BELLE — During the city of Belle’s required Best Practices Sunshine Law Training on Aug. 13, Missouri Attorney General’s (AG) Jay Turner, director of Sunshine Law compliance, answered nonspecific questions from members of the public and the board of aldermen. At least one of the questions was related to issues from the city’s Sunshine Law violations lawsuit.

During the presentation, Turner advised the board that adding items to the agenda should meet the emergency meeting litmus test.

“When it comes to the tentative agenda and emergency (meetings), short notice justification also applies if the city or public governmental body is going to modify or change the agenda if the meeting is already started,” Turner said during the presentation. “If that tentative agenda is being changed less than 24 hours before the meeting starts, if they are making a change to the agenda that wasn’t previously on there, then that falls under that emergency or short notice justification so they have to justify why it’s being added on such short notice. Why it couldn’t wait 24 hours.”

The city’s attorney Nathan Nickolaus with Lauber Municipal Law asked Turner to cite his justification for the rule. Turner said 610.020.4 is the section where the Sunshine Law talks about emergency or short notice for meetings.

“The law just says tentative agenda it doesn’t say anything about if you change the agenda,” Nickolaus said. “There’s never been a court case that says you can’t change the agenda.”

Turner agreed.

“We’re not saying you can’t change the agenda, but if the agenda has been posted more than 24 hours and you’re changing it in less than 24 hours that’s when that section comes into play where you have to state why you’re having to change that agenda.”

Nickolaus disagreed.

“I get that’s your opinion, but there is no statute or case law that supports that.”

“I’m just stating what the statute says,” Turner said.

Nickolaus said the statute doesn’t say that. Turner amended the Sunshine Law says it.

“It doesn’t say that,” Nickolaus said again.

“It talks about if you’re changing an agenda in less than 24 hours —.”

“It does not,” Nickolaus interrupted.

Turner moved on in the presentation but was later asked to clarify his statement.

“In regard to the tentative agendas, Section 610.020.1 requires that they must be prepared in a manner reasonably calculated to advise members of the public of the matters to be considered,” Turner said. “I had stated earlier in the presentation that if a public body needs to add something to the tentative agenda after it has been posted (and in less than 24 hours from a public meeting), a good litmus test is to look at the item it wants to add and ask ‘can this wait 24 hours or can it not wait and needs to be addressed right away.’”

Turner advised if the line item could wait, the best practice is to follow 610.020.4, which outlines justifying the nature of the good cause for not following normal meeting requirements and stating the reason in the minutes.

“Although that subsection doesn’t specifically reference tentative agendas, a reasonably calculated tentative agenda, prepared at least 24 hours in advance of a public meeting, is a normal requirement of 610.020.1,” Turner clarified. “Therefore, the best practice is to state in the minutes why the change/addition to the agenda was necessary in less than 24 hours. If a public body is consistently adding items to its tentative agenda at the beginning of each meeting (thus in less than 24 hours), questions may arise as to whether the posted tentative agendas are truly reasonably calculated to advise members of the public of the matters to be considered as required by 610.020.1.”

While there hasn’t been a published Missouri appellate court opinion on this topic in the 50 years since Missouri Sunshine Law was enacted, the AG recently filed an Amicus Brief in the Western Cass Fire Protection District appeal, case WD86415, that articulates their full view on the matter.

“Our views are based on the plain text of the Sunshine Law and common-sense applications,” Turner said. “We are eagerly awaiting the court’s opinion.”

Several questions revolved around open records requests, and the city of Belle’s recently implemented policy to charge for copies.

“In regard to a ‘follow up’ requester where someone is requesting copies of whatever the city had produced in a previous Sunshine request, each request is treated individually,” Turner said. “So the body can charge 10 cents per page and then they can charge for research. And they can charge each person individually.”

When asked during the Aug. 13 presentation, Turner was unsure if a municipality could charge the same amount to the second requester for research fees if the body knew where the document was. After researching the question, the AG’s Office believes it found an answer of sorts.

