Catch 22 in Sunshine Law Issue

The drama surrounding Councilwoman Kristi Fulnecky just added a new nauseating chapter.  In a previous blog post I laid out the basics of the Sunshine Law that says that no more than two officials may meet without calling an official meeting.  It seems Mayor Stephens and the “Gang of Five” Council members that signed the infamous letter asking for an investigation into Fulnecky’s eligibility now have discovered a possible way to circumvent even this law.

            Last Tuesday, Councilwoman Fulnecky was asked to leave a “closed meeting” which included the Mayor, the Gang of Five, and Councilman Hosmer.  She refused to be forced to leave a meeting that turned out to be about her.  Apparently, since Fulnecky had hired Attorney Dee Wampler to represent her in the “administrative hearing” concerning her eligibility to serve in public office (for more on this see my earlier blog posts), the Gang of Five decided they should seek legal counsel as well and hired Kevin O’Keefe.  This meeting was supposed to be between them and their attorney.  Why Councilman Hosmer was there when he didn’t sign the letter is unknown to me at this time.  Councilman Burnett, who also did not sign, was sick at the time of the meeting and could not attend, although I don’t know if he would have. 

            O’Keefe told Fulnecky she was hindering the attorney-client privilege and that, if she refused to leave, she could be “subject to penalties, up to and including removal from office.”  Eventually, Fulnecky left the meeting but only after recording the fifteen minutes that she was there. 

            Now comes the question: Can the City Council circumvent the Sunshine Law by hiring a single attorney to represent multiple members and invoking attorney-client privilege? Under normal circumstances, any group could hire a single attorney to represent them.  However, this situation is different since they are elected officials under the Missouri Sunshine Law.  No one is questioning whether or not they had the right to hire legal counsel; Fulnecky did after all, only whether they are using this as a legal way to break the law. 

The fact that they are alleged to have all conspired with the mayor against Fulnecky and may already have broken the Sunshine Law adds an entirely new level of irony to this whole situation.  Why on earth break the Sunshine Law to speak with a single attorney about defending yourselves for breaking the Sunshine law among other things?  The logic of this decision evades me. 

            It seems to me that there was a smarter way to do this.  To avoid this apparent conflict of interests and the appearance of wrongdoing, the Council Members should have each hired their own attorney and spoken with them on their own time.  This would have at least helped to maintain a small amount of the already damaged integrity of our local government. 

            What do you think, Springfield?  Is this how you want your local government to conduct itself?  Should you expect more of your City Council and your Mayor?  How much confidence do you still have in our Mayor?  Has he proven worthy of his office?  These are questions that we all need to seriously ponder. 

NOTE:   After I posted this, I was informed that Judge Holstein, the one the city hired to investigate Fulnecky, will be getting paid $225 hr.  and O'Keefe $300 hr.  This $525 hr. will be a running tab for every working/billable hour at the taxpayer's expense for as long as it takes to get this resolved. 

Is it Legitimate?

Recently, Mayor Stephens held a press conference to announce that Councilwoman Kristi Fulnecky’s eligibility to serve on City Council would be investigated.  The Mayor alleges that Fulnecky ran a business for seven years without obtaining the proper business license.  He further states that this caused her to have delinquent taxes and fees at the time of her swearing in as Councilwoman.  According to Stephens, this would make her ineligible to hold any public office.  Furthermore, Mayor Stephens was in possession of a letter signed by five additional City Council members calling for an investigation.  (I will post a link to the full content of this letter below.)

Since the press conference, many questions have been raised as to the legitimacy of the allegations.  I was asked by a reporter the other day if my opinion of Kristi Fulnecky would change if the allegations turned out to be true.  This is a valid question.  All city residents have the right and responsibility to expect and demand integrity from their elected and appointed officials.  I told the reporter that I did not have enough information to form an opinion at that time seeing as I had just walked out of the press conference.  We should all strive to be informed of the facts of a situation before stating our opinions.  I will attempt to lay out the most prominent legitimacy issues in an easy to understand format here. 

IS THE LICENSING FEE CONSIDERED A TAX?

