D FILED JAN 04 2017 IN THE CIRCUIT COURT OF AUDRAIN COUNTY TWELFTH JUDICIAL ciRcuUIT —AUDRAINCO. CIRCUIT CouRT STATE OF MISSOURI MEXICO, MO Aaron M, Malin ) “ } Bast Central Missouri Task Foree, et al } Case No: 15AU-CC00006 } JUDGMENT Plaintiff filed a Petition alleging Defendants knowingly and purposely violated the Open Meetings Law and seeks attomney’s fees and costs. A bench trial was held, briefs and proposed findings were submitted, and the Court took the matter under advisement. NOW on this 31% day of December 2016, the Court rules as follows: Jurisdiction and Venue The Parties have admitted that this Court has jurisdiction and venue to hear this matter. Standard of Review This is a Court tried matter pursuant to Rule 73.0/ of the Missouri Rules of Civil Procedure (MRCP). Both parties have filed requests that the Court file a brief opinion and include in that opinion its findings on the Controverted Material Facts pursuant to Rule 73.01 (¢). ZL0/100B OM3Hd3HS T3HOVE asonr. SSE0LZZE45 XV4 ZL:20 ZLOz/PO/LOThe Plaintiff is an individual, residing in the State of Missouri. He has sued the Executive Board of the East Central Task Force in its official capacity, only. He has also sued Deputy Sheriff Matt Oller. The East Central Task Force is a “Multi-Jurisdictional Enforeement Group” (MEG) organized pursuant to Section 195,505 RSMo.. ‘The Plaintiff claims that the Executive Board of the Defendant violated certain provisions of the Missouri Open Meetings Law (Plt.’s Pet. Par. 95). The Plaintiff also alleges a “knowing” and/or “purposeful” violation of the Open Meetings Law, Section 610,027.3 and .4 RSMo. Section 610.011 RSMo. states that the Open Meetings Law shall be liberally construed, However, where the Plaintiff seeks an award of attomey’s fees and the imposition of a civil penalty, these remedies are penal in nature and the applicable portions of the Sunshine Law must be strictly construed, Laut v. City of Amold, 2016 Mo. Lexis 207 citing Strake v, Robinwood West Cmty. Improvement Dist, 473 SW3d 642, 645 (Mo. 2015) and Spradlin v, City of Fulton, 982 SW2d 255, 262 (Mo. 1998). ‘The Executive Board of the Task Force has the burden of demonstrating compliance with the Open Meetings Law. Whether a “knowing” or “purposeful” violation occurred is governed by the principles recently announced in Laut v, City of Amold, 2016 Mo. Lexis 207 (June 28, 2016). “Purposeful” conduct means more than actual knowledge. It requires that a member of the public governmental body must execute a “conscious design, intent, or plan to violate the law and ‘{do] so with awareness of the probable consequences.” Id. at 2, quoting Spradlin v. City of Fulton, 982 $,W.2d 255, 262 (Mo, banc 1998). See also, 2 2100/2008 GuaHaans 73aH9v48 ge0nr gssolzzesg X¥4d 2b:L0 LLOZ/POsLOCorrections, WD79619 (November 22, 2016). This is more than just mere intent to engage in conduct which results in a violation, There must be a conscious plan or scheme. ‘A “knowing violation” requires that the public governmental body have actual knowledge that the Sunshine Law required production of a record but chose not to produce the document. There must be a preponderance of evidence that the public governmental body or a member of that body knowingly violated the law, Laut v. City of Amold, citing Spradlin, 982 $.W.2d at 262, and Strake, 473 SW3d at 645, 646. Agreed to Findings of Fact 1, The Defendants are generally aware of the Sunshine Law and its terms (Answer, Par. 90). p . Defendant Stuart Miller is the Sheriff of Audrain County, Missouri and the Chair of the Task Force's Executive Board (Answer, Par. 8). |. The Task Force and its Executive Board at the time of the filing of this lawsuit had not formally appointed a Custodian of Records but Sheriff Miller bas responded on behalf of the Task Force to records requests (Answer, Pars. 34, 67). 4. On three (3) separate occasions the Plaintiff sent letters addressed to Sheriff Stuart Miller, “ATTN: Custodian of Records for the East Central Task Force” (Petition and Answer, Pars, 31, 35, and 58, also see Exhibits 1 and 3 attached to the Plaintiff's Petition). zlo/e00R QY3H@3HS T3HOVH 3BaNr BREOLZZELS M4 ZLIL0 2LOZ/O/LO5, On January 5, 2015, the Plaintiff sent an email to Sheriff Miller marked to the attention of the Custodian of Records for the Task Force (Answer, Par. 38). . Sheriff Miller responded to the Plaintiff's Sunshine Law request on behalf of the ‘Task Force and requested Plaintiff pay for the time spent in researching and for copies of the documents (Answer, Paras. 