Where the Sun Don't Shine

Missouri's Sunshine Law guarantees open government for all. Trouble is, prosecutors don't enforce it and legislators won't fix it. Just ask the folks fighting City Hall.

James Spradlin knew he had a slam-dunk when he sued the Fulton City Council for holding secret meetings. The way he figured it, elected officials in the Show-Me State can't hide behind closed doors to discuss taxpayer-subsidized projects like the golf course and residential subdivision near his home. That's plain wrong, he argued, and in 1998, the state Supreme Court unanimously agreed.

Yet today, Spradlin considers himself a loser.

Even though the courts said Fulton officials violated state law and a judge issued an injunction ordering the council to hold open meetings, Spradlin didn't win attorneys' fees. After spending about $10,000 of his own money to prove a point, Spradlin, a tree farmer, now says he probably wouldn't do it again. As he sees it, the only person who ended up paying for the council's illegal meetings was Spradlin.

"They'd be in big trouble if every police officer, when they arrested somebody, had to pay for the prosecution," quips Spradlin.

That's the way it goes with the Sunshine Law in Missouri, where it helps to be tenacious and wealthy.

The 27-year-old statute sounds so simple, so good-government, so mom-and-apple-pie that it's rarely put under a microscope. On paper, the statute says records kept by public agencies belong to everyone: The crackhead on the corner should have the same access to documents as a corporate CEO. Copying fees aren't supposed to exceed the actual cost of duplicating records. City councils and other governmental bodies can't meet behind closed doors to discuss public business. Sure, there are a few exceptions -- closed-door meetings are OK if elected officials are talking about sensitive personnel matters, lawsuits or certain types of real-estate transactions. But the law is supposed to be "liberally construed." That means the government is supposed to think carefully before keeping things secret and err on the side of openness. If public knowledge won't harm taxpayers, then the government should keep things public.

In practice, the state Sunshine Law has serious flaws. The law is supposed to protect the rights of all Missourians, but it often doesn't work unless a citizen has deep pockets and a good lawyer. Local prosecutors and Missouri Attorney General Jay Nixon, who are charged with enforcing the law, simply don't. And though the law is routinely stretched and flouted, legislators have also proved loath to do anything.

Just ask the Olivette residents who waged a protracted fight against a $120 million shopping center that would have wiped out 300 homes and required a record $40 million tax subsidy. City officials seemed hellbent on approving the project and were equally determined to keep their dealings with developers under wraps, in spite of the Sunshine Law.

The Olivette project was born in secrecy. Two development firms, THF Realty and the Sansone Group, approached the city with a proposal for an 80-acre site, at Olive Boulevard and Interstate 170, that contained more than 10 percent of the city's population. In 1997, they began signing sales options with homeowners. In the spring of 1998, the companies each gave the city written development proposals, then combined forces shortly afterward and submitted a single package. The proposed shopping center would have required the largest tax-increment financing (TIF) subsidy in St. Louis County history and would have dramatically transformed the small city.

City officials said the project would provide much-needed tax revenue. But those same officials insisted on negotiating the deal in secret and keeping key information from the public. They would not make site plans or other parts of the proposals public, nor would they tell citizens the size of the proposed tax subsidy.

The secrecy in Olivette upset supporters and opponents of the project. While the documents were under wraps, both sides complained that the city was keeping them in the dark. Property owners who had agreed to sell their homes, typically at twice market value, were eager to learn details and fearful that sales options would expire. Opponents who lived elsewhere were worried about traffic and the aesthetics of the proposed shopping center.

City Manager Tim Pickering and City Attorney Thomas Cunningham say they kept the documents secret because the Sunshine Law says -- but does not require -- that documents related to a negotiated contract may be withheld until an agreement is signed or all proposals are rejected. Cunningham and Pickering, the city's chief negotiators, say they didn't want to undermine the city's position as they crafted a redevelopment agreement with the developers and settled on the size of the tax subsidy.

