Sunshine Law Hearing Nov. 20th, 2006

On November 20th 2006 Judge Thea A. Sherry heard the final day of courtroom argument on the Sunshine Law case where six residents of Overland filed suit against Mayor Ann Purzner and the City of Overland over alleged violations of the Sunshine Law.

The alleged violations in question were the repeated failures of the City and the Mayor to move the City Council meetings to venues that could accommodate all those wishing to attend. Though meetings have been happening at the Overland Community Center lately, that is due to a preliminary injunction issued by the Judge during the earlier hearing. Prior to that injunction, the meetings were held at the City Council Chambers repeatedly, resulting in residents being turned away due to the space's maximum capacity limit of 160 (as restricted by fire code).

Residents and interested parties all expected a ruling on the case to be handed down that day. There were several days of argument on this case earlier in the year, at the end of which the judge stated there would be only one more day they would spend on the issue in court. Though the courtroom arguments concluded and t were followed by several hours spent by the attorneys in Chambers with the judge, the court eventually stood adjourned without a final resolution.

At this point the lawyers for each of the three parties have been instructed to submit documents for the Judge's review. These documents are called "Findings of Fact and Legal Conclusions", which have been described as a compilation of the facts and legal arguments made in the case, each side presenting their own views. The Judge gave them a December 18th 2006 deadline to submit those documents for her review. It is expected that she will issue a written ruling some time after that.

The case went much more smoothly and quickly than it had gone in the preliminary hearing. One change was that the City's insurance company had sent two lawyers to handle the case from here. Mr. Rudman, the attorney who represented the Mayor in the earlier hearing, did not present argument or cross-examine witnesses. That was handled by one of the Insurance company attorneys. Those who had been in attendance at the preliminary hearing would understand why that is likely the primary reason the case moved forward much more swiftly and directly this time around.

I was surprised when the Attorney representing the Mayor called her to the stand. However, the attorneys obviously did their job very well as the Mayor seemed quite prepared for the stand and did well. One interesting change that came to light was a legal argument we had not heard before (or at least have not heard it laid out so clearly). The Mayor's defense seemed to hinge on this concept.

The argument made was that there is Overland Ordinance 110.150 which states among other things:

The City Council shall hold regular meetings on the second (2nd) and fourth (4th) Mondays of each month with the exception of holidays and the months of July, August and December wherein there shall be one (1) meeting per month held on the second (2nd) Monday of the month, at the City Hall in the evening at an hour agreed upon by the Mayor and City Council.

The Mayor made the argument from the stand that the ordinance "required" she hold Council meetings at City Hall. She went on to point out that Overland Ordinance 110.260 requires a 5 vote majority to change an ordinance. The conclusion being that the 4-3 vote was not sufficient to change the ordinance. The Mayor went on to state that she does not have the authority to move the meetings, that power rests with the Council.

So the Mayor's argument seems to boil down to the fact that she does not have the authority to move the meetings on her own, and the Council failed to have sufficient votes to change the Ordinance that "requires" meetings be held at City Hall, so the meetings could not be legally moved.

We could likely write a book on the various legal issues with this argument (State Statute trumping Municipal Ordinance for example) but I would ask that everyone, for the sake of discussion, consider this to be fact for a moment. So, though we know there are a lot of holes in this argument on its own, we are all going to treat it as valid when considering the following:

The Mayor also testified that she directed the July 10th, 2006 City Council Meeting be moved to the Wild Acres Gym in an attempt to better accommodate the residents wishing to attend.

On one hand, the Mayor argues that she does not have the authority to move a meeting, but on the other she argues that she moved one in an attempt to accommodate the residents. She argues that moving a meeting would violate Overland Ordinance 110.150 if there are not at least 5 votes to change that ordinance, yet she testified to moving a meeting without 5 votes to Wild Acres. I am no lawyer, but these two arguments seem to oppose, not support, each other.

As for the other issues with the Mayor's original argument I would like to review some of the problems. As everyone knows, unless ruled unconstitutional, federal law supersedes state statute, state statute supersedes county code, county code supersedes municipal ordinance, etc. The Sunshine Law (Missouri Revised Statutes, 610.020) clearly states in section #2:

Each meeting shall be held at a place reasonably accessible to the public and of sufficient size to accommodate the anticipated attendance by members of the public

That being a state statute, it takes precedence over a municipal ordinance. However, if we give the Mayor the benefit of the doubt, and assume she thought it was her responsibility as the Mayor to enforce the City Ordinances, regardless of any conflict with state statute or other laws, then we have to ask the Mayor why she did not feel compelled to enforce Overland Ordinance 140.090 (which mirrors the Missouri Sunshine Law requirement). Overland Ordinance 140.090 says in part:

Each meeting shall be held at a place reasonably accessible to the public, and of sufficient size to accommodate the anticipated attendance by members of the public

It appears that the Mayor did not simply ignore the Missouri Sunshine Law, she also ignored Overland Ordinances on the subject. Overland Ordinance 140.090 is worded exactly the same as the Sunshine law on this point.

There is also an issue with the Mayor's past claims to being unable to move the meeting due to Overland Ordinance 110.150 's suggested requirement to hold meetings at City Hall, because she is required to uphold and enforce the Ordinances of the City of Overland. Though it is true that Overland Ordinance 110.030 requires that the Mayor enforce the Ordinances, it does not stop there. That ordinance says in part:

The Mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the City

As the City is not empowered to enact law it is obvious that the Mayor is required not just to enforce the ordinances, but also all laws FOR the government of the City (FOR not OF the government of the City).

There is one more interesting angle to the Mayor's latest defense. When the Mayor claims that she was unable to move the meetings because that is the responsibility of the City Council and the vote of the Council to do so was 4-3, she is in essence shifting the responsibility for allegedly violating the Sunshine Law from herself to the Council.

Since four members of the Council voted consistently to move the meetings in an effort to follow the Sunshine Law, that leaves three Council Members, specifically Councilman Knode, Councilman Sellers and Councilman Owensby as the potentially responsible parties for these alleged violations if the Mayor's argument is to be considered valid. It will be interesting to see if any Citizens choose to file suit against these Council Members if the Mayor's defense based on this argument is successful (as unlikely as that might be).

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