“From our experiences, many public governmental bodies are able to quickly reconstruct what records were produced in response to a previous request,” he said. “For example, let’s say John Smith requested records and the body produced them in April to Mr. Smith via email. If Jane Doe requests all records produced to Mr. Smith, then presumably the body could search its emails and find the email where Mr. Smith was sent his documents. In that case, the body should not waste its own time to recreate the same search and review new records and pass along those charges, assuming that the follow-up request is for the exact same things already produced and assuming the body can find that exact same production to just copy.”

Turner also acknowledged that production methods vary. Some public bodies may produce records via temporary file-share links that expire, email, postage mail or other records that weren’t set aside for copying in the future. The body would then need to search for and review records again if an identical, subsequent request is submitted.

“In that situation, the Sunshine Law’s normal fee provisions may apply,” Turner said. “Governmental bodies should always strive to reduce fees and not use it as a profit-generating enterprise or use it to deter people from submitting reasonable requests for records.”

Alderman Kevin Guffey was the only board member to initiate a question. His question regarded withholding information about an employee’s payroll.

“The Sunshine Law applies to employee or board records it does not apply to your personal records retained by you as an individual,” Turner said.

Guffey was referring to The Advocate’s request for the street commissioner’s paycheck stubs. The reporter made the request in an effort to learn how much and from which accounts the position was being paid. Guffey asked if the city had to comply.

“One of the requests we had was for pay stubs for the employee,” Guffey said. “Does that fall under individual employee stuff? It has how much they are paying in taxes etcetera.”

An employee’s address, tax information, and salary are open records. According to Sunshine Law 610.021.3, exemptions shall not apply to the names, positions, salaries and lengths of service of officers and employees of public agencies. Turner said only current salaries apply to a request and only by a number.

“That section refers to salaries. We view that as what their current salary is. Not copies of their pay stubs or what they were making a year ago. Or two years ago. We interpret it as what they are making right now,” Turner said.

Guffey said the requester is asking for payroll stubs. Turner advised that the city’s attorney would have to answer the question.

“If they want to know what accounts they were paid out of I think that is a reasonable request to put together,” Guffey said. “It says this much out of this one and this much out of this one. But the pay stubs have taxes and everything else on there and we felt like we would have to send all that to Nathan. But I think based on what you told us tonight, the requester needs to be more specific on what they are actually looking for and we could actually be quicker at getting that information.”

Rebecca Withouse, a Belle resident, asked about the fees the city charges.

“The court case Gross v. Parson I mentioned earlier said the body can’t charge for the attorney review time for determining the legal, privileged information,” Turner said. “The fees are only associated with research and copying fees, so they can’t put attorney’s fees back on the requester.”

Mayor James (Pudd) Mitchell asked how that was fair.

“How is it fair to the rest of the citizens that one or two or three people keep making requests and the city’s gotta pay the lawyer for the time? How is it fair to the rest of the citizens to have to pay for that time too?”

Turner said he couldn’t answer that.

“That’s outside of the scope of what I’m doin’,” he said.

Mitchell countered that Turner answered for others.

“You just answered her question.”

“I answered her question about what the court case said,” Turner clarified. “You’re asking me whether that’s fair to the other citizens. I can’t make that determination.”

Delmar Branson, another Belle resident and frequent attendee to city meetings, asked who decides what is an open and what is a closed record.

“Records request refers to the custodian,” he said. “Also refers to exempt and nonexempt information. Who determines the criteria for that?”

Turner said a governmental body who has questions regarding what is exempt or nonexempt can forward the documents to its attorney.

“If a body has questions about what’s closed or not closed, they can refer that to the attorney,” Turner said. “Doesn’t have to be a specific person. If there is a question if something should be closed, that’s when she should reach out for a definitive answer.”

Branson asked about recourse if the requester feels the records shouldn’t be closed.

“At that point the Sunshine Law allows members of the public to pursue their own legal action,” Turner said. “The AG doesn’t have subpoena authority and so we can’t require the body to prove the records are or are not closed short of filing a lawsuit. Or file a complaint and we could reach out to the public body for an answer.”