On March 13, 2008 the Missouri Ethics Commission reported the following actions:

…In respect to cases in which a candidate has requested the Commission to conduct a hearing pursuant to the provisions set forth by the Supreme Court of Missouri in Trout v. State of Missouri the Commission issued Findings of Fact, Conclusions of Law and Order in eleven cases…

We’re talking campaign finance contribution overage hardship cases. Repeat that eleven times, really fast.

Trout v. State of Missouri? That’s the case that got us back into campaign contribution limits.

So, what did I get? Well, I read the “actions” online and I thought to myself, “Hmmm, I wonder if the ‘Findings of Fact, Conclusions of Law and Order’ are actual public records?” The short answer? Uh, yep. So I managed to get my hands on the ‘Findings of Fact, Conclusions of Law and Order’ for those eleven hardship cases.

Not so fast. First there’s the setup.

Margaret Donnelly sued the Ethics Commission to have their proceedings in these cases open. The court said it was not to be. And here’s how they said it:

(You have got to love these court rulings. They lay out the whole story, including the time line.)

THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI

MARGARET DONNELLY, Plaintiff,

v.

MISSOURI ETHICS COMMISSION, Defendant.

Case No. 07AC-CCO1133

JUDGMENT

On the 15th day of January, 2008, evidence was adduced in the preliminary injunction hearing before the Court. By Joint Agreement of the parties filed on January 31, 2008, the parties agreed that the evidence adduced at the preliminary injunction hearing can be considered by the Court in lieu of a final hearing on the merits, so the matter is ripe for final order and judgment.

FINDINGS OF FACT

1. Plaintiff Margaret Donnelly is a Missouri citizen and taxpayer and authorized to bring this action seeking judicial enforcement of alleged violations of § § 610.010 to 610.026, RSMo.

2. Defendant Missouri Ethics Commission is an agency of the State of Missouri organized and existing pursuant to § 105.955, RSMo with its principal place of business in Cole County, Missouri.

3. The Missouri Ethics Commission is a “public governmental body” within the meaning of § 610.010(4), RSMo.

4. Venue for this action is proper in the Circuit Court of Cole County, Missouri.

5. In 1994, the Missouri General Assembly approved Senate Bill 650 which, among other things, provided limits on the amount of money which candidates for certain offices could accept as a campaign contribution from anyone donor, as those limits were set forth in § 130.032, RSMo.

6. In 2006, the General Assembly passed House Bill 1900, which was subsequently signed by the Governor. It contained a provision, which was to become effective on January 1,2007, to repeal the provisions in § 130.032, RSMo which established limitations on contributions from individual donors.

7. On July 19,2007, the Missouri Supreme Court issued its opinion in Trout v. State of Missouri, 231 S.W.3d 140 (Mo. banc 2007), which invalidated the portion of House Bill 1900 which had attempted to repeal the limits on campaign contributions in § 130.032, RSMo.

8. On August 27,2007, the Missouri Supreme Court issued its supplemental opinion in the Trout case.

9. Between January 1, 2007 and July 19, 2007, approximately 160 candidates for Missouri public office (not including those for whom the Supreme Court declared there would be prospective-only application) reported that they had received campaign contributions which were in excess of the limits set out in § 130.032, RSMo.

10. Subsequent to the issuance of the supplemental decision of the Missouri Supreme Court on August 27, 2007, the staff of the Missouri Ethics Commission (the “MEC”) reviewed campaign finance disclosure reports covering the period from January 1,2007 through July 19,2007.

11. The MEC staff prepared a list of those candidates and committees that had during that period reported contributions in excess of the § 13 a .03 2, RSMo limits (not including those for whom the Supreme Court declared there could be prospective-only application), and presented it to the members of the MEC.

12. The members of the MEC considered the report at their meeting on November 8, 2007, and they subsequently directed the executive director to follow the audit procedures in relation to any candidates and committees who may have accepted contributions over the limits contained in Section 130.032, RSMo and to inform the candidates of the statutory enforcement process.

13. The office staff subsequently conducted audits and investigations of the pertinent campaign finance disclosure reports in accordance with their standard procedures for conducting  such audits and investigations and in accordance with § 105.959.1, RSMo.

14. The Executive Director sent letters to each candidate and candidate committee named in the above-referenced report advising them that the Commission would be conducting an investigation regarding the acceptance of contributions which may have been in violation of the provisions of Chapter 130, RSMo.

