The governor’s office has spent $340,000 so far on private attorneys to defend the state in a lawsuit over former Missouri Gov. Eric Greitens’ use of the self-destructing text message app Confide, according to records reviewed by The Star.
The price tag of the still-ongoing litigation is chiefly the result of the governor’s office negotiating its own contract with a law firm in March 2018 – largely bypassing a legal expense fund designed to keep litigation costs down.
A spokeswoman for Gov. Mike Parson, who took over after Greitens resigned last year, said the agreement with the Bryan Cave law firm in Kansas City was negotiated by the previous administration.
“We inherited this case with these contracts and agreements already in place,” said Kelli Jones, Parson’s communications director.
Nearly half of the legal expenses in the Confide case were paid after Parson became governor in June 2018. In addition to the $340,000 from the governor’s office, an attorney for Bryan Cave was paid $26,000 by the attorney general’s office, which administers the state legal expense fund.
Jim Layton, a former state solicitor general who spent 22 years in the Missouri Attorney General’s Office, said it’s unusual for private attorneys to be paid by a state agency and by the legal expense fund at the same time.
“I don’t recall that ever happening,” he said.
Mark Pedroli, a St. Louis County attorney who brought the lawsuit against the governor’s office over Confide use in 2017, said he thinks the situation looks like an attempt to hide the real costs of the litigation from taxpayers.
“This is exactly what government obstruction looks like,” Pedroli said, “and as you can see it’s quite expensive.”
The Star first revealed in late 2017 that Greitens and his senior staff were using Confide, an app that automatically deletes a text message after it has been read.
The use of the app alarmed transparency advocates, who feared it could be used to skirt the requirements of Missouri’s Sunshine Law.
It was later determined that nearly every member of Greitens’ staff, including the governor himself, had a Confide account. Greitens admitted he used Confide to communicate with aides, but denied he or his office violated any laws.
Pedroli filed a lawsuit shortly after The Star’s story, alleging a conspiracy to evade the state’s open records laws.
The attorney general’s office normally defends a state agency when it is sued. But then-Attorney General Josh Hawley was in the middle of his own investigation into Greitens’ Confide use.
Because of that conflict, the attorney general’s office agreed to allow the governor to be represented by a private attorney.
In March 2018, the attorney general’s office entered into an agreement with Robert Thompson, an attorney at the Bryan Cave firm.
That agreement capped Thompson’s fees at $140 an hour and required pre-approval for any additional expenses.
Only Thompson was permitted to be paid through the legal expense fund, but he could seek assistance from other attorneys at his firm if he first obtained permission from the attorney general’s office.
That same month, Bryan Cave entered into a separate agreement with the governor’s office. Two other attorneys were brought on to the case, with the governor’s office agreeing to pay the firm $370 an hour.
The attorney general’s office said in an email to The Star that it took no position on the governor’s office decision to pay private attorneys out of its own budget, but it is not aware of any legal prohibition against the arrangement.
A Cole County judge recently dismissed the Confide-related counts in Pedroli’s lawsuit, arguing that because the text messages were automatically deleted they were never officially retained—and therefore were not covered by the Sunshine Law.
But one count in the lawsuit was not dismissed, and Pedroli is currently seeking to question the governor’s custodian of records and former legal adviser under oath. He has also not ruled out appealing the judge’s dismissal of the other counts.
The Star requested invoices submitted by Bryan Cave for Confide litigation from the attorney general’s office and the governor’s office.
Attorney General Eric Schmitt, who took over in January after Hawley was sworn in as a U.S. Senator, quickly turned over 42 pages of documents showing Thompson was paid roughly $26,000 out of the legal expense fund.
Schmitt’s office did not have access to any invoices billed to the governor’s office.
The governor’s office responded to The Star’s request three weeks later, saying they did not have any invoices to provide.
Jones, Parson’s communications director, said a member of the governor’s office legal team reviews the invoices for accuracy before giving the Office of Administration approval to pay them.
The Office of Administration, which handles contracting and billing for the state, eventually provided The Star with records showing three payments were made to Bryan Cave in the months before Greitens resigned that totaled roughly $178,000.
That spending was briefly mentioned last month in a routine audit of Greitens’ tenure as governor by Missouri Auditor Nicole Galloway.
After Parson became governor, records received from the Office of Administration show Bryan Cave received 13 payments totaling roughly $161,000.
That money came out of the governor’s office budget earmarked for “professional services.”
Asked why the governor’s office entered into its own agreement instead of having its lawyers seek approval from the attorney general to bill the legal expense fund, Jones said “we cannot speculate as to the thought process with the previous administration in the governor’s office and the (attorney general’s office) when they made these agreements.”
Layton, the former solicitor general for the attorney general’s office under Democrats Jay Nixon and Chris Koster, said paying for attorneys out of the governor’s office budget could get tricky, “because at some point the payments will start to affect the ability to fund other work or pay other employees.”
Michael Wolff, former chief justice of the Missouri Supreme Court and dean emeritus of Saint Louis University Law School, wondered whether the governor would be catching flak for using money budget to the office for private attorneys if he were a not a Republican.
“What if the legislative leaders were of a different party than the governor?” Wolff said. “They might see the governor’s action as an evasion of their carefully designed appropriation and authorization process. And would they be raising hell?”
Pedroli said he’s not surprised at how much Greitens spent to defend Confide use, since at the same time he was being sued he was also facing criminal charges and the threat of impeachment.
“But what raises eyebrows now,” Pedroli said, “is Parson is still paying Greitens’ private attorneys to fight to make burner apps for official government communications untouchable under the Sunshine Law.”