State Capitol-Public Records and Budget Recommendations

The most excitement in the State Capitol this week centered on debate and passage of a controversial House bill originating from the “Clean Missouri” constitutional amendment approved by Missouri voters in November. A portion of the constitutional amendment requires state legislators’ records to be subject to Missouri’s Sunshine Law. However, House Bill 445 closes a number of public officials’ records at all levels of government. It passed, 103-47, and now moves to the Senate. One House member opposed to the bill said it “upends almost five decades of open records and transparency in government. It’s the most radical undermining of open records in the history of the state.” The bill’s sponsor said he is open to negotiating with the Senate on the closed records provisions. Meanwhile, action this week in the Senate chamber was limited to several non-controversial bills.

The House Budget Committee and the Senate Appropriations Committee continued their work hearing from statewide officials and state agencies on their 2019-2020 budget requests. Both chambers are reviewing the Governor’s proposed budget in preparing its own budgets. This review includes core items that have been in past budgets and new decision items. The House will conclude its work and send its budget over to the Senate. The Senate then prepares its budget. The two chambers then meet and confer on the differences and pass a final budget. Once passed, the budget moves to the Governor for his review. An issue of continued interest is the revenue shortfall in the current fiscal year. At the end of January the state was down almost 7% from 2018. Unless this shortfall is made up, it is something that the current budget negotiations will have to address. We continue to monitor the budget situation daily and will keep you aware of any developments.

COMMITTEE ACTION

State Treasurer Scott Fitzpatrick presented his office’s 2019-2020 budget requests this week in separate hearings with the House Budget Committee and the Senate Appropriations Committee. During his presentation on Feb. 6, in the House, some questions were raised about the Unclaimed Property program, managed by the State Treasurer. Last year $40 to $50 million in unclaimed property was returned to its owners. Rep. Lavender (D-Kirkwood) inquired about how the public is notified of available unclaimed property, including notices required by law in local newspapers. She asked if the State Treasurer was exploring digital options for such notices. Treasurer Fitzpatrick said he was “boxed in by statutes,” and social media presence of the program is limited by his budget. Rep. Brenda Shields (R-St. Joseph), asking if there are different ways to advertise, mentioned the Secretary of State recently said prices of newspaper advertising are out of control. Treasurer Fitzpatrick said if pricing is not fair, and we have the opportunity to opt out in some counties, then that would be good. “Where I live, newspaper is very valuable if the price is right,” he said. When the State Treasurer appeared before the Senate Appropriations Committee on Feb. 7, there were no questions from senators about public notices or unclaimed property notices in newspapers.

House Bill 26 (Stacy, R-Blue Springs), beginning Jan. 1, 2021, allows established political parties to use a state funded, closed political primary system conducted by local election authorities. The local election authority will allow registration of voters as members of a particular political party and enforce time limits on registration or changing political parties as specified in the bill. Local election authorities shall notify registered voters of the primary election system requirements using current election mailings that would otherwise be mailed to registered voters, and party affiliation changes will be noted beginning Jan. 1, 2020. Hearing conducted Feb. 6, by the House Elections and Elected Officials Committee. Supporting testimony by Concerned Women for America-Missouri. Opposing testimony given by the Missouri National Education Association. Information only testimony presented by the Greene County Clerk, Republican and Democratic Election Directors of St. Louis County; the Boone County Clerk; and Mark Rhoads, submitting testimony from two county clerks who could not attend the hearing due to weather. The committee took no action on the bill.

House Bill 214 (Trent, R-Springfield) requires certain state purchases in excess of $10,000 (currently $3,000) to be based on competitive bids with specified exceptions. The bill requires the Commissioner of the Office of Administration to advertise and solicit bids on state purchases with an estimated expenditure of $100,000 or more (currently $25,000 or more). The commissioner is authorized to hold reverse auctions for the purchase of merchandise, supplies, raw materials, or finished goods if price is the primary factor evaluating bids. If the commissioner determines that the use of competitive bidding is either not practicable or not advantageous to the state, he or she is not required to advertise or solicit a proposal on any purchase where the estimated expenditure is $100,000 or more (currently $25,000 or more). Under the proposal, purchases of $100,000 or more from a single feasible source would not be advertised or proposals solicited (currently $25,000 or more). Information technology purchases of up to $150,000 (currently $75,000) are allowed to employ informal methods of procurement. Bill voted “do pass” Feb. 4, by the House Downsizing State Government Committee.

House Bill 230 (Dinkins, R-Annapolis) specifies that certain Department of Corrections records may be closed, including video recordings of the inside or outside of the facility, audio recordings and transcripts of prisoners’ telephone conversations, employee staffing patterns, employee defensive tactics training curriculum, and correctional center operations, to the extent that disclosure would impair the department’s ability to protect the safety and security of offenders, employees, visitors and real property. Voted do pass Feb. 5, by the House Corrections and Public Institutions Committee.