But their actions belie their words. Eight months before releasing site plans and other basic elements of the proposal, Pickering told the Olivette Economic Development Council, a private business group, that the developers were seeking $41 million in tax subsidies, a figure the city had never released to the public. "I'm not a lawyer by any stretch, but there's no doubt that the people in charge in Olivette thought that they were the law," says Dan Mihalopoulos, a former St. Louis Post-Dispatch reporter who covered suburban cities until taking a job with the Chicago Tribune last fall. Mihalopoulos, who wrote a story after obtaining a copy of the minutes of the meeting, says Pickering called him after the Aug. 4, 1998, story was published and wanted to know who gave him the minutes. "Essentially what you had there was a record subsidy being given away, the city -- meaning Pickering -- refusing to give that information to the press and the public but sharing it with a group of elite business leaders," he recalls. "They were trying to release the information when they saw fit."

That's not the way most cities in the region do business. In Brentwood, for example, the city makes TIF proposals public as soon as it receives them. There, Economic Development Director Robert Shelton says, the city's attorney believes that some parts of roposals, particularly budgets for land acquisition, may be legally withheld, but, as a practical matter, the city hasn't done that and hasn't experienced any problems. Brentwood isn't unique, according to Mihalopoulos. "You can call almost any city that I have dealt with, and they will give you a copy of a proposal," he says.

The Olivette City Council met behind closed doors more than a dozen times to discuss the secret proposal. "If we had the negotiations with the developer in public, the developer then knows all our positions," Pickering explains. "And thus the public is on the wrong side of the negotiation table." For example, Pickering says, the developer in documents given to the city put a $2 million price on the one business in the project area, a nursery. "So that (making the documents public) would have obviously given away the price tag that was allocated for that," Pickering says. And what would be wrong with that? Cunningham and Pickering say the price of land -- and how much the city would contribute for property -- was crucial in the negotiations. "The question there is, let's say of that offering price, the real question is how much of that is supposed to be public money and how much of it's private money?" Cunningham says. "I mean, you can offer X amount of dollars, but the question is, does the developer expect the city to make good on that offer? That is a very critical point of the negotiations."

And so the City Council usually cited a real-estate exemption in the Sunshine Law when it met behind closed doors to discuss the TIF proposal. Under the real-estate exemption, government bodies can meet privately when discussing the sale, purchase or lease of real estate so the price of land remains reasonable for taxpayers.

But taxpayers in Olivette weren't buying, selling or leasing any real estate, other than a public-works building for which the developer agreed to pay $2 million to the city. Although the final redevelopment agreement between the city and the developers allocated $13.2 million in tax money for land acquisition, the land deals were between the developer and private homeowners.

The Supreme Court's 1998 decision in the Fulton case suggests Olivette officials stretched the Sunshine Law until it broke. When the Fulton City Council claimed the same real-estate exemption to talk about its TIF project behind closed doors, the courts ruled that the council had broken the Sunshine Law because the city wasn't a direct party to any land transactions. "There are no exceptions (in the Sunshine Law) for discussing a real estate transaction between a private developer and a landowner, for discussing the developer's plans for the real estate, or for the financing through municipal bonds of a development on real estate not yet purchased," wrote Chief Justice William Ray Price Jr. in the court's decision.

In Olivette, the developer hadn't purchased any land when the City Council met behind closed doors to discuss a proposed development that would have been financed in part by municipal bonds -- an almost exact parallel with the situation in Fulton -- and the city justified the secret meetings with the same exemption that didn't pass legal muster in Fulton.

Two closed-door meetings last August particularly rankle the project's opponents. The City Council met twice in private in August to discuss the project, citing the exemption in the Sunshine Law that allows public officials to discuss litigation or potential litigation. The developers came to at least one of the closed meetings. City officials emerged from the second closed session and declared the project dead. Then, within a matter of weeks, the city announced the deal was back on and the council approved development plans.

What happened during those executive sessions depends on to whom you talk. When project opponents requested minutes from the closed meeting -- and for every other executive session at which the project was discussed -- they were told none existed. Cunningham recalls he and Pickering were briefing the council on the status of negotiations with the developer when the council decided it needed some information from the developer -- neither Pickering nor Cunningham can remember just what sort of information -- so city officials called the developer. "The developers in that phone call said, 'Can we come over? We have some new facts for you that are very important,'" Cunningham says. "We said, 'OK, how long will it be? Come on over.' They came over in about 15 minutes and announced major changes to the proposal unilaterally. It was completely unanticipated." The revisions included changes in the anchor tenants, construction schedule, traffic-control plans and public-subsidy levels, changes that the City Council deemed unacceptable.