According to Section 18.1 of the Springfield City Charter and Section 70-44 of the City Code (both will be included in the body of the letter), the charges associated with attaining a business license is referred to as a tax.  However, by legal definition, a charge cannot be labeled a tax unless it has been voted on.  The charge for licensing is technically a fee and not a tax and therefore not applicable to the issue of eligibility to hold public office.  This exposes erroneous language in our City Charter and City Code that could have serious repercussions on the city since they would have been charging an illegal tax from everyone who obtains a business license in Springfield.  So it may come down to this: Is Fulnecky innocent or is the City of Springfield guilty? 

DID THE COUNCIL MEMBERS WHO SIGNED THE LETTER BREAK THE SUNSHINE LAW?

The Sunshine Law is a Missouri State law that is in place to enforce accountability and integrity of public officials.  It basically states that at no time can more than two officials meet together without calling an official meeting.  This causes a problem with the aforementioned letter since there are five signatures and no meeting was called.  Nor were Burnett or Fulnecky informed of any such meeting.  This could cause the letter to be invalidated.   In an article by the Springfield News Leader, Councilman McCLure stated that the Mayor had approached him about the issue on October 12 after a Council Luncheon and he had, in turn, approached Councilwoman Fisk.  Somehow this escalated into five Council Members (Ken McClure, Jan Fisk, Craig Fishel, Phyllis Ferguson, and Mike Schilling) all signing the infamous letter whose original author is unknown.  If at least three of these five Council Members ever met together without calling an official meeting, then there would be a blatant violation of the Sunshine Law.

DO ATTORNEYS NEED TO ACQUIRE A BUSINESS LICENSE?

From what I could ascertain, attorneys do not need a business license to practice law in Missouri. The question then becomes whether or not Fulnecky needed a business license to operate Fulnecky Enterprises, LLC, ( http://fulneckyenterprises.com/) which is not a law office.  Kristy Fulnecky is an attorney who is licensed to practice law in both Missouri and Washington D.C., and was under the impression that she did not need a business license.  Is it an attorney or a law office that doesn’t need the Business License?  It is interesting to note that Hosmer, another lawyer on the city council, refused to sign the letter accusing Fulnecky and also voted no on the approval of the hearing examiner.  This will be addressed further in the “Knowingly and Willingly” section.

WAS THERE A VIOLATION OF THE CITY CHARTER IN THE APPOINTING OF THE HEARING EXAMINER?

At the Council luncheon following the press conference, Mayor Stephens added an approval vote for the impartial hearing examiner to the agenda rather last minute.  Kristi Fulnecky raised the issue that this may have been in violation of the City Charter since Stephens had already announced his choice for the examiner at the press conference and said that this person has already accepted the position.   Stephens responded to the question by checking with a person (I believe this was the City Attorney and this has been verified by multiple people) who stated that it was his opinion that Stephens simply had to have someone secured before they could vote on it.  Fulnecky further suggested that it warranted checking into. 

DID FULNECKY “KNOWINGLY AND WILLINGLY” VIOLATE ANY LAW?

This is probably one of the trickiest issues as it would either require absolute proof or a degree of mind reading.  Other than that it’s an educated guess at best.  From what I understand, the swearing in oath stated basically that the incoming Council Member was not aware of anything that would disqualify them from taking office.  The existing state law in Missouri regarding lawyers and business licenses appears to give Fulnecky plausible deniability of being aware of any wrongdoing (assuming any wrong has been done).  Also, since the earliest date I can find of anyone becoming aware of anything regarding this issue is in August, then it cannot be proven that Fulnecky was “aware” of the fees at the time of swearing in. 

CAN THE CITY HOLD FULNECKY PERSONALLY RESPONSIBLE FOR THE ACTIONS OF HER BUSINESS SINCE THE BUSINESS IS AN LLC?

Let me nutshell this.  One aspect of becoming an L.L.C. is that, in the case of legal action, the business and the business owner are separate.  This protects the business owner from losing personal assets.  Basically, if someone sues a business that is not an L.L.C., then they may be able to go after the owner’s house, bank account, etc.  But if the business is an L.L.C., then they could only go after the business itself while the personal assets are protected.  In this instance, the question is that since Fulnecky Enterprises is an L.L.C., are any delinquent fees attributed to the business or to Fulnecky herself?  If it is the former, can the city take away her seat on City Council?  So far I have not been able to reach any definite conclusion on this issue as it seems up for translation.  Anyways, I highly doubt that this will be the course that Kristy Fulnecky chooses as her defense…but who knows?

