A Better St. Louis. Powered by Journalism.
  • Twitter
  • Facebook
  • Print
  • Email

Sunshine law doesn't shed light on legislators

In Region

11:20 pm on Sun, 03.18.12

St. Louis County Assessor Jake Zimmerman knows the "sunshine law."

Jake Zimmerman
Jake Zimmerman

As a county official, Zimmerman regularly receives open records requests from citizens about tax matters. And he also dealt with such correspondence when he worked as an aide in Gov. Bob Holden’s administration.

But the law didn't apply to Zimmerman when he was a state legislator representing central St. Louis County — although he tried unsuccessfully to change the law, which makes legislators' documents and emails off limits.

“In my judgment, that position has always been kind of nonsense,” Zimmerman said. "The sunshine law was written to apply to all mechanisms of government. We expect the governor’s office to produce their records if asked. A taxpayer expects records from my office if asked. There’s no reason it shouldn’t apply to legislators."

The sunshine law is one way the public can keep elected officials accountable.

Some state Democratic lawmakers and advocates of the sunshine law say the current policy protecting legislators provides a cloak of secrecy over legislative decision-making.

“Through the years, there have been allegations of people using state computers and state employees for electioneering (or) improper fundraising,” said Charles Davis, a professor of journalism at the University of Missouri-Columbia. “There have been real allegations lobbed throughout the years that if sunshine were addressed, it would really help.”

Tim Jones
Tim Jones

But others say the move could be unnecessarily burdensome, potentially exposing sensitive communications.  

“If that were the law, you would have an extreme chilling effect on the public contacting individual legislators,” said House Majority Leader Tim Jones, R-Eureka, who is likely to be the next speaker of the Missouri House.

Clouds over sunshine law

Missouri law requires each public governmental body to appoint a custodian responsible for maintaining the records. It goes on to say that “each public governmental body shall make available for inspection and copying by the public of that body's public records.”

State statutes define a public governmental body as “any legislative, administrative or governmental entity created by the constitution or statutes of this state, by order or ordinance of any political subdivision or district, judicial entities when operating in an administrative capacity or by executive order.”   

Auditor's report on law

State Auditor Tom Schweich released a report earlier this week on state and local governments’ observance of Missouri’s sunshine law.

Spence Jackson, Schweich’s spokesman, said in an e-mail that the report is “a summary of findings in various state and local government audits.”

The summary of over 300 reports from January 2010 to December 2011 recounted a host of violations, from failing to document a vote to holding closed meetings without posting adequate notice. It also found that several agencies lacked policies and procedures regarding public access to records.

"It is imperative the public entities take the sunshine law seriously and abide by its requirements, Schweich said in a statement.

The report didn’t mention whether legislative offices should be subject to open records requests.

The Sunshine Law has been instrumental in a number of investigations. For instance, open records requests were used prominently to examine the controversial firing of Scott Eckersley, a deputy counsel to then-Gov. Matt Blunt, a Republican.

Journalists also used open records to investigate Lt. Gov. Peter Kinder's hotel bills and the Missouri Housing Development Commission.

But the standard is different for individual legislators. In November 2007, then Republican Party spokesman Paul Sloca requested emails and documents from 19 Democratic legislators, but House officials denied the request.

And in 2008, Blunt’s office sent a Sunshine request asking for then-House Minority Leader Jeff Harris’ e-mails. While Harris pledged to comply, then-House general counsel Don Lagrasso told the Columbia Daily Tribune that case law found that documents and e-mails of individual lawmakers are not subject to the Open Meetings and Records Law because members of a legislative group are not considered public governmental bodies.

Jim Howerton, administrator of the Missouri Senate, said in an e-mail to the Beacon that as custodian of records for the Missouri Senate, he views “any requests of documents that are in the possession of the Senate as being subject to the Sunshine Law.”  Those would include, he said, any chamber or committee records.

But, he went on to say, “records that are in the possession of an individual senator are not subject to the Sunshine Law as they are not in the possession of the custodian of records and are not required to be, as individual members of a governmental body do not constitute a governmental body.”

Kansas City attorney Jean Maneke disagrees. Maneke, who specializes in open records law cases, pointed to a 1995 case involving a request for then-House Speaker Bob Griffin’s phone records.

Included in the decision was an opinion from the attorney general’s office that stated “telephone records of an individual member of the General Assembly utilized by the House Accounts Committee to reimburse a telephone company for services received are ‘record[s] ... retained by ... any public governmental body.’” That opinion should apply to any record, such as emails, she believes.

“You can’t say that records in a legislator’s office under any scenario are not records of a governmental body,” Maneke said. “Whether it's paper documents in their office or electronic records in their computer, I think those are all going to (be) public.

“A legislator is an entity created by statute,” she added. “Now they may not have meetings, but I think they have records.”

According to the Reporters Committee for Freedom of the Press’ Open Government Guide, state laws vary considerably. For instance, Minnesota’s open records laws evolved over time; as a result of a 1993 controversy over personal use of long-distance telephone cards, "the legislature passed legislation rendering certain records, including telephone records, public."

