State auditor back in court against Clay County

Clay County Commissioners are again facing legal matters in the state audit process as State Auditor Nicole Galloway filed a petition in Clay County Circuit Court for the court to enforce the auditor's subpoena for county meeting records and testimony from Assistant County Administrator Nicole Brown, the county's appointed custodian of records.

CLAY COUNTY —State Auditor Nicole Galloway is seeking court assistance to get Clay County to comply with a citizen-petitioned state audit.

In the past week the auditor has filed a petition seeking Clay County Circuit Court to enforce the administrative subpoena she issued to Assistant County Administrator for Public Services Nicole Brown, who is also the county's appointed custodian of records, requiring her to appear before the auditing team for testimony and to provide county records previously not turned over to the auditor's office such as closed meeting minutes.

“The lawfully executed subpoena required records and testimony associated with a citizen-mandated audit of Clay County,” wrote Galloway in a Dec. 4 tweet about the latest court filing.

In the petition filed Dec. 4, the auditor's office states audit staff have been denied access to records of what took place in County Commission meetings by commission representatives. The auditor's petition says her staff were previously directed to the county's website for open meeting minutes but denied access to closed minutes in their entirety.

In an affidavit sent to the audit's office explaining why she did not appear before the auditor's staff as demanded Nov. 25 by subpoena from the state auditor, Brown said she had a preplanned vacation day that resulted in her unavailability and that closed meeting minutes were not being turned over to the auditor's team at the advice of legal counsel.

This is not the first time the issue of access to County Commission records has been brought to court. In January the auditor's office filed an injunction in Cole County Circuit Court against the county, seeking access to county communications and records subject to the Missouri Sunshine Law.

The county responded with a lawsuit, claiming the auditor was overstepping her authority in attempting to do a performance audit of the county. In its lawsuit against the auditor, the county objected to releasing records that may contain attorney-client privileged information.

“In spite of this limited objection, the commission produced no closed meeting records whatsoever, redacted or otherwise,” states the auditor's most recent legal filing seeking court relief.

Earlier this year, the Cole County court dismissed the county's case, saying there is nothing unconstitutional about the auditor's records requests and that the “auditor is not limited to performing financial post-audits of county accounts, and is statutorily authorized to conduct 'performance' audits.”

Under the Dec. 4 petition, the auditor requests the court enforce its subpoena for Brown's appearance for deposition at a time and location set by the court and that Brown or other county officials make available all open and closed County Commission meeting minutes. Acknowledging some commission communications can remain closed under the state's Sunshine Law, the auditor's petition states the county can make redactions for attorney-client privileged communications or work products if a log is provided for each such redaction that contains sufficient information to determine whether the attorney-client privilege was properly invoked.

“The Auditor is conducting an ongoing audit of the County, and such audit will require the examination of records and witnesses that will include information and records that are not open, public records,” the petition states.

A request for comment on the county's response to the newest legal action taken by the auditor was answered by Public Relations and Events Manager Nikki Thorn, who said the county was not commenting at this time.

Presiding Clay County Commissioner Jerry Nolte, who along with Eastern County Commissioner Luann Ridgeway, Western Commissioner Gene Owen and County Clerk Megan Thompson are named in the latest suit, said, as he has throughout the audit process, that he supports the audit and hopes everyone in Clay County government can set aside their personal differences and comply with the records requests because it is in the best interest of the county.

“As the clerk, it is my job to accept service in all lawsuits involving the county,” said Thompson, explaining why she was named in the legal filing. “I urge the commission to stop hiding the truth and to cooperate fully with the citizen mandated audit.”

Ridgeway said that in Galloway's most recent lawsuit, the auditor has conceded that she is not entitled to access attorney-client privileged materials.

"With that, there are now very few disputed issues with the auditor, but chief among them is her demand for employee performance review records spanning a host of departments in the county, including the sheriff’s department," Ridgeway wrote in a Friday, Dec. 6, email to the Courier-Tribune. "The Missouri courts recognize that all employees, including public employees, have a fundamental right of privacy in their employment records. We believe we are obligated to protect the rights of all County employees, especially in light of the limits that the Missouri Constitution places on the auditor’s authority."

Ridgeway, in previous Courier-Tribune interviews, said county staff had provided the auditor's office with documents relating to hundreds of thousands of budget line items at the start of the audit and it seemed that the auditor was stalling the audit process.

Ridgeway equated Galloway's handling of the audit process and communications sent to Clay Countians as possible political posturing. Galloway is campaigning to be the state's next governor.

"As an update on our work with the auditor, the assistant county administrator is scheduled for deposition next week. Just as we said last week, she was willing to appear on a mutually agreeable date, and that has now been scheduled," Ridgeway wrote in the Dec. 6 email to the newspaper. "Additionally, the county has produced virtually all information requested by the auditor aside from a relatively small information set that we feel we must protect given it includes sensitive employee information and attorney-client privileged communications."

Auditor's Ofifce Press Secretary Steph Deidrick, in a Dec. 6 email to the Courier-Tribune, said the audit remains underway, but more specifics could not be released.

"Auditors have an ethical and legal obligation not to discuss audit findings before the final report is released," she wrote. "Specifically, the law states that our office can 'not reveal the condition of any office examined by him or any information secured in the course of any examination of any office to anyone' outside of the information in the final report."

Deidrick added that any possible accusation that Galloway is not committed to getting answers on behalf of Clay County citizens is "absurd and unfounded."

"Auditor Galloway has committed time, staff and resources, not only to ongoing audit work, but also to fighting the county's efforts to stop the audit in court. Just this week, our office again stood up for this citizen-mandated audit by taking Clay County to court to enforce our subpoena. The State Auditor has never been required to take an auditee to court to enforce a subpoena. Auditor Galloway will continue to fight for answers for Clay County citizens. They deserve nothing less," she said.

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

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