These are just a few of the issues and this is in no way meant to be an exhaustive list or a legal opinion.  Jennifer Wilken also has some excellent insights into these and other issues that I would encourage you to read at https://swmofamilyvalues.wordpress.com/2015/11/03/just-the-facts/ . If and when I learn anything new I will post it.  

Mayor Stephens Press Conference Handout (Copy and paste into your browser) 
file:///C:/Users/Tony/Downloads/Mayor%20Stephens%20Press%20Conference%20Handout.pdf

Engineered Coincidence

Don’t you just love it when everything comes together perfectly and at the perfect time?  When things that seem just too good to be true actually happen multiple times in a short time span?  When coincidence after unlikely coincidence happens in your favor?  This is the magical world of elves and unicorns that Mayor Stephens would have us believe he lives in.  Let me explain.

As I mentioned in my previous post This Is Your Town, October 26 was like Christmas to Stephens and he got everything he asked Santa for.  Previously, Councilman Burnett had proposed installing our National Motto, “In God We Trust” in the City Council chambers to follow suit of many other cities as well as police cars and government buildings across the nation.  He even had someone lined up to privately fund it.  In a spectacular show of unpatriotic character, our council, including our Mayor decided to table the issue and send it to committee which met on the morning in question.  Burnett was conveniently left off of this committee while Councilwoman Fulnecky was included.  When she tried to support our National Motto, there was no one else on the committee willing to second it and the issue died without discussion or vote.

Later that same day, Mayor Stephens submitted a letter to Councilman Hosmer, who leads the city’s Plans and Policies committee, in an effort to repeal the new indecent exposure ordinance.  In his letter he appeared to be pandering for Hosmer’s support by using the argument that the new ordinance’s language allows men to be indecent in public.  This was the same argument brought up by Hosmer at the City Council the day of the vote which was quickly exposed for its lack of merit.  Stephens also claimed that it violated the Constitution’s 1^st and 14^th Amendments. 

In an amazing coincidence, this was on the same day that the ACLU, at the prompting of the topless rally supporters, filed a lawsuit against the city for the indecent exposure ordinance.  In an even more amazing coincidence the lawsuit used much of the same language as Mayor Stephen’s letter.  Mayor Stephens, however, assured us that it was mere coincidence and that he had no prior knowledge of the lawsuit.  Evidence came to light strongly suggesting that this was not true (See my previous post This Is Your City).  

Later that night was the regular City Council meeting.   Katie Webb, one of the leaders of the topless rally supporters, had a failed attempt to rally supporters to show up at the Council Meeting and urge Councilman Burnett to resign.  It is unclear if anyone besides Webb herself actually showed up and not even she spoke. 

So let’s recap.  On October 26^th, 2015,

·        Our National Motto was defeated in committee.

·        Mayor Stephens writes a letter to Councilman Hosmer to try and get the indecent ordinance repealed.

·        The ACLU files a lawsuit against the city for the same ordinance.

·        The same group that incited the ACLU attempted to stage a scene at the City Council meeting. 

AND THIS IS ALL COINCIDENCE!

If it ended there it would be enough to cast serious doubt on the integrity of our Mayor.  But it doesn’t.  The best was still yet to come. 

          Councilwoman Kristi Fulnecky had a hard time believing in these apparent coincidences, especially after being confronted with strong evidence to the contrary.  Her integrity would not allow her to remain silent and she was compelled to go public with the fact that the Mayor was “misleading” the residents of Springfield and had, in fact, known about the impending lawsuit. 

Do you think it’s possible that he played a role in bringing the ACLU into this?  Could he be conspiring against his own city with the same group the ordinance was voted in to combat?  The fact that Jessica Lawson, listed as the plaintiff on the lawsuit, claimed that the Mayor had prior knowledge does seem to suggest that. 

Today, October 30^th, just days after Fulnecky made her allegations against Stephens, the Mayor scheduled a press conference.  No one knew exactly what to expect but most everyone thought that he would be responding to Kristi Fulnecky’s claims.  However, he had another “coincidence” up his sleeve. 

We all sat with bated breath as we waited for the Mayor to speak.  We weren’t prepared for the bombshell that was to blindside us!   Mayor Stephens proceeded to accuse Fulnecky of operating a business for seven years without the proper licensing and that her fees constituted a delinquent tax.  This would disqualify her from holding any public office.  Stephens also produced a letter he claims he’d “received” that was signed by five Council Members asking for an investigation of Fulnecky’s qualification for her Council seat. 

