Jean’s self-chastisement

I have been chastised by several persons whose opinions I value over comments I made recently
in the Columbia Tribune regarding actions by the board members of the Missouri Higher
Education Loan Authority. (Including Attorney General Jay Nixon, himself, I understand.)

Here’s what I said:

Jean Maneke, an attorney who specializes in open meetings and open records issues, said one-
on-one conversations are usually not seen as a violation of the Sunshine Law. However, there is
language in some court decisions indicating it could be found to be a violation if it seemed
designed to circumvent the law.

Given the right set of facts, a court might find that you can’t orchestrate a decision of the
quorum of the board that way, through one-on-one discussions, Maneke said.

(Here’s a link to the entire story: http://www.showmenews.com/2006/Oct/20061004News009.asp
.)
I was right in what I said and Terry Ganey properly quoted me. What I was thinking of was the
language in the Colombo v. Buford case where the court of appeals said:

In other words, a meeting of less than a quorum does not constitute a meeting of a ‘public
governmental body’ when there is no intent to avoid the purposes of Chapter 610….We
superimpose a … safety net here finding that it is the intent of the legislature that the Sunshine
Law would apply to meetings of groups of less than a quorum of a “public governmental body”
where a quorum or more of the body was attempting to avoid the purposes of the Sunshine Law
by deliberately meeting in groups of less than a quorum in closed sessions to discuss and/or
deliberate on public business then ratifying their actions as a quorum in a subsequent public
meeting. The legislature did not intend to allow such abuse of the Sunshine Law.

Many of us have long viewed this dicta in the court’s opinion as an invitation to bring back a set
of facts where a group of fewer than a quorum met to circumvent the sunshine law requirements,
believing the court would not allow such a blatant act to go unpunished. That is the gist of my
comments.

But those who have chastised me for my thoughts have pointed out to me the amendments done
in 2004, citing particularly the language contained below (yes, I’m familiar with it…I helped
draft it, I admit sheepishly):

610.025. Transmission of messages relating to public business by electronic means–public
record

Any member of a public governmental body who transmits any message relating to public
business by electronic means shall also concurrently transmit that message to either the
member’s public office computer or the custodian of records in the same format. The provisions
of this section shall only apply to messages sent to two or more members of that body so that,
when counting the sender, a majority of the body’s members are copied. Any such message
received by the custodian or at the member’s office computer shall be a public record subject to
the exceptions of section 610.021.

Generally when I think of this section, I think about the intent of Attorney General Jay Nixon’s
staff who, when crafting much of these 2004 changes, sought to include emails among board
members as public records of public bodies and to circumvent the games being played by board
members emailing each other to avoid public discussion. But clearly, this language would cover
faxes sent by one board member to each of a select group of other board members so that in the
end, a quorum of the board received the same fax scripting the actions to be taken in an
upcoming board meeting.

So, after further reflection, I didn’t go far enough. The actions described by Terry Ganey in this
situation are clearly an affront to the sunshine law. A board member of a public body cannot
pull a stunt like that and think the sunshine law won’t come down hard on them. Public business
belongs in public meetings, and if a board has a right legitimately to close a meeting, that doesn’t
mean the provisions of the sunshine law don’t still apply.
I think Gen. Nixon’s suit involving this matter has some solid ground underfoot and will be
watching with interest the court’s actions in this matter.