August Newsletter (Issue 08-2020)

Whistleblower Protected By Public Policy Exception For Reporting A Violation Of The Service Provider Contract Requiring A Due Process Hearing Before Prohibiting Client With Developmental Disabilities From Contact With An Individual
Facts and Procedure: Michael Jaeger, is a former employee of Resources for Human Development, Inc. (“RHD”), a not-for-profit corporation that provides services to individuals who need continuing care due to developmental disabilities.  RHD receives funding through Developmental Disability Services of Jackson County (“EITAS”).

Jaeger was directed by RHD to restrict a client’s (“Client”) conduct, contact, and communication with other individuals, including Client’s girlfriend.  Jaeger believed that these directions were in violation of the contract and that before they could be implemented the Client was entitled to a due process hearing under the contract. Jaeger refused to carry out RHD’s instructions and complained to ETIAS about that lack of due process procedures, which he alleged were required by the contract with EITAS.  EITAS advised RHD that the directions were unlawful and should not be carried out before RHD acted to limit the clients contacts.  Jaeger was then terminated from his employment because he reported RHD’s actions to EITAS.  Jaeger claimed he was a whistleblower terminated in violation of public policy exception to the at-will employment concept.

Jaeger then filed a petition claiming wrongful termination and retaliation because he was a whistleblower protected by the public policy exception.  The defendants filed a motion to dismiss, which was sustained by the trial court and Jaeger appealed to the Western District.

Analysis: Jaeger claimed that the trial court erred because his petition stated a claim under the public policy exception to the at-will employment doctrine.  The funding contract between EITAS and RHD (the developmental service provider) provided that RHD was required to provide a due process hearing to the client before it restricted the clients right to interact with certain individuals (the program objective is to allow the client the right to live freely without restrictions, to the extent possible, in order to encourage independence).

The Western District noted, that public policy exceptions, to the at-will employment doctrine, provide that a person cannot be required to perform an illegal act or one contrary to a strong mandate of public policy nor can a person be disciplined for reporting the employer for their violations of law or public policy.  In this case RHD, was advised by EITAS that the contract terms for providing the services required that the client be notified and given an opportunity for a due process hearing, before limiting the clients right to interact with certain individuals.  The Court reasoned that due process requirement is a fundamental constitutional requirement embedded in the constitution, even though, in this case, it was created by a rule in the contract.  RHD was informed by EITAS that not providing a due process hearing as required by the contract violated the contract before it dismissed Jaeger; therefore, the trial court erred in granting the motion to dismiss because the actions of RHD in terminating Jaeger violated the public policy exception.  Jaeger v. Resources for Human Development, (WD83141, 07/28/20).

Comment Howard: This case is important because it illustrates how a regulation can be elevated to override the harsh strictures of the at-will employment doctrine.

Tension Between Exhaustion of Remedies And Declaratory Judgment Resolved
Introduction: In order to bring a declaratory judgment black letter law tells us that it is necessary to exhaust your administrative remedies.  The following case, involving the Missouri Department of Social Services, illustrates this conflict and how it can be resolved.

Facts and Procedure: The Missouri General Assembly passed an appropriation bill that included a 3.5% reduction in Medicaid per diem reimbursement rates for nursing facilities.  In response, the Missouri HealthNet Division, MHD sent letters to all nursing facilities participating in the MO HealthNet Program, advising each facility that its per diem rate would be reduced by $5.37 for dates of service between August 1, 2017, and June 30, 2018, and reduced by $4.83 for dates of service beginning July 1, 2018.  Some 330 nursing facilities filed complaints before the Administrative Hearing Commission (AHC), challenging the amendment to the regulations based on numerous grounds, (primarily legal grounds) which complaints were consolidated by the AHC,.  The MHD then asserted two affirmative defenses in an attempt to justify its actions.  A hearing was held before the AHC and it issued its findings of fact and conclusions of law indicating:

“We lack authority to reach a decision in their totality on [Nursing Homes’] claims and [DSS/MHD’s] affirmative defenses regarding a change in [Nursing Homes’] Medicaid per diem reimbursement rates.  We have the authority to make findings of fact in the context of the legal issues raised by the parties, and do so herein so that the parties may exhaust their administrative remedies and preserve their claims and defenses for appeal.”

