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IN THE COURT OF APPEALS EASTERN DISTRICT OF MISSOURI
F.W. DISPOSAL SOUTH, LLC, et al., ) ) Plaintiffs/Respondent ) No. ED90625 ) vs ) ) ) Circuit Court 04CC-02330 ST. LOUIS COUNTY COUNCIL, et at., ) ) Defendants/Respondents. ) ) SEMCO PLASTICS, INC., et. al, ) ) Proposed Intervenors/Appellants. )
______
BRIEF OF APPELLANT JOHN CAMPISI
ORAL ARGUMENT REQUESTED
______
STANGE LAW FIRM, L.L.C.
______KIRK C. STANGE, #49732 1750 S. Brentwood Blvd., Suite 401 St. Louis, Missouri 63144 (314) 963 - 4700 (314) 963 – 9191 – Fax [email protected] Attorneys for Appellant John Campisi 3 TABLE OF CONTENTS
TABLE OF CONTENTS ……………………………………………. 1-2
TABLE OF AUTHORITIES ………………………………………… 3-4
JURISDICTIONAL STATEMENT …………………………………. 5
STATEMENT OF FACTS …………………………………………… 6-10
POINTS RELIED ON ………………………………………………. 11-13
ARGUMENT ………………………………………………………. 14-30
I. The Trial Court erred in finding that the County Attorney made ….14-20 her settlement of the case involving a public agency “public upon signing” and hence did not violate the Sunshine Law because the County Attorney clearly failed to inform or obtain consent of the administrative agency she represented, failed to file any notice of or copy of the Settlement in the Court file and failed to notify the press or public of the settlement in that any sensible definition of the duty to make “public” a settlement of a public agency case would minimally include notice to the public agency to whom the attorney is responsible and include the Court file and the media on a matter of high notoriety and public controversy.
II. The Trial Court erred in refusing to apply any sanction under the…20-24 Sunshine Law for the County Attorney’s failure to make public the settlement of a public agency case because the Sunshine Law directly provides that a violation of that law should be voided if the sanction is consistent with the public good and such would be the situation in this case if remand to the agency occurred in that the agency which was the uninformed client should have the opportunity to correct its attorney’s unauthorized settlement act.
III. The Trial Court erred in finding that the County Attorney acted … 25-30 within her powers in entering into the Settlement Agreement because the St. Louis County Charter provides her no authority to settle without the St. Louis County Council’s approval in that the binding legal guidelines are that a public attorney must clear a settlement with the represented
1 government agency and the County Attorney did not obtain settlement authority from the St. Louis County Council in direct violation of her duty to her client as a public attorney.
CONCLUSION ……………….……………………………………….. 31
CERTIFICATE OF SERVICE …………………………………… …… 32
APPENDIX …………………………………………………………….. 33-45
2 TABLE OF AUTHORITIES
CASES PAGE(S)
City of Fairmont v. Hawkins, 304 S.E.2d 824 ………………… 27, 28, 29 (W. Va. 1983)
City of Seattle v. Dutton, 265 P. 729 (Wash. 1928) ………….. 27
City of Spring Valley v. Franckey, 150 Ill. App. 435 ………... 27 (2d Dist. 1909)
Columbus Gas & Fuel Co.. v. City of Columbus, ……………. 27 42 F. Supp. 762 (S.D. Ohio 1941)
De Muro v. Martini, 61 A.2d 230 (N.J. Sup. 1948), judgment .. 27 aff’d, 64 A.2d 351 (1949)
Jenkins v. City of Bowling Green, 88 S.W.2d (Ky. 1935) ……. 27, 2, 29
Librach v. Cooper, 778 S.W.3d 35 (Mo. App. 1989) ……..……14, 15, 16
Lorenz v. City of Florissant, 747 S.W.2d 222 (Mo. App. 1988).. 24
MacLachlan v. McNary, 684 S.W.2d 534 ………………………14, 15 (Mo. App. 1984)
Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)……………26
News-Press and Gazette Co. v. Cathcart, 974 S.W.2d 576……..16, 21 (Mo. App. 1998)
Nottingham v. City of Yukon, 766 P.2d 973 (Okla. 1988)..……. 27
Oakman v. City of Eveleth, 203 N.W. 514 (Minn. 1925)………. 27
State ex rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo. 2005) ……… 18
Tuft v. City of St. Louis, 936 S.W.2d 113, 116 (Mo. App. 1996)..16, 21
3 STATUTES
Mo. Rev. Stat. § 477.050 (2007) ………………………………. 5
Mo. Rev. Stat. § 536.140 (2007) ………………………………. 23
Mo. Rev. Stat. § 610.010(2) (2007) …………………………….15
Mo. Rev. Stat. § 610.011 (2007) ………………………………..14, 15, 18
Mo. Rev. Stat. § 610.021(1) (2007) …………………………… 14, 15, 17
Mo. Rev. Stat. § 610.027(1) (2007) …………………………… 16
Mo. Rev. Stat. § 610.027(5) (2007) …………………………… 20, 21, 22
Open Meetings and Records Act §§ 610.010 et seq. …………. 5 Mo. Rev. Stat. (2007)
OTHER AUTHORITY
Article V, Section 3, Missouri Constitution ………………….. 4
Ms. S. Ct. Rule 4-1.2(a) …………………………………………17, 26
Op.Atty.Gen. No. 30-88, Kelly, 8-4-88………………………….15
St. Louis County Charter § 5.030 ……………………………… 25
4 JURISDICTIONAL STATEMENT
This case involves an appeal from the St. Louis County Circuit’s Court’s
Order and Judgment dated November 21, 2007. (L.F. 145-146). The question is whether the Open Meetings and Records Act §§ 610.010 et seq. Mo. Rev. Stat.
(2007) (“Sunshine Law”) was violated when St. Louis County Counselor Patricia
Redington (“County Attorney”) 1 failed to make public the signing of a Settlement
Agreement of a case involving a public agency. This appeal also involves the question of whether the County Attorney had the authority to enter into a
Settlement Agreement with F.W. Disposal South, LLC, F.W. Disposal, L.L.C. and
Fred Weber, Inc. (“Applicant”), on October 25, 2007, when she never obtained settlement authority from the St. Louis County Council to enter into this agreement. The further legal question is what sanction is available is appropriate for such violation of the Sunshine Law.
As this appeal does not involve any of the issues reserved for the exclusive jurisdiction of the Missouri Supreme Court, jurisdiction lies in the Missouri Court of Appeals, Eastern District. Article V, Section 3, Missouri Constitution; Mo. Rev.
Stat. § 477.050 (2007).
