Clay County administration defies second audit subpoena

Clay County continues putting up roadblocks in the state audit process as the administration refused, under legal counsel advice, to answer questions Thursday, Dec. 12, from auditors as required by a subpoena.

CLAY COUNTY — County leaders are sticking to their guns when it comes to putting up roadblocks in the state audit of Clay County after an assistant county administrator refused to answer questions Thursday, Dec. 12, from auditors as required by a subpoena issued more than two weeks ago.

On Nov. 22, State Auditor Nicole Galloway issued a subpoena, the third issued by her office to the county since the audit began, demanding records and testimony from Assistant County Administrator Nicole Brown associated with the citizen-mandated audit of Clay County that began last year.

“Clay County's attorney would not allow the assistant county administrator to answer questions asked by audit staff. Under state law, the auditor or her authorized representatives have the authority to take testimony of auditees under oath. In every audit, audit staff request documentation and question auditees as part of the audit process,” states a release from the auditor's office.

A statement from the county contends its legal counsel didn't let Brown be deposed because "legal counsel learned just before the hearing was to begin that nonattorney staff from the State Auditor’s Office would be conducting the questioning."

The release states having nonattorney staff lead questioning during a deposition raised concerns over whether doing so would violate state law, which prohibits nonlawyers from practicing law in Missouri.

"Taking a deposition is generally something that only an attorney can do except in situations involving a pro se (representing one’s self instead of having an attorney) litigant. In an effort to resolve the question, Clay County’s counsel contacted the Missouri Bar’s ethics counsel seeking guidance, but was unable to speak with anyone from that office before the auditor’s counsel and staff opted to depart," the release states.

While the county's legal experts object, Missouri's Revised Statutes relating to authority of the auditor suggests Galloway's office does have the power to depose witnesses.

"The auditor or the auditor's authorized representatives shall have the power to subpoena witnesses, to take testimony under oath, to cause the deposition of witnesses residing within or without the state to be taken in a manner prescribed by law, and to assemble records and documents, by subpoena or otherwise," the law states. "The subpoena power granted by this section shall be exercised only at the specific written direction of the auditor or the auditor's chief deputy."

Once this issue is resolved, the release states, the county will work with the auditor to reschedule the deposition.

"As an update on Clay County's involvement with the overall audit, our staff has continued to work with the auditor in other areas and has produced virtually all information requested by her office, including more than 100,000 pages of documents in 2,500 files. This satisfies nearly all of the auditor’s requests aside from information that is protected by attorney-client privilege or protected employee medical and personnel records."

In response to the noncooperation, the auditor's office plans to take Clay County to court for a second time to demand compliance.

After a judge dismissed a lawsuit brought by Clay County in October, auditor sought documentation originally requested in December 2018 and January 2019, states the auditor's office release. When county officials failed to fulfill the requests, Galloway issued a subpoena on Nov. 8 to require documents and testimony. Subsequently, on Nov. 11, the county filed a motion attempting to modify the judge's previous ruling related to the auditor's authority. On Nov. 25, the assistant county administrator failed to appear and provide documentation as required by the Nov. 8 subpoena, citing a scheduling conflict with a vacation. As a result, on Dec. 4, the auditor's office filed a petition in Clay County court to demand compliance with the subpoena.

“The county's unwillingness to cooperate with the citizen-mandated audit requires the state auditor's office to continue to evaluate available audit resources and legal options in order to ensure citizens get answers,” states the release.

More on legal action as it relates to the county audit will be published as details become available.

Managing Editor Amanda Lubinski can be reached at amanda.lubinski@mycouriertribune.com or 903-6001.

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