The Clay County clerk has accused a private lawyer and the county commissioners he is working for of breaking the Missouri Sunshine Law.
The clerk also accused the commission of wasting taxpayer dollars by using a private lawyer and said the lawyer is “playing political games to the tune of $375/hour.”
The allegations are just the latest salvos in Clay County’s ongoing political turmoil and concerns over transparency with the public.
County Clerk Megan Thompson’s dispute over the law stems from the County Commission’s closed meeting on June 6, 2016, when commissioners voted to hire W. Joseph Hatley, a partner in the law firm Spencer Fane, to review Sunshine Law requests made to the county.
A lawsuit filed last month against Clay County by The Kansas City Star alleges that the meeting and the subsequent vote were illegally held. And no minutes or other records of the meeting appear to exist.
Hatley asked Thompson’s office for a record of the closed meeting as part of his defense against the lawsuit. Normally, her office would maintain such a record, but in a May 30 email, Thompson told Hatley that if anyone had records, it would be the commissioners.
“You should be aware,” she wrote Hatley, “that while we are willing to assist, we will not aid you or the Commission in breaking the law.”
Records obtained by The Star show that Thompson’s office had previously requested that Hatley deliver all closed session meeting minutes to her office.
“Please consider this my written assurance I will continue upholding the highest ethical standards and following all state laws,” Thompson wrote in a Feb. 1 email to Hatley.
Hatley, through a law firm spokesman, declined to answer questions from The Star.
“We do not feel it is appropriate to provide comment to the same media company that is suing our client,” said Sam Diederich, director of marketing for Spencer Fane. “That said, we are confident in our approach and counsel provided to the County and will be addressing the matter in the appropriate venue, not through the plaintiff’s own newspaper.”
Clay County Commissioner Luann Ridgeway sent a similar statement in response to an interview request.
The Star’s lawsuit alleges that the closed session was illegal because there was no prior notice given, and no minutes appear to have been recorded of the vote.
Clay County government has been beset by claims of secretiveness and corruption. In a petition effort, residents collected more than 9,000 signatures to invite Missouri Auditor Nicole Galloway to examine a county government they believe is unaccountable to the public. But some county commissioners have been fighting Galloway’s investigation.
One growing concern among Clay County office holders, transparency advocates and residents is the government’s ongoing use of Hatley and others with Spencer Fane to process requests for records, incurring significant costs to taxpayers and those who seek public documents.
The law firm has billed Clay County for more than $147,000 since 2016 to review requests for documents under the Missouri Sunshine Law, a state law that requires cities, counties and state agencies to produce government records, with certain exceptions, to those who ask for them. Governments are allowed to require those asking for records to pay “reasonable costs” to locate and produce the records.
Cities and counties in the Kansas City metro area often handle records requests with their staff. When a staff lawyer must look over the requested records, most cities and counties contacted by The Star charge between $30 and $40 an hour to those who request records.
Hatley, who has incurred the vast majority of bills to Clay County, charges the county’s taxpayers and those requesting records $373.50 an hour to review Sunshine Law requests and develop county policies regarding public records.
Hatley earlier this year demanded The Star pay $4,200 in response to a records request seeking Spencer Fane’s legal bills to the county. Hatley reasoned that it would take him 11 hours to review 45 pages of legal invoices to see if descriptions of his work needed to be redacted for attorney-client privilege, one of the exemptions from disclosure under the Missouri Sunshine Law.
Attorney-client privilege in nearly all cases protects the exchange of information and advice between a lawyer and client from disclosure. Attorney billing records, however, are usually generic descriptions of work performed that do not betray such confidences.
Such bills are frequently public records where a law firm works on a governmental body’s behalf. The Star in 1996 successfully sued Overland Park to make public all portions of its legal invoices from outside law firms. One of The Star’s attorneys in that case was Hatley.
Earlier this year, Hatley gave The Star copies of Spencer Fane invoices with all itemized descriptions redacted.
The Star’s suit argues that Hatley quoted an inflated fee to a Star reporter to review Spencer Fane’s legal invoices, an alleged violation of the Missouri Sunshine Law.
Since filing the lawsuit, The Star was leaked copies of the Spencer Fane invoices, free of all redactions.
A legal expert who reviewed those bills said only a few portions could arguably be privileged information. He was able to review the records in far less than 11 hours.
“With respect to how long it would take? A couple hours,” said Mark Johnson, a Dentons attorney. “Two hours on the high end.”