1 The official title of the attorney St. Louis County is “County Counselor.” For convenience and clarity that person is referred to in this brief as the “County Attorney” to avoid confusion between the “County Counselor” and “County Council”, the legislative body whose administrative decision is under review.
5 STATEMENT OF FACTS
This controversy arises from the application by Applicant for a permit from
St. Louis County to establish a trash transfer station in Oakville in South St. Louis
County.
The St. Louis County Health Department, after public hearings (L.F. 50), denied the permit on September 22, 2003 rendering an adverse opinion in writing
(L.F. 84). The Applicant in due course appealed the adverse finding of the Health
Department to the St. Louis County Council (L.F. 21-22), which acts in administrative review of that finding (L.F. 15). After public hearings (L.F. 21-22), the County Council voted unanimously to deny the permit, rendering their adverse findings in writing on May 4, 2004 (L.F. 22, 86, 137).
Applicant then appealed the decision of the St. Louis County Council to the
Circuit Court of St. Louis County (L.F. 14).
On October 19, 2007, the Trial Court on summary judgment entered a
Judgment and Order in favor of the Applicant (L.F. 3, 95). The Trial Court ordered the permit for a trash transfer station to be issued in accordance with
Applicant’s original application [Exhibits E and E-1] (L.F. 169-629) as supplemented by Supplemental Exhibit Y (L.F. 631-663) (L.F. 99). The Trial
Court found that the administrative decision below [that the proposed facility
6 would have a negative environmental impact] was not supported by the evidence
(L.F. 98). The Trial Court further found that the evidence adduced showed that the proposed trash transfer station would not create an environmental detriment. (L.F.
98).
The Court noted that supplemental issues had been raised in the proceedings before it, which were incorporated by reference in Supplemental Exhibit Y (L.F.
98). Supplemental Exhibit Y includes documents dated May and June of 2007
(L.F. 631-663). The administrative decision under review by the Trial Court was issued in 2004 (L.F. 22, 86, 137). The Court ordered the County to issue the
License to Applicant in accordance with Applicant’s original Plan [Exhibits E and
E-1 L.F.169-629 ] as supplemented by Exhibit Y (L.F. 631-663)(L.F. 99).
On October 25, 2007, the County Attorney signed a Settlement Agreement with the Applicant (L.F. 133-134). Prior to entering into this Settlement
Agreement, the County Attorney did not disclose the judgment entered on October
19, 2007 to the St. Louis County Council (L.F. 136), nor did she inform the
Council or obtain consent to the Settlement Agreement (L.F. 136). The County
Attorney took the position that the Charter of St. Louis County gives her the power to settle and compromise cases involving St. Louis County as she deems prudent
(L.F. 139-140). In the Settlement Agreement, the Applicant agreed to dismiss its claims for damages against St. Louis County with prejudice and the County
7 Attorney waived forever all rights of the defendants [St. Louis County Council and
St. Louis County] to appeal the judgment of the Trial Court (L.F. 133-134). The
Settlement Agreement was not filed in the Court record (L.F. 3). On October 31,
2007, the Applicant filed its dismissal with prejudice of its Counts seeking damages (L.F. 3).
A leading critic of the proposed trash transfer station learned of the decision on November 8, 2007 from a comment by another County official (L.F. 136) and inquired by E-Mail to the County Attorney what had happened in the case (L.F.
136). The County Attorney informed him by E-Mail on November 9, 2007 that judgment had been entered and the case had been settled on November 2, 2007
(L.F. 135-138).
Movant John Campisi (“Appellant”) is the 6th District Councilman of St.
Louis County, representing the District in which the proposed trash transfer station would be located (L.F. 136). He and the other members of the County Council were never informed of the judgment of October 19, 2007 and were never consulted about or informed of the Settlement Agreement of October 25, 2007
(L.F. 136). Appellant learned of these developments only through the offhand information from another County official on November 8, 2007 (L.F. 136). He was forced to seek a copy of the judgment and Settlement Agreement on his own.
The County Attorney did not provide copies of the Settlement Agreement to the
8 members of the County Council. Appellant did not even see the Settlement
Agreement until November 14, 2007 [2 days before filing his Motion at issue in this case] (L.F. 137).
The Trial Court found that there was no violation of the Sunshine Law because the Settlement had been “made public upon signing” (L.F. 145) and, therefore, denied any relief under the Sunshine Law (L.F. 146). The Trial Court also found that the County Attorney acted within her powers as County Attorney, under the St. Louis County Charter Section 5.030.1, by entering into the Settlement
Agreement with Applicant, although she never obtained settlement authority from the St. Louis County Council. (L.F. 145).
After the discovery of the Judgment and settlement agreement, Intervenors
Semco, Inc. and Canaan Baptist Church, sought intervention on November 16,
2007 to appeal the summary judgment decision of the Trial Court (L.F. 127).
Semco, Inc. and Canaan Baptist Church are located adjacent to the site of the proposed trash transfer station (L.F. 108; 118). Semco, Inc. is directly across Old
Baumgartner Road from the site [Old Baumgartner Road is the western boundary of the site], about 300 feet away from the site (L.F. 118). Canaan Baptist Church is approximately 300 feet from the site along Baumgartner Road [the southern edge of the site] (L.F. 108). The Trial Court, in an order now marked a Judgment,
9 denied their Motion to Intervene as untimely (L.F. 678).
Appellant filed this appeal on November 30, 2007. (L.F. 159)
10 POINT RELIED ON
I.
The Trial Court erred in finding that the County Attorney made her settlement of the case involving a public agency “public upon signing” and hence did not violate the Sunshine Law because the County Attorney clearly failed to inform or obtain consent of the administrative agency she represented, failed to file any notice of or copy of the Settlement in the Court file and failed to notify the press or public of the settlement in that any sensible definition of the duty to make “public” a settlement of a public agency case would minimally include notice to the public agency to whom the attorney is responsible and include the Court file and the media on a matter of high notoriety and public controversy.
Mo. Rev. Stat. § 610.021(1) (2007)
Mo. Rev. Stat. § 610.027(1) (2007)
Mo. Rev. Stat. § 610.011 (2007)
Librach v. Cooper, 778 S.W.3d 351, 353 (Mo. App. 1989)
11 POINT RELIED ON
II.
The Trial Court erred in refusing to apply any sanction under the
Sunshine Law for the County Attorney’s failure to make public the settlement of a public agency case because the Sunshine Law directly provides that a violation of that law should be voided if the sanction is consistent with the public good and such would be the situation in this case if remand to the agency occurred in that the agency which was the uninformed client should have the opportunity to correct its attorney’s unauthorized settlement act.
Mo. Rev. Stat. § 610.027(5) (2007)
Lorenz v. City of Florissant, 747 S.W.2d 222 (Mo. App. 1988)
Mo. Rev. Stat. § 537.140 (2007)
12 POINT RELIED ON
III.
