Firefighter learns that Sunshine Law enforcement remains weak
When Camden Point Fire Protection District volunteers in Platte County, Mo., needed new equipment, they looked to their board of directors. Keith Dutcher, a volunteer firefighter for the district, asked the board in November 1996 to replace the fire department’s 28-year-old fire truck along with some personal firefighter protection equipment. Dutcher, a firefighter for six years, and eight other volunteers are responsible for Camden Point — a sleepy town of 400 located north of Platte City — and some surrounding rural land. Little did Dutcher know that such a routine request would result in his and the other volunteers’ losing their firefighter positions and lead to a lawsuit. The fire truck request also started political struggles that escalated until both the Missouri Attorney General’s Office and the Office of the State Auditor investigated financial irregularities at the district and noncompliance with the Missouri Sunshine and election laws.
Fire district board members, it was found, were reimbursed for cell phone bills and received a gas allowance. But the board, say former volunteers for the district, wouldn’t ante up for new equipment. Last year, Dutcher filed suit against the district for violating the Sunshine Law, which is supposed to ensure that government records remain open and available to the public. Dutcher says that after three and one-half years, the Sunshine Law has failed district taxpayers.
It was the fire truck that turned Dutcher from a lieutenant in the fire department to an interested and outraged citizen. “We needed a new truck,” he says. “The directors said we couldn’t have one, that we just couldn’t afford it.”
Dutcher, an accountant, says that after repeated requests, the district’s elected directors asked firefighters, including Dutcher’s brother, to look for a truck for the district’s needs. “My brother (Kurt), the chief, asked me to put a package together on how to finance the truck and do it right,” Dutcher says. “But when they finally bought the truck, they borrowed the money from the local bank.”
The district, Dutcher says, for many years had a competent bookkeeper, who left after a dispute with one of the directors. “Things they were doing, he could not go along with,” Dutcher says. “The directors (then) hired an accountant who did a disastrous job. They started losing money and didn’t know where it was going. They asked me to look for the money. I found two tax levy checks for a total of $1,000 that never made it to the bank. That was in 1996, when the district had a $45,000 budget. It was a big loss on that kind of a budget.
“What I found was appalling: We could not afford gear, but one director had cell phone bills of $120 a month. The directors also had a mileage allowance. They were looking at volunteer firefighters and telling them they could not afford new equipment. The firefighters are looking at the way the directors are spending and losing money.”
In Missouri, a government entity cannot take on long-term debt, or debt that exceeds one year of tax revenue, without voter approval. With leases and debt, the district far exceeded its $45,000 income (in 1996) with the purchase of the new $175,000 truck. Local government also cannot get financing from a local bank unless the debt is secured with bonds or taxes.
Dutcher says the district had no budget program and was losing tax checks. The board had given Dutcher authority to research what he thought was proper. “I found bills paid on the check register, but instead of an actual bill, I found handwritten notes that said so much was paid to the phone company or somewhere else.” Without the original bills, Dutcher had no way of knowing what calls or expenses were actual fire department business.
By September 1997, Dutcher had attempted to get financial and meeting records but was denied by the same board that empowered him to look into matters. At a Nov. 24, 1997, board meeting, Dutcher says, he “told the board that the things I was looking for were public record. The directors said because of the lies and exaggerations loose in the community, they didn’t feel it was advisable to give me access. I then wrote them a letter under the Sunshine Law that it didn’t matter what they thought, I needed the stuff. They never produced the documents.”
At that time, Dutcher says, the fire chief found that the board had spent $1,000 on attorneys to fight Dutcher’s records requests. “The board then told the chief he could not give district records to people,” Dutcher says.
When the chief said he would give district records to anyone who asked, he and eight firefighters were relieved of their duties. For a volunteer firefighter, that is quite a blow. Many volunteer departments, such as the one in Camden Point, follow the strict training and rank guidelines of the National Fire Protection Association and state fire district laws. Many volunteer firefighters are as experienced and have as much training as their full-time counterparts.