15. The Executive Director appointed Joseph Carroll, a member of the Commission’s staff, as special investigator in all of these cases by a memorandum dated November 14,2007.

16. Joseph Carroll sent to each such candidate and committee, and to five additional candidates and committees about which information had been received after November 8, 2007, a letter on or about November 15,2007. In the letter, Carroll asked that he be notified by November 26, 2007 if the amounts in excess of the § 13O.032 limits in contributions reported by the committee had been or would be returned. Carroll also wrote that if those amounts in excess of the limits had not been returned and “you would like to make available any information which could assist the Commission in assessing the Trout factors of good faith, reasonable reliance and injustice or hardship in your case at this time,” to “please submit that information to the undersigned by no later than December 3, 2007.”

17. In response to the Carroll letter, twenty-eight (28) filing entities submitted information which could assist the Commission in assessing the Trout factors of good faith, reasonable reliance and injustice or hardship on different dates between November 19, 2007 and December 20, 2007.

18. A number of candidates and committees advised the Commission that they had returned or would be returning the amounts of contributions which they had received in excess of the § 130.032 limits.

19. At the request of Executive Director Robert F. Connor, Joseph Carroll prepared detailed reports on a number of investigations of candidates and committees on these matters, which Executive Director Connor presented to the members of the Ethics Commission prior to their meeting on December 6, 2007.

20. Some of the investigations into these matters by Joseph Carroll had not been concluded by that time.

21. While members of the Commission reviewed those reports prior to their meeting on December 6, 2007, no discussion among them occurred at the meeting regarding issues involving the Trout factors.

22. At their meeting on December 6, 2007, the members made a number of determinations that there were reasonable grounds to believe that persons had violated the requirements of § 130.032, RSMo, and they determined to hold hearings on those matters under § 105.961.3, RSMo.

23. Following the December 6, 2007 meeting, complaints were filed by the MEC pursuant to the statutes and rules governing hearings in these contested cases, alleging violations of § 130.032, RSMo.

24. The Ethics Commission scheduled hearings on the complaints which had been filed on January 23, January 24 and January 31, 2007.

25. No pre-hearing decisions
were made by the members or staff of the Ethics Commission based on hardship information submitted by the candidates and committees.

26. The respondents in these cases were to have, at those hearings, the opportunity to provide evidence to support any contention they wanted to make that the Trout decision should not be retroactively applied to them under that opinion.

27. The documents received from candidates and committees on these matters subsequent to the appointment of Joe Carroll as special investigator were investigation information.

28. No global discussions or determinations of policy or statements of general applicability regarding what would be a “hardship” have occurred.

DISCUSSION

As a result of the decision of the Missouri Supreme Court in James Trout v. State of Missouri, et al. 231 S.W.3d 140 (Mo banc 2007), the campaign contribution limits were reinstated retroactively. As a result of this ruling, many candidates and/or committees found themselves to be at risk of sanctions under the Campaign Finance Disclosure Law, having accepted contributions in excess of the original limits after the effective date of the H.B.1900 on January 1,2007 and prior to the July 19, 2007 ruling in Trout. To protect against potential injustice inherent with retroactive application of the limits, the Court charged Ethics, as the enforcement authority, with the responsibility of weighing relevant factors prior to taking any enforcement action against those candidates and/or committees. The Court in Trout directed that:

In any case in which an enforcement action is taken, those individuals or committees must be given the opportunity to present, as a defense to that action, their individual facts and circumstances that they may contend present sufficient hardship to justify departure from the usual rule of fully retroactive application. (Citations omitted, emphasis added). Id. at 151.

Plaintiff characterizes this process as a “hardship hearing” and asserts that the Missouri Open Records/Open Records Law, Chapter 610 RSMo et seq. or more popularly referred to as the “Sunshine Law” prevents Ethics from conducting any “hardship hearings” in closed session. Ethics responds that the issue of hardship arises only in the context of enforcement action, which by law, is a statutorily closed proceeding.

Absent referral for criminal prosecution, any enforcement action by Ethics takes place under the provisions of § 105.961.3 RSMo. That sub-section requires a hearing, and it is in that forum that an individual or committee would present its defense of hardship in the face of an enforcement action. This section also provides that any such hearing would be in closed session.

