Closed decision to prepare RFP for Crestwood mall violated state law, says Missouri Press Association attorney

Maneke: No Missouri government can decide by consensus in closed session

By BURKE WASSON

A closed-session consensus decision made in January by Crestwood aldermen to prepare a request to redevelop the Crestwood mall violated state law, according to the attorney for the Missouri Press Association.

Because Section 610.015 of the Missouri Open Meetings and Records Law — also called the Sunshine Law — stipulates that “any votes taken during a closed meeting shall be taken by roll call,” Missouri Press Association attorney Jean Maneke said no governmental body in the state can legally make consensus decisions in closed session.

“I think they (Crestwood officials) screwed up,” Maneke said. “The law is very black and white that all votes taken in closed meetings must be by roll-call vote. It seems to me there is no excuse for a public body to fail to take a roll-call vote in a closed-session meeting and then to think that because they did it by consensus they don’t have to release the vote. That is a clear violation of the law.”

At the time of the Jan. 9 closed session, which was posted and called by the city for legal and real-estate matters, the Call requested a record of all roll-call votes from that session. However, because the decision to prepare a request to redevelop the Westfield Shoppingtown Crestwood was made by consensus — which Maneke said violates the law — the Call did not receive documentation of that decision in January.

A public record of the Jan. 9 closed session later prepared by City Attorney Robert Golterman states: “Staff and the city attorney discussed with those present the Crestwood Plaza Redevelopment Area (‘Area’) and the desire to prepare a request for development proposals (‘RDP’) as relates to the area. The board concurred with staff’s recommendation that an RDP be prepared for review by and further discussion among the board before being issued.”

While aldermen decided in that closed session to authorize consulting firm Peckham, Guyton, Albers & Viets Inc. to prepare the RDP, previous decisions to authorize PGAV have been done in open session during Board of Aldermen meetings. Aldermen publicly voted on ordinances to employ PGAV’s services in October 2006 for Crestwood Square, June 2005 for the Old Sappington Road and Watson Road redevelopment area, December 2004 for the Westfield Shoppingtown Crestwood and May 2003 for Watson Plaza.

When asked why officials chose a closed session to authorize PGAV’s preparation of an RDP for the Crest-wood mall at a cost of $5,000 to $7,000, City Administrator Frank Myers declined to comment. Golterman and Mayor Roy Robinson did not return telephone calls seeking comment before the Call went to press.

However, in a statement city officials sent Monday to the Call, the decision to meet in closed session to authorize the RDP was done because of three reasons — the “possible financial incentives” involved with the project, the possible use of eminent domain and because the city had not yet made a final decision on the RDP for the mall.

“… Because this issue dealt with possible financial incentives and the use of eminent domain, and because the City had not yet made a final decision as to whether to issue the RDP, the discussion of the matter occurred in a closed meeting on Jan. 9, 2007. At that meeting, the board, by consensus, authorized the staff and PGAV to prepare the RDP for the Board’s review …,” according to the statement.

The statement also reads that PGAV’s additional services to form the RDP to redevelop the Crestwood mall are part of mall consulting services with PGAV approved by the Board of Aldermen in December 2004.

“In 2004, the city of Crestwood retained the services of PGAV for the purpose of analyzing the Westfield mall property as part of a joint effort between the city and Westfield to promote redevelopment of the area,” the statement reads. “The fees for these services were actually paid by Westfield as part of an agreement it had with the city. The detailed analysis of the property was completed in 2005. As everyone knows, despite this effort, no significant redevelopment or revitalization of the mall property has occurred. In January of 2007, city staff believed that some action needed to be taken in order to promote redevelopment of the mall. Consequently, city staff sought approval from the Board of Aldermen to enlist the services of PGAV in order to update its previous analysis and report, which could then be used as a Request for Development Proposals (RDP) …”

In response to the Call’s request to receive a copy of the city’s contract made in January with PGAV to prepare the RDP for $5,000 to $7,000, Myers said those services are an extension of the city’s 2004 agreement with PGAV to analyze the mall. He and city officials also added that they cannot find a copy of a contract laying out the services to develop the RDP in January.

While aldermen authorized PGAV to prepare the RDP in January and ultimately voted in August to issue it to 82 developers, Myers said last week that John Brancaglione of PGAV informed him that the RDP already has been met with interest by some of those developers.

Aside from her assertion that Crestwood officials violated the Sunshine Law by making a decision in closed session by consensus and not by a roll-call vote, Maneke also said she believes one of the city’s posted reasons for meeting in that closed session is invalid.

The city posted the reasons for the Jan. 9 closed session were for legal and real-estate matters, to which Maneke said can only be done if the city intends to lease, purchase or sell the property in question.

Because the city is merely asking developers to submit proposals to redevelop the mall with the promise of tax incentives, Maneke said using real estate as a reason to meet in closed session to discuss the mall is not consistent with the Sunshine Law.

“Certainly, they don’t intend to lease, purchase or sell that real estate,” she said.

At the same time, citing legal matters as reason to discuss the mall property in closed session is legitimate, according to Maneke, because of the city’s consideration of eminent domain.

“There has been some discussion by the courts that there needs to be some real threat of litigation,” she said. “But how far you can draw that is a little unclear. Certainly, I think you’ve got a better situation where they’re arguing that they’re thinking about taking it by eminent domain. That argument holds a little more water and gives them a little more wiggle room.”