Nursing Homes filed a petition for judicial review of a contested case under § 536.110. In the petition, Nursing Homes sought a ruling that: 1. MHD’s decision to reduce the nursing facility reimbursement rates, and the regulation implementing the rate reduction, were invalid, for the reasons set forth in the Commission’s findings of fact and conclusions of law; 2. that MHD violated its own regulation, and such violation was not justified by MHD’s constitutional defenses; and 3. findings and conclusions from the Court regarding Petitioners’ constitutional claims, including Petitioners’ claim that the method used by MHD to implement the rate reduction violated the Equal Protection Clauses of the United States and Missouri Constitutions.

The circuit court then determined that, “[b]ecause the proceeding before the [AHC] was a ‘contested case,’ it would review the AHC Decision pursuant to § 536.100-.140, RSMo.” (citing § 536.010(4), defining “contested case”).  The circuit court then adopted the findings of fact made by the AHC and issued its own conclusions of law, determining that (1) “MHD acted in violation of its own regulation”; (2) “[t]he rate reduction exceed[ed] MHD’s statutory authority, [wa]s unauthorized by law, was arbitrary, capricious, or unreasonable, or was an abuse of discretion”; (3) “MHD’s methodology to implement the rate reduction was arbitrary, capricious, or unreasonable and violated the Equal Protection Clauses of the United States and Missouri Constitutions”; (4) “MHD exceeded its statutory authority by implementing the rate reduction using a dollar amount and by promulgating a regulation to implement the rate reduction for SFY 2019 because MHD’s methodology was contrary to the legislative intent”; and (5) DSS and MHD’s constitutional defenses were meritless.  DSS and MHD both appealed to the Western District.

Analysis: This was not a contested case:
The Court first determined if the case was actually a contested case.  Section 536.100 provides for judicial review for “[a]ny person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case.” A “contested case” is defined as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.”

The Western District reasoned that in order to be entitled to judicial review in the circuit court, Nursing Homes had to be aggrieved by a final decision that determined the “legal rights, duties or privileges of specific parties.”  The Court concluded that, because the AHC “lacked the authority to reach a decision on the claims and affirmative defenses of the parties” and made only “findings of fact in the context of legal issues, . . . the decision has no practical effect and failed to resolve the dispute at issue, thus making the AHC’s decision an advisory opinion.”  An advisory opinion cannot determine “legal rights, duties, or privileges of specific parties” as required by the statute.  The vast majority of issues brought by Nursing Homes were challenges to the validity of the regulation changing their reimbursement rate, which cannot be determined by the AHC because they are outside the jurisdiction of the AHC.

Declaratory Judgment:
Next, the Court addressed the question of how aggrieved parties could challenge the legal basis for the actions of the State.  First, Section 536.050.1 allows for declaratory judgment suits to be brought challenging the validity of agency rules or regulations without exhaustion of administrative remedies where either “(1) The administrative agency has no authority to grant the relief sought or the administrative remedy is otherwise inadequate; or (2) The only issue presented for adjudication is a constitutional issue or other question of law.”

“Because the AHC lacked authority needed to resolve both the claims and defenses on the merits, exhaustion was likely not required, and Nursing Homes should have sought a declaratory judgment, rather than petitioning the circuit court for contested case review.”

Since one of the claims was not directed at invalidating the regulation, it was not clear at the outset that the AHC would be unable to resolve any of the claims presented but that fact did not become apparent until DSS and MHD filed an affirmative defense raising a constitutional issue.  The Court noted that in order to resolve this dilemma the matter could have been stayed in the AHC while Nursing Homes filed a declaratory judgment action to resolve the matter, suggesting a second way to resolve the dilemma.

