Ethics discussed in private

The Missouri Ethics Commission meets in closed session with its attorney, then emerges to pass without comment or debate a resolution on how to deal with candidates who took campaign contributions that exceeded legal limits.

Gov. Matt Blunt's chief of staff Ed Martin replies to a request from the Springfield News-Leader to disclose his e-mails that he cannot do so. The e-mails were all deleted, Martin said.

And the state courts' Appellate Judicial Nominating Commission names three candidates for the Missouri Supreme Court without ever posting a notice of where and when it is meeting.

What all three of those incidents have in common is that they all generated loud protests that the state Open Meetings and Records Act, known as the Sunshine Law, was being blatantly violated. Some of the protests came from partisans of one stripe or another seeking to obtain a political advantage.

Other critics, however, come from news reporters trying to explain major issues to their audience.

So far, no one has gone to court to test their criticisms against the response that, in each case, the Sunshine Law was not violated because it contains exceptions allowing the closed-door meetings or that the information sought is not part of the public record.

That could change in the case of both the ethics commission and Martin. The Missouri Republican Party sent a lawyer to the ethics commission meeting, and the party is weighing its options, spokesman Paul Sloca said.

"We believe it was a flagrant violation of the Missouri Sunshine Law," Sloca said. "We are considering our legal options."

And the Missouri Press Association's board of directors will be receiving packets of information about both cases next week, executive director Doug Crews said.

"We will have something out to the board to give us feedback on what direction to take," he said.

Chapter 610 of the Missouri Revised Statutes opens with a strong statement in favor of public access. "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. Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy."

The law allows any taxpayer, citizen, aggrieved person, county prosecutor or the attorney general to go to court to enforce the law.

But proving a violation is difficult and the penalties are so small that private enforcement lawsuits are rare. And unless the case proves a "knowing" or "purposeful" violation, the penalty does not include the costs of bringing the lawsuit.

"Enforcement of this law for the average citizen is next to impossible," said Jean Maneke, attorney for the press association.

In the case of the ethics commission, Missouri Attorney General Jay Nixon, who stepped aside from representing the ethics commission on the underlying case of excessive contributions, is also declining to comment on the method used to make the decision.

"We are not making any comment or having any involvement on issues that have to do with that," spokesman Scott Holste said.

Nixon, through Holste, declined to be interviewed.

The attorney general's office has three attorneys assigned to Sunshine Law enforcement and interpretation. Those attorneys spend much of their time training local government officials in the law.

Nixon's office notified Cole County Prosecuting Attorney Mark Richardson about the questions raised by the ethics commission's actions, Holste said.

But Richardson said that although he was notified, he has received no complaint in writing about the ethics commission or Martin's e-mails and will not take action until a complaint is filed. "We wait until we have a formal request on these types of matters," Richardson said.

In each case, those being criticized claim justification under state law. The ethics commission, for example, was discussing the impact of a Missouri Supreme Court decision that overturned a law allowing unlimited campaign donations.

"They were meeting on what the decision meant for the ethics commission," said executive director Robert Connor. "The attorney was giving a legal opinion of what the opinion meant."

Maneke, however, said the quick action once the open meeting resumed is troubling. "There is a difference in my mind between getting advice from your attorney and a discussion of public business with your attorney present," she said.

And Blunt's office contends that the e-mails are not public records. "There is no statute of case that requires the state to retain an individual's e-mails as a public record," Blunt spokesman Rich Chrismer told the St. Louis Post-Dispatch. Chrismer did not return a message seeking comment.

Even Sloca, the Republican Party spokesman and a former reporter, believes e-mails are public records. The party has used Sunshine Law requests to obtain e-mails from Nixon, then-state auditor Claire McCaskill and Secretary of State Robin Carnahan.

The judicial nominating commission is a somewhat different case. The commission is governed by rules established by the Missouri Supreme Court. The state constitution directs the court to set those rules. And the rules require confidentiality.

Regardless of whether any of the above instances are tested in court, Maneke said the intense focus on the Sunshine Law could bode well for attempts to improve access and impose heavier penalties for violations.

"One perspective of it is that it is a very positive development to have so much interest focused on the Sunshine Law," she said. "It is demonstrating to the public and governmental officials how important it is to have transparency in the meetings and actions of a public body."

rkeller@semissourian.com

335-6611, extension 126