Why couldn't the meeting with the developer and subsequent council discussion of the proposed changes been done in public? Once again, Pickering claims public knowledge would have hampered the city's negotiating position. "If the City Council, if one member of the City Council, said, 'Oh, I'll accept this change,' but the remainder of the council says, 'No, we're not going to accept that change,' the developer would know he has someone that could break," Pickering explains. "And that starts to weaken the position of the taxpayer to get the best deal for the taxpayer that we could get." Never mind that the Sunshine Law doesn't have a "we-can't-disagree-in-public" excuse for closed meetings.

The public soon learned that the council had been talking about more than site plans and anchor tenants behind closed doors.

Near the end of a raucous five-hour council meeting attended by more than 200 people last September, Olivette Mayor Joan Markow unexpectedly announced the council would put the controversial shopping-center project on the ballot. She told the Post-Dispatch that the council had decided to hold an election during an executive session and that Cunningham had advised the council it could legally discuss an election in private. But the Sunshine Law does not allow public bodies to debate the merits of an election in private, much less make a decision. Asked about that meeting, Pickering and Cunningham pause for several seconds before answering. "I don't recall," says Cunningham. "It certainly doesn't come into high focus for me. It wasn't discussed, like, as an agenda item. It may have been, folks may have said, 'There's an election' or 'What do you think of this?' Almost in casual conversation. But it was not an agenda item." Never mind that the Sunshine Law does not differentiate between agenda items and "casual conversation."

Here was the Olivette City Council mulling a $40 million tax subsidy for a development that would have displaced more than 10 percent of the city's population -- all behind closed doors, all despite a state law mandating that government conduct its business in public. Jeff Eisen and Chris and Melanie Osborn, who helped lead opposition to the project, thought the whole thing stank. Chris Osborn says he decided to complain to the state attorney general's office and the county prosecutor after going through the minutes of every City Council meeting since 1997 and finding no evidence that the council had discussed the merits of the proposal in public before approving development plans. Cunningham and Pickering say city officials kept residents informed with briefings on the project at council meetings, but that wasn't good enough for Osborn, who doesn't trust the city.

"The council routinely introduces and passes legislation without any public discussion of the merits of the bill," Osborn wrote in his Sept. 27 complaint. "There is no public record showing any discussion of the benefits or problems created by a development of the size and scope proposed. However, the council emerged from its executive sessions with the ordinances ready. The city government in Olivette has intentionally disregarded the law and chosen to conduct its business in private out of public view."

In his complaint, Osborn dismisses the city's claim that closed-door meetings were needed to talk about real estate or legal matters. "There are no transactions pending that relate to the sale or lease of land by the city," Osborn wrote. "There are also no pending litigation matters that have been disclosed to the public." Osborn cited the council's discussion of an election during executive session as an example of a Sunshine Law violation. Osborn was also concerned about the costs of documents -- he estimates he's paid at least $1,000 in copying fees to the city. The city, which started releasing TIF-related documents only after signing a redevelopment agreement, was charging $1 a page for routine records such as copies of the city's memorandum of understanding with the developer that were already on the front counter at City Hall.

At first, Osborn thought he had a sympathetic ear. Assistant Attorney General James Klahr asked for more information and told him the complaints had substance. "He said, 'Yeah, this is the worst pattern of sunshine abuse I've ever seen,'" Osborn says. Klahr said the same thing to Eisen. "He said, 'This is the largest stack of violations I've ever seen -- this is serious,'" Eisen recalls.

But getting Jay Nixon's office involved didn't improve matters.

After hearing from the attorney general's office, Olivette found a way to keep doing what it was doing. Instead of charging $1 a page, the city started charging 15 cents. However, it tacked on "research fees" for such tasks as retrieving documents from files and reviewing them to ensure they didn't contain anything confidential. That brought the cost up to as much as $4 a page. For some requests, the cost was less than $1 a page but still shocking to citizens who had to pay the bills. For example, Sonya Jourdan, a TIF opponent, was charged more than $40 for a copy of the city's 170-page draft annual budget. Pickering says a city clerk had to remove staples and tabs from the document and feed it into a copying machine, a task that took nearly an hour. Pickering defends the research fees, noting the attorney general's office follows the same policy.