The Trial Court erred in finding that the County Attorney acted within her powers in entering into the Settlement Agreement because the St. Louis
County Charter provides her no authority to settle without the St. Louis
County Council’s approval in that the binding legal guidelines are that a public attorney must clear a settlement with the represented government agency and the County Attorney did not obtain settlement authority from the
St. Louis County Council in direct violation of her duty to her client as a public attorney.
Jenkins v. City of Bowling Green, 88 S.W.2d (Ky. 1935)
City of Fairmont v. Hawkins, 304 S.E.2d 824 (W. Va. 1983)
St. Louis County Charter § 5.030
Mo. S. Ct. R. 4-1.2(a)
13 ARGUMENT
I. The Trial Court erred in finding that the County Attorney made her settlement of the case involving a public agency “public upon signing” and hence did not violate the Sunshine Law because the County Attorney clearly failed to inform or obtain consent of the administrative agency she represented, failed to file any notice of or copy of the Settlement in the Court file and failed to notify the press or public of the settlement in that any sensible definition of the duty to make “public” a settlement of a public agency case would minimally include notice to the public agency to whom the attorney is responsible and include the Court file and the media on a matter of high notoriety and public controversy.
Missouri’s public policy provides that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Mo. Rev. Stat. § 610.011 (2007). Missouri’s Sunshine Law,
Chapter 610, reflects the state’s commitment to openness in government.
MacLachlan v. McNary, 684 S.W.2d 534, 537 (Mo. App. 1984). The Sunshine
Law is to be liberally construed and exceptions strictly construed to promote open government. Id.; MacLachlan at 537; Librach v. Cooper, 778 S.W.3d 351, 353
(Mo. App. 1989).
The Sunshine Law provides the following in pertinent part:
[A]ny minutes, vote, or settlement agreement relating to legal actions, causes of action or litigation involving a public governmental body or any agent or entity representing its interests or acting on its behalf or with its authority, including any insurance company acting on behalf of a public government body as its insured, shall be made public upon final disposition of the matter voted upon or upon the signing by the parties of the settlement agreement, unless, prior to final disposition, the settlement agreement is ordered closed by a court after a written finding that the adverse impact to a plaintiff
14 or plaintiffs clearly outweighs the public policy considerations of section 610.011 …
Mo. Rev. Stat. § 610.021(1) (2007). (emphasis added). Missouri case law also recognizes that settlement agreements entered into by a public governmental body must be open to the public under the Sunshine Law. See, Librach v. Cooper, 778
S.W.2d 351, 356 (Mo. App. 1989) (holding that Parkway School District had to make public a Settlement Agreement entered into with the former Superintendent).
Additionally, the Missouri Attorney General has found that settlement agreements entered into by public governmental bodies should be made public. Op.Atty.Gen.
No. 30-88, Kelly, 8-4-88.
The Sunshine Law defines a public governmental body to include:
Any legislative, administrative governmental entity created by the constitution or statutes of this state, by order or ordinance of any political subdivision or district, or by executive order, including any body, agency, board, bureau, council, commission, committee,.... of any political subdivision of the state, of any county or of any municipal government, ... any other legislative or administrative governmental deliberate body under the direction of three or more elected or appointed members having rule-making or quasi-judicial power, any committee appointed by or under the direction or authority of any of the above-named entities and which is authorized to report to any of the above-named entities....
Mo. Rev. Stat. § 610.010(2) (2007). A single member body may be a governmental entity for purposes of the Sunshine Law. MacLachlan at 535.
When a violation of the Sunshine Law is alleged, the judgment of the trial court is to be affirmed on appeal unless there is no substantial evidence to support
15 it, it is against the wait of the evidence, or it erroneously declared or applies the law. News-Press and Gazette Co. v. Cathcart, 974 S.W.2d 576, 578 (Mo. App.
1998). When a public settlement agreement is entered into, a government body bears the burden of persuasion to demonstrate compliance with the Sunshine Law.
Librach at 353; Tuft v. City of St. Louis, 936 S.W.2d 113, 116 (Mo. App. 1996).
The Appellant in this case, John Campisi, is a citizen, taxpayer of this State, and elected member of the St. Louis County Council (L.F. 136). Appellant brought his action to correct a violation of the Sunshine Law in the Circuit Court where the matter arose, as required by the Sunshine Law. Mo. Rev. Stat. §
610.027(1) (2007). His obligation and standing to challenge the violation of the
Sunshine Law are more compelling as he is a member of the St. Louis County
Council, which was not consulted or informed of the Judgment and Settlement at issue. (L.F. 136). Bringing this Motion before the very Trial Court where the offensive act occurred is a sensible and just economy of judicial time and gives that Trial Court most familiar with the case a chance to correct the error of non- compliance with the Sunshine Act. Regrettably, the Trial Court below denied
Appellant’s Motion (L.F. 146).
The actions of the County Attorney under review in this case constitute a direct affront to the letter and the spirit of the Sunshine Law, which requires that any settlement agreement of a lawsuit involving a public agency shall be “made
16 public ... upon signing.” Mo. Rev. Stat. § 610.021(1) (2007). In this case, the
County Attorney, a governmental entity, waived appeal rights and settled the case
(L.F. 133-134) without disclosure to or consent from the agency (L.F. 136) and adversely to the unanimous finding of the administrative agency whose decision was on review. The County Attorney concealed the settlement from the client administrative agency, the Court, and the public in this high profile case. These actions are a manifest violation of the Sunshine Law as found in Mo. Rev. Stat. §
610.021(1) (2007).
It is a basic principle of legal ethics that no lawyer in ordinary civil actions may make major decisions to settle a client’s case without prior consultation with and authority from the client to settle. Mo. S. Ct. Rule 4 –1.2(a). This guideline for an attorney’s duty to a client in ordinary private litigation would be even stronger in the context of representing a public body, lest the government attorney become the unilateral instrument to reverse governmental policy by throwing over the decision of a public body without consultation or consent of the public’s elected representatives. For that reason, and to keep the resolution of disputes involving public agencies open to public scrutiny, the Sunshine Law requires that settlements of public agency cases be made public upon signing. Mo. Rev. Stat. §
610.021(1) (2007). The Sunshine Law is a clear statement of the public policy of
17 Missouri in favor of open government subject to public scrutiny to be liberally construed to achieve those ends. Mo. Rev. Stat. § 610.011 (2007).
There is a sharp and striking contrast between the prior open administrative processes leading to the County Council’s unanimous decision under review in the
Trial Court and the secret settlement on review in this present appeal. This case was not low profile with little public interest and unworthy of public disclosure.
