Judge hears arguments on ethics commission lawsuit

Wednesday, September 19, 2007

JEFFERSON CITY, Mo. -- A judge said Tuesday it might be necessary to get sworn statements from Missouri's ethics commissioners to determine whether they violated the state Sunshine Law while deciding how to implement campaign contribution limits.

Cole County Judge Richard Callahan made no decision Tuesday after hearing a Republican Party request for a temporary restraining order against the Missouri Ethics Commission. Instead, he gave attorneys another day to submit additional information to the court.

At issue is a Sept. 11 ethics commission meeting convened to decide how to implement a Supreme Court ruling reinstating Missouri's campaign contribution limits, which had been lifted by lawmakers as of the start of 2007.

Although their agenda listed a public discussion of the issue, the six commissioners immediately went into a closed session. They cited an exception to Missouri's open meetings law for discussions about legal actions and communication with their attorneys.

When they reconvened publicly an hour later, commissioners unanimously approved a prepared motion with no discussion.

That motion followed the Supreme Court's advice to reinstate the limits retroactively. Candidates will have to refund money in excess of the contribution limits, unless they can prove they relied on the now-stricken law that allowed unlimited contributions, and that returning the money would pose a hardship.

After Tuesday's court hearing, the ethics commission posted notice of a new meeting today to consider -- or reconsider -- the actions it took at its Sept. 11 meeting.

The Republican lawsuit contends commissioners violated Missouri's open meetings law by going into closed session when their agenda listed an open discussion. Republican attorneys also contend commissioners discussed off-limit policy issues in closed session, not just the litigation and attorney-client discussions allowed under the law.

"Whether there's a violation or not is going to depend on the depositions of those at the meeting," Callahan said while questioning Republican Party attorneys. He later added: "Right now, I have to guess as to what actually happened at that meeting."

Republican attorney Harvey Tettlebaum urged Callahan, while the lawsuit proceeds, to issue a restraining order preventing the ethics commission from notifying candidates they may have violated the contribution limits.

"It's the clear policy of this state to have open meetings and transparency; the exception is a closed meeting," Tettlebaum said. "What the commission has done -- ironically, the ethics commission has done -- is turn that policy on its head."

Jack Pletz, an attorney for the commission, argued that Republicans hadn't met the legal requirement to get a restraining order -- specifically, that their lawsuit has a probability (instead of a mere possibility) of success.

Pletz said Republicans were just speculating that commissioners had secret discussions about policy actions, rather than asking their attorneys legally allowable questions about the implications of the court ruling and their potential actions.

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