The Court concluded that because the AHC lacked authority needed to resolve both the claims and defenses on the merits, exhaustion was likely not required, and Nursing Homes should have sought a declaratory judgment, rather than petitioning the circuit court for contested case review.  The court reversed the trial courts judgment and remanded the case to allow Nursing Homes to amend their petition to seek a declaratory judgment, rather than judicial review of a contested case.  Little Sisters of the Poor v. Missouri Department of Social Services, (WD82935, 08/18/20)

Comment Howard: This is an extremely useful case because it answers the question of how to resolve the tension between the need to have certain facts determined, which could require exhaustion of remedies and the filing of a declaratory judgment.  The Court made it clear that you did not have to exhaust administrative remedies in order to bring a declaratory judgment when the administrative agency had no authority to grant the relief sought or where the only question is a matter of law.  It also suggested that a stay of the administrative proceedings is appropriate, while issues involving a declaratory judgment are determined.

Case Of First Impression Interpreting When A Police Officer Is Engaged In The Active Performance Of His Duties
Facts and Procedure: Chief Newman served as the chief of police for the City of Leadwood (City).  Chief Newman also held a second job as a warehouse worker with United Parcel Service (UPS) in Crystal City, Missouri, where he loaded package delivery trucks.  On August 27, 2014, Chief Newman was loading delivery trucks at the UPS facility, when he suffered a fatal heart attack.  The medical examiner concluded the cause of death was arteriosclerotic and hypertensive cardiovascular disease and that the manner of death was natural.

The estate of Chief Newman (Estate) filed a claim, for benefits from the Line of Duty Compensation Fund (LDC), which provides a $25,000 cash benefit to survivors of law enforcement officers who are killed in the line of duty.  After an initial administrative determination denying benefits, the Estate filed an application for review, and an Administrative Law Judge (ALJ) subsequently conducted a hearing, after which the ALJ denied the Estate’s claim.  The Estate then appealed to the Industrial Relations Commission (Commission), which also denied the benefit and incorporated the ALJ’s findings by reference.

Dr. Stephen Schuman submitted a report to the Commission, based upon his review of Chief Newman’s medical records and the medical examiner’s report.  Dr. Schuman noted that Chief Newman’s left anterior descending coronary artery was 90 percent obstructed, subjecting Chief Newman to the risk of ischemia, which results from increasing demand for or decreasing supply of blood to the heart.  Physical exertion can decrease blood supply to the heart, which, in turn, can give rise to ischemia, resulting in a coronary event such as a heart attack.  Dr. Schuman noted that the physical exertion performed by Chief Newman while loading delivery trucks may cause ischemia.  Hot weather, common to Missouri in late August, may also intensify ischemia.

Additionally, Dr. Schuman noted that Chief Newman “suffered significant emotional distress as police chief and that he was taking anti-depressants.”  Furthermore, Chief Newman “was always subject to call.”  However the City did not provide detailed information such as copies of operations and procedures manuals which govern police duties and conduct, policies relating to supplemental employment, or details regarding Chief Newman’s activities in the six- to eight-week period preceding his death.

Dr. Schuman concluded that on August 27, 2014, Chief Newman “developed ventricular fibrillation due to ischemia caused by significant isometric exertion in hot weather which was contributed to by his being under constant emotional distress as police chief.”  He then opined, in relevant part, that “Chief Newman’s work for UPS on 8/27/2014 was the prevailing cause of his cardiac death and his work as police chief directly contributed to his death.”

The Commission affirmed the decision of the ALJ, incorporating the ALJ decision by reference, without making additional findings.  The ALJ made rulings of law on two issues.  First, the parties disputed whether the earlier or later version of the Line of Duty Compensation Act (Act), codified in Section 287.243, applies.  The legislature amended the Act in 2014, and the amendments became effective on August 28, 2014, the day after Chief Newman’s death.  The ALJ determined that the 2014 amendments were substantive and could be applied retroactively; therefore, they did not apply.
The ALJ also concluded that under the prior version of the Act (the 2013 LDC Act), in effect on the day of Chief Newman’s death, the Estate was ineligible for benefits because Chief Newman’s death did not occur while he was “in the active performance of his . . . duties within the ordinary scope of his . . . respective profession while . . . on duty,” as required by Section 287.243.2(5).  The ALJ denied benefits, and the Commission adopted these findings.  An appeal to the Eastern District followed.