Thompson said in an email to Hatley on June 2 that she had seen his handling of The Star’s requests for records.
“I reviewed your interactions with the Kansas City Star, and it seems like you actually are playing political games to the tune of $375/hour,” she wrote.
Jerry Nolte, Clay County’s presiding commissioner, said Spencer Fane was hired to assist its former county counselor with a high volume of records requests in the months leading up to the 2016 election.
He now believes Spencer Fane’s ongoing involvement with the county is no longer necessary.
Nolte himself says he’s been charged a fee by Hatley in response to records he seeks in his role as one of three Clay County commissioners. Nolte said sometimes he pays it personally, sometimes he withdraws his request.
Thompson told The Star she’s aware of two instances where Nolte was charged for obtaining public records. And Spencer Fane’s invoices show that Hatley bills Clay County for his time reviewing and responding to Nolte’s requests.
“There’s a degree of irony that Sunshine Law requests are shrouded in secrecy,” Nolte said.
Nolte is often in the minority of 2-1 votes on the Clay County Commission on substantive issues.
Gene Owen, the third Clay County commissioner, did not respond to The Star’s requests for interviews.
Nikki Thorn, a spokeswoman for Clay County, responded that it would not be appropriate to comment, given The Star’s ongoing litigation against the county.
“However, we are confident in our legal counsel and the processes we have developed together to make certain the county is in compliance with the Missouri Sunshine Law,” Thorn said in an email.
It was Ridgeway, Owen’s ally on the commission, who contacted Hatley sometime in 2016 to represent the county in open records matters.
Hatley on June 1, 2016, emailed Ridgeway thanking her for reaching out. He said he would work for the county at an hourly rate of $373.50, a discount of his usual $415 an hour then.
As county clerk, Thompson had been the official custodian of Clay County’s records before Spencer Fane was hired.
At that time, Thompson processed Sunshine Law requests; she said she did not charge for her time, and when she needed another staffer’s help, the county charged $12 an hour.
The commission removed that designation in 2017 by a 2-1 vote, with Nolte voting no.
“It is a waste of money to spend $375/hour on something we had been doing at very little cost for taxpayers,” Thompson said.
Prior to losing her status as the county’s record keeper, Thompson noticed that signatures belonging to Nolte had been cut off of certain documents.
Thompson reported alleged records tampering to the Clay County sheriff, who referred the matter to the Missouri Highway Patrol.
Laurie Portwood, an assistant county administrator, was charged with tampering with a public record. She later reached an agreement with the Missouri attorney general to serve 40 hours of community service. She’s still employed with the county with a salary of $143,073, according to an online database.
Some believe Thompson lost her designation as custodian as payback for reporting the tampering.
“I think it’s crazy,” said Jason Withington, a Clay County resident who spearheaded the petition drive for the state audit. “We outsource the clerk’s job to a private law firm out of retaliation.”
Thompson said Clay County should do better by its community.
“If Commissioners Owen and Ridgeway were ever accountable and transparent leaders,” she said, “their long political careers have corrupted them into something else.”
BEHIND OUR REPORTING
What documents did The Star request and why?
The Star requested legal invoices submitted to Clay County by the Spencer Fane law firm, which had been hired to handle Sunshine Law requests for the county. Star reporter Steve Vockrodt wanted to see how much an outside law firm was being paid to handle a function that is often done by city and county staff in governments in the Kansas City area. Read more by clicking the arrow in the upper right.
How did Clay County respond?
W. Joseph Hatley, the Spencer Fane attorney who primarily handles Sunshine Law requests for Clay County, told Vockrodt that it would cost the newspaper $4,200 to fulfill the request. Hatley refused to provide a cost breakdown to justify the fee amount and said he would only discuss it with The Star’s lawyer. Hatley later agreed to provide copies of the Spencer Fane invoices with all descriptions of the work performed redacted. That made it impossible to know what he had done to justify the bills.
What is The Star's lawsuit against Clay County about?
The Star filed a lawsuit under Missouri’s Sunshine Law challenging Hatley’s application of a $4,200 fee for the reporter’s records request and alleging that the county held an illegal meeting in 2016 when it hired Spencer Fane.
Where did The Star get the documents?
After filing the lawsuit, The Star received unredacted copies of the Spencer Fane invoices from a confidential source who had concerns about the county’s transparency. Those documents, which The Star is publishing in their entirety, are source material for this story.