32, 36, 39, 58). 7. The minutes of the Executive Board’s November 6, 2014, meeting stated that the next Executive Board Meeting would be held on January 29, 2015, and that nominations for Executive Board Officers would be entertained at that meeting (Answer, Par. 41). 8, The January 29, 2015 Task Force Executive Board meeting was held in a conference room at the Audrain County Jail and access to the room required a security clearance (Answer, Pat. 75). Additior facts Est ed at Trial 2 , Each law enforcement agency which is a member of the East Central Task Force enters into a Memorandum of Understanding (Defendants Exhibits A and B), 10, The purpose of the Task Force is to foster an efficient and cohesive unit capable of addressing drug and crime problems within the Task Force area (Exhibit A- Purpose Clause). 11. A Narcotics Investigator from the Missouri State Highway Patrol’s Division of Drug and Crime Control manages the Task Force’s cases (Exhibit A- Supervision Clause). ZLospooB OMSHd3HS T3HOVY 3Boor. QSE0LZZe2G X¥4 ZL:L0 LLOZ/po/sLOzL0/sooB Quand3Hs W3Hov8 geanr S9C0lzzeL$ X¥4 ZL:L0 ZL0z/PO/LO 12. The Memorandum of Understanding, at Page 3, Paragraph C provides that investigative records will be prepared on Missouri State Highway Patrol forms, will be maintained within the Missouri State Highway Patrol’s Division of Drug and Crime Control Office, and “to ensure compliance with state law, such as the Missouri Sunshine Law, all records prepared and produced by the Task Force shall remain the property of the Missouri State Highway Patrol and may not be released or distributed to third parties without prior consent of the Missouri State Highway Patrol” (Exhibit A). 13. The Memorandum of Understanding further provides that: “because disclosure of information to outside parties concerning joint investigations may violate state law and jeopardize the safety of confidential witnesses and law enforcement officers, all participants agree that any of its personne] who are assigned to the Task Force shall not disseminate any information relating to or derived from a Task Force investigation to any person other than appropriate prosecutors or other local, State, or Federal Law Enforcement Officers who are assigned or assisting any Task Force investigation (Exhibit A, Page 3, Paragraph C). 14, Paragraph H of the Memorandum of Understanding requires periodic briefings on Joint Task Force investigations be provided to the heads of the participating agencies or their designees. These are designated as “Staff Briefings” (Exhibits A & B, Page 5, Paragraph H), 15. Stuart Miller has served as the Sheriff of Audrain County since January 1985 (Tr. 39)16. Sheriff Miller has reviewed the states statutes about how to respond to Open Records requests concerning “arrest and incident reports” under the Sunshine Law (Tr. 40 & 41), 17, Defendant Matthew Oller is the Chief Deputy of the Audrain County Sheriff's Office (Tr, 25). 18, Deputy Oller cannot recall any specific training with the regard to the Sunshine Law (Tr. 26). 19. Deputy Oller was advised by Sergeant Griggs of the Highway Patrol and Sheriff Miller to inform the Plaintiff and Mr. Roland that the meeting was not open to the public, it was a closed meeting (Tr. 28, 29). 20. Deputy Oller was instructed to ask Mr. Malin to leave because it was a closed meeting (Tr. 29). 21. To proceed from the Lobby and enter the Jail complex, an individual must have a security clearance (Tr. 36). 22, Sheriff Miller is familiar with the Sunshine Law concerning records requests, only (tr. 40). 23. Sheriff Miller checked with the Prosecuting Attomey, Tom Osborne, and was advised that the open meetings portion of the Sunshine Law did not apply to the Task Force because their discussions were about narcotics investigations (Tr. 42, 43). 