Analysis: Do the Amendments Apply Retroactively?
Chief Newman died the day before 2014 amendments to the LDC law were to take effect.  The Court first addressed the question of whether or not to apply the amendments that went into effect the day after he died or the LDC in effect on the day he died.  The amendments to the LDC broadened the scope of the LDC law by eliminating the requirement that the law enforcement officer had to be within the “in the active performance of his or her duties within the ordinary scope of his or her respective profession…” and while the individual is on duty . . . .” (emphasis added). “The 2014 amendments widened the scope of activities during which an event causing death would render an estate eligible for benefits from the LDC Fund.”  The Eastern District held that these changes were substantive not procedural; therefore, they could not be applied retroactively.

When Is An Officer Engaged In The Active Performance Of His Or Her Duties?
Notwithstanding, the above ruling the dispositive issue was whether Chief Newman was engaged “in the active performance of his duties” as police chief at the time he suffered his fatal heart attack.  This question was a question of first impression.
The Court recognized that police officers are by law never technically off duty; nevertheless, the language of the statute was unambiguous contemplating that the office had to die in “the line of duty.”  Chief Newman had his heart attack while he was on the dock in Crystal City loading packages into a UPS delivery truck, which indicated that the Chief was not actively engaged in the performance of his duties when he had his heart attack .

The Court found it instructive to look at police officer cases in the context of the workers compensation law as a guide in determining the meaning of when an off duty police officer would be considered to be on or off duty even though police officers are “always on duty” as a matter of law.  “The key issue in each of these cases is whether the actions performed by the officers were of the kind they undertook in their roles as officers…,” noting cases where the denial of benefits where an officer was killed in car accident on his way to his second job as security officer because “at the time of the accident he was not involved in any law enforcement duties.”

Other cases, show an officer is on duty when an officer stopped to help a citizen who was in an accident as well as an officer who helped citizens during an approaching storm.  They were considered to be on duty for purposes of the workers compensation laws.  Estate of Dale Newman v. City of Leadwood, (ED107986, 08/18/20).

Offer To Transfer The Employee Was Not An Adverse Employment Action And The Complained-Of Conduct Did Not Rise To The Level Of Actionable Harm
Facts and Procedure: M.W. began working as a seasonal employee at Six Flags when she was sixteen years old and worked the 2016 and 2017 summer seasons.  During these two seasons, M.W. was a ride operator at the Justice League and Shazam rides. Upon being hired, M.W. attended orientation and training on Six Flags’s procedures, which included training on the “Zero Tolerance of Harassment and Discrimination” policy and the procedure to report harassment.

Two primary incidents of harassing conduct involving M.W and fellow employees occurred in July of 2016 while M.W. worked at Six Flags.  On July 6, 2016, M.W. and a female co-worker, N.G., were assigned to clean the 3-D glasses used on the Justice League ride, in the “glasses room,” where equipment for the ride was maintained.  J.B. and T.W. entered, the room, where M.W. and N.G. were working, locked the door, and were greeted by M.W. and N.G.  J.B. commented that there were “two girls and two boys” in the room and suggested they should “get it on.”  J.B. and T.W. proceeded to pull down their pants, but not their underwear.  M.W. instructed them to pull their pants back up, and both boys complied.  At some point, J.B. and T.W. tightly grabbed M.W. by the arms and legs, laughing.  M.W. stated she did not find their behavior funny and kicked J.B.; after they released M.W., T.W. stepped on her hair.  M.W. proceeded to unlock the “glasses room” door, clock out of work for the night, and leave Six Flags.

