Proposed ‘Sunshine Law’ changes hit heavy traffic

For the second year, state Sen. Kurt Schaefer’s effort to “make the Sunshine law better” ran into opposition from some of the government agencies affected by his changes.

Jefferson City Attorney Drew Hilpert testified against the bill for the second year — although he told the committee that the 2014 version appears to be better than last year’s proposal, adding, “I don’t think it’s quite good enough. My concern is, it will cause more, additional, litigation.”

Schaefer, R-Columbia, told the Missouri Senate’s Judiciary Committee last week that “most of the things we’re doing are, frankly, things that I think the law already says, but just aren’t being followed.”

Among the changes, Schaefer told the committee: “The act also provides that the current basis for closing individually identifiable personnel records shall not apply to the final five applicants for top administrative positions at a public body.

“The identities and qualifications of such finalists must be made available for public inspection five days before the final decision by the public governmental body.”

While Lincoln University identified the top three finalists in its last two presidential searches, Jefferson City’s government in recent years has not identified city administrator candidates except for the final choice.

“The problem is, folks have jobs (and) their current employers may not be so excited if you’re looking around,” Hilpert testified. “You want to get the best candidates that you can, and this does not help. In fact, it hinders that.”

Schaefer’s bill also would change the way a government’s violation of the law would be handled.

“Current law requires a person bringing the action to demonstrate that the body is subject to the Sunshine Law and held a closed meeting,” he said. “This act removes that language and provides that there is a presumption that a meeting, record or vote is open to the public, and the burden then is on the body to provide/prove that such a meeting, record or vote may be closed.”

Additionally, Schaefer said, “Currently a ‘knowing’ violation of the Sunshine law subjects the body or the member to a civil penalty of up to $1,000.

“This act removes the term ‘knowing’ and lessens the fine to $100 for such violations.”

Jean Maneke of Kansas City, the Missouri Press Association’s lawyer, said that’s a good change.

“I think the time to make knowing the law an important factor,” she said. “It’s a very common situation for public bodies, and I think there just needs to be an emphasis on how we can stop that.

“And one way to stop that is to make the enforcement of this law no different from any other law in this state.”

Maneke also said the lowered fine is “a small penalty, compared to what the law is today, but enough to get your attention and cause you to start paying attention to these laws.

But representatives of several local government groups told the lawmakers the proposed change would make their jobs more difficult.

Former state Rep. Todd Smith spoke for the Missouri Association of Counties.

“You’ve shifted the burden of proof to the public official,” he said, adding that often three-member county commissions travel together to meetings away from their home counties — and they would be unable to prove they didn’t talk business in an unadvertised meeting during that trip.

Former state Rep. Steve Carroll, representing the Mehlville Fire Protection District in St. Louis County at Monday’s hearing, was one of several people questioning the proposal’s language “taking the power away from the (judge), who will hear all the evidence about whether fines or attorneys’ fees should be awarded.”

Schaefer said his bill also “repeals a basis for closing records relating to the state militia or the National Guard.”

The Guard has some concerns, Military Executive Tony van Baucus explained.

“Our primary concern, of course, is the operational security of our forces,” he testified. “The Missouri National Guard has classified information pertaining to mobilization, training, war plans, soldiers and their families.

“Not all the information is classified — we freely admit that. But, if released, it really could put soldiers and their family members at risk.”

He noted information about the Missouri National Guard also could be obtained through a federal “Freedom of Information Act” request, but no one at the hearing noted that process takes a much longer time than Missouri’s requirements for providing answers to questions about public information.

Schaefer said current law requires “public bodies (to) provide notice of meetings to members of the news media who request such notices. This act requires the public body to provide a notice to any member of the public who requests it.”

The Missouri National Education Association likes that provision, lobbyist Otto Fajen said.

“If there’s a public member who is interested enough to say to the school board, ‘We like to be advised what’s going on in meetings and notices,’” Fajen explained, “we think that, in an electronic age, it is a doable thing for the school board to make sure people are informed about the meetings.”

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