House Bill 565 (Morse, R-Dexter) designates November 9 as "Stars and Stripes Day" to mark Missouri's role in the creation of the newspaper of the United States Armed Forces. On Nov. 7 and 8, 1861, some 3,000 Union troops arrived in the rebel town of Bloomfield, located in southeast Missouri. Ten of those soldiers using the printing press of The Bloomfield Herald created the first newspaper for soldiers, by soldiers. Today, The National Stars and Stripes Museum and Library, located in Bloomfield, is filled with memorabilia, military history, and even an original copy of the 1861 newspaper. Hearing conducted Feb. 7, by the House Special Committee on Tourism. Supporting testimony by the Missouri Press Association. No opposing testimony. The bill was voted unanimously do pass by the committee.

House Bill 673 (Christofanelli, R-St. Peters) and House Bill 743 (Fishel, R-Springfield) are identical bills that establish the “Cronkite New Voices Act” for student journalists. Going forward, the bills will be combined into one, and Rep. Fishel will be the bill’s handler in the House. The bills provide that in both public high schools and public colleges and universities a student journalist has the right to exercise freedom of speech and of the press in school-sponsored media. The bill permits school districts and student-media advisors to regulate the number, length, frequency, and format of school-sponsored media. School districts must adopt a written freedom of the press policy that includes reasonable provisions for the time, place, and manner of student expression. The policy may also restrict speech that is offensive or threatening. The bill forbids school districts from prior restraint of school-sponsored media except in circumstances specified in the bill. Hearing conducted Feb. 6, by the House General Laws Committee. Supporting testimony presented by Mitch Eden, Kirkwood High School media advisor, who said “this shouldn’t be a partisan issue, it’s about Freedom of Speech.” Fourteen other states have passed similar legislation for student journalists since the 1988 U.S. Supreme Court case, Hazelwood (Mo.) School District vs. Kuhlmeier, ruling that a school may not be entitled to adhere completely to the First Amendment. Other supporting testimony by Aaron Manfull, Francis Howell North media advisor; Jack Rintoul, editor in chief, The Kirkwood Call; Emily Hood, executive producer for FHNtodayTV; Rachel Pickett, University of Missouri journalism major; Mark Maassen, Missouri Press Association; Otto Fajen, Missouri National Education Association; Alex Eaton, ACLU-Missouri. No opposition testimony given. The committee took no action on the bill.

Senate Bill 65 (White, R-Joplin) clarifies that punitive damages shall not be awarded except upon proof by clear and convincing evidence, and only if there is an award of damages more than nominal damages. Punitive damages may not be awarded against an employer or principal because of the conduct of an employee or agent unless specified criteria are met. Hearing completed February 5 in Senate Government Reform Committee. Healthcare Services Group, The American Tort Reform Association, Medical Malpractice Association, Doctors Company, Associated Industries of MO, Property and Casualty Insurers of America, MO Chamber of Commerce, US Chamber-Institute for Legal Reform, NFIB, Monsanto, Doe Run, Railroad Association, MO Insurance Coalition, Walgreens, MO Association of Osteopathic, MO State Medical Association, MO Trucking Association and Washington University provided supporting testimony. The MO Trial Attorneys Association presented opposing testimony.

Senate Bill 85 (Wallingford, R-Cape Girardeau) Current law provides that any seller that collects at least $250 for either the first or second month of a calendar quarter shall file a return and remit such amount by the twentieth day of the succeeding month. The bill, modifies the due date by changing it to the last day of the succeeding month. Hearing completed February 5 in Senate Ways and Means Committee. Department of Revenue, Missouri Society of CPAs, Associated Industries of Missouri, and NFIB provided supporting testimony. No opposing testimony was provided.

House Bill 445 (Rep. Dogan, R-Ballwin) represents “a crisis to access under the Sunshine Law to all Missouri citizens,” said Jean Maneke, legal counsel for the Missouri Press Association. “For years state and local officeholders have considered their documents and correspondence with constituents open to the public. Now, suddenly, legislators want to close ALL those records for ALL public bodies. This comes immediately after the voters in the state overwhelmingly voted for a constitutional amendment to make state legislators’ records subject to the sunshine law.”

HB 445 was third read and sent to the Missouri Senate on Feb. 7, after a House vote of 103 yes, 47 no.

An amendment to the bill by Rep. Schroer (R-O’Fallon) on Feb. 4, added the following exemptions to the Sunshine Law, allowing closed records for:

-Personal cellular telephone numbers, social security numbers, and home addresses of any individuals;

-Records of constituent case files. The amendment defines “constituent case files” as any correspondence, written or electronic, between a member of a public governmental body and a constituent pertaining to a constituent’s request for information or assistance; and

-Any document or record, including electronic communications, received or prepared by or on behalf of a member of a public governmental body consisting of advice, opinions and recommendations in connection with the deliberative decision-making process of said body.

Another amendment to the bill Feb. 4, by Rep. Mitten (D-St. Louis) prohibits any elected or appointed member of a public governmental body or any staff member or employee of the public governmental body from downloading or using software designed to send encrypted messages electronically that automatically self-destruct (CONFIDE app, for instance) on any communication device purchased with taxpayer funds, and such document-destructive apps are prohibited if the person is conducting public business on any personally-owned electronic device.