Public interest and intensity was sufficiently high that the Applicant previously filed a $5,000,000 defamation action to quell critics of the trash dump, which case was then nullified by this Court via a writ of prohibition. See, State ex rel. Diehl v.
Kintz, 162 S.W.3d 152 (Mo. 2005).
In prior administrative proceedings before the St. Louis County Health
Department and the St. Louis County Council the Sunshine Law’s mandate of open government was rigorously followed with public hearings at each level, contested advocacy, public notice and all record decisions openly and publicly reached.
(L.F.50, 84, 21-22, 86, 137). The County Attorney, on the other hand, representing the St. Louis County Council whose decision was on review in the Trial Court, made a secret settlement of the case and waived forever the appeal rights of her client (L.F. 133-134) without consultation with or consent from her client.
(L.F.136).
18 The Trial Court’s statement that the Settlement Agreement “was made public upon signing” is devoid of any facts or evidence presented to the Trial
Court. Curiously the Trial Court below found that the Settlement at issue had been
“made public” without elaborating how the step had occurred and based on an unverified response by the County Attorney (L.F. 139-142) in which the County
Attorney failed to cite a single fact as to how she believes she made the Settlement
Agreement public (L.F. 139-142). This stands in contrast to the verified motion and detailed affidavit of Appellant. (L.F. 129-138).
The record is instead clear, and uncontradicted, that the County Attorney took no step at all to make the settlement “public upon signing.” There was no disclosure of the settlement before or upon signing to the County Attorney’s own client – the St. Louis County Council. (L.F.136). Under any interpretation of the words “made public” in the statute, surely, the bare minimum of making a settlement “public” would be to inform the client whose interest is purportedly represented of this new development. As to other citizens and interested parties that fall under the statute, the Settlement Agreement was not even filed in the
Court file. (L.F. 3). Word of the settlement leaked out and was discovered only by the persistence of a leading critic, upon this critic’s inquiry. Still, upon the inquiry, the County Attorney gave the critic the wrong dates of the judgment and
19 Settlement (L.F. 135-138) potentially jeopardizing any attempts to take legal action to void or set aside the judgment and settlement.
The guiding principle of the Sunshine Law requiring open government and honest disclosure of major decisions mandates a finding that a violation of the
Sunshine Law clearly occurred in this case.
II. The Trial Court erred in refusing to apply any sanction under the Sunshine Law for the County Attorney’s failure to make public the settlement of a public agency case because the Sunshine Law directly provides that a violation of that law should be voided if the sanction is consistent with the public good and such would be the situation in this case if remand to the agency occurred in that the agency which was the uninformed client should have the opportunity to correct its attorney’s unauthorized settlement act.
In this case, the Trial Court below committed double error regarding the
Sunshine Law. The Trial Court refused to find any violation of that law in the failure of the County Attorney to make “public” a settlement of a public agency case (L.F. 145) [discussed in Point I]. The Trial Court below also refused to apply any sanction for that affront to the Sunshine Law (L.F. 146 ), although the
Sunshine Law mandates that violations established by a preponderance of the evidence should be voided unless it is not consistent with the public interest. Mo.
Rev. Stat. § 610.027(5) (2007). Section 610.027(5) is set forth below in pertinent part:
Upon a finding by a preponderance of the evidence that a public governmental body has violated any provision of sections 610.010 to 610.026, a court shall void any action taken in violation of sections 610.01 to 610.026, if the Court finds under the facts of the particular
20 case that the public interest in the enforcement of the policy of sections 610.010 to 610.026 outweighs the public interest in sustaining the validity of the action taken in the closed meeting, record or vote.
As mentioned in Point I supra, when a violation of the Sunshine Law is alleged, the judgment of the trial court is to be affirmed on appeal unless there is no substantial evidence to support it, it is against the wait of the evidence, or it erroneously declared or applies the law. News-Press and Gazette Co. v. Cathcart,
974 S.W.2d 576, 578 (Mo. App. 1998). When a public settlement agreement is entered into, a government body bears the burden of persuasion to demonstrate compliance with the Sunshine Law. Librach v. Cooper, 778 S.W.2d 351, 353
(Mo.App.1989); Tuft v. City of St. Louis, 936 S.W.2d 113, 116 (Mo. App. 1996).
In the present case, a violation of the Sunshine Law is clearly established by the preponderance of the evidence in that the County Attorney failed to make the
Settlement public upon signing by: 1) failing to inform her own clients, the County
Council (L.F. 136) of the Judgment and Settlement; 2) failing to file the Settlement with the Court (L.F. 3 ) and 3) misstating the date of the action to a critic with the deadline deadline for filings in the Trial Court fast approaching (L.F. 135-137).
Thus, both a sanction and remedy are appropriate under the statute’s remedial provisions.
A material question under the statute’s remedial provisions is whether the public interest in enforcing the Sunshine Law policy by voiding the violating
21 action is outweighed by the public interest in sustaining the violating action, as set forth in Section 610.027(5). The balance of factors in the present case clearly favors voiding the violating action.
The position of the County Attorney is an evasion of the Sunshine Law and its requirement of open government. Her position advocates instead that administrative decisions on major matters decided below through adversary public hearings, open record vote and attentive public scrutiny can be quietly and secretly unhinged by a government attorney claiming the power to countermand the decisions of the public agency without consultation. If the position of the County
Attorney in this case is sustained, any government decision could be quietly reversed, if an adverse judgment were rendered, by the attorney for the governmental body making an undisclosed settlement waiving all appeal rights.
Indeed, the position of the County Attorney would seem to lead to an even broader power of government attorneys to make undisclosed settled disposition of the entire case without any consultation with the government agency client.
Remand to the administrative agency is sensible and reasonable as a remedy in this case. The action of the County Attorney in cutting the administrative agency out of the loop on the decision to appeal is properly remedied by remand to the agency. This remedy would allow the agency that made the original
22 discretionary policy decision to decide independently, with input from the county constituents, whether to appeal the adverse judgment.
Additionally, in the circumstances of the present case, remand to the administrative agency corresponds to a likely remedy on full review on the merits.
The Trial Court in this case on the face of its decision committed plain error in entertaining supplemental evidence in the review of a discretionary decision of an administrative agency. The Trial Court stated in its Findings of Fact that the proceedings had involved “supplemental issues” in which “supplemental materials” were received. (L.F. 98), Supplemental Exhibit Y covering certain key matters was adopted by the Court as part of the supplemental record (L.F. 98, Fact
Finding 13) and incorporated into the Trial Court’s Order of implementation for the project (L.F. 99). Supplemental Exhibit Y involves documents dated in 2007
(L.F. 631-663); the administrative decision under review was decided in 2004
(L.F. 22, 86, 137).
