The city of Neosho faces suit, alleging officials violated the state’s Sunshine Law by not releasing documents related to the city’s appeal of its lawsuit challenging the Neosho Transportation Development District (TDD).

The city of Neosho faces suit, alleging officials violated the state’s Sunshine Law by not releasing documents related to the city’s appeal of its lawsuit challenging the Neosho Transportation Development District (TDD).

Joplin attorney Bruce Copeland filed the suit in the Newton County’s 40th Circuit Court  against respondents the city of Neosho, and Nora Houdyshell, city clerk. Copeland is represented in the case by Austin Bradley, a lawyer in his firm Copeland and Brown.

The suit alleges there is an ongoing public controversy regarding the conduct of Neosho Mayor Richard Davidson, city attorney Steven Hays, and members of the city council about the formation of the TDD. It states that part of that controversy was that the city paid the St. Louis law firm Cunningham, Vogel & Rost P.C., to bring legal challenges against the TDD. After the court ruled against the city, it paid the same firm to appeal that ruling and the Court of Appeals also ruled against the city.

While the appeal was pending, the suit claims the city’s St. Louis counsel sent a three-page document entitled, “Closed Memorandum Confidential Attorney-Client Privileged Document Closed Record pursuant to 610.021(1) RSMo.”

It states that the Neosho City Council voted on March 4, 2014, to open closed session minutes records and votes related to the TDD. The suit further claims that Davidson emailed both Hays and Houdyshell the next morning, seeking confirmation that the vote the previous night opened attorney-client communications from Cunningham, Vogel & Rost, that Hays emailed back to both Davidson and Houdyshell: “My interpretation of that vote was that all records are open with no exception.”

The allegation continued that Davidson forwarded the previously closed memorandum to the Joplin Globe and to Derek Snyder, who later filed a complaint against Neosho city councilmen Steve Hart and David Ruth with the Neosho Ethics Board, using that memorandum as Exhibit A.

On April 21, 2014, Copeland filed a request for records under the Missouri Sunshine Law asking for: “All opinions of any attorney at the law firm of Cunningham, Vogel & Rost, P.C., no matter how documented, about the TDD appeal including, but not limited to, opinions of the probability of success of such appeal.”

The suits states that Houdyshell responded to that request on April 24 by indicating the requested records were closed under the Sunshine Law. It said even though the city council’s vote to open all TDD records in distributing the Cunningham Vogel Closed Memorandum, the city has refused to produce similar TDD records, wrongfully asserting that the records requested are closed records.

Two other counts are set forth in the suit. Count two claims that Hays reported to city council on March 27, 2013, that he had received correspondence that day from the Fleischaker & Williams law firm regarding a suit against the Missouri Highway and Transportation Commission, which may affect the council’s decision to file an appeal.

It states that the city has refused to turn over the requested document, “The letter which city attorney Steven Hays received from Fleischaker and Williams on or about March 26, 2013, as referenced in the closed portion of the Neosho City Council minutes dated March 27, 2013.”

Count three states that Copeland filed four Sunshine requests on May 8, 2014, related to legal services provided to the city by Cunningham, Vogel & Rost.

When contacted Monday, Houdyshell stated that she had heard of the suit, but had not yet been served, and was unaware of the specifics. Hays said.

He expected the city to be served today and could not comment on pending litigation.

Davidson replied that Copeland represented both councilmen Hart and Ruth in the ethics complaint filed by Snyder.

“And even though that ethics complaint was dismissed, Mr. Copeland has still been requesting a number of documents related to conversations around a number of things…Mr. Hart, Mr. Ruth, the election, TDD, lots of things,” said Davidson.

He said there were a couple of items that were not open records, to his understanding.

Davidson said, “Sometimes the city may have in it’s possession records that are closed by Sunshine Law that are not available for discovery through an open records request. Apparently, of all the hundreds of pages of documents Mr. Copeland requested, one or two of them must have been deemed by the clerk to be non-public, and Mr. Copeland disagrees with that assessment.”

Davidson equates the situation to when Mark Rohr was fired as city manager in Joplin and the city clerk didn’t give the Joplin Globe all the records it wanted.

“They went to a judge and had the judge review the Sunshine Law,” he said.

He said Copeland is asking for a judge to look at documents the clerk has deemed to be closed, to determine if it really is a closed record.

Davidson said Copeland’s Sunshine Law request was extensively broad.

“It included any correspondence referencing or mentioning Steve Hart or David Ruth,” he said. “You take this to an extreme. If you are in a closed session talking about — let’s use a hypothetical — firing the city manager and Mr. Hart or Mr. Ruth bring up the topic, well that document would be subject to the request, but it certainly wouldn’t be open record.”

Davidson was the lone “no” vote on the council, which gave final approval at its meeting last week to hire a part time assistant city clerk. Davidson explained his “no” vote.

“Because the city’s budget is not growing, revenues are stagnant,” he said. “The city clerk has been overwhelmed with half a dozen or so requests that dominate her time from Mr. Copeland regarding documents related to the TDD lawsuit and other things going back to the ethics complaint.”

Davidson continued, “If it’s a record that should be open, this council has been all about transparency. There are some things that attorneys talk about, their personnel records, those things typically stay closed.”

Not having yet been served, Davidson said he doesn’t know the details of Copeland’s requests.

“The clerk determined it should be closed,” the mayor said. “She does her job, she’s professional in what she does, that’s her responsibility, I defer to her, her judgement and her ability to do her job.”

Regarding the correspondence from Cunningham, Vogel & Rost that became an open record on March 4, when discussed in open session, Davidson said that particular record is open, seemingly in conflict with allegations of the suit.

He said anything regarding the TDD that came out of closed sessions would have been opened, though that would not include attorney-client conversations or attorney-attorney conversations.

He continued, “I know Mr. Copeland had requested Mr. Hays’ copies of documents related to the predicted outcome of the TDD litigation. I’m guessing he’s wanting to see what the attorneys were talking about even though that’s not what we opened. We opened the closed session minutes.”

The Newton County Circuit Clerk’s office reported that the papers regarding the suit were transferred to the Newton County Sheriff’s office Monday, that the city would officially be served with that suit today.