February Newsletter (Issue 02-2021)

Can A State Representative Block Her Twitter Account Because She Disagrees With A Comment Made By A Citizen?
Introduction: Campbell v. Reisch, is an 8th Circuit opinion, held that Missouri State Representative Reisch could block Mike Campbell from her Twitter account.  The opinion distinguishes opinions by the Second Circuit and Fourth Circuits, that held social media blocks violated the First Amendment Free Speech clause, creating a split in the Circuits.  (One of the social media blocks involved President Trump.)  Of course, everyone is going to want to know how the magic sauce works that  allowed Representative Reisch to escape the clutches of the First Amendment.  There will also be other public officials who want to block their accounts from pesky citizens.

There will also be others who will want to know why a state official can block them from a social media account of a state official while others engage in interactive discourse  with the public official.  Like it or not you will be in the middle of this mess.  To complicate matters, Campbell, who lost before the panel by a 2 to 1 vote stated he will be asking the full 8thCircuit to review the decision.  (There was a dissent.)  There are lots of moving parts to resolution of this issue.  The Trump case is still pending before the United States Supreme Court on motion to vacate the appeal and the Second Circuit Circuits opinion on the grounds of mootness.

Campbell v. Reisch, shows that this issue is not going to go away.  Hopefully, the Supreme Court will hear the case so this very important legal issue can be clarified.

Facts and Procedure: Reisch created her Twitter account in September 2015 when she announced her candidacy for state representative.  Her very first utterance read, “I am proud to announce my candidacy to represent Missouri’s 44th District.  Let’s work together & create opportunities for jobs & education.”  A few months later, she posted a copy of a letter on her campaign stationery seeking contributions to her campaign and a photo of herself with the Speaker of the Missouri House.  As the district court observed, “[t]hroughout the first ten months of 2016, [Reisch] posted dozens of tweets about her campaign for the Missouri House, frequently using the hashtags #MO44 and #TeamCheri.”  Reisch won her election in November 2016, and, over the next eighteen months, she tweeted about her work as a state representative and posted pictures of herself on the House floor or standing with other elected officials.  Typical examples include a message where Reisch said she “was humbled to commit myself to represent everyone in the 44th District & uphold the Constitution of Missouri. #MOLeg.”  In another, she stated she was “[t]hrilled to have so many of my neighbors from the 44th District come by the office at tonight’s energetic Governor’s Ball! #MOLeg #MO44.”

She later forwarded a message from the House members of her political party saying they were “proud to deliver results during the first half of session that will bring job growth to MO. #moleg.”  Accompanied by a photograph of Reisch with the House Speaker, she once also posted, “I promised my neighbors in #MO44 that I’d work tirelessly to improve our #economy.  I’m making good on that promise.”  She tweeted about specific legislation (such as Real ID, “Right to Work,” and tort reform laws), about testifying before the state senate, and about times when the governor and lieutenant governor visited her district.  Finally, she touted her performance as a representative, stating things like “[a]ccomplished much in my 1st 2 years, ready for the next 2” and, in relation to a legislative scorecard from a group called “United for Missouri,” “I scored an A. Not bad for a Freshman.”  As the district court noted, Reisch “used her Twitter page to engage in discourse about political topics and/or to indicate her position relative to other government officials.”

The apparent impetus for Reisch’s block concerned her appearance at a local event that featured a pledge of allegiance to the flag.  Reisch tweeted, “Sad my opponent put her hands behind her back during the Pledge.”  Another state representative responded the next day to say that Reisch’s opponent’s “father was a Lieutenant Colonel in the Army.  Two of her brothers served in the military.  I don’t question [the opponent’s] patriotism.  That’s a low blow and unacceptable from a member of the Boone County delegation.”  Campbell, one of Reisch’s constituents, retweeted that response on his own page.  He later received a message that Reisch had blocked him. Campbell filed suit in federal court.  The district court found that Reisch had also blocked at least 123 other Twitter users.  The district court ruled in favor of Campbell holding that Reisch’s Twitter account was a public forum and that blocking Campbell was viewpoint discrimination, violating the First Amendment

Analysis: The Court tees up the question: Did Reisch act under color of state law when she blocked Campbell on her Twitter account?