Later that night, on July 6, 2016, some employees stayed after Six Flags had closed to enjoy the park, as they were allowed to do on designated “ride nights.”  After the Glasses Room Incident, N.G. and J.B. stayed at Six Flags for an employee “ride night.” The next day, on July 7, 2016, J.B. approached M.W. to show her something on his cellular telephone from the employee ride night: a video of N.G. engaging in oral sex with J.B.  M.W. saw approximately five seconds of the video and pushed the cellular telephone away.  J.B. proceeded to hit and “karate chop” M.W. on the head, instructing her not to tell anyone about the video he showed her.

HR representatives were informed of the incidents and investigated interviewing the parties.  N.G. and JB. were terminated.  HR representatives offered a voluntary transfer to M.W. so she could move to another ride at Six Flags, if she would feel more comfortable in a different area.  They also asked M.W. what changes she would like if she decided to stay at Six Flags.  M.W. testified at her deposition that, at the end of her H.R. interview, Hamilton one of the HR representatives told M.W. that “[She] can’t let those two bother [her].  They’re boys.  Boys are going to be boys, and it’s going to happen at workplaces.”  M.W. elected to not transfer and continued with the same ride for the rest of the season.  She was hired the following season and given a raise.
M.W. filed a complaint for sex discrimination with the Missouri Human Rights Act (“MHRA”) and a complaint alleging a hostile work environment.  Six Flags filed a motion for summary judgment, which was sustained.  M.W. appealed to the Eastern District.

Analysis: M.W. argued that Six Flags was not entitled to judgment as a matter of law because genuine issues of material fact exist regarding two of the elements of a hostile work environment claim: that the harassment affected a term, condition, or privilege of her employment; and that Six Flags knew or should have known of the harassment and failed to take appropriate remedial action.

Was a term, condition, or privilege of employment affected?
M.W. argued that the trial court erred in granting Six Flags’s motion for summary judgment because genuine issues of material fact existed as to whether a term, condition, or privilege of M.W.’s employment was affected by the harassing conduct she experienced. Specifically, M.W. contended that: (1) Six Flags took adverse action against M.W. by suggesting she transfer work areas after the incidents, and (2) Six Flags’s, H.R. representative, Hamilton made statements to M.W. regarding the harassment that “boys will be boys,” and it “happens at every workplace.”

The Eastern District, addressed the question of what constitutes an adverse employment action.  In this case, M.W. was sexually harassed by two juvenile male workers on two occasions.  After the incidents were reported and HR investigated the incidents Six Flags offered to transfer M.W. to another ride or area where she would not be in contact with the boys.  M.W. declined the transfer and continued to work the rest of the season working at the same ride in the same area.  She signed up for the next season for the same ride and in the same area and was given a raise.

In order to prevail on a claim of discrimination due to a hostile work environment, a plaintiff must show: (1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) her gender was a contributing factor in the harassment; and (4) the harassment affected a term, condition, or privilege of employment.  In addition, in a case of non- supervisory co-worker harassment, a plaintiff must show an additional element to impose employer liability: that the employer knew or should have known of the conduct and failed to take proper remedial action.

The Eastern District noted that in order for E.W. to prevail she must show the harassment affected a term, condition, or privilege of employment.  A tangible employment action is defined as “a significant change in employment status,” such as hiring and firing, promotion and demotion, undesirable reassignment, or compensation decisions.  The evidence showed that M.W. was not forced to move from the Justice League ride, and in fact elected not to move to a different ride during the 2016 season and returned to the same ride for the 2017 season.  M.W. was paid a consistent hourly rate throughout the 2016 season, which increased when she voluntarily returned to Six Flags for the 2017 season, and there is no evidence in the record that any other term, condition, or privilege of employment was affected by Hamilton’s offer to move to a different ride.  The offer by Six Flags to transfer M.W. to a different ride or another area of the amusement park to make her more comfortable was not an adverse employment action.

The complained-of conduct does not rise to the level of actionable harassment
E.W. alleged that three events constituted the basis for the hostile work environment.  There were the two sexual harassment events involving the boys and the statement by the HR representative that “[She] can’t let those two bother [her].  They’re boys.  Boys are going to be boys, and it’s going to happen at workplaces.”  The Eastern District noted that they did not rise to the level a hostile work environment based on examination of three 8th Circuit court cases.

