Galloway didn’t investigate Greitens transparency issues, baffling advocates
Nicole Galloway has made government transparency a focus of her tenure as state auditor, as well as a signature issue in her 2020 campaign for governor.
Her audits regularly key in on Sunshine Law issues in state and local government, and she never misses an opportunity to tweak her likely 2020 rival, Republican Gov. Mike Parson, when his office appears to be obfuscating.
Which is why government transparency advocates are baffled over Galloway’s decision to ignore the litany of possible Sunshine Law transgressions during her recent audit of former Gov. Eric Greitens.
The more than a year Galloway’s office spent conducting its close-out audit of Greitens’ office was a huge missed opportunity to shed light on possible wrongdoing, said David Roland, director of litigation at the Freedom Center of Missouri, a libertarian nonprofit that advocates for government transparency.
And with Galloway still working on an audit of former Attorney General Josh Hawley – who has faced similar Sunshine Law accusations – advocates say it’s a troubling sign.
“If the auditor’s office had provided a snapshot of how the governor’s office has been handling these issues, then that would have been very useful information for citizens,” Roland said. “The auditor’s office has access to information that ordinary citizens could only hope to get.”
It’s like an athlete looking at game film, Roland said, “to see what you could be doing better. And that’s exactly what we should be doing with public offices. Bringing that information to the public would have been a very useful thing.”
In an interview with The Star, Galloway said her office decided against looking into Greitens use of the self-destructing text message application Confide because it was the subject of ongoing litigation. Asked whether any Sunshine Law compliance issues whatsoever were investigated , she said she would need to check with her staff.
Her office later confirmed it made no such inquiry, and declined to explain the decision.
“I am not going to stretch the responsibilities of my office, because that is not appropriate,” Galloway said when asked about criticism of her decision not to look into the Confide issue. “I am more interested in what the state can do moving forward.”
Self-destructing text messages
Greitens’ penchant for secrecy is well documented, from requiring members of his taxpayer-funded transition team to sign gag orders banning them from discussing their work publicly to his office’s habit of charging massive fees for public records while taking months to turn them over.
But the issue that garnered the most attention, and is still subject to ongoing litigation, was the office’s use of Confide, an app that automatically deletes messages after they’ve been read.
After The Star revealed Greitens and his staff used the app, a lawsuit was filed in Cole County circuit court accusing the governor’s office of conspiring to subvert Missouri’s open records laws.
Much of the lawsuit was dismissed in July, but one count remains open, and two former Greitens staff members were recently deposed by the attorney who brought the lawsuit, Mark Pedroli.
So far, the state has paid private attorneys more than $360,000 to defend Greitens’ use of Confide. A large portion of the cost was paid after Parson took over following Greitens resignation under threat of impeachment and felony charges in June 2018.
Galloway’s close-out audit included a passing reference to the cost of the litigation. But she said the lawsuit precluded her from trying to determine if the governor and his staff were using Confide to avoid complying with the Sunshine Law.
“We don’t look at those matters under litigation in our audits,” she told The Star. “This is part of the government auditing standard regarding ongoing legal proceedings.”
Pedroli, co-founder of the Sunshine and Government Accountability Project, said he believes Galloway’s reasoning is a misunderstanding of the standards.
Those standards caution auditors from interfering with “investigations or litigation undertaken by other government authorities,” Pedroli said. But, he said, they allow auditors to “work with the other investigation or litigation.”
Galloway had the authority to finally get answers about Confide use, Pedroli said, in a way that his lawsuit has thus far been unable to.
“Where my hands were tied with limited subpoena power,” Pedroli said, “the state auditor’s hands are not tied.”
Pedroli hopes Galloway doesn’t follow the same strategy with her audit of the previous attorney general, whose former chief of staff also had a Confide account and where use of private emails by government employees triggered a lawsuit by Democrats.
Pedroli is also involved in private email lawsuit against the attorney general’s office.
Galloway’s spokeswoman told The Star that since the closeout audit of the attorney general’s office is ongoing, “we cannot comment on those details.”
During her interview with The Star, Galloway repeatedly pointed out that it is the attorney general’s office, not the auditor, who has the responsibility to enforce the state’s Sunshine Laws.
Hawley did look into Greitens’ Confide use, but the investigation was widely panned as half-hearted.
The current attorney general, Eric Schmitt, has caught flak from Democrats for ending a Sunshine investigation of Greitens’ social media use launched under Hawley and refusing to weigh in on whether the Missouri House was violating the Sunshine Law by withholding certain records.
Schmitt publicly condemned the governor’s office for citing the First Amendment of the U.S. Constitution as justification to withhold certain public records, but Parson’s office still regularly redacts the same information. It just stopped citing the First Amendment.
Chris Nuelle, Schmitt’s spokesman, said the attorney general’s office is “dedicated to protecting and enforcing the law that ensures Missouri government is open to its citizens.”
Nuelle said the attorney general has filed two Sunshine Law lawsuits since Schmitt took over in January, less than Hawley but more than the entirety of Democrat Chris Koster’s eight years as attorney general.
Roland says in his experience state government seems to be “largely washing its hands of the issue, leaving it to private citizens and private litigators enforce the Sunshine Law.”
Banning Confide
While Galloway didn’t look into the use of self-destructing text apps in the Greitens administration, she has been vocal in her belief that they should be banned from government.
She recently issued an open letter to local governments calling on them to ban these apps in their official records retention policies. She followed that up with a letter to Missouri’s other statewide officials asking them to join her in supporting a ban.
She said she hopes the legislature will revise the Sunshine Law when it returns to Jefferson City in January to bar use of these apps for public business.
“The Sunshine Law was written 45 years ago, and so it should be modernized,” Galloway told The Star. “Self-deleting applications should be prohibited under the law.”
She is also critical of the still-rising cost of the ongoing Confide lawsuit to taxpayers, saying that the state shouldn’t be defending the use of disappearing texting apps.
“There are better ways to spend that money,” she said.
Galloway faced her own accusations of deleting text messages in 2017, when a conservative nonprofit connected to Greitens sued her office alleging its practice of erasing text messages every 30 days violated the Sunshine Law.
The lawsuit was eventually dismissed, and the auditor’s office at first stopped erasing texts and eventually changed its record retention policy to prohibit texting on government phones altogether.
Since July, the auditor’s office says no staff member has been able to send a text message from their official government phone because those functions have been disabled.
Yet for Roland, the lack of inquiry into Greitens’ alleged Sunshine Law transgressions is another example of private citizens being forced to ensure government transparency laws are followed.
“These are difficult, lengthy cases to take on, and there aren’t enough of us focusing on these cases on a pro bono basis to go around,” he said. “Anyone who takes on this type of litigation, it’s a wing and a prayer hoping they won’t be out tons of money fighting for government transparency.”
This story was originally published November 27, 2019 at 5:30 PM.
