2014-2015 BOARD OF GOVERNORS MEETING
July 10, 2015
Big Cedar Lodge, Branson
Reuben Shelton, President
Erik A. Bergmanis, President-Elect
Dana Tippin Cutler, Vice-President
Sebrina A. Barrett, Secretary
Bevy A. Beimdiek
Thomas V. Bender
Suzanne B. Bradley
Robert J. Buckley
Rod T. Chapel, Jr.
Morry S. Cole
Mark W. Comley
Hon. Charles Curless
J. Brent Dulle
Joel R. Elmer
Genevieve M. Frank
John W. Grimm
James H. Guest
John R. Gunn
Edward J. Hershewe
Hon. John F. Kintz
J. B. Lasater
Gregg F. Lombardi
Lauren Tucker McCubbin
Max E. Mitchell
Nancy R. Mogab
Douglass F. Noland
John E. Price
Joseph P. Rice, III
Tricia M. Scaglia
Deanna K. Scott
Walter R. Simpson
Hon. W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff
Members Present by Telephone:
Robert S. Kenney
P. John Brady, Immediate Past President
Joan M. Swartz
Hon. Patricia Breckenridge
Hon. Richard B. Teitelman
The Board of Governors accepted and approved the minutes of the Board of Governors' meetings held on March 5, April 6 and April 20 as well as the minutes of the Executive Committee meetings held on March 4, March 25, April 17, April 30 and June 18.
A. Financial Statements
Judge Doug Thomson reported that the Missouri Bar currently has approximately $11 million in assets compared with about $9 million in assets last year at this time. He noted that about $4.5 million is currently invested in bonds and it is anticipated that this amount will go up to about $6 million as investment opportunities present themselves. He reported that there is about six months of operating cash. He noted that both CLE programs and CLE publications are operating at a net profit, with CLE programs profit level at its highest since 2004.
Judge Thomson further reported that the annual audit report has been received from Williams-Keepers LLC with their opinion letter declaring that the financial statements fairly represent the financial position of The Missouri Bar.
B. 2015 Annual Meeting Budget
He further reported that The Missouri Bar’s Fiscal Operating Policy and Procedures requires that a modified budget for the Annual Meeting be approved prior to each Annual Meeting. He noted that this policy may be reviewed so as to streamline this process in the future. It was moved and seconded to approve the modified budget of the 2015 Annual Meeting. The motion was approved.
A. July Appointments
(1) Judicial Performance Evaluation Committees
(a) 16th Circuit (Jackson County)
Ms. Sebrina Barrett reported that there is one lawyer vacancy and one non-lawyer vacancy in this circuit. Ms. Brianne Thomas, who was one of three candidates for the lawyer vacancy, was selected by a vote of the Board of Governors.
(b) 21st Circuit (St. Louis County)
Ms. Barrett reported that one lawyer vacancy exists in this circuit. It was moved and seconded to approve the appointment of Mr. Erick Creach by acclamation. The motion was approved.
(c) 22nd Circuit (City of St. Louis)
Ms. Barrett reported that two lawyers have been nominated to fill two vacancies in this circuit. It was moved and seconded to approve the appointments of Messrs. Jared Boyd and Neal Perryman to fill these vacancies. The motion was approved.
Ms. Barrett reported that there is a lawyer vacancy from the Western District, a lawyer vacancy from the Southern District and a non-lawyer vacancy from the Eastern District. Mr. Zach Bickel, one of three candidates, for the Western District lawyer vacancy, was selected by a vote of the Board of Governors.
Ms. Barrett encouraged additional nominations from member of the Board of Governors for vacancies that remain on the JPE committees.
B. Appointment to the Missouri Study Commission on State Tax Policy
Ms. Barrett reported that HB 384 establishes a Missouri Study Commission on State Tax Policy and that The Missouri Bar Board of Governors has been given an appointment to this commission as part of the legislation. Ms. Sara G. Neill, one of two nominees for this appointment, was selected to fill this position by a vote of the Board of Governors.
C. Appointment to Legal Services of Southern Missouri Board
Ms. Barrett reported that Mr. Randall R. Sutter from Lebanon has resigned from the board of Legal Services of Southern Missouri after many years of service. It was moved and seconded to appoint former judge, Christine H. Hutson to fill this vacancy. The motion was approved. Ms. Deanna Scott abstained.
