In the tiny town of Edgar Springs, Rebecca Varney recently won a small victory in her fight to access city records, though a final resolution of the long-running dispute isn’t in sight.
In another Sunshine Law dispute, the Southern District Missouri Court of Appeals recently ruled a public health emergency doesn’t suspend the requirement for governmental bodies to do their work in public.
David Roland, an attorney from Mexico, Mo., is suing Edgar Springs, a town of 151 in southern Phelps County, to secure unfettered access to city records for Varney as a project of the nonprofit Freedom Center of Missouri. He also handled the appeal before the Southern District court in a case begun by citizen activist Ron Calzone against the Maries County Commission, but with Calzone as a paying client.
Calzone, who is a businessman and design engineer by trade, represented himself at the trial court level.
Taken together, Roland said, the cases are about the fundamental rights of citizens to participate in their government and monitor its actions through access to records.
The small win for Varney came last month when Edgar Springs Mayor Albert Hamlet wrote her a letter stating she once again was allowed to visit city hall to inspect city records. But, he wrote, she had to follow rules that included not demanding “immediate or full access to city files.”
The city had barred Varney from coming to city hall, except to attend meetings of the Board of Aldermen, since 2019, after she spearheaded a petition drive to get the Missouri Auditor’s Office to investigate the city’s operations.
“We are taking it as the most begrudging of all possible concessions,” Roland said.
An attorney representing Edgar Springs declined comment.
When Varney visited the city hall for the first time after receiving the letter, she says she was told the rules for accessing records included submitting requests in writing, in advance, and paying fees to search for records and make copies.
She asked for the minutes of the aldermen for the past three months, she said.
“They were going to let me look at them, I had them in my hand, and they took them away,” she said. “The very next day, they sent me an email, you have to make the request in writing and you have to pay a fee for the copy.”
Varney’s lawsuit challenges the order barring her from city hall. She is seeking an order that the city can’t ban her from city hall, that she has the right to ask for and inspect records while city hall is open and that she was denied rights under the state and federal constitutions.
A trial date for the case, first filed in 2020, will be set later this month, and Roland said it is uncertain when Circuit Judge John Beger will fit it into his schedule. He would like a date in the fall but it may be next year, he said.
The city may argue that because it now allows her to visit city hall, the case is moot, Roland said. But the misconduct alleged in the lawsuit can only be permanently remedied with a court order, he said.
“We are quite confident that even though we expect the city is going to argue it is now moot, we will be going to trial,” he said.
The rules the town is trying to impose, such as requiring record requests in writing, violate the Sunshine Law, Roland said.
The town had to foot the bill for the audit, which found numerous deficiencies in financial administration and Sunshine Law violations, and there is grumbling about the cost of fighting her lawsuit, Varney said.
“The only reason it is going to cost Edgar Springs very much money is because of their hard-headed, stubborn city council,” she said.
Ron Calzone is no stranger to the courtroom. He operates a not-for-profit, Missouri First, and successfully fought the Missouri Ethics Commission over its attempt to force him to register as a lobbyist. He appears regularly before legislative committees and works to influence legislators through one-on-one meetings but does not accept clients or represent his views as anything but his own.
He’s also been an activist on eminent domain issues.
The appeals court ruling establishes a precedent to guide government agencies in emergencies, Calzone said in an interview.
“What we have is an appellate level opinion that underscores what the Attorney General sent a letter out about, that just because we have a pandemic doesn’t mean the Sunshine Law is suspended,” Calzone said.
The case began when he and his wife, Anne, tried to attend an April 6, 2020, meeting of the Maries County Commission and found the courthouse locked as part of the response to the COVID-19 pandemic.
“There was no notice to the general public of a call-in phone number to access the commission meetings before the Calzones’ lawsuit was filed,” Judge Mary Sheffield noted in the unanimous opinion. “From March 25, 2020 through April 20, 2020, the commission did not post notice of its public meetings in an area reasonably accessible to the general public.”
The Missouri Sunshine Law requires notice of the time and place of meetings and how the public can attend, essential to transparency and the right to observe and participate in decisions, the court ruled.
“While a global pandemic may justify the suspension of in-person meetings, it does not justify dispensing with the notice requirements of (the law),” Sheffield wrote. “Nor are we free to fashion such an exception to Missouri’s Sunshine Law.”
The case asked for the courts to find that the public had a right to access meetings not otherwise closed by law; that the Maries County Commission had not given proper access or notice of its April 2020 meetings; and it violated a law requiring health orders to be published as a legal notice.
The takeaway is that the rule of law continues to apply, even in emergency situations.
– David Roland, director of litigation for the Freedom Center of MIssouri
“The meeting we wanted to attend was the one we knew where they would discuss the stay at home order and that is a pretty serious decision to make in a vacuum,” Calzone said.
Beger ruled that the commission had not made adequate provision for public participation, either remotely or in person, and failed to publish the order. But he ruled against Calzone on two points: His assertion that the law requires a public body to allow in-person attendance when members are meeting in person; and that the commission had not given adequate notice of its meetings.
The appeals court upheld Beger on the first point but reversed him on the second.
Reached by phone, Maries County Presiding Commissioner Victor Stratman had little to say about the ruling.
“Yeah, we probably should have,” he said when asked if the commission should have handled the conflict over access differently.
He declined further comment.
“The takeaway is that the rule of law continues to apply, even in emergency situations,” Roland said. “It is especially important that the rule of law apply in emergency situations. That is when the rule of law is most crucial.”
The case has produced the best possible result, Calzone said. He won two points at trial, showing he was right about his view of the commission’s responsibilities. He won one of two points on appeal, creating a precedent that will guide future court cases.
And he’s got an issue for lawmakers – amending the Sunshine Law to make sure the public is allowed to be physically present when members of governmental bodies hold in-person meetings.
“Any time, if a public body meets, you have to allow the public to attend in the same mode as the public body’s meeting,” Calzone said. “I’ve got what I need to take to the legislature now.”