Campbell argued that Reisch blocked him for criticizing her fitness for political office even though she had created a virtual forum for the public to discuss “the conduct of her office.”  Campbell contended, that Reisch acted under color of state law as explained in the Trump and Davison cases because there was state action and a public forum.  (Reisch, a public official, used her Twitter account to block Campbell from a public forum, that otherwise distributed comments to the public, a classic form of viewpoint discrimination.)

Reisch countered, stating that she didn’t act under color of state law because she runs her Twitter account in a private capacity, namely, as a campaigner for political office, although she permits interactive comments on other public policy issues, except those she chooses to block.  Furthermore, Reisch argued that she did not use the power of the state to block him.  She adds, anyone whether a state representative or not, can block someone on Twitter.

 The Court viewed the Twitter account as a continuation of her running for office by informing citizens of her actions and important public issues before the General Assembly.  The Court concluded that running for public office is not state action; it is a private activity.  Furthermore, her Twitter account looks more like a newsletter.  Based on this analysis, the 8thCir., concluded that the account was not a public forum.  Campbell v. Reisch, (8th., Cir. 19-2994, 01/27/21)

 Comment Howard: I have a lot of difficulty with the majority opinion.  I think the interactive nature of Reisch’s twitter account makes this a public forum.  Of course, there are vast differences between what Reisch was doing and the Twitter account of Trump or the public forum account used by the Chair of the Loudoun County Board of Supervisors discussed in the case of Davison v. Randall, (4th Cir., 17-2002, 01/09/19) https://www.ca4.uscourts.gov/opinions/172002.P.pdf

The Davison v. Randall, case has an extensive discussion of the public forum issues.  I agree with the dissent that Reisch’s supervision of the interactive features and allowing the interactive use of these features by some citizens while blocking others on public policy issues created a public forum.  Stayed tuned.

Citizen Flipping Off A Police Officer With His Middle Finger Was Engaged In A Protected Activity
Introduction: In Garcia v. City of New Hope, the 8th Cir., held that Garcia who flipped off Officer Baker with his middle finger, after an earlier confrontation with Baker, was engaged in a protected activity; therefore, there was no probable cause for the subsequent arrest of Garcia for a license plate violation and disorderly conduct by Baker.  Baker was not protected for an arrest because there was no probable cause, resulting in the loss of qualified immunity for Baker.

Facts and Procedure: On February 1, 2016, Officer Baker was on school patrol at Sonnesyn Elementary in New Hope, Minnesota.  That morning, Garcia drove by the school and saw Officer Baker motion for him to stop his vehicle.  He stopped.  Officer Baker shouted for him to slow down, but Garcia responded that he was going the speed limit.  Garcia then drove away.  Officer Baker did not issue Garcia a citation.

Later, in the afternoon, Garcia again saw Officer Baker at the school.  This time, he extended his head and hand out of his car window and raised his middle finger at Officer Baker as he drove past her.  In response to Garcia’s action, Officer Baker decided to follow Garcia in her squad car.  She activated her video camera.   As she followed him, the camera recorded her stating the “driver drove by flipping [her] off . . .. arguing about speed when the children were out during the school crossing.”  Officer Baker called for backup and activated her emergency lights to pull over Garcia’s vehicle.

Officer Baker approached Garcia on his passenger side window.  Using his phone, Garcia began to video the traffic stop and then asked Officer Baker why she pulled him over.  She replied, “You drove by and you flicked me off and I’m curious as to why you did that.”  Garcia asked if his actions were illegal, and Officer Baker replied that there was a woman with her children at the school patrol and that his actions constituted disorderly conduct.  Officer Baker then asked for Garcia’s license and insurance twice, but he ignored her requests.  Instead, he demanded that she call her supervisor because she was violating his First Amendment rights.  Officer Baker asked Garcia for his license several more times.  He replied that he would give her the license but repeatedly asked her if she was going to shoot him.  Garcia then again asked for Officer Baker’s supervisor, and Officer Baker asked for his license.  He refused to comply and, instead, asked for her name and badge number.  Officer Baker responded that her information would be on the citation.  Officers Gust and Jacobs arrived on the scene while Officer Baker was still standing at Garcia’s passenger window.  She then told him to get out his “g*d d**n D.L.”  Officer Gust approached the vehicle as Officer Baker continued to ask for Garcia’s license.  Garcia still did not provide his license and yelled that he was “protected by the First Amendment!”  Officer Baker walked around the vehicle to Garcia, yelling for Garcia to get out of his vehicle.  She opened the driver’s side door and demanded that Garcia get out of the vehicle.  Officer Baker then grabbed Garcia as he stepped out of the vehicle, placed him against his vehicle, and handcuffed him.