Conversely, Virginia’s open records laws exempt from disclosure any “working papers and correspondence prepared by or for members of the General Assembly or the Division of Legislative Services.”

And in Oklahoma, legislators are trying to apply the state's open records laws to the state legislature. According to the Tulsa World, the bill would allow people to demand copies of any records held by lawmakers with certain exemptions, including personnel records, legislative caucus meetings and communications between legislators and their constituents. 

Push for change slowed

Zimmerman attempted to change state law to include lawmakers as a public governmental body, but his amendment ended up failing, albeit narrowly.

Such a defeat, he said, was regrettable.

“Government should be open and transparent; that’s our job,” Zimmerman said. “The taxpayers pay my salary, and the taxpayers pay the salary of the 150 people who work for me. … Our fundamental job, all of it, is transparency. And I have no problem with that applying to me when I worked for a governor and I have no problem applying to me now. And it should have applied to me last year when I was in Jeff City.”

Jones — who handled the sunshine law bill in 2009 — said that expanding open records laws to include legislators could have unintended consequences.

For one thing, he said, it could expose sensitive communication about child support, unemployment benefits or incarceration.

“If any individual legislator's office was subject to sunshine law requests, we would potentially be invading the privacy between legislator and constituent,” Jones said. “I look at it as sort of analogous to the attorney-client privilege or an attorney-client relationship, sort of a legislator-constituent privilege. I would not want to expose an individual legislator's e-mails or communications with the public as a whole.”

Jones added that many legislators’ meetings — including executive sessions — are open to the public and the press. He also said nothing stops a constituent from making public any communication involving a legislator.

“If I have a communication with a member of the public — whether they're a constituent or they're a member of an association or whether they're not my constituent — that person in their judgment could take that item and disseminate it to the entire world. Put it on Twitter or Facebook,” Jones said. “I just think the legislator's office should not be subject to that kind of invasiveness from a third party that does not have any bearing on that issue.”

To be sure, making the change wouldn’t be without cost. Jones said that altering the policy would require new equipment and eat up the time of legislative staff.

“We already respond to hundreds — if not thousands — of inquires every week,” said Jones, adding that even as a member of leadership he only has a legislative assistant, a part-time intern and a legislative director. “If [Jones’ legislative aide] had to take her time and respond to sunshine law requests, my constituent service would suffer.”

While Zimmerman didn’t discount the increased cost, he added that keeping misdeeds under wraps could result in even more wasted money.

“Responsiveness costs money,” Zimmerman said. “But governmental inefficiency — or worse… governmental corruption — costs a lot more money. This comes with cost and my office deals with that every day when we deal with public records requests. But that’s why the law has procedures that require taxpayers to pay for the records. Agencies are entitled to collect their reasonable costs when complying with the sunshine law.

“And if that law works well enough for an executive agency, I don’t see why that rule can’t work well for a legislative agency as well,” he added.

What's good for the goose?

While some lawmakers are wary of applying the sunshine law to themselves, they have had no problem expanding it to others.

For instance, Jones was one of a bipartisan group of lawmakers who wanted to make the Appellate Apportionment Commission subject to the sunshine law. The commission consists of six appellate judges who decide the boundaries for state House and state Senate districts.

The panel, which was roundly criticized for its state House and Senate maps, also faced scrutiny for conducting its business in private.

Mike Talboy
Mike Talboy

The Columbia Daily Tribune reported earlier this year that both Jones and House Minority Leader Mike Talboy, D-Kansas City, submitted Sunshine Law requests for the commission’s records, including meeting minutes and communication with outsiders during the process.

“Redistricting should be open to the public because it’s affecting the political boundaries of the entire domain,” Jones said.

But members of the legislature have commonly written high-profile legislation behind closed doors. During congressional redistricting, legislators regularly met behind closed doors to iron out differences between House and Senate maps. And during last year's largely unproductive special session, lawmakers often met in private to discuss a wide-ranging economic development bill.

Jason Kander
Jason Kander

Rep. Jason Kander, a Kansas City Democrat running for secretary of state, introduced wide-ranging ethics legislation this year that includes applying the  the sunshine law apply to individual legislative offices. That measure states that “any public official, statewide elected official, or employee of the state and its agencies when such persons are operating in their official capacities” would be considered a public governmental body.

“While it’s reasonable that we take a look at what’s proposed in terms of redistricting, redistricting is something that comes up once every 10 years,” Kander said. “It’s important, but this is something that we deal with every single day.”

In any case, Kander’s bill, which also includes curtailing lobbyists' gifts and establishing caps on campaign donations, may not have much traction. Jones told the Kansas City Star said that he doesn’t think “ethics bills” have a good chance of passing during an election year.

And journalism professor Davis said it would be a “great understatement in the history of understatements” to say that lawmakers don’t want to include their records under the Sunshine Law.

They are, he said, “loath to make themselves subject to the law, even though they’re fairly eager to make everybody else subject to it.”