“The hostility of a workplace environment is determined based on the totality of the circumstances, and we look to factors including the frequency and severity of the harassing behavior, the extent to which it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s work performance.”

Both federal and state law set a high bar for the threshold of actionable harm to constitute a hostile work environment.  The conduct complained of was limited to three brief instances of no more than a few minutes each, occurred over the span of four consecutive days during the first season of M.W.’s employment, and was largely on the part of one co-worker.  There is no evidence that M.W. experienced any other harassing conduct over the course of her nearly eight months of employment at Six Flags.  M.W., an infant, by and through her natural guardian and next friend, K. W. v. Six Flags St Louis, (ED107943, 07/21/20)

Comment Howard: I thought Six Flags really handled this case to perfection even though it was a very weak case.

Comment Ragan: One thing that can get lost in employment training is ensuring that individuals responsible for responding to claims are appropriately responsive to allegations.  This was a weak case but a few words didn’t help the situation.

To Determine If A Public Governmental Body Is A Quasi-Public Governmental Body Requires A Factually Specific Inquiry
Facts and Procedure: Malin submitted a Sunshine Law request to “ACT Missouri” asking for “[a]ny and all documents relating to funding acquired from the Missouri Department of Mental Health” for fiscal years 2016 and 2017.  ACT Missouri is a not-for-profit corporation organized in Missouri under Chapter 355.  It entered into contracts with government agencies, including the Missouri Department of Mental Health, the Division of Alcohol and Drug Abuse, the Missouri Department of Transportation, and the United States Department of Health and Human Services.
Three days after receiving Malin’s request for records, ACT Missouri responded, stating:

“[w]e have received your previous requests for records and have responded to each request.  To restate with respect to each and every request you have made, since ACT Missouri is not a covered entity under Chapter 610, and more specifically Section 610.010(4), there is no further response required.”

Malin then filed suit in the Circuit Court of Cole County, seeking the requested records, civil penalties, and attorney’s fees.  Three months after the petition was filed, and prior to any discovery being conducted in the case, ACT Missouri filed a motion for summary judgment arguing that it was not a “quasi-public governmental body, not subject to the Missouri Sunshine Law.  Malin filed an affidavit under Rule 74.04(f) requesting the trial court defer any ruling on the motion for summary judgment, arguing that some discovery was necessary in order to respond to the motion for summary judgment and offering that “discovery is likely to demonstrate a factual dispute about whether [ACT Missouri] is a quasi-public governmental body.”  Malin anticipated taking one or more depositions “depending on the responses to [Malin’s] written discovery[.]”  Malin then provided notice to take the deposition of the corporate representative.  ACT Missouri opposed the Rule 74.04(f) affidavit and moved to quash the deposition notice.  The trial court denied Malin’s Rule 74.04(f) request, quashed the deposition notice of the corporate representative and ordered that no further discovery would be permitted.  Thereafter, the motion for summary judgment filed by ACT Missouri, was sustained by the trial court, which was appealed to the Western District.

Analysis: Act Missouri contended that it was not quasi-public governmental body because it was an “association” under the statutory definition and that its articles of incorporation did not provide that it was a quasi-public governmental body making it exempt from the Sunshine Law.  The Court framed the central issue of this case,  1) Is ACT Missouri a “quasi-public governmental body” under the Missouri Sunshine Law?
2) Is “Act Missouri” an association?  In answering this question the Court breaks down the definition of quasi-public government by noting that a public governmental body includes “. . . . [a]ny quasi- public governmental body.” § 610.010(4)(f), which is defined as:

“The term “quasi-public governmental body” means any person, corporation or partnership organized or authorized to do business in this state pursuant to the provisions of chapter 352, 353, or 355, or unincorporated association which either:
a. Has its primary purpose to enter into contracts with public governmental bodies, or to engage primarily in activities carried out pursuant to an agreement or agreements with public governmental bodies; or
b. Performs a public function as evidenced by a statutorily based capacity to confer or otherwise advance, through approval, recommendation or other means, the allocation or issuance of tax credits, tax abatement, public debt, tax-exempt debt, rights of eminent domain, or the contracting of leaseback agreements on structures whose annualized payments commit public tax revenues; or any association that directly accepts the appropriation of money from a public governmental body, but only to the extent that a meeting, record, or vote relates to such appropriation[.]” § 610.010(4)(f)(a) & (b)

Malin’s argued that the term “association” in the above definition should not be understood in isolation and assigned a broad definition that would capture corporate entities organized under chapter 355, such as Act Missouri.  The Western District held that this argument was misplaced.