It is more likely, however, that the Mayor penned this letter himself and then got as many Council Members to sign it.  The only three that didn’t were Fulnecky herself, Justin Burnett, and Craig Hosmer (which might explain the pandering mentioned above).  At this time the case appears to be without merit.

Mayor Stephens would also like us to believe that this announcement JUST HAPPENED to come just days after Fulnecky called him out for dishonesty.  It was nothing more than a coincidence and not retaliation.  Coincidence after coincidence.

Well, Springfield, you are the jury.  Did the Mayor conspire against his own city, defying the will of the people and the vote of the council?  Did he pull an underhanded scheme to try to eliminate someone who stood against him?  Is he bullying the City Council to sign a letter he penned to unjustly recall a Council Member who acted with integrity? What say you, Springfield?  Do you believe in logic or do you believe in fairy tales?

Full Text of ACLU Lawsuit Against Springfield

THIS IS YOUR CITY!

How long have you lived in Springfield?  What is your favorite part of this city?  Is it the people, the small businesses, the Springfield Cardinals, First Friday Art Walk?  There is a lot to love about our city and there have been countless hours of work and taxpayer dollars to make and keep it that way.  The most noticeable improvements may be in the downtown area; namely The Square with its artwork and beautiful new fountain.   This, along with the Art Walk, has helped to cultivate an environment that has attracted people and families from multiple age groups and demographics as well as from surrounding cities. 

I, for one, love going to Art walk with my wife and seeing what residents of my city have created with amazing talent, the interesting wares the vendors peddle, and the many diverse cultures coinciding and enjoying it right along with me.  I also love seeing the small businesses that have popped up and contributed to Springfield’s charm.

Sure, Springfield isn’t perfect and there is still much to be done.   Crime, unemployment, a large problem with methamphetamine abuse, etc., continue to be problems which need continued attention.  Since these issues are inextricably tied to our economy, it is vital to create an environment where businesses can grow, where families can flourish, and that attracts people from surrounding areas to do business in our fair city.  Things such as the Art Walk and The Square have helped to set our downtown  area on a path to rejuvenation.

A few months ago, however, our city came under attack by a group of professional victims claiming gender equality and demanding that women have the same right to public toplessness that men do.  This could mean the destruction of any family friendly image we have thus far achieved.  A group of topless protesters, exploiting weak language in Springfield’s indecent exposure ordinance, invaded The Square during Art Walk wearing nothing but strategically placed tape from the waste up.  They then left The Square and paraded themselves in front of a concert being put on by middle school students.  It was even reported that girls as young as fifteen were taking part and being photographed by a myriad of older men.  Then the outcry began.

Numerous calls and emails began pouring into the City Council demanding that something be done.  Newly elected Council Member Justin Burnett answered Springfield by drafting a new indecent exposure ordinance that he modeled, and pretty much copied, from various other major cities including Missouri’s own St. Louis.  Then the true character of our city’s elected government began to show itself. 

The new ordinance was passed by a 5-4 vote with some council members being swayed by the inundation of emails from their constituents telling their Council Members to support it.  Mayor Stephens voted against it.  (This is the same city council that voted to table a motion to install our country’s national motto in the City Council Chambers and then defeat it later in committee without vote or public voice.)  Only Council Members Burnett and Fulnecky whole heartedly supported the both bills.

          That should have been the end of it.  The people spoke, the Council voted, the ordinance passed, the end. Right?.... WRONG!  The protesters decided to get revenge for their hurt feelings by targeting the Councilman who actually did his job: Justin Burnett.  They, under the leadership of Katie Webb, Jessica Lawson, and Bon Tindle, began a recall petition to get Burnett removed from office.  After a very dismal beginning resulting in lack of volunteers and even a bigger lack of signatures, it appeared as though the protesters campaign was fizzling out.  Then it happened. 

          On October 26, a coordinated attack was lobbied against this city and its residents.  Katie Webb had a failed attempt at recruiting people to show up at the City Council meeting that night and call for Burnett’s resignation.  That same morning, Mayor Stephens had sent a letter to Councilman Hosmer of the city’s Plans and Policies committee asking that they look at the new ordinance.  He claimed that he believed that it may violate the 1st and 14th Amendments of the Constitution and that it should be repealed.  Keep in mind that nobody had tried to get a repeal issue on the ballot such as happened with SOGI.  This was the Mayor working on his own.

