Monday, June 15, 2015
New legal action: County Commission deliberately violated Sunshine Law
It asks that the judge vacate the appointments of Gary Nodler, Sallie Beard, and Ron Gatz to the Board of Education.
A second action, also filed late Friday, asks Judge Joseph Hensley to issue a writ of mandamus forcing Board Secretary Pat Waldo to swear in Jim Kimbrough to replace Lane Roberts on the board. If that writ is issued, it would mean that there were never three board vacancies and therefore, the decision would never have gone to the County Commission.
Both actions were filed by attorney Jonathan Pierce of Anderson, and the plaintiffs in both cases are Joshua Bard, Jon Buck, and Jamie Johnson.
The writ of mandamus asks the judge to order the Board of Education and Waldo to "correct the error that occurred at the May 26, 2015 meeting of the Joplin Board of Education wherein it was announced that the motion to appoint Jim Kimbrough to the vacant seat did not pass, and to add, by addendum, to those minutes that the motion actually passed by an affirmative vote of three to two."
Board President Jeff Koch, Debbie Fort, and Jennifer Martucci voted for Kimbrough, while Mike Landis and Lynda Banwart voted "no." Randy Steele had resigned before the vote was taken, which gave Kimbrough a majority and should have seated him on the board, according to the petition.
The petition notes that nowhere in the law does it include appointment of new board members to the items that must have four votes, or a majority of the complete board, "The legislature obviously viewed filling a board vacancy part of the 'transaction business' which needs only a majority of the members present at a quorum."
Though Joplin R-8 Board policy says a majority of the "complete board," the petition says the board does not have the right to set the bar that high. "School officers do not have powers other than those conferred by a legislative act, either expressly or by necessary implication, and doubtful claims of power are resolved against them. No Missouri statute confers upon a school board the power to increase the number of votes required to fill a vacancy."
In the action against the County Commission, the petition begins by noting the Commission "lacked jurisdiction and authority to appoint members to the school board because no more than two vacancies existed on the board at any one time."
The same argument- that Kimbrough should have been seated when he was approved by a 3-2 margin- is made, but the allegation that the Commission violated the Sunshine Law is also included.
"The Commission chose to hold closed meetings to interview, discuss, deliberate, and vote on appointees to the Board. All such business was hidden from the public's eyes and ears. As Commissioner (John) Bartosh admitted in an interview with the Carthage Press on June 10, 2015:"
We knew that we couldn't all go talk to people because that would be in violation of the Sunshine Law. So we all had people we were interested in putting on the board and we asked Commissioner Adams to go talk to them. He came back to us and these are who we picked. Jim Honey had some, I had some, Darieus (Adams) had some and I just don't know how many candidates we had. We all had people we wanted and we had Darieus go talk and that's who we got.
The petition continues, "It is evident from Bartosh's statement that the Commission intentionally tried to sidestep the Sunshine Law by sending only one commissioner to speak with potential candidates so as to avoid the 'quorum requirement' of the law.
"It is also clear that the meetings between Commissioner Adams and the potential appointees related to the conduct of the Commission's business and were undertaken on behalf of the entire Commission. It is also clear that the Commission deliberately sent only one Commissioner rather than a quorum when meeting with appointees for the sole purpose of avoiding the Sunshine Law."
The petition also says that the Commissioners violated the Sunshine Law "when they met privately to discuss, deliberate, and vote on the candidates whom they would appoint to the board. These discussions were not placed on any public agenda nor were they conducted at any public meeting. Instead, these decisions were made behind closed doors and later ratified at the June 11 meeting where the three appointees were publicly named and quickly sworn in. This, too, violated the Sunshine Law."
Pierce says the public interest in enforcing the Sunshine Law outweighs the public interest in having the three Board of Education appointees confirmed. "The public has a great interest in ensuring openness and transparency in the business of public governmental bodies. When those bodies operate in the shadows, public confidence and trust in the government is broken. A cloud of secrecy over local public offices was recently cast by the state audit of the Joplin School District which revealed several violations of the Sunshine Law. Such violations must cease. Further, it is imperative that the selection and appointment of board members be done openly as much is at stake for the Joplin School District in the upcoming months, including, but not limited to, the selection of an interim superintendent and selection of a permanent superintendent. These selections will significantly impact the direction of the district in the years to come."
Pierce says, "The public has a significant interest in making sure that the appointment of new board members is done openly with full compliance with the law because a large number of taxpayers, parents, and children residing in the Joplin School District live in Newton County, and those Newton County residents are disenfranchised by appointments made solely by the Jasper County Commission."
Pierce notes that there is no major need for the board members to be seated immediately since the board does not meet again until June 23.
Another request for a writ of mandamus was filed by Stacey Salmon in Newton County Circuit Court last week.