by MOHELA.

        Even as recently as last month, a prosecuting attorney in Vernon County acknowledged to the city manager in a written opinion I have seen that a "walking" quorum was established in regard to meetings being held by some members of the city council in Nevada.  That prosecutor appears to have concluded, in further analysis, that there was no violation in their set of facts because no "discussion" ensued.  He claims "the process of gathering information does not amount to discussion."  But then goes on to say a topic was raised.  He appears to say few words were exchanged.  It seems like it's a question of fact whether there was a discussion or not and without more facts, an observer cannot determine whether there was a discussion or not.  But it certainly drives home the point that this is an area for a public body to tread carefully and potentially ripe with danger.

    In short, discussion of public business belongs in public meetings.  Not behind closed doors.