Officer Baker threw Garcia’s wallet on the ground.  Officer Gust helped Officer Baker hold Garcia against the vehicle.  Officer Johnson also arrived during this time, but he did not assist in handcuffing Garcia.  The officers asked Garcia several times whether he had any weapons, but he invoked his Fifth Amendment right to remain silent.  The officers escorted Garcia to Officer Baker’s squad car.  At the squad car, Garcia admitted that he had a box cutter, so Officer Gust patted him down.  Officer Baker told Garcia that he was “being detained . . . right now for disorderly conduct.”  Officer Gust placed Garcia in Officer Baker’s squad car.  After detaining Garcia, Officer Baker then recounted the events with Garcia to the officers:

This morning, him and I got in a little—he stopped when I told him to slow down going through the crosswalk, the kids are on the school patrol. He said, “I’m only going 25.” Well, it’s 20. Drove by this afternoon and flicked me off. The kids are out, there’s a mom there with a kid waiting at the corner . . .. He flicked me off, I got in my car . . .  Videotaping the whole time. “Don’t shoot me, don’t shoot me.”  He wants a supervisor.

Garcia was charged with disorderly conduct and failure to properly display his license since it was partially covered obscuring the plate numbers.  Garcia was advised that by his attorney that he could go to jail if he did not take a driving course and write a letter of apology.  Garcia entered into a plea agreement to suspend the prosecution and the charges were dismissed.  Next Garcia filed a civil rights case against Baker, alleging that his Fourth Amendment Rights were violated.  The trial court found that there was probable cause for the license plate violation.  On the disorderly conduct charge the trial court found that Garcia failed to satisfy one of the elements of the claim: he failed to show that Officer Baker lacked reasonable suspicion or probable cause to conduct the traffic stop; therefore, the trial court found Baker had reasonable suspicion or probable cause to stop the car on the license plate violation and that Baker was entitled to qualified immunity.  Garcia appealed to the 8thCircuit.

Disorderly Conduct – Garcia argued that the district court erred in granting Baker’s qualified immunity motion because Garcia showed that the Baker violated his constitutional rights and the rights were clearly established by law.  Baker stated that she stopped him because he “flicked [her] off.”  The 8th Circuit agreed that there was no probable cause to stop the car based on reasonable suspicion or probable cause for the disorderly conduct charge.

License Plate Violation – Remaining was the validity of the stop based on the license plate violation.  The Court found that the evidence supporting the motion for summary judgment was disputed by the witnesses and that the videotape showing the license plate was inconclusive as to whether or not the plate was obscured.  The video was not clear enough to provide indisputable proof one way or another; therefore, applying rules for summary judgment the Court was required to view the record “…in the light most favorable to Garcia and drawing inferences in Garcia’s favor.”

First Amendment Retaliation by Baker: While the actions of Garcia were rude, they were clearly protected under the First Amendment.  The United States Supreme Court has held “…the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”  In addition, in Cohen v. California, the Supreme Court noted that the First Amendment protected a defendant’s right to wear a jacket with the words “F**k the Draft” in a courthouse where women and children were present.  Garcia v. City of New Hope (8th Cir., 19-1836, 01/05/21).

Comment Howard: Seemed like Garcia was very angry and his actions were totally inappropriate, even though he was within his constitutional rights.  There was a dissent in this case, that argued that when you look at the totality of the circumstances the actions of the arresting officer were sufficient to make a probable cause arrest for the disorderly conduct charge.

One issue, that was also troubling was the settlement of the court charges, which ignored the possibility that when everything with the court charges was settled, Garcia might bring a civil right rights lawsuit, which he did.  When confronted years ago with this possibility I drafted an agreement to preclude the possibility of a civil rights lawsuit, otherwise you look like a fool, when the police officer is sued and the officer is left to dry out.   At the time there were several United States Supreme Court cases that held it was to be ethical to engage in these discussions.  Of Course, that was years ago, and the law may have changed in Missouri.  I would also consider an agreement to negate one of the elements to a civil rights lawsuit as part of an agreement as another way to get to this problem.  Obviously, I cannot address Minnesota law.  Recently I located an excellent article on the Ethical Analysis of the Release-Dismissal Agreement on this exact point -that you may find very useful. https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1458&context=ndjlepp

