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Sept. 29, 2024 |  By: Rudi Keller - Missouri Independent

Missouri Sunshine Law appeal from Cass County digs into public notice requirements

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By Rudi Keller - Missouri Independent

A rural Missouri fire district near Kansas City committed so many violations of the Missouri Sunshine Law that listing them separately wasn’t the best way to present them, attorney Jim Layton told Western District Court of Appeals during oral arguments.

Under questioning from Presiding Judge Thomas Chapman, Layton said he counted 46 violations committed in 11 meetings of the Western Cass Fire Protection board. The appeal brief gives a narrative of events, seeking to show a multiplicity of violations at any particular meeting, rather than individually enumerated violations for each meeting.

“We have to look at it and weigh the evidence in each one of these instances, and it just seems like it kind of was a shotgun approach on these,” Chapman said.

The nature of the appeal led to the format he chose, Layton said. Cass County Circuit Judge R. Michael Wagner entered a judgment against his client, Citizens for Transparency and Accountability, when he concluded his portion of the case during a June 2023 trial.

Wagner didn’t give any reasons for his decision in his judgment. The appeal is of that single act, so a narrative is the correct format, Layton said.

“I will confess that I struggled with how to draft points relied on in this case as much as I ever have on an appeal because of the nature of how this was decided below,” Layton said.

Wednesday’s hearing at the appeals court is just the latest round in battles, in and out of court, involving the fire district, based in Cleveland, that serves about 2,600 homes. The battling factions of the board have made numerous headlines, and the appeal drew the attention of three important voices for open government.

Attorney General Andrew Bailey’s office, the Missouri Press Association and the Freedom Center of Missouri all wrote briefs urging the court to overturn the trial court. The issues involved are some of the most fundamental aspects of what constitutes proper notice of a meeting, how much can be added to an agenda after it is posted, and what information must be presented about an item to be considered.

“If you can obscure the matters that are actually going to be discussed and decided at a public meeting, then you can kind of slip under the public’s radar and address matters that otherwise members of the public would very much like to have input,” said Dave Roland, litigation director of the Freedom Center of Missouri.

An example from the Western Cass case is the Aug. 3, 2022, meeting, where the notice included an item called “special considerations,” with no more detail. What board members Kerri VanMeveren and Darvin Schildknecht didn’t know, and found out only when the agenda item was reached that evening, was that “special considerations” meant booting them off the board.

“I asked at the start of the meeting, before we adopted the agenda, ‘can you please explain what special considerations mean?’” VanMeveren said in an interview with The Independent. Board president “John Webb would not answer the question. And I kept saying, ‘I think the public has a right to know,’ and he just would not answer it.”

Defending the judgment on Wednesday, attorney Aaron Racine told the court that any violations that may have occurred were inadvertent, due to inexperience of new members.

Judge Alok Ahuja was skeptical of that as he looked at the Aug. 3, 2022, meeting agenda.

“What does special considerations mean?” he asked. “Special considerations of weather? Special considerations of finances? Special considerations of personnel?”

Even the phrasing of particular agenda items can be traced to inexperience, Racine said.

“I think those are the mitigating or exigent circumstances, and that you had an inexperienced board trying to comply with the law,” he said.

 

Origins of the dispute

 

VanMeveren won election to the district Board of Directors in 2020, running for the position after a brush fire spread onto her property in 2018 and she felt the tactics employed showed poor training.

“It was just kind of a clown show,” VanMeveren said.

When she became district treasurer, she said, she found that tax rates for a bond issue had been improperly calculated, bringing in excessive revenue.

A state auditor’s report in 2021, prepared in response to a residents’ petition, found problems with bidding procedures, budget information and Sunshine Law compliance. VanMeveren recruited new board members, including John Webb, a conservative Republican who unsuccessfully challenged then-U.S. Rep. Vicky Hartzler several times in the 4th Congressional District GOP primary. 

But she and Webb were soon battling over issues that included payroll expenses for contractors and a contract for lawn care at the firehouse, the Kansas City Star reported. In the late summer and early fall of 2022, three departments in Belton, Dolan-West Dolan and West Peculiar canceled their mutual aid agreements.

