The Joplin Globe, Joplin, MO

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April 3, 2014

Joplin City Council decides to make probe records public

JOPLIN, Mo. — Joplin residents are to find out today what is in the City Council investigation report that city administrators withheld from public view as a personnel record.

The City Council voted 6-3 Thursday night to waive an appeal of Circuit Judge David Mouton’s ruling ordering the city to disclose the pages of an investigation report regarding former City Manager Mark Rohr along with exhibits and witness testimony of the controversial probe.

City Attorney Brian Head said that as a result, the documents will be made public today.

Councilman Mike Woolston made the motion to not pursue an appeal and to disclose the records pursuant to a court order obtained by The Joplin Globe.

Councilman Jack Golden seconded the motion. Those who voted in favor were Woolston, Golden, Morris Glaze, Gary Shaw, Mike Seibert and Bill Scearce. Those who voted against it were Mayor Melodee Colbert-Kean, Trisha Raney and Benjamin Rosenberg.

Both the mayor and Raney said after the meeting that their reasons for voting against it were that they believed that city employees who testified in the probe should be protected.

At issue primarily were nine pages of an investigation report from a private investigator hired by the council to look into ethical questions about Scearce and Woolston. The investigator’s scrutiny expanded to Rohr and ultimately resulted in his firing as city manager on Feb. 4. Most of the report was disclosed, but the city kept nine pages dealing with Rohr under wraps, contending that they were personnel records. The Globe filed suit, contending that those pages and all records of the investigation should be made public. Mouton on Monday ruled just that.

The council’s decision came after a two-hour meeting, with the first hour involving a public debate over whether to go into closed session.

The meeting opened with the reading of the call to go into closed session. Glaze asked why it was necessary to go into closed session.

Head said of the reasons, “You’re talking about legal strategy, and you’re discussing the merits of a case that could potentially go to the Court of Appeals.” He said the council would hear from all three of its attorneys — Head, assistant city attorney Peter Edwards and outside counsel Karl Blanchard — who would advise the members as to what could happen if they went forward with the appeal and ramifications if they did not.

Scearce read a statement in which he said that despite his belief that the judge’s ruling is wrong, he would not vote to go into closed session and he would vote to release the records.

“I fear that by going into closed session, it will appear we having something to hide,” he said.

Glaze asked what would happen if the vote went in favor of holding an open session.

Head said: “It does serious damage to communication between your lawyers and this council. It puts the city at tremendous risk. It places the city treasury at risk.”

“By potential lawsuits?” Glaze asked. “Certainly,” responded Head.

The mayor outlined a proposal to go into closed session and then disclose any votes taken.

Blanchard, outside counsel for the city who represented the city in the case brought by the Globe seeking public disclosure of the documents, told the council that “I have this concern as your lawyer. That if you have an open session where you receive advice, you will have waived your attorney-client privilege perhaps and maybe certainly to all legal advice that you have received at any point in time on this issue.”

Seibert said it was his understanding that it was an all-or-nothing decision: If the council decided not to appeal, the city would have to release the Rohr report and everything else in the investigation. He asked if that was correct, and Head told him that was the case.

Golden said he did not want to go into closed session. “Every email I had today was asking for this report turned out. Every one,” he said. “And I had a substantial number of them.”

Woolston made a motion to go into closed session and report any votes taken immediately after the session instead of waiting the 72 hours allowed by law to disclose votes. The motion failed 3-6, with Glaze, Golden, Rosenberg, Scearce, Shaw and the mayor voting against it.

Shaw said he wanted to do what’s right for Joplin, and that he would prefer to go into closed session to listen to what the attorneys had to say. Shaw made a motion to go into closed session to hear the legal advice and then come back into open session to vote. The motion failed 4-5, with Glaze, Golden, Rosenberg, Scearce and Seibert voting against it.

Seibert asked again if the judge’s order was to release everything. Head said it was, but that there might be ways to release the report but also appeal.

Blanchard said the council could release the Rohr report and still preserve the right to appeal by redacting names from it “because I believe this decision is categorically wrong,” and that the report and testimony are personnel records about job performance.

Golden repeated assertions that the public wants all the documents released.

After debate about the options, Rosenberg made a motion to release the Rohr report with the names of employees blacked out, and to also release the transcripts of those who are not current employees.

Head told the council that the investigator had assured employees that their testimony was confidential.

“If you proceed to give up those, you are ensuring that you will never get an employee to give you truth about what’s going on — there will be a lot of people who don’t see anything — from now on,” Head said. “If you’re worried about corruption in government, if you’re worried about misdeeds, and if you’re worried about violations of policy, if you release these employees’ records you’re guaranteed that for a generation you will not get them.”

Head told the council that he could see there being potential lawsuits from employees if the records are released.

Shaw wanted to know more about the employees’ rights. Raney said it was not in the best interests of residents to open the city to the possibility of lawsuits.

After more discussion, the council voted 6-3 to go into closed session on a motion by Woolston to discuss the legal issues and then return to open session to vote. Raney seconded. Those who voted in favor were Woolston, Raney, Seibert, Shaw, Colbert-Kean and Rosenberg.

Meeting duration

THE JOPLIN COUNCIL met from 5:15 to 7:20 p.m. Thursday.

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