Comment Ragan: Unfortunately, these types of encounters are becoming more common for police officers.  Police officers interact with people who may not like them and will try to provoke an officer into doing something stupid.  This is a training issue and police officers need to learn to not draw themselves into these types of encounters unless they see a public safety issue.  An important step is drumming into officers that the actions they take should be related to well articulated public safety issue.  In this case the officer stopped the defendant because he flipped her off when a better trained officer would have stopped the defendant because of the previous erratic driving in school zone and the driver returning to the area which is a school zone and not devoting his attention to the control of his vehicle which is a public safety issue.

No Qualified Immunity For Officers Who Lobbed Tear Gas Cannisters Into Area Where News Media Were Simply Reporting
Quraishi v. St. Charles County, is on its facts very simple.  The opinion  provides an excellent and extensive legal analysis of the application of qualified immunity.  I am a big fan Judge Benton, who sits on the 8th Circuit, because his opinions are usually masterpieces that you can take to the bank.

Facts and Procedure: On August 9, 2014, amid public unrest and protests, St. Louis County requested assistance from the St. Charles County Regional SWAT Team. Anderson was a member of the SWAT Team.

On August 13, three Al Jazeera reporters were covering the protests preparing for a live broadcast.  They turned on their camera at 9:24 p.m., recording most of the summary-judgment facts.  At least three other videos recorded the scene.

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred.  Their video shows a calm scene.  An unidentified officer begins shooting rubber bullets at them.  They yell, identifying themselves as reporters.  Anderson then deploys a single canister of tear-gas.  It lands in front of the reporters.  They move away from the camera, but can be heard talking in the background.  An unidentified person walks past the camera.  Other people stop in front it.  The police do not fire at them.  One reporter re-appears in front of the camera, is shot at, and leaves.  Another person walks past the camera (possibly the same unidentified person as before).  A second group poses in front of the camera, thinking they are on CNN.  They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera.  Over a speaker, the SWAT Team appears to ask the reporters to “turn the spotlight off.”  SWAT Team members then lay down the lights and turn the camera lens toward the ground.  The reporters re-appear.  After speaking to the officers, they pack their equipment and leave.

The parties dispute some facts about the encounter.  Anderson claims the reporters were told to disperse and turn off the lights but refused.  He also claims he saw projectiles launched from the area of the bright lights.  He says he had difficulty seeing what was going on.  He believes there was an imminent threat to safety.  He stresses that his sergeant ordered him to deploy the tear-gas.

Before the SWAT Team arrived, the reporters stated that their location was a calm scene.  The videos support this claim.  The videos do not record any orders to disperse.  They also do not show any projectiles thrown from the reporters’ area.  They do not show orders to turn off the light before Anderson deployed the tear-gas.

A civil rights lawsuit is brought in federal court and the district court denied Officer Anderson qualified immunity.  He appealed the qualified immunity ruling to the 8th Circuit.

Analysis – The Court first established the legal framework.  Qualified immunity shields Anderson from civil damages liability if his conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known” that was clearly established at the time of the alleged misconduct.  In order for Anderson to claim qualified immunity he need show only that he had “arguable probable cause.”

Seizure – Plaintiff’s claimed that the firing and dispersal of the tear gas was a seizure, since they could not stay in the same place and were required to disperse.  Anderson claimed that there was no seizure and that the law the law was not clearly established, after all the reporters left the scene.  The Court held that when Anderson deployed the tear-gas, the case law had not clearly established that his acts were a seizure.  The 8th Circuit concluded that the district court should have granted qualified immunity to Anderson on the Fourth Amendment seizure claim.

Free Speech – Anderson argued that he had arguable probable cause to believe the reporters were committing three crimes: refusing to disperse, obstructing officers performing their duties, and interfering with officers in a way that impacted officer safety.  The Court noted that the videos confirm the reporters’ version of the facts.

“They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas.  Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas.”

Based on the facts, the Court concluded that taking the facts, most favorably to the reporters, Anderson did not have “arguable probable cause” to use the tear-gas. Anderson countered by arguing that the material facts “are what he perceived” but the Court noted that this rule does not apply when the record (other witnesses and the video tapes) show otherwise.