VanMeveren resigned as treasurer in May 2022 but remained on the board. A lawsuit was filed by the board to oust her and Schildknecht. It was dismissed when a recall effort began that succeeded in removing VanMeveren and Schildknecht in August 2023.

VanMeveren and Schildknecht formed Citizens for Transparency and Accountability and filed a countersuit, the case now in the hands of the Western District Court of Appeals.

They testified in the spring in favor of a bill that gives the State Auditor new power to investigate wrongdoing in local government. Instead of a time-consuming petition process, the auditor can now open a full audit if investigation of a complaint shows problems that require more attention. 

And the cost of the audit would be borne by the auditor’s office instead of taxpayers in the political subdivision being examined.

The new power is an important tool to help taxpayers, Schildknecht testified in a Missouri House hearing. 

“Over the years some people who come on the board who do want to try and do the right things, but I have also seen others who realize there is no outside agencies monitoring fire districts and take advantage of this, knowing there is nobody watching that they follow the laws,” he said.

 

The meaning of “tentative”

 

Widespread issues the case will address brought amicus, or friend of the court, briefs from the attorney general’s office, the press association and the Freedom Center of Missouri.

“Several issues raised in this appeal are brought to this office’s attention with increasing frequency in complaints filed by citizens against local public governmental bodies, in question-and-answer sessions during training programs, and phone call inquiries from the public and public governmental bodies,” Assistant Attorney General Jason Lewis wrote. “Unfortunately, many of these issues have not yet been conclusively addressed by Missouri’s appellate courts.”

Those questions include what an agenda must have when a meeting notice is posted and what can be added later.

“All public governmental bodies shall give notice of the time, date, and place of each meeting, and its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered,” the law states. 

The fire district board used the word tentative in the broadest sense. At one meeting in November 2022, Layton’s appeal brief states, the board approved “a contract for a medical director; creating and sending a newsletter throughout the district; adopting a program that would allow firefighters to reside at the fire station; changing the bid solicitation for one of the fire stations; an insurance rider for proof of loss; barring one director from taking photographs at the fire station; having and paying for a party; and purchasing a generator battery.”

None of those items were on the agenda.

No violation occurred when items were added, Racine told the judges.

“Tentative means what tentative means, and absent some statutory or court guidance as to what tentative means, we have to look to its plain meaning, which is subject to change going forward,” Racine said.

All three of the amicus briefs argued that tentative means subject to change for unforeseen reasons, such as a storm that prevents the meeting from being held or the absence of someone essential that prevents an item from being considered.

It cannot mean that new items can be added at will because the public, and their watchdogs, deserve full notice of the items to be considered, attorney Jean Maneke wrote for the press association.

“Reporters recognize that they cannot be everywhere at once and the agenda gives them the information they need to make the best use of their time,” Maneke wrote. “Like the public, the reporters rely on the agenda to inform them regarding which activities/issues will be addressed at each public meeting.”

Other meeting notice issues the appeal addresses are the amount of information that must be provided. Fire district notices often gave the least possible information, appellants argue, such as a resolution number and no other details under the heading “Banking” on the July 20, 2022, meeting.

During the same meeting, while on the agenda item with the heading “reports,” the board adopted changes to the duties of some personnel without any indication that was the intent.

“It’s crucial that public governmental bodies not be able to shoehorn in agenda items at the last minute, and that’s why they need to provide an acceptable level of specificity when it comes to what they’re going to be considering and voting on,” Roland said.

The attorney general’s brief also argues that notices must provide details that show the intent of the action. 

“That means that a public governmental body cannot hide an elephant in a mouse hole by using vague or excessively broad terms to hide what the body intends to do,” Lewis wrote. “The tentative agenda must be specific enough for the public to be able to make an informed decision about whether to attend the meeting.”

The court could create a test that would help agencies in the preparation of meeting notices and agendas, Lewis wrote.

“The Attorney General’s Office is eager for resolution of these issues at the appellate level,” Lewis wrote, “which will provide both this office and the public with significant guidance in resolving citizens’ Sunshine Law complaints, providing education to local public governmental bodies, and seeking enforcement when appropriate.”