Originally posted in the Jefferson City News Tribune on February 24th, 2019.
After Missouri voters last November overwhelmingly passed Amendment 1 to the Constitution, known as the Clean Missouri proposal, supporters have been upset with lawmakers who have proposed, or voted for, several bills and rule changes this legislative session that aim to undo some of the new amendment’s requirements.
And last week’s committee approval of Sen. Ed Emery’s Senate Bill 132 is just the latest point of unhappiness.
“It’s happening again,” Sean Soendker Nicholson said in an email last Wednesday, a day after the Senate’s Government Reform Committee recommended the full Senate debate and pass the bill.
“A Missouri Senate committee just passed a new bill designed to allow legislators to dodge the Sunshine Law, even though we just passed Amendment 1 barely three months ago,” Nicholson wrote.
Amendment 1 received 1,469,093 “yes” votes Nov. 6, or 62.021 percent of the total 2,368,706 votes cast, to 899,613 “no” votes, or 37.979 percent.
For many people, that’s considered a popular mandate.
And, Emery told the News Tribune last week, he’s not trying to ignore the people’s will.
“We’re trying to absolutely preserve that,” he explained. “We all have oaths of office that we take and voters to answer to.
“We’re all up there for the same purpose,” to represent their constituents’ interests as best as they can.
The main issue involves records that, before voters passed the Clean Missouri amendment, most lawmakers considered to be closed to the public.
Many felt that position was supported by a 2016 state appeals court ruling that Missouri’s Constitution expressly provides the House and Senate “may determine the rules of (their) own proceedings.”
But the Clean Missouri amendment included a requirement that legislative records and proceedings be open to the public under the Sunshine Law.
It’s that provision that, Nicholson told the News Tribune on Saturday, Emery’s bill seeks to change.
“Emery’s bill violates the clear language of the state Constitution,” he explained. “The General Assembly is required to follow the same generally applicable open records laws that are set for city councils, mayors, the governor.
“The law of the land right now (is): ‘Legislative records shall be public records and subject to generally applicable state laws governing public access to public records, including the Sunshine Law.’
“Any attempt to carve out the General Assembly from open records laws violates this clear mandate from voters.”
Emery said he only wants to protect communications with constituents — that often are very personal in nature, involving problems that constituents think the lawmaker can help resolve but wouldn’t want the general public to know about — and communications among lawmakers that are focused on the actual legislative process.
“Originally, (they) would have been confidential,” Emery said.
The Sunshine Law, found in Chapter 610 of Missouri’s Revised Statutes, includes 24 different exemptions to the basic concept of open records.
As modified by the committee, Emery’s bill would add a 25th exemption, that: “Any record retained by the office of a member of the general assembly that is related to a constituent of the member” would be a closed record under the law.
The proposed law explains: “As used in this subdivision, ‘constituent’ shall mean any person who is a resident of the legislative district of the member, any person who owns real property within the legislative district of the member, or any person who owns an interest in, or is an employee of, a business entity operating within the legislative district of the member.”
Emery said he’s trying to keep the Sunshine Law limitations very narrow.
Nicholson strongly disagreed, arguing that the definition of “constituent” is too broad.
“Under this framework,” he said, “communications to or from any employee of any business that happens to have a storefront in a district becomes secret.
“It’s not hard to imagine ways this would be abused.”
At a Thursday afternoon news conference, Senate Majority Leader Caleb Rowden, R-Columbia, told reporters: “We have always been really concerned (about) the constituent information. We want to make sure that constituent interaction is protected.
“Beyond that, we’ve got to get it right. I think we have to be very diligent and very mindful of how we do what we do.”
But he believes a majority of the Senate’s Republican members think “something needs to be done” to modify what voters approved in Amendment 1.
Emery told the News Tribune he understands the Clean Missouri amendment clearly targeted “the outside influences” on the legislative process, and his proposed law change clearly doesn’t include “a person who is registered as a lobbyist or a lobbyist principal, as such terms are defined in (state law), regardless of whether such person otherwise meets the definition of ‘constituent.'”
Under that language, a number of Jefferson City residents who earn their living as lobbyists would have all of their communications with their representative, Dave Griffith or Rudy Veit, depending on where they live, and Sen. Mike Bernskoetter open to a public or media inquiry under the Sunshine Law — even if that communication was about a personal or family issue.
Emery’s bill also would add a 26th exemption to open records: “Any record retained in the office of a member of the general assembly, an employee of either house of the general assembly, or an employee of a caucus of either the majority or minority party of either house that contains information regarding proposed legislation or the legislative process — however, nothing in this subdivision shall allow the closure of a record that has been offered in a public meeting of a house of the general assembly, or any committee thereof.”
Emery said lawmakers’ strategy discussions, including proposals to amend or rewrite bills, shouldn’t become public until they actually are introduced in either the House or the Senate.
He argued neither the Republican or Democratic caucuses, for example, want the “other” side to know what their strategies are while negotiations are underway involving proposed laws or constitutional amendments.
Rowden said: “The work product discussion is a broader one — but we’ve got to get it right.”
Senate President Pro Tem Dave Schatz, R-Sullivan, added: “For the most part, what voters want to see and understand is that, if there is anything nefarious going on, and making that information available — I don’t think anybody has a problem with producing and seeing that.”
Senate Minority Leader Gina Walsh, D-Bellefontaine Neighbors, said the voters “already have spoken I think it’s up to us to work within the guidelines and parameters of what (voters) have said, and to move forward.”
Nicholson said: “Any attempt to carve out the General Assembly from open records laws violates this clear mandate from voters.
“Why can’t the General Assembly just start following the Sunshine Laws that everyone else has to follow?”
Rowden, who manages when bills are brought up for debate, said last week he didn’t know when Emery’s bill would be debated.