D. October Appointments
Ms. Barrett called attention to appointments that will come before the Board of Governors for action in October.
(1) Press-Bar Commission
Honorable Jerry Venters’ term on the Commission is expiring and he is eligible for appointment.
(2) Trustees of The Missouri Bar
Steve Newman’s first term on the Trustees of The Missouri Bar is expiring and he is eligible for reappointment.
(3) Complaint Resolution Committee
The terms of Kathleen Bird and C. J. Larkin are expiring. Both are not eligible for reappointment.
4. Officers' Reports:
A. President's Report
Mr. Reuben Shelton noted that he has provided a written report of his actions and activities for the period since the last meeting of the Board of Governors in lieu of providing the traditional verbal review.
(1) Theodore McMillian Judicial Excellence Award
Nominations were made for the 2015 Theodore McMillian Judicial Excellence Award. The Honorable Ronnie White, one of two nominees, was selected to receive this award by a vote of the Board of Governors.
(2) Discretionary Pro Hac Vice Funds
Mr. Shelton noted that a prior proposal by Mr. Eric Wulff related to the use of the non-Legal Aid designated portion of the 2014 Pro Hac Vice funds to provide funds to other legal service organizations within the state had been tabled at the November 2014 meeting of the Board of Governors, until the details of the suggested use of funds could be properly vetted. Mr. Shelton reported that this vetting process has been completed and Mr. Wulff wishes to make a proposal for action by the Board of Governors.
It was moved and seconded that seven organizations split equally the sum of $15,000 from the Pro Hac Vice fees collected in 2014. The seven organizations, all of which have demonstrated a full-time commitment to provide free indigent legal services, would receive a one-time contribution from the 2014 funds. The seven organizations to receive this lump sum contribution are:
Arch City Defenders
Catholic Legal Assistance Ministry
CVAC – Legal Advocates for Abused Women Project
Father’s Support Center Legal Clinic
Jane Doe Advocacy Center
Migrant and Immigrant Community Action Project
Voices for Children
Questions were raised as to the geographic distribution of the seven organizations selected for this contribution. Mr. Wulff offered to entertain suggestions from the floor of other organizations to be added to his motion. No additional organizations were suggested. Mr. Wulff also commented that it would behoove the Board of Governors to establish a board task force to determine application procedures and qualifications for future use of the annual non-Legal Aid portion of the Pro Hac Vice funds. The motion was approved.
B. President-Elect's Report
Mr. Bergmanis provided a report on his plans for the 2015-16 bar year. He reported that his focus will be to develop a 20/20 Vision Plan that will provide a five-year direction for The Missouri Bar. He reported that this plan will focus on improving access to the courts, particularly in the area of addressing issues related to municipal courts. It will also focus on modernizing and sufficiently funding Missouri’s courts, noting issues related to inadequacies in complex litigation cases particularly in rural courts. He also noted the need for expanding DWI and drug courts to ensure equal access under the law throughout the state. He reported that efforts will continue to address the issues related to the “future of the profession” as well as continuing the key programs currently underway including developing and enhancing resources to help lawyers in the practice of law, law-related civics education, and pro bono efforts including veterans clinics. Mr. Bergmanis also reported that legislation is expected in 2016 related to the establishment of a Daubert standard in Missouri. He reported that it would be beneficial to study the potential impact of such legislation within the state prior to being asked by the legislators to weigh in on the issue. It was moved and seconded to establish a Missouri Bar task force to study this issue with the goal of providing a report to the Board of Governors on its impact by December 2015. The motion was approved.
C. Vice-President's Report
Ms. Dana Tippin Cutler reported that her report would be included in the Governance/Strategic Planning portion of the agenda.
D. Treasurer's Report
Mr. Bill Thompson reported that 36 judicial circuits are currently on Missouri’s Electronic Filing System and that it is expected that there will be 40 on board by the end of the year. He reported that all circuits should be on the system by the end of next year. He reported that the system is challenging to maintain and that additional funding will be needed to do so. He further reported that Judge Ahrens is leaving the Court Automation Committee and Judge Lynch will be succeeding him as chair and that the committee is open to and welcomes comments.
