The Clay County Commissioners recently filed a lawsuit against the State Auditor’s office asking for a judge’s decision regarding requests for information that county officials said could put taxpayers at risk.
Eastern Commissioner Luann Ridgeway said the requests put the county in a no-win situation. She said State Auditor Nicole Galloway requested blanket access to all minutes of the commissioner’s executive sessions. If released to Galloway, Ridgeway said they may have to release the minutes, which sometimes includes employee’s personal information and attorney-client privileged information, to anyone who asks.
“We’re boxed in. If we release them to her, we risk all these other downsides,” she said. “If we don’t release
them to her, we risk what already happened.”
Steph Detrick, press secretary for Galloway’s office said the office cannot comment as to the specifics of the audit. However, she said she described the requested information as being similar to what the office routinely requests and receives during the audit process. Ridgeway said just because Galloway described the requested information as standard does not make it constitutional.
In a press release issued by Galloway’s office, Galloway said Clay County officials have not cooperated with her office.
“Within the first six weeks of this process, my team has encountered delays, roadblocks and evasive responses that make it challenging to complete audit work in a cost-effective way on behalf of the taxpayers of Clay County,” Galloway said. “My auditors are requesting basic information, and there is no reason why it should be this difficult. Citizens asked for an audit of their government because they wanted answers about the operations of their county. I will use the full authority of my office to ensure they get the answers they deserve.”
Ridgeway said she believes the press releases issued by Galloway to be misleading.
“I think her press releases were deceptive because she didn’t really get to the true issue,” she said. “Which goes to the constitutionality of her request and the demand that we turn over information that exposes our public employees to a gross invasion of privacy that’s already HIPPA protected, but also personnel matters are protected by the Missouri Sunshine law.”
Joe Hatley with Spencer Fane LLP Law Firm, which acts as outside counsel for the county said he agrees. If the county waives the attorney-client privilege for Galloway, they waive it for all communication related to the case, he said.
Ridgeway said any smart trial lawyer would request the information to see any information related to their client. For example, she said, if the county wanted to settle a lawsuit, they discuss the maximum settlement they will authorize. If that information becomes available to the public, they will not be able to settle for less. This could be very damaging for the taxpayers. However, if they seek a declaratory judgment, the judge will decide what they must turn over to Galloway and they will not be required to waive their attorney-client privilege.
“Then we’re obliged to follow a court order, but we did not waive attorney-client privilege, we are following a court order,” she said.
Presiding Commissioner Jerry Nolte said he requested copies of three contracts discussed during one of the Commission executive session meetings and have not yet received them.
“That’s not something I should have to sunshine,” he said.
He said he currently works to request them under Missouri Sunshine Law and sees how Galloway could see some in the county as being uncooperative.
He said he submitted a resolution to the commission’s discussion agenda for the Feb. 11 meeting.
“The Clay County Commission encourages and authorizes present and former employees of Clay County to cooperate fully in the citizen-initiated and lawful audit of the county by the Missouri State Auditor’s Office, consistent with applicable laws. Any employee or former employee interviewed by Missouri State Auditor’s Office should always be truthful, cooperative and polite. Interviews with county employees by the state auditors should be conducted in a confidential setting without supervisors present to alleviate any potential concerns of retaliation,” the resolution said in part.
Nolte also said he plans to discuss the handling of press releases issued on behalf of the Commissioners. He said he decided to submit the resolution after not receiving press releases until after the county submitted them to the press.
Ridgeway said another concern involves Galloway’s blanket request of Assistant County Administrator Nicole Brown’s email. Brown said her co-worker Lorie Portwood handles financial functions. Brown said she supervises approximately 85 full and part-time county employees. During peak employment time, she also supervises approximately 75 temporary employees. Those employees email Brown personal information concerning their job, Brown said.
“Their concerns come to me about their health, (and) their safety on the job,” she said. “They might report bullying from external sources from the organization. Those I fell just as much of a burden to protect as I do medical information or other private concerns because of the retaliation.”
Nolte said he did not believe Galloway’s office would release the information.
“I would think that they would be legally bound to keep that in confidence.
Ridgeway said she believed the information if released to Galloway, would have to be released to anyone who asked.
Nolte said he spoke to attorneys who do not agree with that assessment.
“Not being an attorney it’s hard for me to actually say with any certainty, but these are attorneys who have nothing particularly to gain or lose from this transaction,” he said.
Ridgeway said her main concern involved what she said she believes Galloway overstepping her bounds as described in the Missouri State Constitution.
In Article IV, Section 13 of the Missouri Constitution, Ridgeway said Galloway’s authority does not extend to matters beyond financial matters.
“No duties shall be imposed on him/state auditor by law which is not related to the supervising and auditing of the receipt and expenditure of public funds,” the statute reads in part.
Missouri law does not allow Galloway to undertake performance audits as Galloway describes, Ridgeway said.
Hatley said he agrees and the state constitution gives Galloway a narrow set of powers, which would not include a performance audit.
Ridgeway said Galloway’s comments regarding the Clay County government given in an interview with WDAF-TV Channel 4 in March 2018 also concerns her.
In a letter issued to Galloway, Lowell Pearson of Husch Blackwell, council for the county said during the interview, Galloway’s comments reflected an inappropriate pre-judging of the potential issues.
“It is clear that there are questionable activities,” the letter quotes Galloway as saying. “I don’t think that a
taxpayer or citizen would need an audit to know that that’s ridiculous as wasteful. I think the information that you have provided, information that … um, I am aware of through the citizen petition and others. There are a lot of concerns generally about how Clay County government is operating and how it is serving citizens.”
Ridgeway said Galloway made these comments after hearing only one side of the story. The letter asked Galloway and her office refer all Clay County matters to an external accounting firm permitted in Missouri by the State Board of Accountancy. Nolte said he did not know that Galloway would be biased in Clay County, but law existed to take care of that issue if it exists. He said he openly agrees with the audit and other county officials have not asked him to recuse himself from any votes concerning the matter.
Ridgeway said she believed Galloway’s statement show more than what would be required for a change of judge in a court case.
“We have a mechanism in (the law) that if a judge that has shown presidential in any may or may have an interest in that case, we can automatically just move for a change of judge by right,” she said. “You’re even given one change of judge for no reason at all.” Nolte said he remains concerned about what he describes as a lack of transparency concerning the audit “If it’s not transparent to me, how on earth can it be transparent to anyone else,” he said.