Independence Examiner, Thursday 02/07/02

A storm over Sunshine

By Darla McFarland
The Examiner

   Karen Turner and Robert WitbolsFeugen should learn this week if pursuing Sunshine Law violations at Jackson County will cost them a small fortune.

   Circuit Court Judge Thomas Clark must decide who will pay $33,000 in legal bills incurred by Turner and WitbolsFeugen, who sued the county Office of Human Relations and Citizen Complaints.

   Clark could assess the cost to the county, even though the suit was filed against the OHRCC director and individual commissioners.

   Clark ruled earlier this month the commission violated the Sunshine Law by improperly closing meetings and withholding or delaying the release of public documents.

   The Missouri Sunshine Law, formally called the State Open Meetings and Records Law, aims to keep meetings and records of public bodies open to the public. It outlines when a meeting can be legally closed and the manner in which public records are supplied.

   State Auditor Claire McCaskill said the case illustrates a wide-ranging problem in Missouri. In 2000 an audit by her office found that 44 percent of the state's local governments and commissions surveyed did not properly respond to document requests under the Sunshine Law.

   "People need to realize that it is really a cornerstone of democracy. If the people that own government, the citizens, don't have access to the government's meetings and records, they cannot make informed decisions," she said.

   McCaskill said the Turner/WitbolsFeugen case is unusual because most citizens will not take on the legal and financial burden of pursuing Sunshine Law violations. This year's General Assembly may consider several Sunshine Law changes McCaskill is recommending, including making the government entity responsible for legal costs and stiffer fines if violations are found.

   "We need to insure that citizens have the right and the opportunity to challenge their government in this area," she said.

   The case may also force Jackson County officials to examine the responsibilities of citizen commissions.

   County Legislature Chairman Victor Callahan said the county must decide whether to pay the $500 in fines levied against the director and commissioners. He said commissioners should not be held financially responsible for their actions on behalf of the county and he laid blame on County Counselor Jane McQueeny.

   "These people (the commissioners) were, basically, volunteers acting on county business," he said. "I don't think it is fair to hold them personally liable for this. It was Jane McQueeny's responsibility to keep the commission informed of their responsibilities under the Sunshine Law. She failed."

   Callahan declined to say whether the county should pick up the plaintiff's legal bill, saying he would wait for the judge's decision.

   "I certainly sympathize with Bob WitbolsFeugen and everything he has gone through but we also have to consider the interests of the taxpayers," Callahan said.

   McQueeny would not comment on the payment of fines and legal fees saying she would await Clark's judgment. She defended her office's role in advising the OHRCC.

   "As the evidence in the lawsuit showed, (Assistant County Counselor) Jay Hayden met with the commission in November 1998 to do some training on (the Sunshine Law). He gave them copies of the statute and talked with them about it," she said. "It is a very complicated law. I think the commission did the best they could."

   Clark's decision will end a four-year struggle between Turner and WitbolsFeugen and the county that began with allegations of impropriety at the Sheriff's Department. The lawsuit revealed only part of the story.

Little girls lost

   The case began in October 1997 when the body of 18-year-old Anastasia WitbolsFeugen was found in the Lincoln Cemetery in Blue Summit. She had been shot in the head. Her boyfriend, 20-year-old Justin Bruton, the last person she was seen with, died of a self-inflicted gunshot two days later in Johnson County, Kan.

   At the time, Sheriff's Department investigators believed the case was a murder-suicide. Anastasia's father, Bob WitbolsFeugen, did not believe that story and kept pushing for the investigation to continue.

   Sometime in June 1998 Turner's daughter, Peige, heard information about Anastasia's murder. The two girls were friends.

   Peige, then 17, told her mother, and Turner contacted the Sheriff''s Department.

   With her mother's permission, Peige told Sheriff's Sgt. Gary Kilgore the name of a possible witness. Later, in questioning that witness, Kilgore revealed Peige as the source of the information.

   "I did agree to let Peige talk to Kilgore but I expected that they would protect her because she was a minor. I thought they wouldn't do that (reveal Peige's name) just out of common sense," Turner said.

   A few weeks later, the man Peige had named confronted Turner, angry that Peige had given his name to the police. As the months went on, Peige became frightened by what she called an intimidating attitude by acquaintances of both girls.