He reported that the Supreme Court is set up and ready for the upcoming Board of Governors’ elections.
Mr. Thompson reported that the governor signed SB 5, which makes changes to the municipal courts in Missouri. He thanked Mr. Shelton for hosting a session on this topic at the Solo and Small Firm Conference, noting that the feedback will be helpful to the Court and to the working group that is focusing on municipal courts.
He noted that the Supreme Court of Missouri adopted Rule 103 related to electronic filing, but that an appellate working group is doing a much more comprehensive review of the rules related to changes that must be made for e-filing. He noted that a first draft is expected soon.
He further reported that there has been a lot of interest in the changes to the garnishment rules. He noted that a quick view version of the rule will be in The Missouri Bar’s weekly e-news, ESQ, today and that the Supreme Court of Missouri anticipates additional comments during the six month notice period.
E. Executive Director's Report
(1) Human Resources/Operations Update
Ms. Barrett called attention to a written report in the meeting materials providing an update on the Missouri Bar workplace, HR and operations improvements put in place since she assumed the position of Executive Director in 2013. The report includes actions taken related to the Bar’s hiring process, employee handbook, benefits, payroll, performance management and evaluation, workplace safety/improvements, enhanced staff communications, finance communications and processes, insurance, programmatic review and changes, and document retention and management.
(2) Board of Governors Election
Ms. Barrett noted that contested elections will be held in Districts 9, 11 and 15. She reported that ballots will go out July 20 and they will be due no later than 10 a.m. on August 17. She reported that there will also be an electronic election for the diversity seat in the Southern District as Wendy Garrison will complete her final term in this seat on the board. She noted that three lawyers have filed for this opening on the Board of Governors and the members of the Board from the Southern District will caucus at the end of this meeting to decide whether all three will appear on the ballot. She noted that the ballots for this election will be sent electronically to members of The Missouri Bar who are eligible to vote in the Southern District on August 3.
A. Bar-Drafted Legislation
Mr. Eric Wilson reported on several bar-drafted bills introduced during this year’s legislative session and on legislation anticipated for 2016.
(1) Previous Bar-Drafted Legislation
(a) Commercial Law Committee
Mr. Wilson reported that the Commercial Law Committee’s Exemption for Insurance Proceeds Used for Funeral Expenses (HB 276, SB 164) was Truly Agreed to and Finally Passed on May 6. He further reported that the Commercial Receivership Act (SB 216, HB 765), which is considered non-controversial, was a casualty of a filibuster during the final week of the session. He reported that he has had preliminary discussions with legislators about fast-tracking the bill in 2016 and asked that the Board of Governors reauthorize the bill to allow for this work to be done. He noted that the bill would be exactly the same as the one that was approved by the Board of Governors for introduction in the 2015 session. It was moved and seconded that the legislation is in scope. The motion was approved by two-thirds of the Board of Governors present and voting. It was moved and seconded to approve the bar-drafted legislation for introduction in the 2016 legislative session. The motion was approved by two-thirds of the Board of Governors present and voting.
(b) Health Care Decision Maker Act
Mr. Wilson further reported the Designated Health Care Decision Maker Act (HB 1133) was slowed due to the need to come to terms with a number of interest groups regarding certain aspects of the bill, particularly those dealing with withdrawal of artificial nutrition and hydration and language related to mandatory reporters. The bill which was eventually unanimously voted do pass from committee on May 6 did not have enough time to gain final legislative approval. He reported that this bill is expected to come before the Board of Governors for approval again in October.
(c) Expungement of Criminal Records
He also reported that the Expungement/Sealing of Criminal Records (SB 451, HB 1200), which was approved as bar-drafted legislation, was heard in committee and received significant support. He noted that this bill will also be brought before the Board of Governors again in October. He indicated that the measure may attract some potential opposition in the legislature related to the fiscal note for the cost of implementation. He noted that plans are in place to meet in late July and early August to discuss issues surrounding the bill, including the fiscal note.
(2) New Bar-Drafted Legislation
(a) Probate and Trust Law
Mr. Wilson concluded his report by providing a brief overview of a number of legislative proposals from the Estate Planning and Probate Administration Committee that will be presented for approval by the Board of Governors in October.