After the mass firing, Dutcher says, the board of directors decided to raise the tax levy without an election to pay for the debt from the new fire truck, ignoring citizens’ concerns. Dutcher asked for the minutes to the meeting, a request the directors turned down.
“Then we found that the district violated election laws by not holding elections,” Dutcher says. “One of the directors’ terms was expired by two years, and no one had bothered to have an election. When there is no enforcement of state statutes, people begin to believe the problem is not much of a big deal. There is no bite to the Sunshine Law. The Platte County prosecutor (Todd Graves) told us that it is almost impossible to prove anything. Someone has to stand up, fix problems, and do something right.”
In response to Dutcher’s requests, the board said the district had no set policy on public records and would not allow him access until a policy was established. In November 1998, the Missouri Attorney General’s Office responded to a Sunshine Law complaint filed by Dutcher, which stated the district was not adhering to open records laws.
On Nov. 23, 1998, the district released a public records policy stating that the district had appointed a records custodian. The custodian would be paid $50 an hour “for time spent responding to a request for public records.” A person wanting records had to submit a written request stating his or her purpose. If the custodian approved, he would determine the cost, which included searching for the records, copying materials (such as paper), and time spent copying records. The requester had to make a deposit against the estimated final cost, with any excess payable by the requester before receiving the documents from the custodian. The board reserved the right to waive or reduce the cost of the request if its members determined that releasing the records was in the public interest.
Dutcher and others gathered a citizen petition requesting a state audit of the district’s finances and adherence to the Sunshine Law and election laws. The state auditor’s office found that the district’s records policy violated the Sunshine Law. The law defines open records, gives custodians three days to respond to requests, and allows reasonable costs to be billed to people requesting public records. A state auditor’s investigation into the district’s public records policies determined that the district did not provide public documents in a timely manner. It also found that the board did not keep minutes of work sessions held without notifying the public. And the $50 per hour fee for the custodian was deemed excessive.
The auditor also found that fire district board members served beyond their terms. Elections in 1995 and 1997 were not in accordance with election laws. The district, the auditor said, did not give the public timely notice of elections, failed to notify board members their terms were expiring, and ran elections in a manner that let incumbent board members run without opposition.
The district also violated state law by entering into long-term debt without voter approval. By the end of 1998, the district had financed two lease agreements on fire district buildings (one of which was the fire station) and had financed the new fire truck (which cost $175,671, far higher than the district’s annual revenue). In addition, individuals and private entities in the fire district avoided a total of $1,100 in sales taxes by using the district’s sales tax exemption. Finally, the district did not keep expense reports or approve budgets with adequate information, nor did the district’s finances have any independent oversight.
However, Dutcher says he still has no access to records. Although the district concurred with all aspects of the auditor’s report, Dutcher says, there is no way to force the directors to enact the recommendations. He wants access to records he requested in the past, as well as new records that would allow citizens to track the district’s compliance with the auditor’s recommendations.
The Camden Point imbroglio typifies the Missouri state auditor’s office’s findings from last year. In an investigation, the office found that 102 (47.7 percent) of 214 political subdivisions in Missouri failed to respond properly to requests under Missouri’s Sunshine Law. Those 102 government entities either did not answer auditors’ written requests for meeting minutes or asked why the request was made — both Sunshine Law violations. Some agencies also were not timely in responding, demanded excessive fees, or asked personal questions of the requesters.
Kansas City attorney Jean Maneke, who represents Dutcher in a lawsuit against the district, says access to public records is important to citizens regardless of whether they ever need them. “These are your tax dollars, and you have a right to know why and how those dollars are being spent,” she says. “It may not be important day in and out. But there comes a time when you need them. In the meantime, all of us are so busy, we can’t spend our days looking into the operations of government even if we want to. We depend on others to gather information for us.” Those others, whether media or concerned citizens like Dutcher, need access to records all the time.