   In October 1998, around the anniversary of Anastasia's death, Peige began receiving death threats. Turner moved Peige out of the state for her protection.

   Sheriff Tom Phillips was a captain and assistant to Sheriff Jim Anderson when Turner filed her complaint. He said investigators often reveal the names of informants during an investigation. There is no rule against it and, in this case, no indication it would put Peige at risk, he said.

   "This was not a suspect. It was just another potential witness. He asked where we got his name, a lot of people want to know that," Phillips said. Phillips also said that Turner never expressed any concern about safety at the time Peige spoke with Kilgore.

   Turner says the department should have been more cautious because her daughter was a minor and it involved a violent crime.

A mother seeks answers

   Dissatisfied with the sheriff's explanations, Turner to the county's citizen complaints office. Director Deborah Tircuit said the agency handles about 130 complaints a year, resolving most without a commission hearing.

   In Turner's case, the agency investigator found the complaint justified but didn't recommend any action. Turner wanted the department to apologize and to develop a policy protecting minor informants.

   Turner requested a hearing before the commission. The agency asked her to submit a request for the specific remedies she sought.

   She repeated, in writing, her request for an apology and a policy change. This time, she also asked the county to compensate her for the expense of sending her daughter away and for her own lost wages in dealing with the situation.

   But, the commission was ill-prepared when Turner filed her case in January 1999. Since it began operation in 1973, the commission had never held a hearing and had no written hearing procedures.

   The commission turned for advice to the county counselor's office the legal counsel for county government and its commissions.

   The office, which represents the complaints office, was representing the Sheriff's Department in Turner's complaint.

   To avoid this possible conflict, County Counselor Jane McQueeny said, she withdrew her office from representing complaints office before the hearing. The counselor's office commission gave the complaints office a copy of hearing procedures used by the county Merit Commission for guidance.

   According to Turner's complaint file, commissioners received draft hearing procedures May 13, about two weeks before Turner's hearing.

   There is no indication the procedures were ever sent to Turner or her attorney. Turner says she never got anything in writing.

   There is evidence, however, that Turner requested several witnesses at her hearing including Capt. Phillips and Sgt. Kilgore. According to notes written in Turner's file by complaint investigator Gladys Holmes, Tircuit directed her not to send hearing notices to those witnesses. Holmes testified in court that she did not recollect that order.

   Only Sheriff Anderson appeared at Turner's hearing May 27. Turner was the only person sworn in to testify, though Anderson also spoke.

   The tone of the hearing was informal. Turner presented her case, supported by several documents. The county counselor and Anderson made statements and asked the commission to consider a transcript of a July 1998 conversation between Kilgore and Turner. The transcript was not entered into evidence at the hearing but was given to the complaints office during its investigation of Turner's complaint.

   That transcript, provided by the Sheriff's Department, indicated that Peige had not received any threats and that Turner did not want to pursue a complaint against the Sheriff's Department.

   Commissioner Michael Hunter testified during Turner's Sunshine Law case that the transcript was a major factor in the commission's decision. Turner claims the transcript did not accurately portray the conversation. She also said she never received a copy of the transcript in order to refute it.

   Turner also objected that she had no opportunity to cross-examine witnesses.

   The hearing adjourned with Hunter promising Turner a chance for rebuttal at a later date. Turner says she again asked for several witnesses but was later told by Tircuit she could present only written rebuttal.

   Between the hearing May 27 and the rebuttal July 22, commissioners Hunter and Gregory Gerstner met with McQueeny to discuss formal hearing procedures. The commissioners said during the trial that the meeting concerned general procedures and did not impact the Turner case.

   A major issue in Turner's Sunshine lawsuit was the preparation of her rebuttal. Turner said she repeatedly asked the complaints office for a copy of the sheriff's transcript but never received it. Complaints office staff testified the document was in Turner's complaint file and she had access to the file.

   However, Judge Clark believed Turner and ruled that Tircuit had purposely violated the Sunshine Law by withholding that document and two others. He fined Tircuit $100 for records violations.

   Turner's rebuttal was presented at the commission's July 22, 1999, meeting. She was allowed to speak, though not all of the commissioners who attended the hearing were present. No witnesses appeared and the sheriff did not attend.

