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Lawsuit against Hawley, Mizzou alleges conspiracy to hide public documents

  

Documents could demonstrate Hawley’s use of state resources for political gain

COLUMBIA, Mo. – A lawsuit filed Wednesday afternoon alleges the University of Missouri and attorney general candidate Josh Hawley have conspired to keep potentially damaging records relating to Hawley’s political activity while employed by the university.

Kevin Elmer, a former state representative from Christian County, filed a Sunshine Law request last year to obtain records that he suspected might show Hawley was using state funded resources for political purposes. When the lawsuit was filed, Elmer had only received about 25 percent of Hawley’s emails and none of the computer documents he requested, despite paying the university nearly $5,000.

Dueker
Dueker

“These are public records that should have been turned over a long time ago: one person’s computer, one person’s emails and documents on a computer. There’s no conceivable reason that we are 11 months in, $5,000 in, and have seen 25 percent of the emails,” said Jane Dueker, Elmer’s attorney. “These are public records and unless they can come up with an exemption, the idea that the object of the request is deciding for the custodian what will be reviewed for production violates the Sunshine Law.”

Hawley’s campaign did not return requests for comment and the University does not comment on pending litigation.

The records request

Elmer made his initial request for the records May 28, 2015. He requested emails sent & received by Hawley, phone records on office phones or university issued cell phones used by Hawley and documents on university computers used by Hawley.

He also requested emails from MU Law School Dean Gary Myers, the school’s director of external relations Casey Baker, former University of Missouri System President Tim Wolfe, former University of Missouri Chancellor R. Bowen Loftin, Provost Garnett Stokes and human resources manager Krista Jennings referencing either Hawley or the office of attorney general.

Between July 20 and Sept. 8, Elmer received the phone records and the requests for emails from everyone but Hawley. Meanwhile, the lawsuit says, Hawley lobbied the university to review what documents and emails could go to Elmer, in some cases citing legal privilege.

Hawley wrote about what he expected to review in an email later obtained through a separate Sunshine Law request:

I understand that I am to review all emails and documents currently retained on my University email account, on University server drives accessible by me, and on my office computer for the period running from May 28, 2013 to May 28, 2015. Per your instructions, I will separate those emails and documents that involve non-University business from those that pertain to University matters. I will further identify those emails and documents pertaining to non-University matters that are legally privileged.

The school relented, allowing Hawley to review the documents, something the lawsuit says is not allowed under the Sunshine Law.

In reviewing the documents, Hawley has claimed several exemptions, including the school’s hiring, firing and promotion procedures; educational testing materials that may be used again; school personnel records beyond what’s already allowed to be turned over; records protected from discovery by law and records pertaining to the configuration of the school’s computer and communication systems.

Elmer repeatedly checked in with university regarding the records and threatened the university with a lawsuit on Jan. 12. Since then he has received about 25 percent of Hawley’s emails in 13 parts over 13 weeks. He has not yet received any of the documents from Hawley’s computer.

The lawsuit was filed now because Elmer believes at the current pace of releasing the documents, nothing important would come out until after the Aug. 2 primary or the Nov. 8 general election.

The conspiracy charge

Included in the lawsuit is a charge that the university and Hawley conspired to keep public records out of the public view after they had been requested by Elmer. The lawsuit says they purposefully worked to keep certain documents in the dark through various means, including:

  • A revolving door of intermittent emails, stalling the production of the documents;
  • A blanket assertion of exemptions instead of producing the documents;
  • Failure to account for the slow pace at which the documents are being produced;
  • Failure to provide a reasonable estimate for the time frame to produce the documents;
  • Imposition of exorbitant fees for production of the documents;
  • Delegating the review of documents to the object (Hawley) of the request;
  • And an attempt to aid and abet Hawley’s efforts to deny production of the documents.

In light of other recent cases of Sunshine Law requests at the university, Elmer’s case seems to fit a pattern. The St. Louis Post-Dispatch reported last week that animal rights activists have been charged $82,000 in a public records request, when similar requests at other universities have been processed for free.

Elmer has another records request pending where the school estimated a $17,000 processing fee.

On the other hand, the slow pace of the Elmer request is inconsistent with other similar records requests. The Chronicle of Higher Education received 1,100 pages of former professor Melissa Click’s emails within 24 hours.

“I think it’s important that the public knows that public governmental documents are going to be produced,” Dueker said. “This is about access to public records. They are not legitimately being withheld. They are charging exorbitant prices to get it, in order to chill people’s rights to get public records.”

The leave of absence

While Elmer has not learned much from the Hawley emails he received — most of the emails he’s received are irrelevant — he has learned a little about Hawley’s political activity while at the university.

Hawley officially requested a paid leave of absence in April 2015 in order to run for attorney general. Later it was determined that a paid leave of absence would be an illegal use of state funds so he submitted a request for, and was granted, an unpaid leave of absence, running from Sept. 1, 2015 through Sept. 1, 2016, though that could be extended if he won the primary election.

On July 23, 2015, Hawley submitted a statement of organization to the Missouri Ethics Commission, effectively an official start to his campaign. Until Sept. 1, Hawley continued to draw a salary from the university, even while officially campaigning for attorney general.

One of the emails Elmer obtained shows that Hawley was not scheduled to teach classes in summer or fall 2015, even before he requested his leave of absence. The lawsuit brings this forward as proof that Hawley had unofficially requested a leave of absence to campaign and that the school already knew about his political activities.

During the summer before his leave of absence began, and after the law school’s May 15 graduation ceremony concluding his last semester of teaching, Hawley raised more than $150,000.

The lawsuit already includes other allegations of political activities while working for the university, including the maintenance of campaign fundraising lists on his school-provided, state-owned computer. The lawsuit and Dueker point out that using a device of the state to conduct such business is illegal, an offense that put  former Missouri Attorney General William L. Webster in jail.

“Everybody just forgets that you don’t get to do that and that Bill Webster went to jail for that. The attorney general of Missouri went to jail for using a state computer and a state printer,” she said. “Nothing about the law has changed. That is still appropriating state resources for political purposes, which violates the law, the constitution and university policy.”

Due to the urgency of the situation, the case is expected to move to the top of the Boone County docket. Elmer is seeking a return of the money he paid to the school for the records, as well as an injunction to provide the records.

Because of the conspiracy charge, he has requested a jury trial. That charge carries fines of up to $5,000 as well as payment of court costs and attorney fees.

While the records request in this instance targeted Hawley, Dueker says it’s not politically motivated, but motivated by what’s right.

“Don’t use your state computer for political and personal reasons and there will not be a problem,” she said. “This is a problem that a law professor, running for attorney general, who is the chief enforcement officer of the Sunshine Law… this a problem of his own making.

“The bottom line is, do not use your state computer for things that you do not want the public to see. Because if you are improperly using your computer, the public has a right to know. It’s a public record. And people need to relearn that public resources are still public.”

Nearly a year after Elmer’s initial records request, this lawsuit could help bring resolution closer. But Dueker says it’s been long enough for a case that seems pretty simple.

“It’s not disputed that they are subject to the Sunshine Law,” she said. “It’s not disputed that we made a valid request. It’s not disputed that we actually paid a lot of money in order to procure these documents. And it’s undisputed that there were political emails already on the computer. And it’s undisputed that we’re asking for emails and documents for one computer. How difficult can that be? We’re eleven months in.”