Thus, the Trial Court entertained and incorporated into its order supplemental 2007 evidence never before the administrative agency below in gauging the validity of the 2004 discretionary administrative decision under review. This action is directly contrary to the guidelines of the governing
Administrative Procedure Act as found in Mo. Rev. Stat. § 536.140 (2007). The remedy recognized by this Court under the Administrative Procedure Act is to
23 vacate the judgment and remand to the administrative agency to consider the new record. See, Lorenz v. City of Florissant, 747 S.W.2d 222, 226-227 (Mo. App.
1988) (holding that trial court should not have weighed previously unavailable evidence in denial of zoning variance case, but should have remanded the case to the city council for reconsideration).
Thus, this Court could choose to adopt the narrow gauge remedy of voiding the forfeiture of appeal rights and remanding this case to the administrative agency for the independent decision on whether to appeal. Alternatively, this Court in the interests of economy of judicial time and effort could note that appeal in this case would be of a trial decision plagued by obvious plain error (making regular appeal an instant circuit to vacating of the decision). The broader gauge, and most appropriate remedy would be to vacate the entire judgment and remand to the administrative agency for further proceedings given supplemental evidence not considered by it, which the Trial Court inappropriately considered.
In either scenario, remand to the agency below is an appropriate remedy in the public interest in a case that has amounted to an affront of the Sunshine Law and regular administrative review.
24 III. The Trial Court erred in finding that the County Attorney acted within her powers in entering into the Settlement Agreement because the St. Louis County Charter provides her no authority to settle without the St. Louis County Council’s approval in that the binding legal guidelines are that a public attorney must clear a settlement with the represented government agency and the County Attorney did not obtain settlement authority from the St. Louis County Council in direct violation of her duty to her client as a public attorney.
In addition to the Trial court’s error in failing to find a violation of the
Sunshine Law and failing to impose sanctions, the Trial Court also erred in finding that the County Attorney acted within her powers under the County Charter when she entered into the Settlement Agreement without authority from her client, the
St. Louis County Council. (L.F. 139-140, L.F. 145). The County Attorney argued in the Trial Court below that her status under the St. Louis County Charter as the chief attorney for St. Louis County vested her with full authority to settle and dispose of cases involving the County and its agencies without any need for further consultation or authority. (L.F.139-141). There is no language justifying this position in the St. Louis County Charter.
Although it is the County Attorney’s position that she can “make legal decisions on behalf of St. Louis County” (L.F. 139-141), the St. Louis County
Charter merely provides in Section 5.030.1 in pertinent part the following:
“ The county counselor shall have charge of and conduct all of the civil law business of the citizens of St. Louis County and is charged with representing their interests.”
25 (L.F. 145). Nowhere in the County Charter does it state that the County Attorney has the ability to compromise and settle a case with first obtaining authority from the government she represents. The words “settlement” and “compromise” are not included within the powers delegated to the County Attorney. Further, the notion that the County Attorney could simply settle a case without consulting her client flies in the face of Mo. S. Ct. Rule 4-1.2(a), which states:
A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to Rule 4-1.2(c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.
When the authority of an attorney to enter into a settlement agreement is at the question, the standard of review is under Murphy v. Carron, 536 S.W.2d 30, 32
(Mo. banc 1976). Appellate review of this court-tried judgment requires the trial court decision be sustained "unless there is no substantial evidence to support it."
Id.
Allowing the County Attorney’s extraordinary interpretation of the County
Charter and the Missouri Rules of Civil Procedure would convert the County
Attorney into a Super County Council able to achieve unilateral alteration of government policy. To the contrary, mere designation of someone as the chief governmental attorney does not convert the legal servant into the unelected master of policy. In the present case, the County Attorney acted in direct opposition to the
26 unanimous, bipartisan decision of the people’s representatives, the County
Council, against issuing a permit to Applicant (L.F. 136).
It is undisputed in our case that the County Attorney never sought authority from the St. Louis County Council. Several sister states have found in similar scenarios that a legal officer of a municipal corporation has no authority to compromise a claim or a pending action, without the approval of the governing legislative body, without statutory authorization. 2
These states have held that in the absence of a statute or ordinance providing otherwise, with municipal corporations, the power to compromise a claim is lodged with the legislative branch of a municipality. 3 A legal officer of a municipal corporation has no authority to compromise a claim or a pending action in the absence of statutory authority. Id.
For example, in Jenkins v. City of Bowling Green, 88 S.W.2d (Ky. 1935), the City Attorney, acting with the Mayor’s approval, settled a case involving damage to certain lots of Plaintiff resulting from construction work that was taking place. Id. No attempt was made to obtain settlement authority from the council.
2 See generally, City of Fairmont v. Hawkins, 304 S.E.2d 824 (W. Va.1983); Jenkins v. City of Bowling Green, 88 S.W.2d 692 (Ky. 1935); Columbus Gas & Fuel Co.. v. City of Columbus, 42 F. Supp. 762 (S.D. Ohio 1941)(applying Ohio law); City of Spring Valley v. Franckey, 150 Ill. App. 435 (2d Dist. 1909); Oakman v. City of Eveleth, 203 N.W. 514 (Minn. 1925); De Muro v. Martini, 61 A.2d 230 (N.J. Sup. 1948), judgment aff’d, 64 A.2d 351 (1949); City of Seattle v. Dutton, 265 P. 729 (Wash. 1928); Nottingham v. City of Yukon, 766 P.2d 973 (Okla. 1988). 3 See footnote 2.
27 Id. When a challenge to this action took place, challenged, the Court held invalid the settlement agreement entered into by the Mayor and City Attorney stating:
There was no showing that the pending suit was of such dangerous character that the city would probably lose. It is by no means probable that appellant would have demanded an immediate trial if the city attorney had proposed a compromise subject to the approval of the city council. We do not regard the situation as presenting an exception within the meaning of the rule. A contrary holding would put it in the power of the city attorney, with the concurrence of the mayor, to settle every action against the city that had been called for trial. The compromise not having been authorized or ratified by the council, and there being no emergency that would authorize the city attorney with the approval of the mayor to act, it follows that the compromise was invalid and the peremptory proper.
Id. (emphasis added).
In a similar case in West Virginia, City of Fairmont v. Hawkins, 304 S.E.2d
824, 825 (W. Va. 1983), a property damage suit was brought by an individual against the City of Fairmont for water damage to his home. Prior to trial, the
Mayor had a check drawn on the City’s Water Department’s account for the
Plaintiff to settle the dispute. Id. When the city filed suit against the Mayor seeking to void the alleged improper settlement, the Mayor’s defense was that he thought he had authority to settle the case since this was the advice he was given by the City Attorney. Id. After the Trial Court found that the Mayor did have the authority to settle the case, on appeal, the Supreme Court of Appeals of West
Virginia reversed that decision, relying on Jenkins, stating the following:
As a corollary to this rule is the principle that in the absence of some contrary provision, the power to compromise a claim is lodged with
28 the legislative branch of the municipality and, therefore, a mayor is not empowered to compromise claims ... None of the parties point to any specific statutory or charter provisions that empower the mayor to compromise claims on behalf of the city.
