Independence Examiner, Thursday 06/13/03

More bar complaints filed in Sunshine Law case

by James Dornbrook
The Examiner

Believing administrative officials and legislators are dragging their feet, hiding records and outright refusing to cooperate, Robert WitbolsFeugen has decided to seek justice elsewhere.

WitbolsFeugen has filed bar complaints against three attorneys connected to Jackson County government. Complaints were filed against former County Counselor Jane McQueeny; Deputy Counselor Kathleen Kedigh; and Michael Hunter, chairman of the Hearing Committee for the Office of Human Relations and Citizens Complaints.

A little background

The complaints stem from the Turner vs. Garcia case, where the Jackson County Office of Human Relations and Citizen Complaints and its director, Deborah Tircuit, were found in violation of the Missouri Sunshine Law. Circuit Court Judge Thomas Clark ruled the Commission had illegally closed a meeting and Tircuit had violated open records rules.

The ruling also found Tircuit, Hunter and OHRCC Chairman Gregory Gerstner had purposely violated the law and fined them about $500 total. Judge Clark did not assess the guilty parties with the Plaintiff's attorney fees. As a result, WitbolsFeugen and Karen Turner were stuck with over $35,000 in legal bills.

In his ruling, Judge Clark stated his agreement with arguments made by defense counsel which included McQueeny and Kedigh that it would be difficult to find people to become members of the commission if the legal bills were assessed. Nothing was mentioned of the fact that the county would take care of any fines and penalties assessed, because the commissioners are considered county employees.

Ruling questioned

WitbolsFeugen found the ruling unacceptable, but couldn't afford the estimated $10,000 it would cost in attorney fees to launch an appeal. He instead attempted to ask Jackson County Executive Katheryn Shields to investigate whether the county counselor's office intentionally misled Judge Clark. Shields refused to meet with WitbolsFeugen, telling him she could not discuss the case because it involved the county, and there were still unsettled post trial motions.

Earlier this year, Shields reappointed Hunter and Gerstner to the commission, disregarding the violations of the Sunshine Law. She also disregarded how Gerstner, chairman of the commission, has only attended 16 of the 48 meetings held over the last four years. The appointments could not be rejected or debated by the Legislature, since the County Charter does not grant this power regarding appointments to the OHRCC.

Giving up on the administration, WitbolsFeugen asked the Jackson County Legislature to review decisions made by the OHRCC, look into possible improprieties by the County Counselor's Office and pay the Plaintiff's attorney fees.

In Sept. 2002, legislators paid $6,000 for an independent legal opinion on WitbolsFeugen's request, but to date, there has been no public discussion of this opinion or any action taken.

WitbolsFeugen decided the only course of action he had left was bar complaints.

"The reason I had to pursue the bar complaints is I believe the behavior of these attorneys was unethical and influenced the outcome of the judge's decision," said WitbolsFeugen. "If the judicial system is to work, someone has to address those type of influences on the decisions that are made. It's the same reason referees are responsible for reviewing activity on a football field that could affect the outcome of a game."

The McQueeny complaint

The complaint against Jane McQueeny was filed first in Sept. 2002. It is partly based on McQueeny's actions in that case, which WitbolsFeugen believes constituted a conflict of interest. He also is asking for a ruling on whether McQueeny knowingly misinformed Judge Thomas on the county's ability to pay fines and penalties imposed on her clients.

To support his claims, WitbolsFeugen submitted affidavits from Victor Callahan, former Chairman of the Jackson County Legislature, and the late Bill Petrie, who represented the 2nd District At-Large.

After the complaint was filed, McQueeny called it unfounded. She submitted affidavits in her defense from Hunter, Gerstner and Sheriff Tom Phillips.

McQueeny has submitted a response to the complaint to the Disciplinary Counsel. WitbolsFeugen has sent his reply to that response. The Disciplinary Counsel is expected to argue the case by the end of June or sometime in July.

The particulars of the arguments being presented by both sides are unknown, since the complaint is considered confidential.

The Kedigh complaint

WitbolsFeugen filed his next bar complaint against Kathleen Kedigh in November 2002. The basis is that WitbolsFeugen believes Kedigh intentionally misrepresented her clients' fiscal responsibility for fines.

To date, the Disciplinary Counsel has not accepted the case. Instead, WitbolsFeugen was told that a statement from Judge Clark was needed before the complaint could move forward. WitbolsFeugen attempted to get this statement, but Judge Clark refused.

"Ethically, I can only testify if I've been issued a subpoena by the Disciplinary Counsel or by a party to the case. If I would respond without a subpoena, I risk having a complaint filed against me or violating my ethics," said Judge Clark. "If they subpoena me, I will be glad to respond to anything they want to discuss."

The situation has created a dilemma for WitbolsFeugen, because he can't issue a subpoena himself unless the case is accepted and the Disciplinary Counsel has refused to issue its own subpoena. In effect, the complaint is being killed by inaction. WitbolsFeugen said he believes Judge Clark and the Disciplinary Counsel are derelict in their duties for not investigating the complaints against Kedigh.

Judge Clark was asked why he didn't re-examine his decision once he learned the defense clients would have their fines paid by the county. He had 30 days to re-examine his decision once the county submitted a payment for the fines assessed against Gerstner, Hunter and Tircuit. However, Judge Clark never made a ruling on whether the payment from the county satisfied the judgment. The result was the money being automatically accepted after a certain length of time. In the process, the time period for re-examination also expired.

"I stand by the record that was made during the court proceedings," said Judge Clark. "I did the best I could on (Turner vs. Garcia) when I had it."

The Hunter complaint

WitbolsFeugen filed a complaint against Michael Hunter in May 2003. This complaint alleges Hunter met behind closed doors with Jane McQueeny, without the opposition present, while the hearing of WitbolsFeugen's case before the OHRCC was still active. WitbolsFeugen said Hunter was acting in his capacity as chairman of the OHRCC Hearings Committee at the time of this alleged meeting and, in effect, did not share information pertaining to the case with both parties. WitbolsFeugen also alleged that Hunter allowed hearsay testimony to be entered on behalf of the defense.

Hunter said he has not seen the complaint and, therefore, can not comment on it at this time. Also, since it has only recently been filed, the Disciplinary Counsel has not had a chance to accept or reject the complaint.

To reach James Dornbrook e-mail or call 350-6322.
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