The Center for Public Integrity, Global Integrity and Public Radio International collaborated on a months-long “state integrity investigation,” a first-of-its-kind, data-driven assessment of transparency, accountability and anti-corruption mechanisms in all 50 states. The overview story on Missouri by Mike Sherry was part of that project. The St. Louis Beacon received a grant from the CPI to participate; the article by Jason Rosenbaum on state legislators was funded by the grant.

No Comments

Join The Beacon

When you register with the Beacon, you can save your searches as news alerts, rsvp for events, manage your donations and receive news and updates from the Beacon team.

Register Now

Already a Member

Getting around the new site

Take a look at our tutorials to help you get the hang of the new site.

Most Discussed Articles By Beacon Members

Conference of American nuns will mull response to Vatican charges

In Nation

7:55 am on Fri, 08.03.12

Meeting in St. Louis next week, the Leadership Conference of Women Religious will have its first opportunity as an assembled group to consider what to do after the Vatican issued a mandate for change this spring. It calls on the conference to reorganize and more strictly observe church teachings.

The 'free' Zoo

In Commentary

7:51 am on Tue, 05.22.12

When a family of four goes to the St. Louis Zoo, they can be forgiven for not knowing it will cost them $60, $72 if they park. If they can't pay, the alternative is to tell the kids they can't do what kids do at the zoo.

Featured Articles

House sends Boeing incentive bill to Nixon

In Economy

12:55 pm on Fri, 12.06.13

The Missouri House easily passed legislation aimed at attracting production of the 777x, a move that wraps up a legislative special session that saw little suspense and few surprises. The bill now goes to Gov. Jay Nixon, who has strongly supported the legislation.

Gandhi inspired Mandela on South Africa's 'Long Road to Freedom'

In World

10:10 am on Fri, 12.06.13

Nelson Mandela, who died Thursday at the age of 95, was a towering moral figure of the 20th century -- along with Mahatma Gandhi. It was no coincidence that Gandhi and Mandela, whose paths never crossed directly, both embarked on their campaigns against discrimination in South Africa. It was when Mandela won election as South Africa’s first black president that Gandhi's influence became apparent.

Featured Articles

Regina Carter brings jazz and therapy to Children's Hospital

6:36 am on Mon, 12.09.13

One night, the violinist is taking bows before a standing ovation at Jazz at the Bistro. The next afternoon, some of her audience may have trouble standing, but the kids in the playroom at Children's Hospital were no less appreciative. “Jazz is medicine personified," according to a doctor who brings in the jazz musicians.

Encore: Dead before death

In Performing Arts

12:58 am on Fri, 12.06.13

For years , the author was certain he would never come to appreciate The Grateful Dead, let alone be a Deadhead. But little by little, he's come around. He talks about his conversion and relates a real evolution: by a musician who went on to play with the Schwag, a Dead cover band.

Featured Articles

Schlichter honored with St. Louis Award

In Region

4:57 pm on Tue, 12.03.13

The attorney has founded Arch Grants, which brings together nonprofit philanthropy and commercially viable opportunitiesto fund new business startups, and Mentor St. Louis, which finds adult mentors for elementary students in the St. Louis Public School System. He was the driving force behind the state's historic tax credit program.

BioGenerator sets open house to celebrate new digs for entrepreneurs-in-residence

In InnovationSTL

12:29 pm on Tue, 11.12.13

BioSTL's BioGenerator organization is on the move as its entrepreneurs-in-residence find a new home in 4,300 square feet of office and conference space in an old automobile factory. The blossoming program, which helps BioGenerator's portfolio companies to get off the ground, continues to pay dividends within the growing biotech community.

Ambassadors aim to soften rough landing for St. Louis immigrants

In InnovationSTL

6:34 am on Fri, 11.08.13

The St. Louis Mosaic Project is set to hold an orientation for its new ambassadors -- dozens of foreign and native-born volunteers who aim to help make the community a more welcoming place for those from other nations. Participants will be expected to do everything from visiting local restaurants serving international cuisine to having dinner with an immigrant to the area.

Recent Articles

More Articles

Innovation and entrepreneurial activity are on the rise in St. Louis, especially in bioscience, technology and alternative energy. The Beacon's InnovationSTL section focuses on the people who are part of this wave, what they're doing and how this is shaping our future. To many St. Louisans, this wave is not yet visible. InnovationSTL aims to change that. We welcome you to share your knowledge, learn more about this vibrant trend and discuss its impact.

Featured Articles

Regina Carter brings jazz and therapy to Children's Hospital

6:36 am on Mon, 12.09.13

One night, the violinist is taking bows before a standing ovation at Jazz at the Bistro. The next afternoon, some of her audience may have trouble standing, but the kids in the playroom at Children's Hospital were no less appreciative. “Jazz is medicine personified," according to a doctor who brings in the jazz musicians.

Featured Articles

Featured Events:

Upcoming Events

View Full Calendar

More About The Beacon Home