The Joplin Globe, Joplin, MO

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March 31, 2014

Judge orders city of Joplin to make report public

JOPLIN, Mo. — A Jasper County circuit judge on Monday said he would issue a writ sought by The Joplin Globe and its parent company, Community Newspaper Holdings Inc., ordering public disclosure of a report the city has withheld regarding the former city manager along with its exhibits and testimony.

The Globe’s publisher, Mike Beatty, placed the significance of the ruling on the importance of the documents to the public.

“I think getting the document is not as important to the Globe as it is important for our community,” he said. “Joplin residents deserve to know what is happening in our city government with full disclosure, particularly now during Joplin’s redevelopment.”

Chuck Buchanan, the Globe’s attorney, said of the procedure that will follow Monday’s decision: “The judge will order disclosure and will set a deadline for disclosure. And then the city will decide what action they want to take by the time that deadline arises. At this time, we don’t know whether the documents will be available immediately or whether there will be a long delay if the city decides to appeal.” The case was heard by Judge David Mouton in Joplin.

City Attorney Brian Head said he does not agree with the judge’s decision, but it will be the City Council’s decision whether to appeal.

“We don’t have the written decision, so it’s a little hard to know the court’s reasoning” for the decision, Head said. He said he believes the ruling “misapplies the law to the facts as they exist. We will have a meeting of the council within the next few days for the council to determine if it wishes to appeal. It will be my recommendation that the council appeal this decision.”

Asked why he believes the law was misapplied, Head said: “All I know is the result. I don’t know if all the reasoning is correct. Once I see that, I’ll know specifically.” Asked if the council will hold the discussion on whether to appeal in an open meeting, Head said, “No, we don’t discuss litigation strategy in an open meeting.”

The Globe sought a writ ordering the city to release a portion of a City Council investigation report about Mark Rohr, who was fired as city manager Feb. 4 after the report was given to the council. The council held an open meeting but went into closed session to hear the entire report. The council reconvened in open session, where part of the report was read by the special investigator, attorney Tom Loraine. After that, a motion was made to fire Rohr without cause, and the motion carried by a vote of 5-4.

The investigation, authorized by the City Council, was to focus on the ethical conduct of two council members, Bill Scearce and Mike Woolston. Instead, its focus turned to Rohr.

A portion of the report dealing with the two councilmen was released, but the city has withheld the part about Rohr and has denied access to some exhibits of the report and to testimony taken in the investigation. The city contends that the Rohr report is a personnel record that is closed to the public because it contains information regarding his job performance.

But the council’s contract with the investigator specified that the report was to be open to the public. Instead, pages related to Rohr were withdrawn from the finished version of the report.

At Monday’s hearing, Buchanan told the judge that it is “important to note this was an afterthought on the city’s part. It’s clear from the contract, and the (meeting) agenda that said nothing about personnel records.” The agenda of the Feb. 4 meeting shows that the council met in closed session under an exemption in the Sunshine Law for discussion of litigation, not for personnel decisions. Buchanan noted that there had been an effort by some members of the council after an Aug. 5 meeting to seek Rohr’s resignation, but there was a glitch when they learned that the vote had to be publicly disclosed.

The city’s outside counsel, Karl Blanchard, told the judge: “The issue is: Are they exempt or closed? Does this have to do with the job performance of a city employee? If they do, they’re exempt.”

The judge asked Blanchard: “Do you agree with the proposition that if a public meeting is closed under a certain exception to the Sunshine Law, that for example, that litigation and only litigation is discussed? And when litigation is the subject of that closed meeting is completed that you go back into open session?”

Blanchard: “Judge, that is not an issue that has been raised by the writ. I haven’t taken a look at it.”

Judge: “But it’s before me. You’re taking the position, as I understand it, that these records are closed because they are a personnel record, but it appears from your exhibit No. 10, as indicated by Mr. Buchanan, that the meeting was closed for litigation and not for hiring, firing, disciplining or promoting a particular employee.”

Blanchard: “I thought it was closed to see Loraine’s report.”

Judge: “Right. Under 610.021.1 (a section of the open records law), which is legal actions, causes of action, not personnel records.”

Blanchard said he would have to research whether other procedures have to be followed if a meeting moves from one exemption to another.

The attorneys asked to file written legal conclusions for the judge to consider.

The judge said they could, but he was ready to rule.

“I am not convinced that the records requested fall within any exception under the Sunshine Law,” Mouton said. “And it’s not just the case law. The Sunshine Law says itself that the exceptions are to be narrowly construed, and I don’t find that these records fall within any exception.”

Mouton said that while he understands that the city wants to protect itself from a possible claim for wrongfully disclosing personal employee information, “I don’t know that a public entity can say that something is exempt under an exception that wasn’t claimed at the time they discussed it.”

Final order

CIRCUIT JUDGE DAVID MOUTON said he will prepare a final order requiring disclosure of the documents.

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