24. Sheriff Miller did not consult with an attomey about his responsibility to respond to records requests (Tr. 48). zL0/300B QU3Hd3HS “W3HOVE 380Nr BSeOLZzeLg K¥4 ZL:20 LLOz/PO/LO25. The Task Force started keeping minutes for discussion of personnel matters and problems that particular agencies had with a Task Force officer (Tr. 50). 26. Sheriff Miller was not the appointed Records Custodian for the Task Force but provided requested records to the Plaintiff (Tr. 90) 27. The day to day operations of the Task Force are handled by the Missouri Highway Patrol (Tr. 95). 28. The investigative records of the Task Force are retained by the Highway Patrol and the minutes of meetings of the Executive Board of the Task Force are retained by the Task Force (Tr, 95). 29. After this lawsuit was filed, the Task Force implemented changes. The Task Force posts an agenda in a public venue prior to the meeting, the public meeting is now held in the Couneil Chambers for the City of Mexico at City Hall, and if there is to bea closed meeting, an appropriate motion is made followed by a recorded roll call vote. When the closed session is over, the Executive Board comes back into open session and adjourns (Tr. 104), 30, Sheriff Miller does not have any training with regard to an open meeting or an agenda for an “open meeting” (Tr. 105). 31, Sheriff Miller also consulted with Mr. Jim Vermeersch, a retired attomey from the FBI, who is the Executive Director of the Missouri Sheriffs” Association as to whether the open meetings section of the law applied to the Task Force ( Tr. 105). 32. As the Chairman of the Task Force, Sheriff Miller informally took on the responsibility of being the Records Custodian (Tr. 106). 7 z10/L00B ONaH@3HS T3HOVS 3Bonr. @Se0Lzz64$ X¥4 ZilL0 LLoz/PosLo.33. After the January 29, 2015 meeting, the Executive Board of the Task Force formally appointed a Records Custodian (Tr. 106). 34, Sheriff Miller consulted with Sergeant Griggs of the Missouri Highway Patrol about whether Mr, Malin and the individual with him in the lobby of the Audrain County Jail could attend the Executive Board Meeting. Based on that conversation Sheriff Miller instructed Lieutenant Oller to ask the people who had entered from the Lobby to leave the restricted area (Tr, 109, 110), The meeting on January 29, 2015 was held in the training room at the Audrain County Jail which is a secured area (TR. 110) 35, Show-Me Cannabis voluntarily dismissed itself as a Plaintiff (T. 125). 36.Mr. Malin went to the meeting on January 29, 2015 in part to promote the cause of Show-Me Cannabis (Tr. 131). 37.Mr. Malin has not incurred any attorney’s fees (Tr. 134). 38. Sergeant Griggs of the Missouri Highway Patrol was the day-to-day supervisor of the Task Force. There were quarterly meetings of the Task Force’s Executive Board to report on activities. He has no formal training as to whether these quarterly meetings are subject to the Open Meetings Law (Tr. 138, 139). Findings as to Controverted Material Facts and Ley inion o} 39. The East Central Task Force is a public entity organized pursuant to Section 195.505 RSMo, as a “Multi-Jurisdictional Enforcement Group” (MEG) which is subject to both the “Open Meetings” and “Open Records” provisions of the 20/8008 Quandgvs W3HovH sane BSEOLZZELS X¥d EL:LO LLOZ/PO/LOz10/8008 Missouri Sunshine/Open Meetings Law, see Section 610.010 RSMo. and News- Press & Gazette Co, v. Cathcart, 974 SW2d 576 (Mo. App. W.D. 1998). 40, Prior to the meeting of the Executive Board of the Task Force on January 29, 2015 the Executive Board had not posted the required Notice of the meeting and the meeting was not held in a location which was accessible to the public. This was a violation of the Missouri Open Meetings Law. 41, The Plaintiff, Mr. Malin, and the individual accompanying him, Mr, David Roland, who is the attorney representing him in this matter, were denied access to the Executive Board Meeting held on January 29, 2015. 42, At some point in time, Mr. Roland was employed by Show-Me Cannabis, Inc. and Mr. Malin to represent them in this matter. No evidence has been presented as to when the Attorey-Client relationship was formalized, No evidence has been presented as to who was responsible for the payment of any attomey’s fees incurred by the Plaintiff. 