Id. at 826.
If the Trial Court’s decision in this case were allowed to stand, then this would stand in stark contrast to the decisions of sister states who have addressed similar issues. Any attorney for a public agency in this State would simply be allowed to “make public” a settlement of a case involving a public agency, on a high profile matter affecting vast numbers of citizens, by tucking the settlement into a desk drawer. Further, Jenkins and City of Fairmont deals with tort actions of minimal public importance and these courts still held that approval was necessary from the legislative body before these cases could be settled. This makes the approval of the St. Louis County Council all the more important in our case where the litigation involves a review of the public agency’s prior decision on a matter of great public importance.
In her Response filed with the Court (L.F. 139-142), the County Attorney relies on several Missouri cases for the proposition that she has the singular authority to prosecute and defend actions on behalf of St. Louis County. (L.F.
139-140). This, however, is a red herring that fails to address the issue at bar.
Appellant Campisi does not dispute that the County Attorney is singularly responsible for prosecuting and defending cases involving St. Louis County.
29 But, although the County Attorney has the express power to conduct, prosecute and defend cases, the County Charter cannot be interpreted or stretched to grant the County Attorney authority under the County Charter to settle and compromise cases without seeking settlement authority from the St. Louis County
Council, especially where this case involves a review of their administrative decision. The County Attorney also failed to present to the Trial Court any emergency circumstances to justify her actions. Thus, this Court should nullify the
Settlement Agreement as the County Attorney lacked the authority to enter into this Settlement Agreement.
As mentioned in Points I and III supra, this Court can adopt a narrow gauge remedy of voiding the Settlement Agreement and remanding this case to the administrative agency for the independent decision on whether to appeal. Or conversely, this Court in the interest of economy of judicial time and effort can enact the a broader gauge remedy and vacate the judgment with instructions to remand to the administrative agency for further proceedings given the supplemental evidence inappropriately considered by the Trial Court and not considered by the administrative agency.
30 CONCLUSION
Having shown that the Trial Court erred by finding no violation of the
Sunshine Law and by finding that the County Attorney had the authority to enter into the Settlement Agreement, without approval from the County Council,
Appellant respectfully requests that this Court:
(1)Reverse the decision of the Trial Court by nullifying the Settlement
Agreement;
(2)Vacate the Settlement Agreement and remand to the County Council to
make an independent determination as to settlement;
(3)Vacate the Trial Court’s Order and Judgment of October 19, 2007;
(4)Remand this matter to the administrative agency [the St. Louis County
Council] given the new evidence not considered by it, which the Trial
Court inappropriately considered; and/or
(5)For any other relief that is just and proper.
STANGE LAW FIRM, L.L.C.
______KIRK C. STANGE, #49732 1750 S. Brentwood Blvd., Suite 401 St. Louis, Missouri 63144 (314) 963 - 4700 (314) 963 – 9191 – Fax [email protected] Attorneys for Appellant John Campisi
31 CERTIFICATE OF COMPLIANCE AND SERVICE
I hereby certify:
1. That the attached brief complies with the limitations contained in Supreme Court Rule 84.06(b), 55.03, 84.06(c), Local Rule 360 of this Court and contains 6,593 words, and 665 lines, excluding the cover, this certification and the appendix, as determined by Microsoft Word 2003 software; and
2. That the IBM-PC compatible 1.44 MB floppy disk filed with this brief, containing a copy of this brief, has been scanned for viruses and is virus-free pursuant to Supreme Court Rule 84.06(g) and Local Rule 361 of this Court;
3. That an adhesive label is affixed to the disk legibly identifying the caption of the case, the party or amicus curiae filing the disk, the disk number, and that the document is in Microsoft Word 2003 format; and
4. That a true and correct copy of the attached brief, and a floppy disk containing a copy of this brief, were mailed, postage prepaid, this ______day of April, 2008.
Albert A. Michenfelder, Jr. Jeffrey B. Hunt Gary H. Feder Robert H. Epstein 190 Carondelet Plaza, Suite 600 101 South Hanley Road, Suite 700 St. Louis, Missouri 63105 St. Louis, Missouri 63105
Patricia Redingon Lester Stuckmeyer St. Louis County Counselor 105 Concord Plaza Lawrence K Roos Building Suite 209 41 South Central St. Louis, Missouri 63128 Clayton, Missouri 63105
______
32 APPENDIX
PAGE(S)
Mo. Rev. Stat. § 610.011 (2007)………………………….33
Mo. Rev. Stat. § 610.021(1) (2007)………………………35-38
Mo. Rev. Stat. § 610.027(1) (2007)………………………39
Mo. Rev. Stat. § 610.027(5) (2007)………………………40
Mo. S. Ct. Rule 4-1.2(a)…………………………………. 40-43
St. Louis County Charter § 5.030…………………………44-45
33 Missouri Revised Statutes Chapter 610 Governmental Bodies and Records Section 610.011
August 28, 2007
Liberal construction of law to be public policy.
610.011. 1. It is the public policy of this state that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Sections 610.010 to 610.200 shall be liberally construed and their exceptions strictly construed to promote this public policy.
2. Except as otherwise provided by law, all public meetings of public governmental bodies shall be open to the public as set forth in section 610.020, all public records of public governmental bodies shall be open to the public for inspection and copying as set forth in sections 610.023 to 610.026, and all public votes of public governmental bodies shall be recorded as set forth in section 610.015.
(L. 1987 S.B. 2, A.L. 2004 S.B. 1020, et al.)
34 Missouri Revised Statutes Chapter 610 Governmental Bodies and Records Section 610.021
August 28, 2007
Closed meetings and closed records authorized when, exceptions, sunset dates for certain exceptions.
