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Missouri attorney general says disclosing transcripts is illegal. Auditor disagrees, releases them

Missouri attorney general says disclosing transcripts is illegal. Auditor disagrees, releases them

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Missouri state auditor Nicole Galloway

Missouri state auditor Nicole Galloway explains why she has launched a special task force to monitor the financial health of Missouri's rural hospitals during an interview withe business reporter Samantha Liss on Tuesday, Aug. 15, 2017, at the Post-Dispatch. Photo by Laurie Skrivan, lskrivan@post-dispatch.com

JEFFERSON CITY — Auditor Nicole Galloway on Thursday released 444 pages of documents connected to her audit of then-Attorney General Josh Hawley’s office — even though current Attorney General Eric Schmitt’s staff said the release of some of the records would constitute a felony.

Schmitt’s office said it would be against the law for the auditor’s office to release transcripts of interviews conducted with witnesses during Galloway’s investigation of Hawley.

The assertion, which the auditor’s office said seemed like a “veiled threat,” is buried in the back pages of Galloway’s Thursday report. Correspondence between the two state agencies illustrates the behind-the-scenes acrimony that surrounded Galloway’s review.

The audit found Hawley’s political consultants met with his taxpayer-paid staff, perhaps more than a dozen times, before Hawley launched his U.S. Senate campaign in 2017. The audit also found that some staff violated office policy on the use of personal cell phones, and that Hawley’s office didn’t keep proper records for his use of a state-owned vehicle. Some use of the state vehicle appeared political, the audit said.

Galloway, a Democrat, began the audit after Hawley, a Republican, resigned in January 2019 after being elected to the U.S. Senate. Schmitt, also a Republican, was appointed attorney general after Hawley’s election.

In a news conference Thursday, Galloway said her office experienced “delays, roadblocks and threats” from Schmitt’s office, adding that the attorney general’s office challenged the auditor’s authority as well.

“Most disturbing, near the end of the audit, statements were made from the attorney general’s office that were intended to bully my professional staff,” she said. “None of this is acceptable and it’s disappointing how the current attorney general’s office conducted itself.”

Schmitt spokesman Chris Nuelle, however, said the attorney general’s office worked “tirelessly” to cooperate with Galloway, dedicating thousands of hours, gathering hundreds of thousands of pages of records, and lining up interviews and meetings.

He said the office has “grave concerns about the irreparable harm” the release of the transcripts could have on the auditor’s office “and good government in general.”

“We will cooperate with any investigations into this matter,” he said

The attorney general’s office received a draft of the audit on Dec. 12, according to a letter sent to the auditor’s office on Dec. 31 by Schmitt general counsel Johnathan Hensley. The draft included “complete and unredacted interview transcripts and written responses,” Hensley wrote, despite an auditor’s office official previously saying that interview transcripts would be considered work papers, closed from public record.

Their release, Hensley said, violates state law and professional regulations, and discourages witnesses from testifying. “These confidentiality provisions serve important state interests by encouraging state agencies and state employees to cooperate fully and freely in state audits,” he wrote in the letter.

Hensley said then that the auditor’s office had cited no legal authority to publish the transcripts.

“The only attempted explanation involved a vague notion of ‘transparency,’ though your staff also conceded that this action would be unprecedented in the history of the SAO (state auditor’s office).”

On Jan. 7, auditor’s office general counsel Paul Harper responded, saying what is included in an audit is up to the discretion of the office. Anything not included in an audit is considered an “audit work paper” and thus closed under Missouri law, he said.

“Your letter appears to be a continuation of the pattern to delay and control this audit, and seems to include a veiled threat against the auditors working on this audit,” Harper said.

Galloway’s staff interviewed Hawley’s former Chief of Staff Evan Rosell and former aide Michael Martinich-Sauter, as well as former aide Daniel Hartman, who managed Hawley’s attorney general campaign in 2016.

During an Oct. 3 deposition of Hartman, his attorney, Brent Haden, repeatedly asked whether a transcript of the audit would be made public. Hartman currently works in Hawley’s senate office.

“So is this transcript going to be kept confidential?” Haden asked.

Joel Anderson, attorney for the auditor’s office, said: “If the transcript or portions of it are attached to the audit report, those will be public.”

“A lot of what the auditor does gets press coverage,” Haden said later. “In particular, what we may talk about here today may.”

“What is my assurance from the auditor’s office that this is going to be about doing their job, rather than about pursuing some political agenda?”

Haden then repeated his worry about the audit becoming a “politicized event.”

“What does ‘politicized’ mean?” Anderson asked. “Will it be public? Well, an audit is public.”

Hartman, during the deposition, said he used personal email to communicate with attorney general’s office staff and political consultants. He said staff met with Hawley’s political consultants during normal business hours.

Haden objected to questions about whether Hartman discussed retaining private emails under state open-records laws— he said an ongoing lawsuit by the Democratic Senatorial Campaign Committee against the attorney general’s office, which alleges Sunshine Law violations, prevented Hartman from answering those questions.

Hartman said one of the consultants, Timmy Teepell, asked him what he thought about handling intergovernmental affairs for the office. Hartman described Teepell’s guidance as “purely advisory in nature and that I was free to disregard it, and, in fact, in large part, I did.”

The auditor’s office asked Rosell, the former chief of staff, about how he communicated with Hawley.

“Sometimes we would text, kind of short, you know, ‘Are you coming in? Are you coming in today? Are you available for a phone call later on?’” Rosell said.

Rosell said he sometimes used private email to communicate with staff. “But that wasn’t, certainly, the bulk of, I think, our communications,” he said.

He also said conversations with political consultants never involved campaign talk.

Martinich-Sauter and Rosell both recalled concerns about the consultants’ role in the office.

“I would certainly say retrospectively whatever benefit their involvement might have had,” Martinich-Sauter said in testimony, “has been outweighed by the sort of perception that has been generated as a result.”

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