State ex rel. Moore v. Brewster

• Decision Date: 29 July 2003
• Docket Number: No. ED 81190.,ED 81190.
• Citation: 116 S.W.3d 630
• Parties: STATE of Missouri ex rel. Rochell MOORE and Amy L. Hilgemann, Respondents/Cross-Appellants, v. Harold BREWSTER and The Board of Education of the City of St. Louis, Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

116 S.W.3d 630

STATE of Missouri ex rel. Rochell MOORE and Amy L. Hilgemann, Respondents/Cross-Appellants, v. Harold BREWSTER and The Board of Education of the City of St. Louis, Appellants/Cross-Respondents.

No. ED 81190.

Missouri Court of Appeals, Eastern District, Division Two.

July 29, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 15, 2003.

Steven L. Wright, Columbia, MO, for Appellants-Cross-Respondents.

Patrick J. McCarthy, Michael W. O'Reilly St. Louis, MO, for Respondents-Cross-Appellants.

GARY M. GAERTNER, SR., Presiding Judge.

Appellants/cross-respondents, Harold Brewster ("Brewster") and the Board of Education of the City of St. Louis ("the Board") appeal from the judgment, after a bench trial, of the Circuit Court of the City of St. Louis pursuant to a petition in mandamus seeking enforcement of the Sunshine Law, chapter 610, et seq., RSMO 2000,¹ which was later amended and supplemented by a petition invoking section 162.631,² both of which were filed by respondents/cross-appellants, Rochell Moore ("Moore") and Amy L. Hilgemann ("Hilgemann"). The trial court ruled in favor of Moore and Hilgemann, who are both members of the Board, awarding them $11,200 in attorney's fees. Also, the trial court fined Brewster, who is the president of the Board, $100 for a purposeful violation of the Sunshine Law. Furthermore, the trial court issued a peremptory writ of mandamus and made findings, orders and declarations regarding the Board's past actions and its power and authority in the future. The trial court also unsealed and disclosed to the public several documents requested by Moore and Hilgemann from the Board and Brewster. Moore and Hilgemann filed a cross-appeal. We affirm in part, affirm as modified in part and reverse in part.³

In April of 2001, Moore and Hilgemann were elected to the Board. The Board is composed of seven members and oversees the City of St. Louis metropolitan school district. Subsequent to being elected, Moore and Hilgemann prepared a 47-page document entitled "Budget Recommendations." The "Budget Recommendations" document was an alternative budget for the 2002 fiscal year.

At the July 5, 2001 budget meeting, a motion was made and seconded to adopt the budget recommendations of the superintendent of schools, Cleveland Hammonds ("Hammonds"). Upon discussion of the motion to approve the budget presented by Hammonds, Moore and Hilgemann were given three minutes to present their "Budget Recommendations." The majority of the Board approved the budget presented by Hammonds.

After the Board approved the budget presented by Hammonds, Moore and Hilgemann, under the assumption the approved budget could be amended, continued to distribute the "Budget Recommendations" document to those that requested it and to others within the school district. In preparing and distributing the "Budget Recommendations" document Moore and Hilgemann, at least partially, used the Board's office, resources and staff.

On July 18, 2001, Brewster, who was elected president of the Board on July 11, 2001, contacted the Board's attorney, Kenneth Brostron ("Brostron") by letter. Brewster requested an investigation of Moore and Hilgemann for violations of the Board's policies and bylaws stemming from the preparation and dissemination of their "Budget Recommendations" document. Brewster also requested a "confidential reply with recommendations for any additional action." Brewster stated that he was "fully aware that the circuit courts hold ultimate jurisdiction concerning any abuses of Board Member powers and duties." Brewster expressed a "desire to be on sound legal footing" if Brostron recommended their communication should be shared with others.

On August 16, 2001, Moore and Hilgemann, after learning of the investigation, met with Brostron and requested a copy of the letter from Brewster. Brostron refused the request because Brewster had not authorized him to disclose the information.

On August 28, 2001, Brostron sent a letter to Brewster at Brewster's home address. The letter detailed the findings of the investigation and Brostron's recommendation that no further action be taken against Moore and Hilgemann. Brostron requested permission from Brewster to forward this letter to all members of the Board to be retained confidentially.