(“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out, other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.)  Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

The 8th Circuit noted that even though there was no exact case on point the law does not require an “exact match,” allowing the Court to rely on “…a robust consensus of cases of persuasive authority.”  It is clearly established that using an arrest (that lacks arguable probable cause) to interfere with First Amendment activity is a constitutional violation.  Therefore, Anderson was not entitled to qualified immunity on the free speech claim.

State Law Claims – The Court held that the state law claims survived the motion for summary judgment based on the facts.  Anderson argued that the reporters did not show he acted in bad faith or from an improper or wrongful motive, as required by Missouri law.   The Court noted that the reporters presented “specific evidence” inferring “conscious wrongdoing” by Anderson. They allege that Anderson tear-gassed them even though they were not doing anything wrong.  The reporters claimed there were no dispersal orders by police, no projectiles, and no orders to turn off the lights before the tear-gas.  Taking these facts as true the Court concluded that Anderson could have acted with conscious wrongdoing.  Quraishi v. St. Charles County, (8th Cir., No. 19 2462, 01/28/21)

Comment Howard: Seems like the seizure claim was a close call.  The reporters were forced to leave an area where they peacefully preparing to film.  Nevertheless, the focus of the Court was whether or not there were any cases showing that this was seizure.  There were not.

University Of Missouri Rule Prohibiting Possession of Firearms On University Property Conflicts With State Law – Rule Passes Strict Scrutiny Test
State of Missouri ex rel., Schmitt v.  Mun Choi, involves a challenge to a Rule adopted by the University of Missouri (University) that prohibits University of Missouri employees from possessing firearms on the university campuses.  Royce Barondes (“Barondes”), a University of Missouri employee, filed a petition for declaratory and injunctive relief against the University.  The Attorney General entered the case challenging the Rule on the grounds it was preempted by state law and was invalid because it did not pass strict scrutiny.

Conflict With State Law

 Section 571.036 provides as follows:

 Section 571.030.6 provides: “Notwithstanding any provision of this section to the contrary, the state shall not prohibit any state employee from having a firearm in the employee’s vehicle on the state’s property provided that the vehicle is locked and the firearm is not visible.  This subsection shall only apply to the state as an employer when the state employee’s vehicle is on property owned or leased by the state and the state employee is conducting activities within the scope of his or her employment.  For the purposes of this subsection, ‘state employee’ means an employee of the executive, legislative, or judicial branch of the government of the state of Missouri.” (My emphasis added)

The full text of the University Rule provides:

“The possession of and discharge of firearms, weapons, and explosives on University property including University farms is prohibited except in regularly approved programs or by University agents or employees in the line of duty.”

In this appeal, the State is only challenging the Rule as it relates to firearms.

The trial court ruled that Section 571.036 addresses criminal conduct.  Section 571.030 defines the criminal offense of unlawful use of weapons and enumerates exceptions to the offense and punishment for the offense.  The trial court concluded that the Rule addressed what conduct constitutes the unlawful use of weapons, and not what conduct the University can regulate on its property as a civil matter.

The Western District concluded that with the notwithstanding language, Section 571.036 operates to the exclusion of contrary laws and not as an exception to the contrary laws.  It relies on  cases involving “venue” that used the phrase: “Notwithstanding any other provision of law…” that the venue statute, Section 508.010.4, “…by its plain meaning, expressly appl[ied] to the exclusion of all [other] laws to the contrary.”

“Conversely, 571.030.6 does not merely create an exception to criminal liability by stating that 571.030.1 “shall not apply” in certain situations.  Rather, given its plain and ordinary meaning, subsection 6 expressly applies to “the state” and is a prohibition of what the state, as an employer, can do.  Prohibiting certain actions of the State as an employer is far different than exempting certain persons or actions from criminal liability.”

The court found that the trial court erred on the issue and that the rule is void where it conflicts with the state law.

Strict Scrutiny and Burden of Proof –  The State argued that the Rule did not survive strict scrutiny because it regulates conduct in addition to that which was found in conflict with Section 571.030.6.  The Rule also prohibited the possession of weapons and explosives on University property, and the “discharge of firearms, weapons, and explosives on University property,” prohibitions which are not in conflict with Section 571.030.6; therefore, it was necessary to determine if this part of the Rule survived strict scrutiny, as mandated by the Missouri Constitution.  The State claimed that the trial court erred in finding that the Rule survives strict scrutiny review because the University failed to meet its burden of proof by showing that the Rule is narrowly tailored to advance the compelling governmental interest in promoting safety and reducing crimes.

