The city of Des Peres has put a price tag on keeping secrets from its residents.
That’s what taxpayers of that city have paid Alderman Ben Sansone in a settlement to the open records lawsuit Sansone filed. Most of that money will go to pay attorney fees in the two-year-long legal battle.
“Today, the Sunshine Project held a government responsible for a two-year violation of the Sunshine law,” said Sansone’s attorney, Mark Pedroli. He and Sansone, under their Sunshine Project banner, have also sued former Missouri Gov. Eric Greitens over the use of a mobile phone app that destroys text messages. “While the money is mostly to recoup legal fees, it’s the kind of money and headline that sends the right message to all government entities in the St. Louis area: Ignore your residents at your own peril.”
The lawsuit, filed eight months before Sansone was elected alderman, was over a seemingly simple matter.
The two Des Peres residents and lawyers — Sansone and Pedroli both practice in Clayton — sought a court transcript from the city’s lawsuit with Reliance Bank involving a development dispute. The city’s attorney — Kevin O’Keefe of Curtis, Heinz, Garrett and O’Keefe — had the transcript. But he and the city argued that he never gave the copy to city officials, and as a contract attorney, his possession of it didn’t count as a public record under the Sunshine Law.
Sansone and Pedroli sued.
And with the payout — even without an admission of wrongdoing from the city of Des Peres — they won a victory for government transparency. The West County municipality has agreed to “take all reasonable steps to abide” by the Sunshine Law in the future.
For city taxpayers, the matter is over, or should be anyway.
But it might not be for O’Keefe, one of the St. Louis region’s most prominent municipal attorneys.
On Friday, Sansone and Pedroli filed a new motion in the case, accusing O’Keefe of lying to the court for the past two years. The motion asks Circuit Court Judge Michael Jamison to order monetary sanctions against O’Keefe for “filing materially false and misleading statements for nearly two years … .”
The legal filing points to new emails obtained by Sansone after the settlement with Des Peres that suggest the city had the transcript all along, or at least did at one point.
“As I mentioned in our phone conference this afternoon, I will be bringing a thumb drive which contains all of the trial transcripts …” to the Des Peres Board of Aldermen meeting, O’Keefe wrote on March 28, 2016, to city manager Douglas Harms and other city officials.
In the motion for sanctions, Sansone and Pedroli call the email a “smoking gun” proving a Sunshine Law violation. In a later email exchange, after Sansone had filed a Sunshine Law request asking for the transcript, the city’s custodian of records emailed O’Keefe and asked how he should respond to the request.
O’Keefe wrote back: “Do you have a PDF version? If so, do you need/want to retain it for any reason?”
The emails, Sansone and Pedroli say, make it clear the city had the transcript at one time.
“The Sunshine law isn’t about ‘need’ or ‘want’, it’s about facts, does the City retain it or not,” they write. “O’Keefe was rejecting the facts and manufacturing his own.”
O’Keefe, who has served as a city attorney for multiple St. Louis County municipalities, calls the accusations in the motion for sanctions “absolutely inaccurate and untrue.”
But did he take the transcript to the city on a thumb drive as the email record suggests?
“I’m not going to comment on it,” O’Keefe said in an interview. “I’m not going to discuss conversations with my client.”
Harms said he has “no memory of whether or not (O’Keefe) gave me a thumb drive.”
Thumb drive or not, none of this ever should have cost Des Peres taxpayers any money.
O’Keefe had the transcript all along. He admitted that to me when I first wrote about the case a year ago: “It’s around here somewhere, in my office,” he said.
In his filing, Sansone notes that the two cases — the Reliance Bank case and the Sunshine Law case — have now cost Des Peres taxpayers more than $300,000, with much of that money going to O’Keefe, even though the city is part of the St. Louis Area Insurance Trust, or SLAIT, and could have filed either case with its insurance carrier. O’Keefe’s firm is not on the approved list of law firms that handle cases for the quasi-public insurance cooperative.
Harms, who is on the board of SLAIT, said it would be unusual to send a zoning case to the insurance carrier. He said he could have sent the Sunshine case to SLAIT, but never thought it was going to cost taxpayers as much as it did.
Sansone has not filed a motion to dismiss the Sunshine lawsuit as called for in his settlement with the city. First, he wants the judge to determine whether O’Keefe lied to the court.
“O’Keefe and his law firm should be required to give up every dollar he and his law firm billed in this case,” he wrote in his legal filing, “sending the clear message, especially to public official lawyers who charge local governments for services, that when you commit such frauds upon the Court, you will not profit a penny.”