Maneke also represents the Missouri Press Association and speaks on behalf of the association as it conducts open records forums around the state. She says three to four lawsuits about public records are active in Missouri at any given time, and that is “only the tip of the iceberg. Frequently, citizens ask for records and are turned away. They walk away and don’t realize they have recourse.”
But recourse in Missouri is slim, she says. There is no complaint process under the existing law. “The only way a citizen can make that law stick is to call a lawyer, the attorney general, or the county prosecutor,” Maneke says. “The attorney general seldom goes to bat for citizens, outside of a letter to the governmental agency (like the one it sent to the Camden Point Fire Protection District), because they say they have limited resources or have to represent the government entity and can’t file a suit on behalf of a citizen. A citizen can’t ask for an administrative review. So if you can’t get someone to represent your interest and can’t afford counsel, you are left with no remedy. You have every right to those records but no means to act on that right.”
John Lewis, an Olathe, Kan., publisher and owner of Lewis Legal News, says, “It is a violation of the public trust to deny access to public records that are, by statute, open.” He points out that Kansas has problems similar to Missouri’s. A coalition of 19 newspapers conducted an investigation last year in which reporters sent public records requests to government agencies in all 105 Kansas counties. Of the 360 requests, 92 percent were granted. “Government says they are doing a good job at 92 percent,” he says. “If you are the one citizen who visits the one agency that throws up a roadblock, you get skunked. Most people don’t request government records ever. Others use the right only once in their lives. That is the very reason the offices should be accommodating — so the citizen doesn’t lose faith in the integrity of government.”
Lewis is also vice president of the Kansas Sunshine Coalition for Open Government, a group of private citizens, lawyers, journalists, and members of both the Kansas Association of Broadcasters and the Kansas Press Association. Many custodians turn away requests, Lewis says, because “they don’t know what the law is. Citizens are also turned away because the custodian has a sense of ownership of those records, that they are there to protect those records. Sometimes they put an arbitrary price on records, upwards of $5 per copy per page.
“Most citizens don’t know that and walk away, thinking they can’t get the record. But the custodian is a public servant and should know the law. A citizen should not have to read the law to know his rights but should assume that the system works.”
The Kansas Legislature considered a bill this past session that would allow citizens to recover attorney fees if a court finds that a record request was illegally denied. The regular legislative session has ended, but the bill may be taken up during a veto session in late summer. Topeka attorney Mike Merriam says the bill puts the burden of attorney fees on the citizen if a record request is found to be legally denied. In the past, says Merriam, the court often waived the citizens’ fee regardless of the reason for denial. Eliminating the court’s discretion will discourage citizens from seeking government records, he adds.
“This is a core value of democracy, sharing information about government,” says Merriam. “Information about government works and what it is doing is critical to making political decisions by people as a whole in the representative system. While journalists and lawyers know what their rights are, they have no more rights than anyone else. And while they are educated and trained to get the records they want or need, the average person is not.”
Dutcher says he knew little about the Sunshine Law until the fight over public records began at the Camden Point Fire Protection District. The Platte County prosecutor set a deadline of April 28 for the district to settle the dispute. If they miss the deadline, members of the board of directors could be fined $500 each for withholding records. District board member Steve Folck says the board has tried to give Dutcher the records he wants. “They are very lengthy lists,” he says. “This is a very considerable documentation.”
If it is not settled, the case will be heard in Gentry County. In November 1999, the plaintiffs, which include Kurt Dutcher, asked for a change of judge, but Platte County judges recused themselves. The case went to the Missouri Supreme Court Office of Administration, and Gentry County Associate Circuit Judge Roger Combs was chosen to hear the case in Abilene, Mo., about 40 miles north of Cameron. Dutcher is asking for relief in the form of a $500 donation from each defendant in the case (which would go the Missouri Press Association, specifically to fund open records forums), as well as the opening of district public records, reimbursement of attorney fees, and a public admission of wrong.
Contact Patrick Dobson at 816-218-6777 or firstname.lastname@example.org.