   The commission told Turner they would deliberate her case in closed session July 29. Under the Missouri Sunshine Law, "deliberations" is not a listed exception for closing a public meeting.

   During last month's trial, the commissioners testified that they did not know they were violating the law at the time. A Sunshine Law violation must be purposeful in order for the court to impose a fine. The plaintiffs argued that the commission had full knowledge of the Sunshine Law from Hayden's 1998 briefing.

   Clark's ruling split the difference. He found that all the commissioners present had violated the law by improperly closing the meeting but that only Tircuit and Hunter, as the presiding authorities, had purposefully violated it.

   The content of the July 29 deliberation is still unknown. No minutes or recordings were taken. The commission's decision, released in October 1999, ruled that Turner's complaint was not justified and recommended no action for the Sheriff's Department.

Let there be light

   Turner and WitbolsFeugen persisted in seeking documents from the complaints office pertaining to Turner's complaint. They allege the office, and particularly Tircuit, consistently denied access to documents.

   One specific charge was that Tircuit repeatedly denied them copies of audio recordings of the May 27 hearing. When Turner asked for copies, Tircuit told her to provide tapes for the duplicates, which she did. Then, during the trial, Tircuit testified she did not have the equipment necessary to duplicate the tape. Judge Clark ruled that Tircuit violated the Sunshine Law.

   In December 1999, Turner and WitbolsFeugen asked the Missouri Attorney General's office to investigate possible Sunshine violations. Assistant Attorney General James Klahr wrote to the complaints office requesting several documents and tapes. The County Counselor's office sent the items in January 2000.

   At the commission's Jan. 27, 2000, meeting, the commissioners again ran afoul of the law. They closed the meeting, as allowed, to discuss potential litigation concerning the attorney general's letter. But they did not post the required notice of a closed session 24 hours in advance.

   Klahr never pursued any charges against the commission for Sunshine violations. However, in March 2000 he made a presentation on the Sunshine Law to the commissioners and told them that in his opinion, they had violated the Sunshine Law.

   Turner and WitbolsFeugen filed a civil Sunshine Law suit in May of 2000. They were still pursuing the release of documents without success. Turner still felt that she and her daughter had been wronged by the Sheriff's Department.

   They filed suit against Deborah Tircuit, Michael Hunter, Gregory Gerstner and five other commissioners. One commissioner was dropped from the lawsuit because she did not attend any of the closed sessions. The lawsuit did not name Jackson County or the agency itself.

   They sought fines against the defendants in seven instances of alleged Sunshine violations and asked the court to overturn the commission's ruling on Turner's complaint.

   Ultimately, they got half of what they wanted. Clark ruled the commission had violated the law in four of the seven in stances. He ruled that Hunter and Gerstner purposefully violated the law for improperly closing meetings and fined them $100 each. The maximum could have been $500. Tircuit was found in purposeful violation for two closed meetings and several records requests. She was fined $300 total.

   Saying he would not second-guess the decision of a public body, Clark declined to overturn the commission's ruling in Turner's original complaint.

Left in limbo

   Turner will not see any money for her daughter's expenses unless she goes back to court and sues the Sheriff's Department directly. She said she will move out of state in March to join Peige.

   If Clark does not assess the legal costs to the defense, WitbolsFeugen has said he will take on the financial burden.

   The case also seems to be near its natural end. The man who was ultimately charged with Anastasia WitbolsFeugen's murder, Byron Case, is to go to trial in late April. Justice for Anastasia is more important than her own troubles, Turner said.

   "What Peige and I have gone through doesn't even compare to what Anastasia suffered and her family. That's the reason we did all this, that's why we talked to the police in the first place, is for Anastasia," she said.

   The Turner case has also forced some long-term changes at the the complaints office. The agency finally has formal hearing procedures and a document policy that complies with the Sunshine Law.

   The hearing procedures were adopted in January 2001. Under the new policy, the "attendance and testimony of any party necessary or helpful to the resolution of any hearing may be requested by any party."

   The director of the complaints office is responsible for notifying witnesses to appear. All parties will have the opportunity to question each witness.

   Turner is glad the agency has formalized its policies for the benefit of other citizens.

   "I would hate to think of any other mother and daughter having to go through what I did, so I guess it is positive in that respect."

To reach Darla McFarland e-mail or call her at 816-350-6321.

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