“ The use of the term “any association” in the relevant part of Section 610.010(4)(f)(b) is significant because it modifies the reach of that particular provision. Since an entity must be one described in Section 610.010(4)(f) as a prerequisite to qualifying as a quasi-public governmental body under either Sections 610.010(4)(f)(a) or (b), the term “any association” can be interpreted no broader than the sphere of entities which the general assembly included in Section 610.101(4)(f).  As it would have been unnecessary for the general assembly to insert the term “any association” had it meant for the category of entities that “directly accepts the appropriation of money from a public governmental body” to include all organizations already encompassed in Section 610.010(4)(f), we must assume the general assembly intended “any association” to narrow the applicability of the category”

Therefore, the Court concluded that the phrase “any association” applied only to unincorporated associations, not a 355 corporation, so Malin’s argument failed.

Determining if “Act Missouri” falls within the definition of a public governmental body requires examination of its primary purpose not just its articles of incorporation.  Malin also asserted the trial court erred in granting summary judgment in favor of ACT Missouri, arguing that ACT Missouri’s primary purpose is to enter into contracts with public governmental bodies, or to engage primarily in activities carried out pursuant to agreements with public governmental bodies” rendering it a quasi-public governmental body under Section 610.010(4)(f)(a).

In this case, the trial court granted Act Missouri’s motion for summary judgment by limiting its inquiry to the purposes stated in the articles of incorporation.  The definition of a quasi-public governmental body states that “…its primary purpose to enter into contracts with public governmental bodies, or to engage primarily in activities carried out pursuant to an agreement or agreements with public governmental bodies;”

In order to determine if the “primary purpose” is to enter into contracts requires examining more than the articles of incorporation.  The Court noted that Chapter 610 does not define “primary purpose” or contain language that purports to limit any inquiry into an organization’s primary purpose, to its articles of incorporation; therefore, based upon a reading of the statute and case law a court must engage in a factually specific inquiry to determine whether an entity has as “its primary purpose” to enter into contracts with public governmental bodies or to engage primarily in activities carried out pursuant to an agreement with public governmental bodies.
Therefore, the trial court erred when it sustained the motion of Act Missouri for summary judgment, after denying Malin’s request to take depositions and conduct normal discovery.  Malin v. Missouri Association of Task Forces, d/b/a Act Missouri, (WD83322, 07/21/20)

Comment Howard: I have not previously reviewed a case that probes in depth the meaning of a quasi-public governmental body.  The case also identifies the known universe of cases dealing with the issue of “primary purpose” central to the definition of quasi-public corporation, making it noteworthy.

Body Cameras
A recent article by Jean Maneke and Charles Morasch, in the July -August, 2020 Edition of the Journal of the Missouri bar entitled, “Show-Me surveillance: Law enforcement navigation of Missouri’s Sunshine Law requirements” is well worth your review.  Part 1 of the article explains the current climate surrounding police body cameras and the call by many commentators, including law enforcement officials, to outfit all law enforcement officers who interact with the public with those cameras. Part I concludes by examining the digital storage demands created by body cameras and how this increase has prompted offers for free cloud-based records retention.

Part II of this article examines the current context of police records laws, as well as explores the limits of what records can be farmed out to third-party vendors in Missouri.  This portion of the article also includes information on bi-partisan attempts by federal lawmakers to help local law enforcement agencies buy body camera systems.  Part II, also hones in on Missouri Revised Statutes § 610.023, which prevents local governments from handing off to “any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”

In Part III, the article examines why a single exception to the physical custody requirement of Missouri’s Sunshine Law, combined with the common natural progression of technological innovation, could lead to changes in how Missourians may access their public documents, including police camera footage.  Finally, the article points out that a single sentence in the governing statute could be the key to allowing third-party vendors to play a larger role in processing both police body camera footage and requests from the public for that data.

