Sunshine Law Case 8/21/06

Bench approaches, Objections, Failed Offers of Proof, etc. That was the bulk of the day. The Mayor's Lawyer tried to take the court out of the scope of the actual case so many times I lost count. In this case, more time was spent on approach then actually conducting the case.

The plaintiffs rested. Now the defense is on the move. The defense tried several times to get into the issue of what constitutes a majority on the council. Does it take 4 or 5 votes to pass something? Well, we have covered that issue at length before, and though I would love to get a free judge's ruling / opinion on this issue it really has nothing to do with the Sunshine Law violation which is what this case is about.

Donna Dill testified that she conducted her own count of the attendance during the meeting. She said she counted 137 people in attendance after residents comments and 107 after the budget vote. I found it interesting that she did all this counting but did not bother to count the number in attendance before residents started. I also wondered how she could accurately count the room from that far corner at that angle. I didn't see her in possession of a notebook at the meeting, so I think it is rather impressive that someone could count a room of that size from that angle, in their head, accurately, twice, and remember it. It was also impressive that she did all this while spending the majority of the time that she did spend in the gym (as opposed to all the time she spent outside) talking to those seated around her. She did well on the witness stand though.

As for sweetpickles' post, she said: "why don't you so called residents step up to the plate and do something besides making fun of people that are doing something". The people who filed that lawsuit are residents, the person who runs this particular website is a resident, and the majority of the 352 people who when to the last city council meeting were residents. The residents are trying to do something Donna, and it will be residents who take all this into account and vote out the majority of the "ORT members" on the council come April 2007. Also sweetpickles said: "I brought pictures with me that were time and date stamped and proves my count was accurate." Actually, that time and date stamp could easily be challenged if the pictures were relevant to the court in this case at all. Time and date stamps on cameras and camcorders can be easily manipulated (I am not suggesting you did that, only that they rarely holds up as evidence). The only reason that this was not challenged was because the pictures themselves have no real bearing on the case.

Music Note raised an issue concerning this case as well. "Now if I see a crime happen in Maryland Heights, or an accident, it won't be good testimony on my part because I live in Overland?" Not at all. However, that is not exactly a good comparison. A better comparison would be: If a close personal friend of yours was accused of a crime in Maryland Heights and you testified in their defense as a resident of Overland, your testimony would be suspect to many. Not because you are a resident of Overland, but because your are potentially biased due to your close personal ties with the defendant. Now I don't see anywhere on the web where people said sweetpickles is not a good witness because of her residency (feel free to point me to whatever I may have missed though). I see places where people call her on her partisan propaganda, regular misrepresentations, and outright lies though, which of course would cause some to question a person's credibility in general.

Music Note also raised a few other issues. We have covered why the court case is taking so long before, so no reason to go into the Mayor's Attoney's antics again. In reference to Music Note's question: "If I were Rudman, I think I would have ask for a change of venue, who hasn't heard about Overland? I wonder if that is even possible?" It's an interesting question. However, a change of venue is only called for when a case has been the subject of extensive publicity AND a jury will be hearing it. In this case there is no jury. We generally assume that judges will judiciously handle cases without taking into consideration outside influences like media coverage and the like.

Councilman Owensby testified, on the stand and under oath that he sent emails out that were notated with "By Order of the Mayor" without being instructed to do so and without the Mayor being aware of the contents of those emails. I am sure some legal eagle advised him that he would not have any worries with this as the only injured party would be Mayor Purzner, who of course would not sue him over it. However, the City Clerk was admonished by the Mayor as insubordinate for actions she took, at least in part, due to such annotated emails. She has damages as a result. I think the City Clerk could sue Councilman Owensby over this issue. Furthermore, actions were taken in regards to the council meetings based on those emails. Actions that effected all of the Councilman. So, it is possible that the Councilmen could sue him as well. I doubt any of those lawsuits will happen however. One thing I am sure of though. Such unethical (and possibly illegal) actions would be clear grounds for recall should residents choose to do that. And Councilman Owensby better hope that the April election does not result in a 6 vote majority on the council because it would also be clear cause for impeachment as well.

Another interesting issue that has been raised is that the council meeting does not start until after residents comments. It is an interesting position, and if it was valid, then Donna Dill's testimony on the number of residents in attendance would be useful. It argument hinges on the fact that the meeting is not called to order until after residents comments. However, there are several reasons why this is not a viable defense.