By year's end, Nixon's office was backing off. Melanie Osborn says Klahr, in a December telephone conversation, told her that the office would wait until the referendum on the project before taking any action. "He said, 'If you lose on the TIF, we'll come in and help you,'" she recalls. The Osborns are still furious. "We're frustrated as heck," Chris Osborn says. "Here we have an assistant attorney general saying, 'Yeah, you've got a horrible situation in Olivette. But we're not going to do anything about it.'" The Osborns and Eisen, who also complained to the attorney general's office, say violations of the Sunshine Law should be considered separately from the TIF proposal to ensure the city will obey the law in the future.

On Feb. 8, Olivette voters rejected the TIF. Just seven weeks later, the city issued a press release proclaiming that it had been cleared by the attorney general's office. By then, Chris Osborn was a candidate for City Council and the election was just a few days away. "This is a vindication of the fact that Olivette officials have always upheld both the letter and the spirit of the open-public-meetings laws," Cunningham said in the release. "The City of Olivette has cooperated fully in this matter, and we are obviously pleased at the outcome. In short, the attorney general has conducted a thorough investigation into a complaint, and it has found that in fact the city has complied with the Sunshine Act."

Just what the attorney general's office actually thought is unclear. Scott Holste, spokesman for Nixon, says neither Klahr nor anyone else in the office will discuss the case. He does say the city's press release isn't accurate. "There was no finding one way or another," he says. Klahr has admitted the outcome of the TIF election affected the attorney general's handling of the sunshine complaint. "Had the vote come out a different way, maybe we would have had to take some different direction," he told the Post-Dispatch after testifying before state legislators in support of a bill designed to strengthen the Sunshine Law. In essence, it was no harm, no foul, in the eyes of Nixon's lieutenants.

Rep. Barbara Fraser (D-University City), who met with Klahr on behalf of the Osborns, says Klahr told her he initially believed the city had broken the law but, after reviewing the allegations with Cunningham, decided the city appeared to have met the letter of the law. "There's not a formal written finding," Fraser says. "Essentially the situation was laid on the table. Neither side got ammunition here."

Osborn, an attorney in private practice, didn't get far when he tried to figure out the attorney general's logic. When he asked for the file on the case, Nixon's staff sent back a copy of an insignificant memo, a dozen pages of council agendas -- and about 500 pages of documents Osborn had sent them in support of his complaint. What's more, they sent him a $87.90 bill to cover copying fees plus shipping charges. It could have been worse. "We will waive fees for attorney and staff time spent on your request," wrote Assistant Attorney General Paul Maguffee in a letter to Osborn. The office refused to give Osborn what he really wanted: Klahr's notes on the case and correspondence between state attorneys who considered the prospects of taking action against the city.

The attorney general has the power to sue governments that violate the Sunshine Law, but that's never happened in Missouri. Holste says the office twice has filed friend-of-the-court briefs in support of plaintiffs who've sued to get records, but the office typically mediates disputes and tries to educate governments about the law. Osborn and Eisen say they would have been satisfied with a written opinion from the attorney general. "It doesn't have to be 'Drag them into court and beat them over the head,'" Eisen says. "It could have been 'We found these violations. We'd like you to stop.'"

Holste notes that concerned citizens could still sue Olivette, but neither the Osborns nor Eisen are inclined. "If we go to the highest law-enforcement office in the state and they let us fall through the cracks, what other recourse do we really have?" Eisen asks.

State Supreme Court Justice Michael Wolff understands what's wrong with the Sunshine Law and what it would take to fix it. In the 1998 Fulton decision, Wolff wrote that enforcement of the Sunshine Law relies on "wealthy gadflies and media owners" who care enough about the public's right to know that they're willing to sue at their own expense. "Because there is a relative shortage of wealthy gadflies and caring media barons, the statute ... may safely be ignored by those public governmental bodies that would prefer to do the public's business in private," Wolff concludes.

