Panel: Politicians may be violating state law

The Missouri Ethics Commission decided Tuesday to notify politicians that they may be in violation of state law for receiving money in excess of the state's recently reinstated campaign contribution laws.

But the method by which the commission made its decision has raised questions about whether it may have violated Missouri's open meetings laws.

The ethics commission is grappling with how to implement a July 19 Missouri Supreme Court decision that tossed out a Missouri law repealing the individual contribution limits as of January.

In a follow-up ruling Aug. 27, the Supreme Court said such decisions typically apply retroactively, unless that would create a hardship. But the court left it to the ethics commission to decide whether particular candidates must refund money raised above the reinstated limits between Jan. 1 and July 19, or whether doing so would impose a hardship on those candidates.

Every candidate with donations that exceed the limits will receive a letter asking them, if they wish, to explain any basis for not returning the excess contributions, said Robert Connor, executive director of the commission.

Every incumbent lawmaker and declared candidate for legislative offices from the Southeast Missouri will receive one of the letters. The candidate with the most to lose is Sen. Jason Crowell, R-Cape Girardeau, who reported accepting 10 contributions this year. Crowell may have to return $94,250.

Crowell could not be reached for comment on his plans for dealing with the commission's directive.

The other area lawmakers and candidates would have to justify keeping varying amounts, ranging from $700 for Michael Winder, who is seeking the 156th District seat, to House Speaker Rod Jetton, R-Marble Hill, who can't run for re-election but who has a campaign committee actively raising money for a potential statewide race. Jetton would be forced to refund $41,622.

The total at stake for all area Missouri House members and candidates is $65,172.

The six-member ethics commission met in secret for a little more than an hour Tuesday, citing an exception to the Sunshine Law allowing closed meetings for discussions about legal actions and privileged communications between governmental bodies and their attorneys.

Commissioners then reconvened in a public session and, within a few minutes with no public discussion, unanimously passed a motion about how to implement the Supreme Court ruling.

Robert Hess, an attorney for the Missouri Republican Party, immediately objected and asserted that the commission had violated the Sunshine Law by discussing in closed session more than it was legally allowed to do.

"It was obviously decided in closed session, out of the view of the public. That violates the spirit and the letter of the Sunshine Law," Hess told commissioners, noting that their public meeting agenda had specifically stated there would be discussion about implementing the court decision.

Commissioner Robert Simpson, who read the prepared motion the commission adopted, said he had agreed in closed session to make the motion and discussed with other commissioners in that closed session what the motion would say.

Commission chairman Warren Nieburg insisted: "We did not intend to violate the Sunshine Law, nor do we believe we did."

Nieburg said after the meeting that there was no discussion in closed session about whether either the Republican Party or Democratic Party would benefit more from a particular decision.

The Republican Party contends candidates should be allowed to keep the money they raised before the contribution limits were reinstated. Democratic Attorney General Jay Nixon, who had defended the state in court, contends candidates should have to refund the money.

Those limits restrict individual contributions to $1,275 per election to statewide candidates, $650 to Senate candidates and $325 to House candidates.

Nixon is challenging Republican Gov. Matt Blunt in the 2008 elections. Blunt could have to refund almost $4 million raised above the reinstated campaign contribution limits while Nixon could have to refund about $1 million.

Mailing notices soon

The motion adopted by the ethics commission directs its staff to notify candidates who may have received contributions in excess of the limits "that they may be in violation of the campaign finance law as a result of the recent Supreme Court decision." The motion says candidates also are to be given the opportunity to demonstrate they had relied on the law repealing the limits and it would pose a hardship for them to now return the money.

Connor said his staff first must calculate how much money each candidate received over the limits, then mail those notices within the next couple of weeks. If any candidate claims that returning the money would create a hardship, the ethics commission then would have to investigate and make a determination.

If one candidate in a particular classification -- be it for a state House race or a statewide office -- shows a hardship, then all competitors in that class would be allowed to keep the money as a matter of fairness, Connor said.

However, Hess claimed the commission was acting too soon. He argued that the Supreme Court decision essentially requires the commission to first give the legislature a chance to address the issue with a new bill. The next legislative session is scheduled to run from January through mid-May.

"The course you've taken is going to put you on a direct path for a lot of litigation, and it's going to put you in a real quagmire," Hess said.

Staff writer Rudi Keller contributed to this report.