First, there are the officially released agendas. The most recent Regularly Scheduled City Council Meeting agenda available to the public on the Overland Missouri web site is for the July 10th, 2006 meeting. I copied it below for my readers (you can check it out as the original PDF file here):

CITY OF OVERLAND
CITY COUNCIL MEETING
AMENDED TENTATIVE AGENDA
JULY 10, 2006

7:15 P.M. - RESIDENT COMMENTS.

7:30 P.M. – PUBLIC HEARING
1. CALL TO ORDER.
2. ROLL CALL.
3. PLEDGE OF ALLEGIANCE.
4. APPROVAL OF MINUTES.
• June 12, 2006 Regular Council Meeting Minutes
• June 12, 2006 Executive Session Minutes
5. APPROVAL OF BILLS.
6. APPOINTMENTS.
7. REPORT OF CITY CLERK.
• Announcements
• Correspondent
• Planning and Zoning Commission
-Freedom Enterprise II, 8801 Page Avenue
-Arch Energy, 9403 Page Avenue
-Auto Concepts, 9021 Page Avenue
• Business License
• Liquor License Renewals
• Budget Message
8. CONSIDERATION OF NEW BILLS.
• BILL NO. 34-2006 Agreement with Hochschild, Bloom & Company
• BILL NO. 35-2006 Boundary Consolidation 8801 Page Avenue
• BILL NO. 36-2006 Preliminary Development Plan 9403 Page Avenue
• BILL NO. 37-2006 Capital Improvement Fund
• BILL NO. 38-2006 General Fund July 1, 2006 – June 30, 2007
• BILL NO. 39-2006 Boundary Adjustment 1560 & 1602 Fairview
9. REPORT OF PUBLIC WORKS DIRECTOR.
10. REPORT OF CHIEF OF POLICE.
11. REPORT OF MAYOR.
12. NEW BUSINESS.
13. OLD BUSINESS.
14. COMMITTEE REPORTS.
15. EXECUTIVE SESSION – Re: Litigation/Personnel/Real Estate.
16. ADJOURNMENT.

So, the Residents Comments appear on the official agenda for the meeting. What does Agenda mean? Well according to the American Heritage Dictionary:

agenda

n 1: a temporally organized plan for matters to be attended to [syn: docket, schedule] 2: a list of matters to be taken up (as at a meeting) [syn: agendum, order of business]

If the Residents comments are not part of the meeting them why would they appear on the Meeting's agenda? Furthermore, if they are not part of the meeting, then why would they be administered over by the meeting's Chairperson (the Mayor). And lastly, if they are not part of the meeting, why would Councilman Owensby have made three motions to adjourn the meeting during the discussion over whether to extend or not extend residents comments at the August 14th 2006 meeting? Do you adjourn a meeting that has not yet started? I think it is clear. The idea that residents comments are not part of the City Council Meeting is simply indefensible.

Another interesting thing happened in this case. The City Attorney (representing the city and not Mayor Purzner) stipulated officially for the court that the City anticipates an attendance at City Council Meetings in the near future to exceed the 160 limit of the Council Chambers.

There will be those who say he is doing this for the plaintiff and is actually working against the city. However, look at it from the prospective of his job as City Attorney. He is there to represent and protect the city. So, by stipulating that the city (backed up by a majority of the City Council) believes this, he helps insulate the city from future lawsuits due to the violations of the law committed by the Mayor and a minority of the City Council. What he did, did not really help the plaintiffs case any, so much as it helped protect the residents from loosing more revenues in future lawsuits do to unethical and at times illegal actions of some elected officials.

Based on my observations, the judge is fed up with the Defense Attorney, who is constantly going out of the scope of the case and taking enourmous amounts of the courts time up with unnecessary questions, and constant offers of proof in opposition to objections raised that fail to sway the judge. Furthermore, I think it is rather insulting that he asked to Judge to take official notice of approximately a dozen local ordinances and state statutes when she rules on the case. Come on now sir, it is the judge's job to take notice of relevant legal code when considering a case.

If I was a betting man, I would bet that this case will not be concluded on Wednesday, but in the end, the case will be decided for the plaintiffs. I simply do not think the defense has a case in regards to the actual violations of the Sunshine Law (and not all the extraneous issues the defense raised.