43. Show-Me Cannabis, Inc. voluntarily dismissed itself as a Plaintiff in this matter. There is no evidence as to the reason for the voluntary dismissal, ot which Plaintiff was responsible for attorney’s fees up to the time of the voluntary dismissal. 44, Mr, Malin clearly testified at the trial of this matter that he had not incurred any attorney’s fees. No evidence was presented as to Mr. Roland’s charges for his services to either or both of the original Plaintiffs. eggoLzzelg K¥4 EL-L0 LLOZ/Po/LO45. Before the meeting on January 29, 2015 the Task Force Executive Board had not formally appointed a Records Custodian. This is a violation of the Missouri Open Meetings Law. 46. Deputy Olller of the Audrain County Sheriff's Department is not a member of the Executive Board of the Task Force. He acted on instructions from Sergeant Griggs of the Missouri Highway Patrol and Sheriff Stuart Miller to ask Mr. Malin and Mr. Roland to leave the restricted area of the Audrain County Jail, and this prevented them from attending the start of the meeting of the Executive Board of the Task Force. 47, Sheriff Miller did seek legal advice from the Prosecuting Attomey and from the Executive Director of the Missouri Sheriff's Association as to the applicability of the Open Meetings Law to the Meetings of the Executive Board of the Task force, He was informed that this section of the law did not apply to the Executive Board since they were discussing criminal and narcotics investigations pursuant to the Memorandum of Understanding signed by the members of the Task Force, 48. Clearly, the “Open Meetings” and “Open Records” sections of the Open Meetings Law are to be liberally construed to encourage openness in government meetings, Section 610.011 RSMo. 49.1t is noted by the Court that it has not been asked to invalidate any actions taken by the Executive Board at its meeting on January 29, 2015. Rather, the Plaintiff seeks to establish that the Defendants “knowingly” and “purposely” violated Sections 610.010 to 610.026 RSMo. If this is established, the Plaintiff seeks the 10 PLOsOLOR auygudays Vanovy anon SSEOLZZELS XW¥4 EL:L0 LLOZ/PO/LOcivil penalties available under Section 610.027 RSMo. and an award of costs and attomey's fees. Since this is a request for a remedy or remedies which are penal in nature, the applicable provisions of the Sunshine Law must be strictly construed, Laut y, City of Amold 2016 Mo. Lexis 207, Strake v. Robinwood West Community Improvement District, 473 SW3d 642, 645 (Mo. 2015) and Spradlin vy. City of Fulton, 982 SW2d 255, 262 (Mo. 1998). 50, The conduct of the Defendants was not purposeful, There was not a conscious esign, intent, or plan to violate the law with an awareness of the probable consequences of the violation. 51, The Defendants did not commit a knowing violation of the Sunshine Law. The Defendants were not aware that they were knowingly violating the law. 52. Regarding Plaintiff's Motion for Reconsideration, evidence was adduced about redaction of minutes provided to Plaintiff. The Court orders Defendant to notify Plaintiff the basis for each redaction from the minutes within forty-five days of the date of this judgment, Matter scheduled for case management conference call February 22, 2017, at noon to determine if further hearing is necessary regarding the allegations of improper redactions. 53, The Plaintiff's request for the imposition of a civil penalty, and an award of costs and attorney's fees is denied. ZLo/LL0B QNSHd3HS T3HO"y Jeane g9eoLzzez$ XV LILO LLOZ/PO/LOJUDGMENT Itis the Finding, Order, and Judgment of this Court that the Defendants violated the Missouri Open Meetings Law as set forth in Paragraphs (42, 43, 47, & 48), the violations were neither knowingly or purposely committed, and the Plaintiff's request for the imposition of a civil penalty and for an-award of costs and reasonable attorney's fees is denied. ‘The Court sets this matter for further case management conference call on Plaintiff's Motion for Reconsideration on February 22, 2017 at noon, ‘So Ordered and Judgment entered on this 31st day of December, 2016, cpl Special Tadge for the Circuit Court of Audrain County, Missouri QU3Hd3HS 13HO¥Y 3Bonr. paeolzzelg xX¥4 EL:L0 LL0z/Po/LO.