Barber v. Jackson County Ethics Commission

935 S.W.2d 62, 1996 Mo. App. LEXIS 1820, 1996 WL 635336
CourtMissouri Court of Appeals
DecidedNovember 5, 1996
DocketNo. WD 51887
StatusPublished
Cited by9 cases

This text of 935 S.W.2d 62 (Barber v. Jackson County Ethics Commission) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. Jackson County Ethics Commission, 935 S.W.2d 62, 1996 Mo. App. LEXIS 1820, 1996 WL 635336 (Mo. Ct. App. 1996).

Opinion

BRECKENRIDGE, Judge.

The Jackson County Ethics Commission issued a subpoena for the bank records of Anthony Barber during its investigation of allegations that an employee of Jackson County had violated conflict of interest provisions of the Jackson County Charter. Mr. Barber challenged the enforcement of the subpoena by filing a petition for a writ of prohibition, claiming that the Ethics Commission lacked authority to issue the subpoena. The Circuit Court of Jackson County found that the Ethics Commission’s investigation was an improper attempt to exercise a judicial function and issued an order permanently prohibiting enforcement of the subpoena.

This court finds that the Ethics Commission has the power to conduct investigations into ethics violations and to issue subpoenas to aid its investigations. The judgment of the circuit court is reversed, and the cause is remanded to that court with directions to quash the writ of prohibition and dismiss the petition with prejudice.

The relevant facts of this case are undisputed. On November 3, 1970, the citizens of Jackson County voted to replace its existing form of government with one based on the principles of “home rule” and adopted the Jackson County Constitutional Home Rule Charter, pursuant to the provisions of article VI, § 18 of the Missouri Constitution.

In 1994, the charter was amended by the voters to create the Jackson County Ethics Commission. One function of the Commission is to receive complaints and conduct investigations of “conflicts of interest, financial interest disclosure, and lobbying registration and disclosure provisions of the charter, the code and ordinances, and the statutory and common law of the state of Missouri as it applies to county officers, employees, members of county boards or commissions, and persons dealing therewith as S.W.2d ‘lobbyists’-” Charter article XII, Section 6(1). To carry out its investigative duties, the Commission is given the power to “issue subpoenas for witnesses and for the production of books, papers, documents, or tangible things.” Charter article XII, § 7(2). If the Commission finds probable cause that a violation has occurred, it is to “make recommendations of appropriate action to state or county officials, agencies, and appointing authorities.” Charter article XII, § 6(4).

In July 1995, the Commission received two verified complaints alleging that the Jackson County Minority Contractor Compliance Officer, Lisa C. Hughes, had accepted an interest-free loan or transfer of money from Anthony Barber, a contractor who does business with Jackson County.- The aceusa-[65]*65tions, if trae, would violate the Charter’s conflict of interest provisions. To determine if it was probable that the allegations were true, the Commission initiated an investigation. A hearing was scheduled, and a subpoena duces tecum was issued to a United Missouri Bank employee, Jayleen Pfeffly. The subpoena sought Ms. Pfeffly’s sworn testimony at the hearing and production of Mr. Barber’s bank records pertaining to the allegations.

Mr. Barber filed a petition for preliminary and permanent writs of prohibition in the Circuit Court of Jackson County, alleging, inter alia, that the Ethics Commission did not have proper authority to enforce the subpoena. The circuit court entered a permanent writ of prohibition, holding that:

the Commission’s investigation and the Subpoena issued in aid of said investigation are an attempt by the Commission to exercise a judicial function. The investigation is judicial in nature for the reasons that it is designed to adjudicate the alleged actions of Ms. Hughes and provides for possible disciplinary and penal actions against Ms. Hughes.
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Neither the Missouri Constitution nor the cited authority suggest that a chartered county has the constitutional authority to create an entity with the power to subpoena records and testimony for a judicial purpose.
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[T]he Missouri Constitution does not provide the authority for Jackson County by way of the Charter to grant subpoena power to the Commission.

The Ethics Commission’s sole point on appeal is that the permanent writ of prohibition should be quashed “because the Jackson County Charter authorizes the Ethics Commission to issue subpoenas and the Commission does not perform a judicial function when it exercises its investigative authority under the charter.”

The circuit court misapplied the law when it found that the functions of the Ethics Commission were judicial in nature, and, therefore, beyond the power of the Jackson County Charter. Although article V of the Missouri Constitution vests the judicial power of the state exclusively in the supreme court, the courts of appeals and the circuit courts, this limitation of power does not prevent other governmental entities from performing “quasi-judicial” functions. See Lederer v. State, Dept. of Social Serv., 825 S.W.2d 858, 862-68 (Mo.App.1992). An administrative agency does not violate the constitutional requirement of separation of powers by holding hearings and rendering administrative decisions to discharge the administrative function of the agency because such actions are quasi-judicial. Id. In exercising its administrative agency power, an agency can ascertain the facts and apply the existing law to the facts. Id. at 862. So long as the agency does not attempt to pronounce a judgment and carry it into effect, it is not performing a judicial act. Id.

Here, the Ethics Commission, an administrative agency of Jackson County, was not attempting to pronounce a judgment or carry a judgment into effect. Charter article XII, §§ 6 and 7 empower the Ethics Commission to investigate allegations of ethics violations by conducting hearings, meetings, and investigations; issuing subpoenas; administering oaths; taking testimony; requiring the production of documentary evidence; and requiring the submission of written verified reports and answers to question relevant to the scope of the inquiry. If, at the conclusion of an investigation, the Commission finds probable cause that a violation has occurred, it shall “make recommendations of appropriate action to state or county officials, agencies, and appointing authorities.” Charter article XII, § 6.4. The Commission’s findings of probable cause and making of recommendations, by their very nature, cannot be characterized as an attempt to enter a judgment which could be enforced.

Since the Commission was acting in a quasi-judicial capacity, and not attempting to exercise a judicial function, the inquiry turns to whether the subpoena for Mr. Barber’s bank records was otherwise entitled to be enforced. A subpoena issued during an administrative investigation will generally be [66]*66enforced by the courts, if: “1) the inquiry is ■within the authority of the agency; 2) the demand is not too indefinite; 3) the information sought is reasonably relevant.” Angoff v. M & M Management Corp., 897 S.W.2d 649, 652 (Mo.App.1995) (quoting Matter of Hein, 584 S.W.2d 631, 632 (Mo.App.1979)). Mr. Barber does not claim that the demand was too indefinite or that the information was not relevant.

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Bluebook (online)
935 S.W.2d 62, 1996 Mo. App. LEXIS 1820, 1996 WL 635336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-jackson-county-ethics-commission-moctapp-1996.