          That same day the ACLU filed a lawsuit against Springfield naming Jessica Lawson in the suit.  This lawsuit was eerily similar to Stephens letter to Hosmer.  When asked if he had had any knowledge of the impending lawsuit he said that he hadn’t.  However, Jessica Lawson claimed that he had full knowledge of the suit.  So it appears that our very own Mayor Stephens was working with the people who wanted to destroy the city’s image and expose women in public to bring a lawsuit against Springfield. 

          Councilwoman Kristi Fulnecky had had enough.  In an interview she claims that Stephens had lied and was misleading to the people of Springfield.  This obviously did not sit well with Stephens who has major political ambitions.  How Stephens responds to all this in the coming days will be very telling about his character. 

          People of Springfield, this is YOUR CITY!  In which direction do you want it to go?  Does Mayor Stephens reflect the future that you want for your city?  Do the Council Members who voted against the ordinance and our National Motto have your best interests at heart? Springfield’s future is in your hands. Only by speaking out for what you believe is right for your city can you make a positive difference.  There is no middle ground.  There is no more time for pacifism.  They city’s government works for you!  If they do not reflect your views, you can fire them.  An effort to recall Mayor Stephens will soon be underway.  Will you stand up for YOUR CITY? 

Mayoral Deception

A few months ago, Springfield MO. Mayor Robert Stephens voted "No" on a new Indecent Exposure ordinance.  Initially he had pushed the button to vote "Yes" but after the results were announced and the ordinance was passed claimed that he had inadvertently pushed the wrong button.  This vote followed a period of comments wherein each City Council Member, including Mayor Stephens, gave an explanation as to why they were voting the way they were.   In his monologue, Stephens chastised the supporters of a recent topless rally that had been held in down town Springfield calling their efforts an "epic fail."

He then turned his sights on the public supporters of the new ordinance.  He began throwing insults and accusations of "woman blaming" at the supporters.  This was a misguided and baseless label considering that the supporters were trying to uphold decency, safety, and a family friendly image for their beloved city.  Not to mention, the large majority of supporters for the stricter ordinance were WOMEN!

He also gave a stern reprimand to the local news media for putting forth so much effort on such an issue while he felt there were many more important issues the media ignored. He even held up a copy of the Springfield News Leader citing that the hungry children in our city would be a better use of the council's time.  Many other Council Members also cited hungry children as a more noble cause than public decency even though there was nothing on the agenda about hungry children whatsoever.

Apparently, the hungry children that the mayor was so concerned about only months ago now have to take a back seat as he wastes more of the city's precious time on the issue in an attempt to enlist Councilman Hosmer and his Plans and Policies committee in hopes of repealing the new ordinance citing a possible violation of the 1st and 14th Amendments of the Constitution.  These allegations will fall flat seeing as the same ordinance is in effect in multiple other U.S. cities including St. Louis MO.,  Cape Girardeau MO., and Chicago IL.

Mayor Stephens is also claiming that the new ordinance removed language limiting exposure of male genitalia, effectively making it legal for men to walk around exposed.  This is the same objection that Councilman Hosmer himself made during the debate.  He was quickly shut down by multiple people including Councilman Justin Burnett, the author of the ordinance, who simply read the ordinance out loud to Hosmer proving that it gave men so such liberty.  Perhaps Hosmer and Stephens should try reading it for themselves before making baseless accusations.

Now for things to get really sticky.  Mayor Stephens wrote to Councilman Hosmer on  Monday, October 26; the same day that the ACLU filed a lawsuit that nearly mirrored the Mayor's letter, against the city of Springfield.  The Mayor stated that he had no knowledge of the ACLU's impending lawsuit.  This, however, was contradicted by a statement by Jessica Lawson, who is named in the lawsuit, who claimed that Mayor Stephens knew.  She is also a supporter of the topless rallies as well as the Springfield Slut Walk and is helping to spearhead an effort to have Councilman Justin Burnett, their chosen vessel of blame, recalled from office.

So it appears that Mayor Stephens, aside from turning his back on all those poor hungry children he wasn't even helping in the first place, has conspired with supporters of indecent exposure to incite the ACLU to file a lawsuit against his own city and then lied about it on the evening news.  Perhaps we need to petition for a Mayoral recall instead...