Plaintiff points to the provisions of § 105.959 RSMo, asserting that because only reports or statements can be investigated by the executive director, any “hardship hearing” is outside of the realm of an enforcement action. The court sees nothing in the evidence which suggests that Ethics considered evidence of “hardship” in anything other than the context of an enforcement action as to any particular candidate or committee.

Further support for this position is found in Trout where the Court noted that:

If a candidate believes that retroactive application of the decision would be a hardship in his or her particular circumstances because her or she acted in good faith and in reasonable reliance and retroactive application would work an injustice, that candidate must develop with specificity what those circumstances are to the Missouri Ethics Commission.

Id. at 151.152.

In short, hardship is a defense which may be raised in an enforcement action and is not an

independent determination. Enforcement actions are, by statute, to be conducted in closed session. A specific statutory provision for closed action is an exception to the general rule of open meetings and records, under §610.011.2, RSMo.

As noted above, Ethics, acting through its Executive Director and its staff, identified those

campaign committees which reported contributions in excess of the reinstated limits and notified

those committees, as required by law, that an investigation had been initiated. The assertion that any action not initiated by complaint must be limited to only the information on the statements and reports submitted to the Executive Director is not supported by the law. Taken to its extreme; Ethics could be staring at an obvious violation reflected on a report, but absent a complaint, could take no action. The law does not so provide.

No evidence was adduced to the effect that Ethics took any action other than through the enforcement process. No evidence was adduced that the Executive Director or the appointed special investigator were operating independently of Ethics. In fact, it is clear that Ethics directed the entire process. There were no global discussions or determination of policy or statements of general applicability regarding what would be a “hardship,” and therefore the Commission has not engaged in rulemaking.

The decision in Pierce v. Donahue, Circuit Court of Cole Co., Case No. 02CV324633, May 1, 2003 held that Ethics could only pursue sanctions for “over-limit” contributions through the § 105.959 RSMo hearing process (1). That process has been properly implemented and will run its course, which could lead, if a determination is made that excess contributions were indeed received, to a “ten day notice” of a “nonallowable contribution” from the Commission under § 130.032.7, RSMo.

(1) While the Pierce case was ultimately resolved by a settlement agreement, there is little reason to believe that the legal conclusions made therein, i.e. that due process requires that a hearing must be held prior to the imposition of financial penalties and the procedures of relying upon § 109.959 RSMo for that process are anything less than what required by both the Missouri and United States Constitutions.

The fact that Ethics inquired as to what committees intended to return the over-limit contributions only represent prudent allocation of their resources. It makes little sense to pursue a  hearing unless and until a committee which said it would return the money, failed to keep its word. Asking who is going to assert hardship does nothing to remove the process from the confidentiality provisions of the law, particularly given the testimony that no pre-hearing decisions were made on hardship information submitted.

Finally, documents which were received by the Ethics Commission from subjects of audits or investigations are closed records under §§ 610.021(1), 610.021(14), and 105.959.1 and 105.961.15, RSMo.

The balance between an open government and one that operates in secret is struck by the General Assembly. “Except as otherwise provided by law” are the magic words which allow the shroud of secrecy to be drawn over what would be an otherwise open and public process. The choice to close their records and/or their proceedings does not lie with the Ethics Commission. Both the investigations and the determinations of violations of the laws to be enforced at the first instance by Ethics are not just permitted, but are respectively mandated to be confidential and conducted in a “closed session.” As such, the conduct of Ethics described above does not violate the Sunshine Law.

JUDGMENT AND ORDER

It is, therefore, ordered, adjudged and decreed that Plaintiffs applications for a permanent injunction sought in Count I is denied. It is further ordered, adjudged and decreed that Plaintiff is not entitled to the declaratory judgment so prayed for and so judgment for Respondent is entered on Count II. Each party to bear her or its own costs. SO ENTERED this 22 Day of February, 2008.

s/

Jon E. Beetem, Circuit Judge

The short version: the hardship proceedings are closed to the public.

“The balance between an open government and one that operates in secret is struck by the General Assembly. ‘Except as otherwise provided by law’ are the magic words which allow the shroud of secrec
y to be drawn over what would be an otherwise open and public process.”

If we want this stuff to be out in the open, we’ve got to get the General Assembly to do something about it.

Still, you know, we’re allowed to get the ‘Findings of Fact, Conclusions of Law and Order’