610.021. Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records and votes, to the extent they relate to the following:
(1) Legal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorneys. However, any minutes, vote or settlement agreement relating to legal actions, causes of action or litigation involving a public governmental body or any agent or entity representing its interests or acting on its behalf or with its authority, including any insurance company acting on behalf of a public government body as its insured, shall be made public upon final disposition of the matter voted upon or upon the signing by the parties of the settlement agreement, unless, prior to final disposition, the settlement agreement is ordered closed by a court after a written finding that the adverse impact to a plaintiff or plaintiffs to the action clearly outweighs the public policy considerations of section 610.011, however, the amount of any moneys paid by, or on behalf of, the public governmental body shall be disclosed; provided, however, in matters involving the exercise of the power of eminent domain, the vote shall be announced or become public immediately following the action on the motion to authorize institution of such a legal action. Legal work product shall be considered a closed record;
(2) Leasing, purchase or sale of real estate by a public governmental body where public knowledge of the transaction might adversely affect the legal consideration therefor. However, any minutes, vote or public record approving a contract relating to the leasing, purchase or sale of real estate by a public governmental body shall be made public upon execution of the lease, purchase or sale of the real estate;
(3) Hiring, firing, disciplining or promoting of particular employees by a public governmental body when personal information about the employee is discussed or recorded. However, any vote on a final decision, when taken by a public governmental body, to hire, fire, promote or discipline an employee of a public governmental body shall be made available with a record of how each member voted to the public within seventy-two hours of the close of the meeting where such action occurs; provided, however, that any employee so affected shall be entitled to prompt notice of such decision during the seventy-two-hour period before such decision is made
35 available to the public. As used in this subdivision, the term "personal information" means information relating to the performance or merit of individual employees;
(4) The state militia or national guard or any part thereof;
(5) Nonjudicial mental or physical health proceedings involving identifiable persons, including medical, psychiatric, psychological, or alcoholism or drug dependency diagnosis or treatment;
(6) Scholastic probation, expulsion, or graduation of identifiable individuals, including records of individual test or examination scores; however, personally identifiable student records maintained by public educational institutions shall be open for inspection by the parents, guardian or other custodian of students under the age of eighteen years and by the parents, guardian or other custodian and the student if the student is over the age of eighteen years;
(7) Testing and examination materials, before the test or examination is given or, if it is to be given again, before so given again;
(8) Welfare cases of identifiable individuals;
(9) Preparation, including any discussions or work product, on behalf of a public governmental body or its representatives for negotiations with employee groups;
(10) Software codes for electronic data processing and documentation thereof;
(11) Specifications for competitive bidding, until either the specifications are officially approved by the public governmental body or the specifications are published for bid;
(12) Sealed bids and related documents, until the bids are opened; and sealed proposals and related documents or any documents related to a negotiated contract until a contract is executed, or all proposals are rejected;
(13) Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment, except that this exemption shall not apply to the names, positions, salaries and lengths of service of officers and employees of public agencies once they are employed as such, and the names of private sources donating or contributing money to the salary of a chancellor or president at all public colleges and universities in the state of Missouri and the amount of money contributed by the source;
(14) Records which are protected from disclosure by law;
(15) Meetings and public records relating to scientific and technological innovations in which the owner has a proprietary interest;
(16) Records relating to municipal hotlines established for the reporting of abuse and wrongdoing;
36 (17) Confidential or privileged communications between a public governmental body and its auditor, including all auditor work product; however, all final audit reports issued by the auditor are to be considered open records pursuant to this chapter;
*(18) Operational guidelines and policies developed, adopted, or maintained by any public agency responsible for law enforcement, public safety, first response, or public health for use in responding to or preventing any critical incident which is or appears to be terrorist in nature and which has the potential to endanger individual or public safety or health. Nothing in this exception shall be deemed to close information regarding expenditures, purchases, or contracts made by an agency in implementing these guidelines or policies. When seeking to close information pursuant to this exception, the agency shall affirmatively state in writing that disclosure would impair its ability to protect the safety or health of persons, and shall in the same writing state that the public interest in nondisclosure outweighs the public interest in disclosure of the records. This exception shall sunset on December 31, 2008;
*(19) Existing or proposed security systems and structural plans of real property owned or leased by a public governmental body, and information that is voluntarily submitted by a nonpublic entity owning or operating an infrastructure to any public governmental body for use by that body to devise plans for protection of that infrastructure, the public disclosure of which would threaten public safety:
(a) Records related to the procurement of or expenditures relating to security systems purchased with public funds shall be open;
(b) When seeking to close information pursuant to this exception, the public governmental body shall affirmatively state in writing that disclosure would impair the public governmental body's ability to protect the security or safety of persons or real property, and shall in the same writing state that the public interest in nondisclosure outweighs the public interest in disclosure of the records;
(c) Records that are voluntarily submitted by a nonpublic entity shall be reviewed by the receiving agency within ninety days of submission to determine if retention of the document is necessary in furtherance of a state security interest. If retention is not necessary, the documents shall be returned to the nonpublic governmental body or destroyed;
(d) This exception shall sunset on December 31, 2008;
(20) Records that identify the configuration of components or the operation of a computer, computer system, computer network, or telecommunications network, and would allow unauthorized access to or unlawful disruption of a computer, computer system, computer network, or telecommunications network of a public governmental body. This exception shall not be used to limit or deny access to otherwise public records in a file, document, data file or database containing public records. Records related to the procurement of or expenditures relating to such computer, computer system, computer network, or telecommunications network, including the amount of moneys paid by, or on behalf of, a public governmental body for such
37 computer, computer system, computer network, or telecommunications network shall be open; and
(21) Credit card numbers, personal identification numbers, digital certificates, physical and virtual keys, access codes or authorization codes that are used to protect the security of electronic transactions between a public governmental body and a person or entity doing business with a public governmental body. Nothing in this section shall be deemed to close the record of a person or entity using a credit card held in the name of a public governmental body or any record of a transaction made by a person using a credit card or other method of payment for which reimbursement is made by a public governmental body.
(L. 1987 S.B. 2, A.L. 1993 H.B. 170, A.L. 1995 H.B. 562, A.L. 1998 H.B. 1095, A.L. 2002 S.B. 712, A.L. 2004 S.B. 1020, et al.)
*Subsections 18 and 19 of this section expire 12-31-08
CROSS REFERENCES:
Child's school records to be released to parents, attorney's fees and costs assessed, when, RSMo 452.375
General assembly closed meetings prohibited, when, Const. Art. III, Sec. 20.
Parent's right to receive school progress reports, administrative fee to be set by school, when, RSMo 452.376
(1988) Provisions of section 610.021 relating to closed meetings and votes does not apply to disciplinary actions against license holders and subject of disciplinary action may secure records pertaining to action from licensing agency. Christiansen v. State Bd. of Accountancy, 764 S.W.2d 943 (Mo.App.).
(1991) City properly labeled as personnel records investigative reports of police officers made in contemplation of disciplinary proceedings, and the city had the authority, under Missouri state law and city ordinances to close the records from public scrutiny. Wolfskill v. Henderson, 823 S.W.2d 112 (Mo. App.).