NOTE: These amendments apply to the State Legislature, but also to members and employees of city councils, county commissions, school boards, fire district boards, public hospital boards, public water district boards ….. ALL public governmental bodies.

One legislator during debate Feb. 7, said the bill severely weakens the sunshine law, noting “if a local newspaper wants to look into a school board’s reason for action” on an issue, that information may likely be closed under the new exemptions. She mentioned that travel records of a Governor may be closed. She said politicians at all levels of government would not be held accountable, if the bill passes in its current form.

Rep. Dogan said he is open to negotiating with the Senate on the closed record provisions.

Rep. Jon Carpenter (D-Liberty) said while there are some positive changes in HB 445 (he supports lobbyist gift bans and election contribution limits at the local level), the bill “upends almost five decades of open records and transparency in government. It’s the most radical undermining of open records in the history of the state. It tarnishes transparency.”

Rep. Schroer, who sponsored the sunshine amendment, said he is simply attempting to protect his constituents who may contact him via written communication on personal issues, medical issues, instances concerning a person’s or family’s welfare.

He said a St. Louis Post-Dispatch sunshine records request of Sen. Ed Emery (R-Lamar) resulted in some of Sen. Emery’s constituents’ personal information being published in the newspaper.

“Our job is to speak for our people,” Rep. Schroer said, noting he does not want his constituents to be uncomfortable communicating with him via email, as an example.

Rep. Rob Vescovo (R-Arnold), majority floor leader, told colleagues “you don’t want to have a war with the Post-Dispatch or with The Associated Press.” When The Kansas City Star made a sunshine request of all Representatives last fall, the October survey results from many of his constituents were in his email files. He turned over those files. He said he apologized to constituents because he couldn’t protect their survey comments from disclosure.

“We’re trying to protect our constituents,” Rep. Vescovo said.

HB 445 now heads to the Missouri Senate for committee hearings and anticipated floor debate.

EMPLOYER RELATED LEGISLATIVE ACTION

House Bill 225 (Swan, R-Cape Girardeau) creates the Fast-Track Workforce Incentive Grant. The grant targets adults 25 years and older with needs-based assistance for tuition and fees based on occupational shortages as determined by the Coordinating Board for Higher Education. Governor Mike Parson (R) proposed $22 million to fund the grant program within his FY 2020 budget – an amount projected to help 16,000 eligible students. The House Workforce Development Committee met in executive session on February 4 where an amendment was adopted to add clarification regarding program eligibility and corrects drafting errors. Once amended, the bill was passed by a unanimous 14-0 vote.

Senate Bill 7 (Emery, R-Lamar) modifies provisions of civil procedure regarding joinder and venue. The Senate Government Reform Committee met in executive session on February 5 where SB 7 was voted do pass by a vote of 5-2.

Senate Bill 10 (Cunningham, R-Marshfield) makes technical corrections arising from the passage of Proposition B at the 2018 General Election. Current law provides that all tipped employees shall be paid 50% of the wage rate required to be paid under the Minimum Wage Law. With the passage of Proposition B there are now two minimum wage rates: one for employees of private employers and one for employees of public employers. The bill provides that all tipped employees shall be paid 50% of the wage rate required to be paid to employees of private employers. Additionally, the bill stipulates that wait staff and servers shall not be paid less than 85% of the wage rate paid to employees of private employers. Hearing completed February 7 in the Senate Small Business and Industry Committee. Testifying in support were the Missouri Restaurant Association, Viets Restaurant, Missouri Retailers Association, Missouri Grocery Association, NFIB, Missouri Chamber of Commerce and Industry, Associated Industries of Missouri and National Restaurant Association. Testifying in opposition were Reiger and Savant Restaurant, MO AFL-CIO, 1630 Fund, Ollie’s Market, MO Jobs for Justice, United Food and Communications Workers, United Steel Workers, Service Employer Association, Micelle Davis and St. Louis Women Foundation.

Senate Bill 100 (Riddle, R-Fulton) provides that a person who is injured by a defective or unsafe condition of a product or due to negligence in the design, manufacture, sale, or distribution of a product has fifteen years after the sale or lease of the product to bring a claim for damages. Hearing completed February 5 in Senate Government Reform Committee. Associated Industries, MO Chamber of Commerce, US Chamber-Institute for Legal Reform, MO Organization of Defense Lawyers, O’Reilly Auto Parts, NFIB, MO Railroad Association and Property and Casualty Insurers of America provided supporting testimony. MO Association of Trial Attorneys provided opposing testimony.

Senate Bill 154 (Luetkemeyer, R-Parkville) modifies law regarding arbitration agreements between employers and at-will employees. The sponsor’s goal with the language is to ease the current burden on Missouri’s court system, protect confidentiality for plaintiffs and defendants, and provide a more efficient resolution to employment disputes that arise. Hearing completed February 7 in the Senate Small Business and Industry Committee. Greater KC Chamber of Commerce, MO Chamber of Commerce, Associated Industries of MO, MO Retailers Association, MO Grocers Association and JE Dunn Construction provided supporting testimony. United Steelworkers, AFL-CIO and MO Association of Trial Attorneys provided opposing testimony.