The law requires that a court find that a government "purposely" broke the Sunshine Law before a plaintiff like James Spradlin can recoup legal expenses from governments that fight to keep things secret. Essentially, that means ignorance of the law -- by public officials with regular access to lawyers -- is a legitimate defense, an almost impossible legal standard for a plaintiff to overcome. In his separate opinion, Wolff agreed with the majority that the city broke the law but argued that the city should have paid Spradlin's legal expenses. And the judge challenged legislators whom he surmised may have settled for a toothless law to placate those who want open government while also satisfying those who prefer backroom deals.

"The 'sunshine side' could believe it was getting a strong law that protects the public's right to know about the conduct of the public's business," Wolff wrote. "And the faction that wanted a weak, barely enforceable law -- what we might call the 'dark side' -- could see what it wanted in the legislation. But the General Assembly can, if it wishes, have a strong Sunshine Law. The legislature can simply amend the provision ... to make it clear enough for everyone to understand that courts may award attorneys fees where there are violations of the law, whether purposeful or not. Or, if the General Assembly is satisfied with a weak law that remains after the result in this court, it can leave the statute alone."

All that was required was removing the word "purposely" from the Sunshine Law. That proved too much for legislators in Jefferson City, who adjourned May 12 without touching the law.

Legislators did nothing despite an audit last fall that showed Sunshine Law violations are a statewide problem. Posing as private citizens, State Auditor Claire McCaskill's staff sent certified letters to 214 governmental bodies. The letters, on plain white paper, were short and straightforward: "I request that you make available to me a copy of the minutes of the last meeting held in calendar year 1998. Please let me know in advance of any search or copying if the fees for such search and copying will exceed $10."

Auditors reported problems in 102 of the jurisdictions: 69 ignored the request, 23 delayed answers significantly beyond the three-day legal limit and 10 flatly refused to provide minutes of public meetings. In most cases, governments that denied requests demanded that the requesters better identify themselves and their need for the records. "We just can't send this information to anyone without knowing what they want with them," wrote one town clerk. Minutes from the jurisdictions that did comply with the law showed six government bodies went into executive sessions without explaining why, raising questions about whether the closed-door meetings were proper, the auditor reported.

Extrapolating from the sample, auditors concluded 1,649 of the state's 3,459 governments wouldn't respond properly to a simple records request. Calls to the auditor's office after the audit came out last November confirmed that citizens everywhere aren't getting what they need from government. "Access to information is a fundamental right that Missourians have, yet it looks like it's treaded on on a daily basis," says Glenn Campbell, spokesman for the auditor's office. "If you're in a situation where you have a law yet there's no redress that can be adequately obtained, then you have a problem."

McCaskill can point fingers, but her office has no enforcement powers. During the recently concluded legislative session, she used her political clout to back legislation sponsored by Sen. Joe Maxwell (D-Mexico), who's been trying to strengthen the Sunshine Law since he was elected to the Legislature in 1990. "It's the core of what I believe government ought to do and should be," he explains. "The distrust that exists between our government and our people is brought on by the government."

Maxwell's measure, which was watered down by the House and eventually died, would have removed the "purposeful" standard from the Sunshine Law and increased the penalties from $500 to a maximum of $25,000. The House approved amendments that exempted public hospitals from the law and also reduced proposed penalties to a maximum of $5,000. But the bill remained strong enough that Maxwell and McCaskill continued pushing for it until they ran out of time.

Public money has financed much of the opposition to more sunshine in Missouri. The Missouri Municipal League, comprising local governments that use tax dollars to pay dues, led the fight against Maxwell's bill. State agencies, including the secretary of state's office and the Department of Corrections, warned it would cost money. "By the time you add the lobbyists up, you're working against a small army," Maxwell laments. "This state has more commissions, boards and other governments than any other state on a per capita basis. The minute you want to tell them they've got to do something, you have to fight all of their lobbying."

The Municipal League says stiffer penalties would discourage civic-minded citizens from serving in local governments because they might be held personally liable for Sunshine Law violations. Despite cases like Olivette and Fulton, violations are typically inadvertent, says Richard Sheets, senior staff associate for the Municipal League. "I don't see city officials trying to avoid the open-meetings law," Sheets says.

In past sessions, Maxwell has supported measures that have made computer records subject to the Sunshine Law, opened arrest records and made legal settlements by governments open to public inspection. But this year was different.

"I finally figured out why my other issues were a little easier to pass," he says. "No one thought it mattered, because there wasn't any real penalty anyway. Now that I'm changing the penalty and making it real, they care a lot."