First, the Western District, noted that the Missouri Supreme Court has previously rejected the contention by the State that the Rule is presumptively invalid because;

“A statute is presumed valid and will be declared unconstitutional only if the challenger proves the statute clearly and undoubtedly violates the constitution.”

In addition, the State conceded at oral argument that under Missouri case law the State had the burden of proof.  Nevertheless, even if the University had the burden of proof it met this burden by testimony that the Rule was narrowly tailored.

“The University presented unambiguous and essentially unrebutted testimony in support of the Rule from two police chiefs with nearly 70 years of law enforcement experience, backed by statistical evidence.  The police chiefs explained how and why the Rule is narrowly tailored to achieve compelling interests, and how the Rule achieves those interests.”

The Attorney General offered no evidence from law enforcement and relied solely on a statistician whose opinions arguably support the Rule.  State of Missouri ex rel., Schmitt v.  Mun Choi,  (WD84427, 02/02/21)

Comment Howard: I think the analysis by the State of the conflict was extremely weak.  This is just a wild guess but looks like legislative research, who drafts bills for the General Assembly got it all wrong.  It should have put this in another section or they should have changed  the word “section” to “law” as set forth in the venue statutes.  This case is important because it goes into depth on the meaning of one of our favorite phrases used when drafting bills, “notwithstanding any law [or section] to the contrary.” The State did not argue that the statute was ambiguous leaving the argument to the plain reading of the statute.  I suspect we will see more of this case since it is a good candidate for review by the Missouri Supreme Court.

John Mulligan and others recently won a 39-million-dollar award on behalf of 118 cities against telecommunication companies for failure to properly compute license tax revenues.   It is expected that the trial court’s decision will be appealed.

Ouch – You Mean  That Our School Superintendent Said What –  Start Bailing NowMissouri Lawyers Weekly reported in its February 8, 2021 Edition settlement of discrimination case for $275,000 against Lee’s Summit School District. Hard to believe that a highly qualified female African American, who advanced through 2 panels for selection as the Lee’s Summit, School District, executive director of public relations was disqualified by the African American School Superintendent who stated he would never hire her because the District “could not have African Americans in two key roles and being the face of the District.”  Case settled for $275,000.

Contract Specifications Prevail In Multimillion Dollar Bid Contest Over Marijuana Tracking System
 Introduction: When the voters adopted Article XIV, they required a seed to sale tracking system.  A seed-to-sale tracking system tracks medical marijuana plants from their immature plant stage until the product is sold to a qualifying patient or caregiver. In developing the specifications for bids OA built into the specification provisions requirements to make sure that the charges for the seed to purchaser system were fixed prices that were not based on unit volumes, like the amount of plants that were tagged for tracking.  Despite these precautions one of the bidders (ultimately the successful bidder) attempted to side step this requirement by submitting a bid that allowed it to charge unit prices for proprietary RFID tags.  This case is about OA’s successful effort to get the tooth paste back into the tube.  Nevertheless, it was not pretty.  Interestedly, there are no significant legal conclusions growing out of this case. I am reviewing this case because it shows how OA drafted its specifications to get a fixed price for awarding the contract.  That is where the battle is won or lost.

Facts and Procedure: In order to develop a seed to sale tracking system the Division of Purchasing and Materials Management’s Director, the Office of Administration, and the Office of Administration’s Commissioner (collectively “OA”), issued a bid proposal, which permitted the award of a contract to the “lowest and best” bidder.  Section 1.2.2 of the RFP provided that it was the vendor’s responsibility to ask questions, clarify, or advise OA if the vendor found any of the RFP’s language, specifications, or requirements to be ambiguous, contradictory or arbitrary.

The RFP required vendors who indicated they would comply with Section 2 requirements or desirable attributes to complete Exhibit A, Pricing Page.  At the top of Exhibit, A are the following instructions:

“The vendor shall provide firm, fixed pricing for the original contract period and maximum pricing for each potential renewal period for the Medical Marijuana Information Solution, 4 for each of the line items specified below, pursuant to all mandatory requirements herein including all software licensing, hosting, maintenance, technical support, implementation, and training.  The vendor must clearly describe any one-time required firm, fixed costs necessary to meet the RFP requirements herein. The vendor must indicate any other relevant information related to the pricing of their proposed products/services.”

