The City Council's attorney says public officials can't speak their minds in public.

Shut Yer Pie Hole 

The City Council's attorney says public officials can't speak their minds in public.

In order to get anything done, the Kansas City, Missouri, City Council members need to talk with one another. But they're having a hard time figuring out how to do that. For much of the past month, the topic of discussion at the council's usually gabby business sessions has been the discussion of topics.

At issue is the formerly freewheeling nature of the council's Thursday business meetings, when council members have typically abandoned rote discussion and loosened up, sometimes snapping at each other in displays that have been popular with both the public and the local media.

City Attorney Galen Beaufort recently came to the sudden realization that such public give-and-take is illegal.

He made that assessment soon after an October business session when some City Council members started talking about an issue Mayor Kay Barnes doesn't want to discuss in public: the recent blistering audit of the city's tax-incentive-financing (TIF) development program. Beaufort sent the mayor a memo warning that the business session's standing "general discussion" item could put the council at risk of breaking the state's Sunshine Law, which is supposed to guarantee public access to government doings.

Until recently, those meetings were held in the city manager's cramped office on the 29th floor. The city's leaders would sit around a long conference table in black leather chairs that swiveled and leaned way back. Despite the presence of reporters lined up along walls, the setup gave an illusion of secrecy that seemed to inspire the pols to speak freely and even to get things accomplished.

Now, council members face an audience in a more austere room on the tenth floor. The charm is gone -- and now the spontaneity as well, on the recommendation of Beaufort.

The attorney's advice: The council can't extemporize, because the public needs to know ahead of time precisely what politicians plan to talk about when they meet.

Beaufort's interpretation of the law is correct -- at least according to Jean Maneke, attorney for the Missouri Press Association.

But laws -- especially vaguely worded ones like the Missouri Sunshine Law -- are open to interpretation, and some council members strongly disagree with Beaufort's assessment. So, for the past several weeks, council members have been arguing about what they can argue about, at least in front of an audience.

"Since the intent of the Sunshine Law is to have open meetings, public discussion, have everything out in the open rather than behind closed doors," Councilwoman Bonnie Sue Cooper said to Beaufort at one of the council's three contentious discussions about Beaufort's recommendation, "then it would appear to me that your opinion is really more in violation of Sunshine Law ... because your opinion is actually forcing discussion behind closed doors."

Having served on the council for nearly five years, Cooper knows how things work at City Hall. Most discussion happens in secret, whether the business-session agenda has a "general discussion" item or not. Usually, the mayor or a couple of council members huddle with city staff in private and then push their ideas through the council's subcommittees before the full council passes them at public legislative sessions.

Rarely does the entire council gather to discuss how its initiatives fit an overall vision for the city -- a failing that numerous recent audits have cited.

"That's what the Sunshine Law is for," Beaufort said. "It's to protect the public's right to know what its government is doing."

Follow the logic: To protect the public's right to know, council members can't spontaneously discuss in public what's concerning them.

"Our attorney has stretched the law too far," Councilman Bill Skaggs scoffed at one of the council's talks about talk.

"We don't want you to determine what we can speak about," Councilwoman Becky Nace told Beaufort. "Nor do we want anyone else on the council to have veto power over our right to speak out. I am not going to give that to you."

She pointed out that the general-discussion item had been on the agenda since she joined the council. Beaufort corrected her, saying the item was added to the standing agenda in the spring of 2001. (The city clerk's files, however, show that "general discussion" was on business-session agendas dating back to November 1999. Before that, former City Council members tell the Pitch, they had open-topic discussions even without an agenda item.)

"If we've had no problems with the Sunshine Law to date, why are we changing our procedures now?" Skaggs asked.

"Because I saw toes getting close to what I would see the line being," Beaufort responded. He explained that the state auditor sometimes investigates local governments to see if they're following the rules.

Skaggs replied that he'd called State Auditor Claire McCaskill. Skaggs said she told him she wasn't concerned about the use of general-discussion agenda items, which are common throughout the state. Skaggs also called the attorney general's office and learned that no government body has ever been sued for having such a vague topic on its agenda.

"He's following orders," Cooper says, implying that the mayor wanted to put a squeeze on discussion after Nace brought up the recent audit about the city's TIF development program. Barnes has made it clear that she doesn't want the TIF audit discussed at City Council meetings. "I'm not going to get into a big brouhaha," she told the Pitch when she was asked why she avoids the topic.

Throughout the council's marathon discussions about discussions, however, Barnes has maintained that she agreed with Cooper, Skaggs and Nace that it would be better to have free-flowing gabfests at the business session.

"I've said much of what you said in the past," she said. "And I got myself in a heap of trouble along with virtually every other council member sixteen years ago with the kind of argument that you're using. Even though we may not agree with the restrictions, they are there."

Barnes didn't offer specifics. But the only real "heap of trouble" that she seemed to be referring to came about because council members met for lunch to talk about city business without telling anyone they were doing so -- a completely different situation that resulted in the council being sued by The Kansas City Star in a landmark Sunshine Law case.

Despite three separate conversations about conversation, the council has yet to act on Beaufort's recommendation, and it probably won't decide whether to allow general discussions again until after the holidays.

Meanwhile, Cooper's prediction that the new anti-spontaneity policy would push discussions behind closed doors appears to have been prescient.

At one point while the council was arguing about arguing, Skaggs blurted out that he wanted to talk about something that wasn't on the agenda.

Beaufort told him the only way they could do so was if the matter were an emergency.

"We have a city employee that has cancelled a contract that this body passed as an ordinance and enacted upon," Skaggs said. "Would that be an emergency?"

Before Beaufort could answer, Councilman Terry Riley said that such an issue should be discussed in the council's weekly closed executive session.

"It would suggest to me policy," Councilman Jim Rowland said. Under the Sunshine Law, elected officials are not allowed to discuss policy in closed session.

"If you want to discuss legal advice," Beaufort replied, "we already have that on the executive-session agenda."

At that, Skaggs abruptly moved to go into closed session, and the council retreated to the adjoining room. Through the door, the politicians could be heard yelling at one another.

The next day, Skaggs told the Pitch, "I think we violated the Sunshine Law."

"They violated the Sunshine Law," Missouri Press Association lawyer Maneke says.

But they were just acting on their lawyer's advice. The guy who just minutes earlier had told them with a straight face, "The Sunshine Law is to make government transparent. So the public can see in."


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