38 Missouri Revised Statutes Chapter 610 Governmental Bodies and Records Section 610.027
August 28, 2007
Violations--remedies, procedure, penalty, purposeful violations--validity of actions by governing bodies in violation--governmental bodies may seek interpretation of law, attorney general to provide.
610.027. 1. The remedies provided by this section against public governmental bodies shall be in addition to those provided by any other provision of law. Any aggrieved person, taxpayer to, or citizen of, this state, or the attorney general or prosecuting attorney, may seek judicial enforcement of the requirements of sections 610.010 to 610.026. Suits to enforce sections 610.010 to 610.026 shall be brought in the circuit court for the county in which the public governmental body has its principal place of business. Upon service of a summons, petition, complaint, counterclaim, or cross-claim in a civil action brought to enforce the provisions of sections 610.010 to 610.026, the custodian of the public record that is the subject matter of such civil action shall not transfer custody, alter, destroy, or otherwise dispose of the public record sought to be inspected and examined, notwithstanding the applicability of an exemption pursuant to section 610.021 or the assertion that the requested record is not a public record until the court directs otherwise.
2. Once a party seeking judicial enforcement of sections 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of sections 610.010 to 610.026 and has held a closed meeting, record or vote, the burden of persuasion shall be on the body and its members to demonstrate compliance with the requirements of sections 610.010 to 610.026.
3. Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars. If the court finds that there is a knowing violation of sections 610.010 to 610.026, the court may order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously.
4. Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has purposely violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to five thousand dollars. If the court finds that there was a purposeful violation of sections 610.010
39 to 610.026, then the court shall order the payment by such body or member of all costs and reasonable attorney fees to any party successfully establishing such a violation. The court shall determine the amount of the penalty by taking into account the size of the jurisdiction, the seriousness of the offense, and whether the public governmental body or member of a public governmental body has violated sections 610.010 to 610.026 previously.
5. Upon a finding by a preponderance of the evidence that a public governmental body has violated any provision of sections 610.010 to 610.026, a court shall void any action taken in violation of sections 610.010 to 610.026, if the court finds under the facts of the particular case that the public interest in the enforcement of the policy of sections 610.010 to 610.026 outweighs the public interest in sustaining the validity of the action taken in the closed meeting, record or vote. Suit for enforcement shall be brought within one year from which the violation is ascertainable and in no event shall it be brought later than two years after the violation. This subsection shall not apply to an action taken regarding the issuance of bonds or other evidence of indebtedness of a public governmental body if a public hearing, election or public sale has been held regarding the bonds or evidence of indebtedness.
6. A public governmental body which is in doubt about the legality of closing a particular meeting, record or vote may bring suit at the expense of that public governmental body in the circuit court of the county of the public governmental body's principal place of business to ascertain the propriety of any such action, or seek a formal opinion of the attorney general or an attorney for the governmental body.
(L. 1982 H.B. 1253, A.L. 1987 S.B. 2, A.L. 1990 H.B. 1395 & 1448, A.L. 1998 H.B. 1095, A.L. 2004 S.B. 1020, et al.)
40 RULE 4-1.2: SCOPE OF REPRESENTATION
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to Rule 4-1.2(c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.
(c) A lawyer may limit the objectives of the representation if the client consents after consultation.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.
COMMENT
Scope of Representation
[1] Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be
41 adversely affected. Law defining the lawyer's scope of authority in litigation varies among jurisdictions.
[2] In a case in which the client appears to be suffering mental disability, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.
Independence From Client's Views or Activities
[3] Legal representation should not be denied to people who are unable to afford legal services or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.
Services Limited in Objectives or Means
[4] The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.
[5] An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 4-1.1 or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue.
Criminal, Fraudulent and Prohibited Transactions
[6] A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
42 [7] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 4-1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required.
[8] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
[9] Rule 4-1.2(d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate criminal or fraudulent escape of tax liability. Rule 4-1.2(d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of Rule 4-1.2(d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.
(Adopted August 19, 1994, eff. September 1, 1994, Rev. July 1, 2007)
43 Article V Legal Officers
Section 5.010. There shall be a county counselor and a prosecuting attorney. Each shall have been a licensed practicing attorney in Missouri for at least five years and a resident of the county for at least three years before assuming office. Each shall devote all of his time to the duties of his office and shall not engage in the private practice of law. Each may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer or employee in his office of any power or duty prescribed for the office by law, by this charter or by ordinance.
County Counselor
Section 5.020. The county counselor shall be appointed by the county executive subject to confirmation by the council and shall hold office at the pleasure of the county executive. He shall be the county's attorney and counselor at law. He may, within the merit system, appoint a deputy county counselor and such number of associate and assistant county counselors as may be authorized by ordinance.
Section 5.030. 1. The county counselor shall have charge of and conduct all of the civil law business of the county, its departments, divisions, offices, officers, boards and commissions. He shall institute, in the name and on' behalf of the county, all civil suits and other proceedings at law or in equity requisite or necessary to protect the rights and interests of the county and enforce any and all rights, interests or claims against any and all persons, firms or corporations in whatever court or jurisdiction such action may be necessary; and he may also appear and interplead, answer or defend, in any proceeding or tribunal in which the county’s interests are involved. He shall prepare or approve as to form all leases, deeds, contracts, bonds, ordinances, rules, regulations, drafts of legislation, and other instruments. He shall institute and prosecute all proceedings for the collection of delinquent taxes and licenses of every kind owing to the county. He shall, upon request, furnish legal advice and opinions to the council, the county executive, department heads, elective officials, and to all county boards and commissions, respecting county business. He shall prosecute violations of county ordinances.
2. The county counselor shall have all powers and duties vested by law in county counselors and attorneys for any officer, office, board, commission or other agency of the county. Neither the council nor any department, division, office, officer, board, commission, or other agency or body of the county shall have any attorney other than the county counselor, except as may be authorized by ordinance in each employment.
Prosecuting Attorney
44 Section 5.040. The prosecuting attorney shall be elected at the general election in 1982 and every four years thereafter. He shall take office on January 1 following his election.
Section 5.050. A vacancy in the office of prosecuting attorney shall be filled by the county executive subject to confirmation by the council. The person so selected shall be a member of the same political party as the previous occupant. He shall hold office until January 1 following the next general election at which a successor shall be elected for the unexpired or the full term as the case may be.
Section 5.060. The prosecuting attorney shall possess and exercise all the powers and duties now or hereafter given to that office by the constitution, by law and ordinance.
Section 5.070. Whenever in the opinion of the prosecuting attorney it is necessary to make inquiry into the death of any person he may make such inquiry by performing the duties and functions of the coroner as prescribed by the statutes pertaining to inquests or he may initiate a hearing before any associate circuit court in the county where the inquiry shall be conducted in accordance with the statutes pertaining to inquests.
45