If your agency is considering body cameras this article is a must read.  It is much more than just a review of the law, in that it provides a broad focus to help you understand the economics of body cameras and related issues like the cost of storage and accessibility.  Since there is a high probability that citizens will have recordings of a police incident requiring your police to have body cameras might be an act of self-preservation.  MOBAR ARTICLE

COVID 19 And Business Interruption Insurance
We are now getting trial court rulings on COVID 19 cases pertaining to business interruption insurance that may be of interest to local government lawyers.  The August 17th Edition of Missouri Lawyers Weekly, reported a U. S. Western District court ruling that overruled a motion to dismiss a lawsuit brought by restaurants and hair salons to recover on their business interruption insurance policies.  Under the policy, the plaintiffs alleged that the virus was a physical substance that attached to their property requiring them to shut down.  The district court ruled the plaintiff’s allegations that the virus attached to their property and damage their property were sufficient to survive a motion to dismiss.  The Missouri case is the first case nationally to clear an insurers motion to dismiss.

In another case, also reported in the August 17th edition of Missouri Lawyers Weekly, a number of colleges and universities filed a suit to recover on a business interruption clause in their policies claiming they had to shut down their institution because of the pandemic virus.  The article reports that one big difference between claims brought by public institutions and the private sector is the potential size of the claim, which in the public sector can be millions of dollars.

Considering the size and scope of local government operations there may be potential for all sorts of recoveries, like operations of gyms, golf courses, jails as well as other activities.  You may want to do some brainstorming as to potential claims and carefully review your insurance policies.  Revenues are going to be tight during the pandemic and recoveries of losses from carriers who insured these risks will be appreciated by local officials.

Closely related to business interruption clauses is the question of whether or not the policy excludes events involving force majeure.  An article written by John Petite, of the litigation practice group at Geeensfelder, Hemker and Gale in the August 3, 2020 edition of Missouri Lawyers Weekly, discusses interpretations of force majeure clauses under Missouri law.  This is a very good article and merits your attention, if you are researching this subject.  My experience suggests that many local government contracts have a force majeure clause.  The article by John Petite, is great because it provides a framework for examining a force majeure clause.

Voter Rights And The Shadow Docket Of The U. S. Supreme Court
Recently, there has been an extraordinary amount of legal activity over voter rights, which is likely to continue.  This reflects the contentious relationship between the political parties and the effort to change voting rights during the pandemic.  Seemingly there has never been so much at stake.

This has put a focus on the so called “shadow docket” of the United States Supreme Court, the docket is reflecting a large number of the cases filed before the Supreme Court, when the Supreme Court is not in session.  The shadow docket is a Supreme Court docket, where the filings of with the Supreme Court are shown, when the U. S. Supreme Court is not in session.  The petitions usually seek review of an adverse decision and many times the request seeks a stay of the current action.  Since the Supreme Court does not issue opinions, when it is not in session, the only record of the action taken by the Court may be a terse statement, granting or denying the relief sought, with a record showing how the members of the court voted.  Even though the order may not serve as precedent it may resolve the conflict temporarily or permanently (think mootness).

How this works is discussed in a recent article involving a California case and the issue also emerged in a Texas case.  In the California case, the Supreme Court enjoined the lower court from requiring health protections related to COVID19 .  Vox Shadow Docket

In another shadow docket case, involving the state of Connecticut, the Court, in an unusual order (normally there is no explanation), allowed a lower court ruling to stand, while issuing a one page unsigned statement why the Connecticut case was different from an earlier case that appeared on its face to be identical.  The order explained that in the Connecticut case no state official opposed the action to allow the waiver of witnesses to the signature of the voter for an absentee ballot.  SCOTUS Blog Link