B. Non-Bar Drafted Legislative Review Pilot Process
Mr. Shelton briefly reviewed the pilot legislative review process implemented after the November 2014 meeting of the Board of Governors. He provided a brief overview of the process, noting that non-bar drafted legislation is separated into two categories: (1) those that fall under the standard set out regarding appropriate activity of a unified bar in the Keller decision and (2) other bills, that fall outside of Keller, but related to the broader mission of The Missouri Bar that relates to the administration of justice. All of these bills are sent to members of the Board of Governors, but unless a member of the Board requests that the Executive Committee review a measure from the second category, only those in category one are reviewed by the Executive Committee for a position. He noted that all comments received through the Bar’s legislative review process from legislative committees or members of the Bar are still sent to the legislative sponsors, even if the legislation is not from the first category of bills. Mr. Shelton reported that the new process was developed because of complaints from a variety of different sources including legislators, our hired lobbyists and members of the Board of Governors indicating that Bar positions and comments were not being received on a timely basis; that members of the Board of Governors expressed a desire for greater participation in the process; and to improve the efficiency of the process and benefit from the broad practice expertise and insights available within the Board of Governors. Mr. Shelton noted that the pilot has been used for the 2014 legislative session and will have been in use for one year this fall. He asked for comments from members of the Board of Governors related to the implementation, timing and approach including whether it should be continued and made permanent and/or for any suggested changes or improvements.
6. Member Benefit Proposal:
Mr. Ray Williams welcomed members of Member Benefits, who provided a detailed online presentation of its products and private exchange platform for a group health insurance program to be available to members of The Missouri Bar. Upon completion of the presentation, a question and answer session was held between members of the Board of Governors and representatives of Member Benefits. After the representatives from Member Benefits concluded their participation, Mr. Williams continued a discussion with the Board of Governors about the services and the actions of the Bar’s special working group that reviewed the product, with discussion focusing on questions and issues specific to the needs of The Missouri Bar and it members.
It was moved and seconded that the working committee would be authorized to negotiate a detailed contract with Member Benefits and once approved by the committee have the recommended version sent to the Executive Committee, which will be authorized to give final approval for adoption by The Missouri Bar with an objective of having the program in place by October. The motion was approved.
7. Committee Reports:
A. Client Security Fund Committee:
Mr. Chris Janku reported that the current balance of the Client Security Fund is $325,000 and that $262,000 was appropriated for the Fund for 2015. He reported that the regulations governing the Fund allow for the committee to make recommendations for claims of $2,500 or less at any time during the fiscal year up to a limit of 50% of the amount appropriated for that fiscal year. He noted that this limit is $131,000 for 2015. He reported that the committee met in June and recommends payment of nine claims for a total of $6,375. The committee also recommends denial of seven claims and the dismissal of one claim at the client’s request. He also noted that the committee requests authority from the Board to submit recommendations prior to November 2015 on some claims that were deferred in November 2014. It was moved and seconded to approve the recommendation as presented. The motion was approved.
B. Leadership Academy
Each individual member of the 2014-15 Leadership Academy present at this meeting reported their two-year commitment to the Bar, which commences at the conclusion of their term. Mr. Patrick Thornton provided a report regarding the Academy’s annual project, which involved developing a comprehensive one-stop website resource for legal services particularly targeting the needs of low-income citizens. He provided a demonstration of the site, which includes options to search for legal resources by county and legal issue. He noted that there will be a continuing effort to keep the site up-to-date and accurate as well as an effort to promote the site. He thanked the Board of Governors on behalf of the members of this year’s Leadership Academy and the staff for their assistance with the annual project.
8. Amnesty Program for In-House Counsel:
Mr. Alan Pratzel provided a report on a proposed amnesty program for in-house counsel, noting that the concept was recently approved by the Advisory Committee of the Supreme Court of Missouri. Under the proposal, Missouri would establish a one-year period of amnesty for lawyers employed in Missouri exclusively in an in-house counsel setting where these lawyers will be able to come forward and become properly licensed under the limited admissions provision in Missouri Supreme Court Rule 8.105 without being professionally sanctioned by the discipline system. Mr. Pratzel noted that there is reason to believe that there is a lack of awareness of this requirement among in-house counsel and that many may be practicing without proper licensing in Missouri. He noted that the Advisory Committee asked him to draft a proposed order to be submitted to the Supreme Court of Missouri and asks The Missouri Bar Board of Governors to join the Advisory Committee of the Supreme Court of Missouri in recommending that this order be adopted and a one-year amnesty period implemented. It was moved and seconded to endorse the proposed amnesty program and draft rule provided. The motion was approved.