Section 2.16.3 of the RFP provided that “[o]ther than the payments and reimbursements specified on Exhibit A, Pricing Page, no other payments or reimbursements shall be made to the contractor for any reason whatsoever, including, but not limited to taxes, travel expenses, shipping charges, insurance, interest, penalties, termination payments, attorney fees, liquidated damages, etc.”  Section 3.18.1 of the RFP addressed conflicts of interest and provided that “[e]xcept for payment as set out in this contract, the contractor and its personnel shall not accept any collateral gift, payment, commission, or other direct benefit arising from or connected to performance under this contract.” (Emphasis added.)

After the bids were submitted OA requested Merc to clarify its bid.

On line item 11, please clarify whether the pricing stated for the Original Contract Period, years 1 through 5, and the two renewal periods are firm, fixed prices or whether the pricing is dependent upon the number of businesses that will actually be licensed by the state.

Metrc responded, “The amount on Line Item 11 is our firm and fixed pricing.  We utilized the state’s projection in regulation for total license numbers as a key variable in arriving at our firm and fixed pricing.”

OA then awarded a 5.2 million dollar contract to Merc as the lowest and best bidder, even though Merc’s bid was about one million dollars higher than the lowest bidder, Bio-Track, who bid 4.3 million dollars. Bio-tech was scored lower than Merc based on other factors used to evaluate the bids. Bio-Track then filed a bid protest, which it lost. It then brought a declaratory judgment action asking the circuit court to  declare that the plain language of its awarded contract, and a rule promulgated by DHSS, 19 C.S.R. 30-95.025(7), 6 permitted Metrc to charge industry participants for proprietary RFID tags over and above the firm, fixed price in Section A.3 of Exhibit A of Metrc’s BAFO response.

The trial court then declared that Metrc’s contract was not ambiguous and that its plain language did not permit Metrc to charge the State or industry participants for RFID tags beyond the firm, fixed price on line item 11 of Exhibit A of the BAFO response.  Metrc appealed to the Western District.

Analysis: Metrc raises a single point on appeal, arguing that it was error for the trial court to conclude that Metrc’s contract did not permit it to charge industry participants for its proprietary RFID tags.  Metrc contends that its BAFO response “plainly identifies that Metrc will charge non-state end users for RFID tags,” and that 19 C.S.R. 30-95.025(7) “permits Metrc to charge licensed and certified facilities for plant and product tracking labels.”

  • Section 1.2.2 of the RFP provided that it was the vendor’s responsibility to ask questions, clarify, or advise OA if the vendor found any of the RFP’s language, specifications, or requirements to be ambiguous, contradictory or arbitrary.
  • The RFP required Metrc to list the price for a “Firm, Fixed Monthly Subscription including Maintenance for the Seed-to-Sale Tracking Solution for 55 internal state agency users and unlimited external users.” (Emphasis in original.)
  • The plain language of the RFP required Metrc to include in its firm, fixed price all costs Metrc intended to charge for its seed-to-sale tracking solution to function for both internal and external users.
  • Section 2.16.3 of the RFP expressly stated that except for the firm, fixed cost reflected on Exhibit A, “[o]ther than the payments and reimbursements specified on Exhibit A, Pricing Page, no other payments or reimbursements shall be made to the contractor for any reason whatsoever . . .” (Emphasis added.)
  • Section 3.18.1 of the RFP, expressly provided that “[e]xcept for payment as set out in this contract, the contractor and its personnel shall not accept any collateral gift, payment, commission, or other direct benefit arising from or connected to performance under this contract.” (Emphasis added.)
  • The contract as a whole required Metrc (and every vendor) to include in its firm, fixed price every amount the vendor would be paid from any source to provide the vendor’s seed-to-sale tracking solution such that it could be used by all state and industry participants.

Based on the above specifications the Court found that the trial court did no err in its declaratory judgment upholding the interpretation of OA.  Metrc v. Steelman, (WD83565, 01/26/21)

Comment Howard: I really liked the specification that put the burden on the bidder to ask for clarification.

Indemnity And Equitable Rules In Construction LawThere a very nice and short article written by Robert Plunkett on this topic in the 2021 January and February Edition of the Journal of the Missouri bar that is well worth the read.  Certainly, one of the lynchpins of local government law involves drafting of construction contracts.