UPDATE: This article was updated with comments from Presiding Commissoner Jerry Nolte.
Editor's note: This article will be updated with additional comments the County, Galloway and Presiding Commissioner Jerry Nolte as they are received by the newsroom.
The State Auditor released a statement today, which said Clay County refused to answer questions from auditors as required by a subpoena issued more than two weeks ago.
According to a statement issued by Clay County, the Assistant County Administrator appeared for her deposition today, but Clay County’s legal counsel learned just before the hearing was to begin non-attorney staff from the State Auditor’s office would be conducting the questioning.
On Nov. 22, State Auditor Nicole Galloway issued a subpoena demanding records and testimony associated with a citizen-mandated audit of Clay County.
Galloway's office said during today's deposition, counsel for Clay County would not allow Assistant County Administrator Nicole Brown to answer questions asked by audit staff.
"Under state law, the auditor or her authorized representatives have the authority to take testimony of auditees under oath," she said. "In every audit, audit staff request documentation and question auditees as part of the audit process."
Missouri Revised Statutes Section 29.235 outlines the authority of auditor and authorized agents.
"Insofar as necessary to conduct an audit under this chapter, the auditor or the auditor's authorized representatives shall have the power to subpoena witnesses, to take testimony under oath, to cause the deposition of witnesses residing within or without the state to be taken in a manner prescribed by law, and to assemble records and documents, by subpoena or otherwise," the statute states. "The subpoena power granted by this section shall be exercised only at the specific written direction of the auditor or the auditor's chief deputy."
County officials said having non-attorney staff lead questioning during a deposition raised legitimate concerns over whether doing so would violate state law which prohibits non-lawyers from practicing law in Missouri.
"Taking a deposition is generally something that only an attorney can do except in situations involving a pro se (representing one’s self instead of having an attorney) litigant."
Clay County officials said In an effort to resolve the question, Clay County’s counsel contacted the Missouri Bar’s ethics counsel seeking guidance, but could not speak with anyone from that office before the Auditor’s counsel and staff opted to depart.
After the resolution of this issue, County staff will work with Galloway to reschedule the deposition, the statement said.
Galloway's office said to avoid further delay, they will now take Clay County to court for a second time to demand compliance.
"The county's unwillingness to cooperate with the citizen-mandated audit requires the State Auditor's Office to continue to evaluate available audit resources and legal options in order to ensure citizens get answers," Galloway's office said.
County officials said their staff continues to work with Galloway in other areas "and has produced virtually all information requested by her office, including more than 100,000 pages of documents in 2,500 files."
"This satisfies nearly all of the Auditor’s requests aside from information that is protected by attorney-client privilege or protected employee medical and personnel records," the statement said.
Presiding Commissioner Jerry Nolte said he thinks the continuation of issues with this audit should end.
"The citizens of Clay County demanded this audit and it is well past time for that process to begin," he said. "After a year of delays and legal wrangling, the patience of the people is running thin. This process must move forward."
Updates to this developing story will be provided as they become available.