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Tony's Take

Messenger: St. Louis County needs a Sunshine Law course correction

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St. Louis County Council votes on mask resolution

District three Councilman Tim Fitch listens to County Executive Sam Page and other council members who attended the St. Louis County Council meeting held to discuss and vote on upholding a countywide mask mandate resolution on video call speak at the Lawrence K. Roos County Government Building in Clayton in Clayton on Friday, August 27, 2021. Photo by Daniel Shular,


Before St. Louis County Counselor Beth Orwick lectures County Council members about the Sunshine Law, it would behoove her, and the rest of her office, to read the preamble to that most important public accountability law in Missouri.

“It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law,” it says.

The law is to be construed liberally, according to both its own words and the case law that has developed over time. That means that openness is the presumption, not the other way around.

Twice in the past month, Orwick or her employees have gotten that wrong. They are hardly alone. Too many governmental bodies try to use the Sunshine Law to keep documents and meetings from the public, rather than the other way around. This month, after Councilman Mark Harder, a Republican, announced at a public meeting that former Auditor Mark Tucker had been fired in part because of sexual harassment allegations, Orwick sent a letter to council members cautioning them not to share information that is discussed in closed meetings.

Post-Dispatch columnists Aisha Sultan and Tony Messenger debate campaign finance reform and school consolidation.

In response to Orwick’s letter, Councilman Tim Fitch, a Republican, accused Orwick of trying to cover up for County Executive Sam Page, a Democrat, who was a friend and ally of Tucker. Page was the council chairman when Tucker was hired. Orwick was appointed to her job by Page.

Whether or not Orwick was covering for Page, she got the law wrong, according to a local expert in state Sunshine Law. The law doesn’t require meetings or documents to be closed, it allows it. A county ordinance passed in 2011, however, changed the presumption of openness in the state law, requiring some county documents and meetings to be closed. That ordinance is invalid, says Clayton attorney Mark Pedroli, founder of the Sunshine and Government Accountability Project.

“In no universe can St. Louis County change the literal wording of the Sunshine Law, via a local ordinance, and then claim the local ordinance trumps the state statute, trumps the state’s statutory framework, and trumps the state Legislature’s intent,” Pedroli says. “As the Supreme Court has repeatedly ruled, local governments cannot pass ordinances in direct conflict with state law. The county ordinance, upon which the county counselor’s office is relying, is clearly void and preempted by state law.”

Orwick says she doesn’t have an opinion as to whether the county Sunshine Law ordinance complies with the state statute, but that her job is to interpret the law the way it is written and advise the council accordingly.

“As a lawyer, I cannot just change the law if I disagree with it,” she said. “If council members disregard the law when a harassment victim reports inappropriate conduct to them, they risk undermining that person’s confidence and potentially revealing their identity. That’s a step too far.”

Fitch’s response to Orwick’s letter is to seek a change in the county’s ordinance that more closely makes the county’s policy on Sunshine Law follow the language of the state statute. That’s a good idea.

So is this: Orwick needs to rescind the advice assistant county counselor Bob Grant gave to the county reapportionment commission in August. That’s the commission required by the county charter, and appointed by Page with recommendations from party central committees, that is tasked with redrawing the County Council districts in accordance with shifting population patterns after the most recent census.

At the commission’s first meeting, Grant gave the members of the governmental body some bad advice.

“This body is probably not a public governmental body,” Grant said. “There is probably not a requirement that you have open meetings.”

Grant went on to tell the commissioners that the Republicans could meet in a private caucus and draw their maps; and the Democrats could do the same; and nearly the entire process could be done without the prying eyes of the public.

Unlike Grant, I didn’t go to law school. But I’ve been writing about state and federal open meetings laws for more than three decades, and I can’t imagine any circumstance in which a public body required by charter and appointed by a county executive and using taxpayer resources to do its job — which is to draw government boundaries — is not a governmental body.

Pedroli agrees.

“There can be no doubt that the Reapportionment Commission is a public entity that must comply with the Sunshine Law,” he says. “It’s eye-popping that any employee of the County Counselor’s office would render contrary advice in any context.”

Asked about her employee’s advice, Orwick said she disagreed with it, too.

“The associate county counselor was speaking personally as an individual with prior experience with other reapportionment commissions,” Orwick said in an emailed statement. “Regardless, it is my opinion that it is best practice to act as though the Sunshine Law applies. And, this is what the commission is doing.”

That’s good news, unless, of course, the commission, like so many other governmental bodies, decides to use the Sunshine Law as an excuse to keep the public out. When it comes to Fitch, I tend to believe his motivation is more tilted toward attacking Page than representing good government, but his proposal for the County Council to consider a rewrite of its county Sunshine Law ordinances is a good idea.

As former Supreme Court Justice Louis Brandeis taught us, when it comes to open government, “sunlight is the best disinfectant.” The St. Louis county counselor’s office needs to heed that advice.

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