AG reviews Morgan’s complaint, Sheriff Heitman’s response to ownership of Facebook pages

By Roxie Murphy, Assistant Editor
Posted 7/24/24

MARIES COUNTY — In a one-page complaint to the Missouri Attorney General’s (AG) Office in June, Belle Police Sgt. Mark Morgan, a Maries County Sheriff’s candidate, alleged Sheriff …

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AG reviews Morgan’s complaint, Sheriff Heitman’s response to ownership of Facebook pages

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MARIES COUNTY — In a one-page complaint to the Missouri Attorney General’s (AG) Office in June, Belle Police Sgt. Mark Morgan, a Maries County Sheriff’s candidate, alleged Sheriff Chris Heitman is “attempting to avoid Missouri Sunshine Law by changing the name and the purpose of (his sheriff’s Facebook page).

The AG has set an Aug. 12 deadline to determine the validity of Morgan’s Complaint.

“My complaint is Mr. Heitman is attempting to avoid Missouri Sunshine Law by changing the name and the purpose of the page,” Morgan said in his letter to the AG. “My understanding is once a page’s primary use is used for official transactions of business by releasing press releases, jail booking photos and sharing video collected during multiple years of law enforcement investigations the page belongs to the government agency it has represented for numerous years it has existed. Mr. Heitman intends to take sole control of the Facebook page identified as Sheriff Chris Heitman and use the page for personal thoughts and purposes. I believe this is a violation of the Missouri Sunshine Law and is a deliberately attempting to avoid complying with Missouri Sunshine Law. I contest simply changing the name and purpose of a social media page does not negate the Missouri Sunshine Law pertaining to records request or records retention.”

Heitman announced on Sheriff Chris Heitman’s Facebook page in June 2023 that he would not be seeking reelection to the sheriff’s office. In a separate post in June 2024, Heitman encouraged the Maries County Commissioners to create an official sheriff’s office page, as he would be taking his public official page with him to “share his personal thoughts and opinions.”

Morgan alleged in his complaint that the page does not belong to Heitman, even though his name has always been on the page since it was created in 2010. Heitman used the page for his campaigns over the years and even paid to boost his posts during previous elections. He currently has over 20,000 followers.

Morgan also alleged, “Heitman continues to violate Sunshine Law by deleting or hiding comments or views that Mr. Heitman does not agree with in direct conflict with the U.S. Supreme Court Decision Lindke v. Freed. Mr. Heitman has used the Sheriff Chris Heitman page to endorse political candidates. May 14, 2024, Sheriff Chris Heitman shared a political post from Scott John for Maries County Sheriff displaying an ‘Elect Scott John Maries County Sheriff.’”

Morgan alleges the same complaint against Heitman’s Sheriff’s Thoughts Facebook Page and the former Maries County Belle Division Facebook page.

Morgan alleges that because the pages have been used to share press releases, body and dash camera video footage, jail booking photographs, law enforcement activity, attempt-to-locate photographs, and other community involvement about Maries County Sheriff’s Office in an official capacity it now belongs to the county. He adds that because the page is used by multiple members of the sheriff’s office it is no longer a personal page.

Nothing in the complaint alleges that a Sunshine Law request was filed or that a records petition was not fulfilled. Heitman confirmed the same.

“I have not received a Sunshine Law request regarding my Facebook page for over three years,” Heitman said.

The last time his office received a request was in 2020 from the ACLU. While the request was fulfilled, it was late. The ACLU filed suit, which was later dismissed. It is currently in Maries County Circuit Court for appeals review.

Jay Turner, AG Director of Sunshine Law Compliance, sent an email to Heitman on July 2 requesting the sheriff’s office respond to the complaint.

Heitman’s attorney David F. Barrett, responded by first stating he and his client are firm believers in State Statute 610.011, open records laws.

“I view Mr. Morgan’s complaint as misguided and have no doubt that his interest in involving the Attorney General is to gain some sort of notoriety for his own campaign for sheriff,” Barrett began. “Another concern: your office is currently prosecuting the former mayor of Belle, Missouri, where Mr. Morgan is employed by the police department, based on a sheriff’s department investigation during his tenure. State v. Daryl White, Jr., No. 24PH-CR00616. The political tensions between the police department and sheriff’s office have been of considerable local notoriety over the years. Those matters notwithstanding, the legal issues Mr. Morgan raises are not easily resolved by reference to the statutes or common law.”

Barrett alleges the Facebook pages referenced in the complaint are fully accessible to the public and the AG has the opportunity to view them.

“As the complaint acknowledges, Chris created and maintains them,” Barrett confirmed. “They may reflect records required to be maintained in Chapter 610 or other law, but we do not believe that reference to (or reflections of) public records converts a Facebook page into a government record any more than a newspaper reporting activities reflected in such records would become a government record. The pages were created unilaterally by Chris, with neither the consent of nor the support of the county commission.”

Barrett also alleges the county commission neither created nor maintained the information on the page or paid for a technology assistant to maintain the page, in contrast to the sheriff’s office operations, which are paid for by the county commission, in facilities it provides.

“As you may be aware, there is currently a case pending in the Maries County Court, 20MS-CC00067, claiming that one of the pages is subject to the Sunshine Law. The case was dismissed on grounds that a sheriff’s department is not a proper defendant, White v. Camden County Sheriff’s Office,” Barrett said, and named two other cases that will eventually help determine the complaint in question. “Once past the issue of a proper party, I anticipate that we will have a heated debate about whether the Facebook page is subject to Sunshine Law.

“The Supreme Court’s recent unanimous conclusion that an official’s employment status is not determinative of whether a Facebook page is state action, Lindke v. Freed U.S. (2024), may also be helpful to your analysis. Having never contributed to the creation or maintenance of the Facebook pages, I am quite sure that the county commission does not view them as assets for which it is responsible (unlike the operation of a patrol car or county jail).”

Lastly, Barrett alleges that Morgan’s complaint raises the Fifth Amendment (and Missouri Constitution Article 1, State Statute 28) issues.

“It is undisputed that Chris created and maintains the Facebook pages in question,” Barrett said. “To the extent that Mr. Morgan would have these private pages converted to public assets, appropriate compensation for that taking becomes an issue. Nat’l Council of Teachers Quality, Inc. v. Curators of Univ. of Mo., (2014) rejected the idea that an author loses copyright protection when the document they wrote is a public record.”

Heitman said he is confident the AG will dismiss the case.

“I’m quite confident the Attorney General knows there is no wrong-doing and will rule in that manner,” he said. “Mr. Morgan’s ignorance of the Sunshine Law baffles me. Sunshine Law doesn’t determine ownership of a personally created Facebook page. It’s a shame he would waste taxpayer resources on attorney fees on a frivolous complaint that has no merit.”