Missteps suggest need for Sunshine Law training

A 911 advisory board arrived at a recommendation without a public meeting.

A park advisory board chairman took informal votes by telephone to reach a decision.

A senior citizens board failed to notify the public of money being allocated.

At least two government bodies held closed-door sessions to confront elected officials.

Those are five of nearly a dozen potential violations in Missouri's open meeting and records law documented in recent months by the Southeast Missourian. In many cases, decisions to spend tax dollars were made without public input.

Some government officials -- often ordinary people voluntarily serving on boards -- say they were simply unaware of the rules. Others appear to be defiant. Other officials use aggressive training and legal advice to stay true to Missouri's Sunshine Law.

The law requires public bodies from the legislature down to committees appointed by city officials to conduct business in as public a manner as possible. Meeting times and agendas must be posted at least 24 hours in advance and decisions made public after three business days.

Charles Davis, associate professor at University of Missouri's School of Journalism and executive director of the National Freedom of Information Coalition, said missteps can be attributed to ignorance, "willful disavowal" or a combination of the two.

"A lot of people think more punishment is better. I'm not sure that's the most productive thing," he said, suggesting that a better remedy is "more education, more education, more education."

Kathy Swan, currently chair of the Missouri Coordinating Board for Higher Education, has served on several government advisory boards at the state and city levels, as well as on industry and not-for-profit boards.

She learned the most about the law while serving on the board of the Missouri Higher Education Loan Authority, or MOHELA. In 2006, the Missouri attorney general investigated MOHELA communications to verify whether then-chairwoman Karen Luebbert had violated the Sunshine Law. The state alleged Luebbert contacted board members individually to arrive at decisions -- a process called hub-and-spoke communications. The MOHELA case was settled after board members agreed to change procedures in the future, while denying any intent to circumvent the law; each also paid a $1,000 fine.

As a result of the investigation "and of Sunshine law training, I have become quite aware of the Sunshine Law requirements in communicating with other board members," she said.

Since May, Cape Girardeau County advisory boards have made news repeatedly. The Board of Park Commissioners made a hub-and-spoke decision on the sale of park land and met without posting notice. Cape Girardeau's E911 Advisory Board made a hub-and-spoke recommendation for a St. Louis company to provide an equipment upgrade and relocate the 911 radio system.

The county's Senior Citizens' Services Funds Board met without notice for nearly two hours July 14 at the Jackson Senior Center, granting $17,484 of its annual $545,000 budget to two organizations. Board chairman Dale Rauh later said he is "well aware" of Sunshine Law requirements but skipped posting notice because the meeting was supposed to be brief and the six other board members knew what was to be discussed.

The Cape Girardeau County Commission is engaged in a lawsuit filed by 2nd District Commissioner Jay Purcell over a closed April 17 meeting during which county Auditor David Ludwig was pressured to resign. According to guidelines issued by the Missouri attorney general's office, elected officials cannot be disciplined in the privacy of a closed meeting, unlike an employee.

Although legal briefs have been exchanged between the commission's attorney and Purcell's, no court date has been set. Purcell's suit in part asks the commissioners to agree to Sunshine Law training. He put training on the commission agenda last week, but no decisions were made. Sunshine Law training is listed on the commission's agenda for Monday.

Sunshine Law information is available for free from the Missouri attorney general's office, which put the entire text of the law online as well as tips, a list of Sunshine facts and a complaint form. The state offers free training annually to elected officials and a free 80-page guideline booklet to anyone.

In 2007, the attorney general's office received 239 Sunshine Law inquiries, more than half from public officials seeking advice on how to follow the rules.

Guidebooks ordered

After a series of Sunshine-related disagreements among Cape Girardeau County commissioners that now includes a Sunshine-related lawsuit, County Clerk Kara Clark ordered dozens of the state's Sunshine Law guidebooks, now a common sight in county offices. Last week, she ordered 30 more for the county's advisory board members.

Stuart Haynes, Missouri Municipal League staff associate, fields Sunshine Law questions from around the state. He advises callers to err on the side of openness or seek advice from the city's clerk or attorney.

Agendas should clearly state what action items will be decided, he said. A board can discuss a topic if it was not an agenda item, such as a neighbor's complaint about a barking dog. But he said it's not OK to pass a resolution on dogs without alerting the public and giving them a fair chance to comment.

Haynes said every city should have a designated custodian of records and that person should learn what records to keep.

Davis said public officials often see Sunshine Law requirements as a burden.

"We have these laws in place because we are a functioning democracy. For that to work, people have to have access to the information the decision-makers have. The alternative is an authoritarian government -- you will have left the planet of democracy. I have no doubt that over in the Soviet Union, it was damned efficient," he said.

Some have said the Sunshine Law is used as a political weapon, citing disagreements between Gov. Matt Blunt and Attorney General Jay Nixon over e-mail retention.

Davis said he's frustrated by the state law, which doesn't have clear enforcement rules.

"It's like a lottery system. Sometimes you get enforcement, and sometimes you don't. I have yet to figure out what the magic formula is," he said.

Swan said the bottom line is simple.

"Learning and following the requirements of the Sunshine Law is an important job responsibility of every public board member," she said.

pmcnichol@semissoruian.com

335-6611, extension 127

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