On August 31, 2001, Brostron sent another letter to Brewster at Brewster's home address in regards to the "Confidential Investigation." Brostron stated that several members of the Board requested copies of his correspondence with Brewster. Brostron opined that Brewster was "not specifically required to provide the Board members with copies of the correspondence, however, [Brewster] should report to them the general conclusion of the investigation." Again, Brostron stated it was his "recommendation that [Brewster] deliver the [investigation] report to all Board Members."

On September 4, 2001, during a closed executive session of the Board for a discussion of legal and personnel matters, a resolution, which called for the investigation of the conduct and character of Moore and Hilgemann was passed by a majority of the Board. Subsequent to the passage of the resolution, Moore delivered a written request to Brewster, pursuant to the Sunshine Law, for his original letter to Brostron calling for an investigation and the final report of the investigation.

On September 27, 2001, Moore and Hilgemann filed a petition in mandamus. Moore and Hilgemann requested that the Board, Brewster, or the custodian of records provide them with copies of the investigative reports and that the investigation be halted and ruled void. Also, Moore and Hilgemann requested Brewster be found to have purposely violated the Sunshine Law. Finally, Moore and Hilgemann requested the Board and Brewster be subjected to fines, costs, and attorney's fees.

On the same day, the trial court issued a preliminary order in mandamus directing the Board and Brewster to file an answer to the petition of mandamus by October 19, 2001.

On October 11, 2001, a notice of a special meeting to be held on October 13, 2001 was posted at the Board's office and sent to the members of the Board. The notice stated a special meeting would begin as an open session, but the Board would move into a closed executive session for a discussion of legal and personnel matters.

On October 13, 2001, the Board met and moved into a closed session. During the closed session, the petition of mandamus filed by Moore and Hilgemann was discussed and the majority of the Board voted to hire an attorney and have that attorney report only to Brewster. Also, the majority of the Board voted to instruct Brewster not to disclose Brostron's "preliminary investigation letter" to any person.

On October 19, 2001, Moore and Hilgemann filed a "Verified Petition" pursuant to section 162.631.2, which, among other requests: 1) challenged the legality of the Board's meeting of October 13, 2001; 2) requested the actions taken by the Board during the meeting be declared void in violation of the Sunshine Law; 3) requested the Board and Brewster be required to account for their conduct in the management and disposition of the funds, property and business in their charge; and 4) requested the Board and Brewster be compelled to pay the public school fund all sums of money which may have been improperly transferred to others or which may have been lost or wasted by any violation of their duties or abuse of their powers.

Also on October 19, 2001, the Board and Brewster filed a motion to quash the trial court's preliminary order in mandamus and an answer to the petition in mandamus. On October 31, 2001, the Board and Brewster filed a motion to dismiss the "Verified Petition."

On November 2, 2001, the trial court issued an order that stated the "Verified Petition" would be treated as a "proposed amended and supplemental pleading." The trial court denied the Board and Brewster's motion to quash the petition in mandamus and the motion to dismiss the "Verified Petition."

Beginning on November 26, 2001, a two-day bench trial was held. Moore, Hilgemann, Brostron, Hammonds, and Brewster, among others, testified.

On March 22, 2002, the trial court issued a 24-page memorandum, order and judgment, and peremptory writ of mandamus. The trial court made numerous findings of fact and conclusions of law, which will be discussed below in relation to the specific points on appeal. Also, the trial court awarded Moore and Hilgemann $11,200 in attorney's fees. Furthermore, the trial court fined Brewster $100 for a purposeful violation of the Sunshine Law. The Board and Brewster appeal. Moore and Hilgemann cross-appeal.

This court's standard of review requires that we sustain the trial court's decision unless it is against the weight of the evidence, there is no substantial evidence to support it, or it erroneously declares or applies the law. Spradlin v. City of Fulton, 982 S.W.2d 255, 263 (Mo.banc 1998); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).

We will address the Board and Brewster's first two points on appeal together. In their first two points on appeal, the Board and Brewster argue the trial court erred in concluding the Sunshine Law was violated by the refusal to release to Moore and Hilgemann the letters between Brewster and Brostron (collectively "the letters"). The Board and Brewster contend the letters did not constitute public records because they did not fit within the definition of a "public record" defined by the Sunshine Law. In the alternative, the Board and Brewster contend that if the letters were public records they were closed public records. We agree.⁴

In 1973 Missouri enacted the Sunshine Law which established the public policy of Missouri to be "that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public..." Section 610.011.1; Smith v. Sheriff, 982 S.W.2d 775, 778 (Mo.App. E.D. 1...