Municipalities floating ‘codes of conduct’ ordinances should instead focus on state statute

To be clear, no state law prevents an elected official from discussing matters disclosed in closed session. There is no general duty under the law to keep matters quiet. The Missouri Sunshine Law neither requires nor prevents a public official from speaking.”

Dan Curry, MPA Hotline Attorney

Missouri cities and towns should spurn any advice to adopt an ordinance punishing elected officials for disclosing information or records shared during unlawfully closed meetings. These “codes of conduct” are bad policy – and they’re likely against the law.

In the City of Jefferson City, for instance, an ordinance has been proposed that would make disclosure of matters discussed in closed session a basis for removing an elected official from office.

A similar push has happened in other cities. Under these code provisions, if an elected official were to speak to the press about illegal meetings, her city council could remove her from office.

To be clear, no state law prevents an elected official from discussing matters disclosed in closed session. There is no general duty under the law to keep matters quiet. The Missouri Sunshine Law neither requires nor prevents a public official from speaking.

Elected officials are free to disclose matters in closed session — and they should, if they believe the meeting is being used improperly to discuss matters that should be open. They owe it to their constituents to blow the whistle on backroom deals.

So, some municipal lawyers are suggesting cities create ordinances that impose these strict duties of confidentiality on elected officials and then create a punishment framework for violation of the duty, whether the meeting was lawfully closed or not. Optimistically, such ordinances would help deter the kind of leaked information that might damage a city financially – such as disclosing litigation strategy or personnel matters.

But such indiscretions are self-policing — bad leaders tend to get voted out of office.

And how often does leaked information actually cause financial harm to a city? Here is what we do know happens – boards and commissions and councils across the state routinely discuss matters they shouldn’t in closed sessions. And cities and towns routinely close records that should be open. These “codes of conduct” will make a real problem worse – illegal secrecy.

These codes of conduct are also likely unlawful. If they punish an elected official with removal from office or even blocking her access to closed records, they would run up against the First Amendment.

In 2022, the United States Supreme Court issued its ruling in Houston Community College System v. Wilson, 595 U.S. 468 (2022) recognizing that elected officials, while they may be censured by their fellows, cannot be removed from office.

Enforcement of these ordinances will result in costly litigation for cities and boards – they will wind up spending far more money defending these bad ordinances than they would save by policing a vow of secrecy. 

 “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.” — Houston Community College System v. Wilson, 595 U.S. 468 (2022).

Let’s inform our city leaders that these “codes of conduct” must allow elected officials to blow the whistle on unlawfully closed meetings without fear of repercussion.