Sunshine advocates in the Legislature also haven't been able to push through proposals that would cap the cost of documents. The law prohibits governments from charging more than the actual cost of retrieving records and copying them. However, the provision that allows government to charge "research fees" often leads to the ballooning of duplication costs.

Take Overland, one of the 90-odd cities in St. Louis County. That city charges $1 per page for photocopying plus $25 an hour to search for documents. In addition to $1 per page for copying costs, the Overland Police Department charges a $35 administration fee for police reports, even if the person making the request provides the report number, the address and date of the incident, the names of people involved and other information that should make it simple to retrieve the document. And the cost of accident reports is based on the number of vehicles involved -- a report on a one-car accident costs $10, the cost is $12 if there are two vehicles and so on. City Attorney Robert Herman says he believes the costs are within the law. "It all takes time, not just the time standing there at the copy machine," he says. "There's an interruption in the day. If they have to go to the records and find it and research through the records, they charge for that. I don't think that anybody is intending to overcharge or to discourage people who want copies of documents. But they want to -- and I think legitimately -- pass through the cost of retrieving the documents and copying to the people who benefit from them."

But the charges sound ridiculous to folks outside Overland city government. "You're kidding," says Rep. Philip Smith (D-Louisiana). "There's no way they can justify the kinds of costs you're talking about." Two years ago, Smith sponsored a bill that would have prohibited government from charging more than 5 cents a page for public documents. That proposal died, but Smith did push through a provision that requires governments, on request, to certify in writing that their duplication charges don't exceed actual costs. "My thought was, if they're going to gouge you, I want somebody to lie about it," Smith says. "When you certify something in writing, it has to be notarized. I thought if somebody gets gouged, they can sue."

As a former attorney for several cities, Smith is familiar with the inner workings of municipal government and has seen cases where people have been charged upwards of $5 a page for public documents. "The Missouri Municipal League always shakes its head and says, 'How can you do this? You used to be a city attorney -- you know better,'" Smith says. "I say, 'That's why I do it, because I know better.' I do know that cities gouge people with regard to these copies. I've seen both sides of it, believe me. It's a way of preventing people from getting records, because there are people who cannot afford it and will not pay."

Charging citizens $25 an hour to produce public records may be illegal, judging from a state audit of the Camden Point Fire Protection District, near Kansas City, which also charges $25 an hour to compile records. "Considering the work involved in producing and copying records is typically clerical in nature, the $25 per hour charge may ... be excessive and have the effect of discouraging information requests," state auditors reported last October. McCaskill's staff audited the fire district at the request of citizens led by volunteer firefighter Keith Dutcher, who's been trying for three years to stop closed-door meetings and pry financial records, meeting minutes and other public records away from district officials. After the attorney general's office refused to take action, Dutcher sued the district himself, alleging that the fire district routinely breaks the Sunshine Law. He doesn't have a high opinion of the Sunshine Law. "I think the law is a joke, the way it's written," Dutcher says. "It has no bite. I have them on tape saying, 'We don't care what the law says. Our attorney says there is nothing you're going to do about it.' Now, the state is compliant with the Sunshine Law -- you want something from them, you'll get it in a heartbeat. What we have done in the state of Missouri, we have washed our hands of the 3,500 smaller political subdivisions."

Maxwell says he has no quarrel with folks who run the state's road districts, townships, public schools and dozens of other governments. "Most of them serve for nothing," he says. "They make tough decisions and get in ugly fights over potholes -- bless them for serving. They're good people. They just need to have an attitude shift or an education change about how Missouri's laws work."

Each time he pushes for more sunshine or tries to close loopholes, Maxwell says he hears from elected officials who don't understand that public records belong to everyone. "They call me and ask me what in the world I think I'm doing," Maxwell says. "It seems to me there's a general attitude, promoted either through the associations or attorneys in Missouri, that public records belong to the public entity and there are only exceptions when they should be given out. Missouri law is just backwards of that."

James Spradlin, the Fulton resident who learned a valuable lesson when he sued his City Council, doesn't think the Legislature by itself will be able to fix the law by changing a few words.

"Unless the courts will enforce it, it's useless," he says.

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