9. Board Members Seeking Office of Vice-President:
Mr. Shelton opened the floor to members of the Board of Governors who would like to be considered for Vice-President of The Missouri Bar starting in the 2015-16 bar year. Ms. Nancy Mogab asked members of the Board to support her candidacy for the office of Vice-President when the vote to fill this leadership position comes before the Board of Governors in October. She briefly described her belief and commitment in the stewardship responsibilities that all members of the Board of Governors share and for maintaining the legacy of those who have performed this stewardship role in the past. She noted her level of commitment to the Board, the bar and to a fair and impartial criminal and civil justice system and pledged her full efforts should she be elected.
10. Governance/Strategic Planning:
Ms. Dana Tippin Cutler reported on issues under consideration regarding governance and strategic planning. She provided a brief overview of the process which she has been responsible for implementing, noting that her charge began as part of President Jack Brady’s relevance initiative and included the following objectives:
• Increasing the engagement and opportunities for engagement by the Board of Governors
• Strategically aligning initiatives on a long-term trajectory
• Consideration of establishing alternative paths to service on the Board of Governors
She outlined three main areas that represent the manifestation of each of these objectives:
A. Establishment of Permanent Board Committees
Ms. Cutler noted that members of the Board of Governors have expressed concern that individual board members often do not have the opportunity to engage actively unless they are on one of the few permanent committees, a member of leadership or on a specifically focused task force. As a result, consideration is being given to creating additional permanent committees within the Board to accompany the current executive, finance and legislative committees. These additional committees will be as follows:
(1) Division and Committee Review Committee
This committee would work with division chairs to review three committees each year for relevance and viability and to consider the need to establish new committees.
(2) Strategic Planning Committee
This committee would work to maintain alignment of goals and objectives with the strategic plan and develop and recommend revisions to the strategic plan based on changing needs.
(3) Resource Development Committee
This committee would work to identify alternative revenue sources, so that the Bar is less reliant on having to institute dues increases on membership to attain revenue to meet future needs.
(4) Appointment Committee
This committee would focus on codifying all appointment responsibilities of the Board of Governors, establishing processes for making the appointments and to facilitate and ensure the identification of proper nominees for such appointments.
B. Strategic Plan Alignment
Ms. Cutler reported that a process for the alignment of presidential initiatives is under consideration which is intended to provide for long-term coordination of new and existing initiatives over a five year period. She noted that this coordination and alignment approach would relieve the strain on bar staff and resources that are required to implement new discrete presidential initiatives from year-to-year and better align the initiatives and activities of the bar with long-term strategic direction that often require multiple years for successful completion. She noted that such a concept would not preclude individual presidential initiatives each year, but would instead ensure that new initiatives are aligned with consideration to vision, investment and assessment. She noted that Mr. Bergmanis’s 20/20 focus falls into this type of approach.
C. Alternative Pathways to the Board of Governors/Size of Board
Ms. Cutler provided an overview of consideration related to providing an alternative path to serve on the Board of Governors, utilizing the division chair structure which was approved as part of the committee/section reorganization. She noted that this approach would allow for two division leaders to move up and fill seats on the Board of Governors after serving in the divisional leadership role for four years. She noted that should the Board of Governors choose to create this alternative path to the Board, it would also require addressing issues related to board size to accommodate such a change. Questions were raised regarding the need to establish such a pathway and/or adjust the size of the Board of Governors. It was moved and seconded that the Board of Governors not create an additional pathway to service on the Board. The motion was approved.
Ms. Cutler reported that the vote not to create an additional pathway to the Board of Governors makes consideration of the size of the board unnecessary. She further reported that the two other areas under consideration – establishment of permanent committees and strategic alignment of presidential initiatives – will be considered at the meeting of the Board of Governors in October.
11. Executive Session to Discuss Contractual Agreements and Other Matters:
The Board of Governors went into executive session.
There being no further business, the meeting was adjourned.
Sebrina A. Barrett, Secretary