A request to approve revising the open records policy and provide direction for current Sunshine law requests by city clerk Nora Houdyshell, and providing legal services for the clerk, prompted extended debate at Tuesday’s Neosho City Council meeting.
Houdyshell began the discussion by apologizing to other city employees that she must ask for the city’s assistance during a time when employees are fewer and are paid less, and all departments must do without essentials as they dig out of an inherited financial mess.
“So with that, it makes me very angry,” Houdyshell said, “that I have been forced — due to a ridiculous lawsuit filed against me — to have to ask the city council to take more money from the general fund and all departments that are paid from the general fund to pay my attorney fees. I’d like to publicly apologize to my coworkers on behalf of myself and the council.”
Houdyshell explained that she cannot be represented by city attorney Steven Hays, as he would be called as a witness in the suit against her filed by attorney Bruce Copeland in seeking Sunshine Law requests. She reported that the city’s municipal insurance carrier, MOPERM, cannot provide representation because it is a Sunshine case.
After assuring council that her chosen counsel has no ties to local officials, council approved Houdyshell’s request, with a cap of $4,000, and the ability to come back before council if it looks like that amount could be exceeded.
Before that vote, Troy Royer, city manager, said, “I’ve worked with Nora for three years. I worked with Nora for a year before that as a state auditor. Nora has had nothing but the utmost in integrity. She answered every question I ever asked the year I was here and provided everything I ever asked for. I think she responds to every Sunshine request.”
Since he arrived as city manager, Royer said procedures were implemented to track Sunshine requests, and that Houdyshell is diligent in doing so.
“I just want to say from a city manager’s standpoint, I am angry, and this makes me furious that when I sat here for the last two months and work a budget — I’ve had to cut money out for the other departments to provide funds and services for this city that are desperately needed like roads and things like that — I think it is sad, sad, sad, and a sad day for a frivolous lawsuit like this to come forward from certain people and cost us more money.”
Both councilmen Steven Hart and David Ruth, who were represented by Copeland in defending ethics complaints against them, abstained from voting to fund legal representation for Houdyshell, without providing a reason. After being apprised by Hays that city code mandates providing a reason for abstaining from a vote, both continued to deny giving one.
Houdyshell then approached council about direction on charges for research conducted to fill Sunshine requests. She said the law states that the actual hourly rate of the person doing the research may be charged, but city clerks should ensure that work is done as cheaply as possible.
Houdyshell disclosed the invoices for several of the vast number of those requests received recently, which included a filled request for Heather Bowers that charged higher hourly rates for city manager Troy Royer to go through his emails that were subject to such a request.
“When Ms. Bowers contacted me and said I should have access to his emails, then that started posing the question, ‘Well, should I?’” she said.
She said advice from the attorney general was for the entity’s IT personnel to pull the selected emails in cooperation with the affected officer, and then charge for the less expensive time of the IT person and herself. Without an IT person on staff, Houdyshell asked council if current policy was acceptable, and if not, what should she charge.
Hays advised that officials sometimes have confidential communications, and that person’s hourly rate should be charged for them to research their own emails.
“It is the policy that the city uses, it’s the policy that the city has at this time, and I would certainly recommend that this not change,” he said.
Royer said the city recoups only about 50 percent of its expense in filling a Sunshine request, and added that it is not a big deal in a normal year of filling such requests to provide citizens who want clear and open government the opportunity to see things.
“But when you receive hundreds of requests within a few months that are absolutely ridiculous, and that you have to make over 6,000 copies for these over a three month period — again when I sit here and do a budget that I have to crunch numbers out of, give up vehicles and other things that our departments need — I think it’s absolutely ridiculous for somebody to sit here and request that amount of information for absolutely nothing other than personal vendettas,” he said.
Because of the lawsuit, Houdyshell said she wanted the backing of the entire council that she was doing her job correctly, or to direct her exactly what to charge if different from what current policy dictates.
The conversation evolved to Houdyshell asking if she should waive charges for 35 Sunshine requests filed by councilman Ruth, and devolved with several outbursts from Bowers.
Houdyshell said she never charged a council member for needed information, but because this was a Sunshine Law request, she needed to know if council expected her to charge him accordingly, or waive it because he is a councilman.
Hays advised that Ruth has all the rights and privileges as a citizen, including availing himself to the cost.
Under questioning by Richard Davidson, mayor, Houdyshell, Royer and Hays all stated they had never refused to provide to any councilperson any document they were legally responsible to provide, including to Ruth. Many of the requests by Ruth mirror some of the earlier requests from Copeland, who filed suit against Houdyshell because some requested documents were not provided to him. Houdyshell has maintained that those she did not release are confidential and are not public record under the Sunshine Law.
Before voting to waive the fees for Ruth, Hart commented that all the items Ruth requested are matters that should have been brought to the entire city council.
“But were not,” Hart said. “As a city council member, we are entitled to all of these, we were entitled to them when they were done, and they were entitled to them now.”
Hart’s was the only vote to waive the fees for Ruth, with Ruth abstaining.
Councilmen Tom Workman, Charles Collinsworth, and Davidson all voted against.
Also asking direction for determining what is, and is not, a public record, Houdyshell cited the Sunshine Law to determine whether a recording requested by councilman Hart is considered public business.
“This recording was between a private citizen and city attorney Hays,” she revealed. “So I do not understand what part of that makes it a city business.”
After denying the request for the recording that had come into the possession of city manager Royer, Houdyshell said Hart responded back that his request was directed to the entire city of Neosho. She verified that she cannot question any private citizen, and asked for overtime if she had to question all employees of the city, to catch each while they were on the job.
Royer explained that the recording is no longer in the city’s possession, to which Hart responded that he couldn’t understand how a conversation between a convicted felon and the city attorney allegedly about the sale of weapons was not brought before the city council, and wished to know who it was shared with.
Royer revealed that he shared the recording with the chief of police, and then the Missouri State Highway Patrol, to whom he turned it over for further investigation. He explained it would be a conflict of interest for the city council to look into a situation involving the city attorney and the allegations of a convicted felon who spent decades on the run from the law and is now a frequent occupant of the county jail.
Royer said he deferred the case to the highest law enforcement agency in the state. He later clarified that if the highway patrol would have reported back to him that the case was founded, he would have brought that to council in closed session.
Houdyshell said Hart’s amended Sunshine request asks for her to examine each city employee to determine if they have a copy of the recording. To begin the process, she polled each council member and Hays to determine if they had received or seen a transcript of the recording, and all answered “no,” except Hart, who responded, “I’m not going to answer any questions tonight on this.”
Houdyshell said she wanted to ensure she had council’s support to make the inquiries about the recording to all city employees.
“I do feel like I need to respect the request as given, and interview every city employee,” she said. “I take that seriously.”
After the meeting, Copeland stated that Mohammed Carrol had allegedly recorded a conversation with Hays regarding the sale of weapons. He backed Hart’s contention that if a city employee had such dealings with a convicted felon that it should come to council’s attention.
Copeland also explained that Ruth’s Sunshine requests are essentially in regard to the TDD litigation. He said the position of both Ruth and Hart is that as councilmen, they were entitled to those documents all along.
Copeland asserted that is where there seems to be a difference of opinion. “On whether the attorneys that represent the city and the city council are obligated to give records to all the council members or just a select person or two.” He said those formerly closed records were opened by a council vote in April, and they are still unavailable.
Houdyshell and Hays have both previously explained that some of the documents about the TDD that originated in closed sessions did not become open because of attorney-client privilege.