Missouri agency ordered to pay almost $200,000 for Sunshine Law violations

Attorney fees award handed down in lawsuit filed in 2009 over unionization of home care attendants

By: - September 27, 2021 5:50 am

The Cole County Courthouse in Jefferson City (Tessa Weinberg/Missouri Independent).

More than 10 years ago, a Cole County judge decided that “knowing” violations of the Missouri Sunshine Law by a state agency should be punished by awarding fees to the attorneys who prosecuted the violations.

Last week — two judges and two state attorneys general later — Circuit Judge Cotton Walker finally ordered the Missouri Quality Home Care Council to pay Integra Healthcare nearly $200,000.

Of that, $108,789 was for the work done by Integra’s attorneys from the date of the original filing in 2009 until Senior Judge Byron Kinder decided in August 2011 that the violations were egregious enough to warrant the fees.

Walker added another $76,889 for “the effort to obtain fees” in the intervening decade.

The award doesn’t seem unusually large, considering the costs of running a big law firm, but any award of attorney fees in Sunshine Law cases is rare, said Jean Maneke, who advises the Missouri Press Association on Sunshine Law issues.

Maneke said she can “count all the cases with fee awards on my fingers and toes.”

A government agency that knowingly violates the Sunshine Law by closing records or meetings that should be open can be hit with a civil penalty of up to $1,000. For a purposeful violation, the penalty can be as much as $5,000. An award of attorney’s fees is discretionary in cases of a knowing violation and mandatory when the violation was purposeful.

The litigation was protracted for several reasons, including attempts to settle the amount through negotiation, said Harvey Tettlebaum, one of the attorneys who handled the case.

“You prefer to settle rather than take your chances,” Tettlebaum said.

The case began when Integra Healthcare, a provider of home care services, raised objections to the process for selecting a union to represent home care attendants. A ballot measure approved in 2008 authorized attendants across the state to form a single local for collective bargaining purposes and set up the Missouri Quality Home Care Council to act as the employer for the purpose of negotiating pay and other working conditions.

The attendants help Medicaid-eligible people with disabilities in housekeeping and other needs and are employed by providers who receive payment from the state for their services. Promoters of the ballot measure wanted to have uniform payment rates for the attendants scattered throughout the state and working for numerous companies.

Integra’s lawsuit, filed in late July 2009, made a number of allegations against the State Board of Mediation, which conducted the union election, and the council, including the Sunshine Law complaint.

The lawsuit’s complaints about the conduct of the election were mirrored in other litigation. An election held in the summer of 2009 was overturned and a new election ordered.

When Kinder, who retired in 2013, ruled in Integra’s favor on the Sunshine Law complaint, he denied their other counts as moot because of the other litigation.

Lowell Pearson, an attorney representing Integra, sent a request for records to the council on July 7, 2009. On July 16, six days after the three-day limit set by the law for responding to records requests, Chairman Bruce Lynch wrote that the council had met once and “there is none of the information you requested in existence.”

Between the time of the request and the response, Lynch assured the Department of Labor and Industrial Relations Council that he was aware of all the provisions of the Sunshine Law. But he did not search for any records, did not forward the request to any other agency that may have records.

The record shows “numerous documents responsive to Integra’s request” should have been provided, Walker wrote.

“Mr. Lynch did nothing to determine if any member of the council, any staff who worked for a member of the council, or any other human being connected to the council in any way had any responsive documents,” Walker wrote in his order.

The $185,671 bill approved by Walker could grow, Tettlebaum said. The order only pays for the costs up to the May 14 hearing on how much the firm was due, which means additional filings to recover costs for the hearing and work done since that time, he said.

If Attorney General Eric Schmitt’s office decides to appeal and is unsuccessful, the bill would increase further. The attorney general’s office had not provided a statement about the order or its response by publication time.

There is no one thing to blame for the time consumed by the lawsuit, Tettlebaum said.

For about three years after Kinder’s initial ruling, the state tried to get the order for attorney fees overturned. Turnover had an impact as well, he said.

When the case was filed, Chris Koster was attorney general. He was succeeded  by Josh Hawley in January 2017. Schmitt was appointed in January 2019 after Hawley moved to the U.S. Senate.

In the meantime, Circuit Judge Patricia Joyce, who took over the case from Kinder in 2012, retired at the end of 2020 and Walker got the case.

The decision on the amount was left to Walker after settlement talks reached an impasse, Tettlebaum said.

The award represents one of the firm’s largest recoveries in a Sunshine Law case, Tettlebaum said.

“This is not the first case we’ve been involved in but it is one of the bigger ones,” he said. “It is quite a lot.”

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Rudi Keller
Rudi Keller

Rudi Keller covers the state budget and the legislature. A graduate of the University of Missouri School of Journalism, he spent 22 of his 32 years in journalism covering Missouri government and politics for the Columbia Daily Tribune, where he won awards for spot news and investigative reporting.