Fight to block conflict-of-interest law in St. Louis has secret backer, city says

Someone is highly invested in rolling back an anti-corruption law in the city, but that person’s identity remains shrouded in secrecy. 

At the heart of the mystery is the question of who’s bankrolling a lawsuit seeking to block the implementation of Proposition R, a ballot initiative approved by St. Louis city voters that is intended to mitigate conflicts of interest in the Board of Aldermen as well as delegate the duty of redrawing the lines of city wards to a panel of citizens. The initiative was approved in April 2022 with 69 percent of the vote. 

Supporters of Prop R wanted to force aldermen to declare any personal or financial conflicts of interest on legislation before them, as well as abstain from voting on those bills. Additionally, Prop R established a nine-member “People’s Commission” to oversee ward redistricting every 10 years, a task that previously fell to aldermen. 

The initiative drew criticism prior to its passage, with detractors calling it well-meaning but poorly drafted. Among other oddities, the initiative requires anyone who wants to sit on the People’s Commission to publicly disclose their sexual orientation, potentially leading some candidates to question whether the role would be worth it. A St. Louis Post-Dispatch editorial referred to the People’s Commission as a “flimsy substitute for a demographer.”

The biggest criticism from the aldermen has to do with the conflict-of-interest provisions, which apply to the aldermen themselves, as well as anyone related to them “in the fourth degree of consanguinity or affinity.”

“Part of the issue with Prop R is that it goes four degrees out, like what your cousin’s cousin’s cousin is up to,” said Ward 4 Alderman Bret Narayan. “Every human being on Earth is separated by six degrees of consanguinity.” 

Ward 3 Alderman Shane Cohn put it more bluntly. “It’s bullpucky on so many different levels,” he said. Cohn added that he supports many of Prop R’s ideals, but the way it is drafted is unenforceable. “If actually enforced as written, it would bring the work of government to a halt.”

The wording of Prop R designates the board’s own legal counsel as being responsible for prosecuting conflict-of-interest violations, effectively turning an alderman’s attorney into their prosecutor. “That’s an insane thing to do,” said an attorney who reviewed the language of Prop R. “We should be encouraging aldermen to seek out the advice of counsel on conflict questions, not disincentivizing it.”

Despite all of that, the initiative passed (though it’s worth noting that fewer than 20,000 people cast a ballot that Election Day.)

Cue the lawsuit. In May 2022, one month after Prop R’s passage, four aldermen sued the city, asking the court to block its implementation. Jack Coatar, Marlene Davis, Carol Howard, and John Collins-Muhammad argued that the conflict of interest provision in Prop R was “so broad and ill-defined in its sweep as to be patently unreasonable.”

In the two years since the suit’s filing, however, the City Counselor’s Office has come to suspect that a secretive third party is bankrolling the lawsuit. In legal filings, the city cites as evidence the fact that all four of the original plaintiffs have since left the suit. Davis and Howard retired from the Board of Aldermen. Coatar lost to Aldermanic President Megan Green and moved to Florida. Collins-Muhammad spent the last year and a half in a federal prison in Indiana for corruption; he is only recently back in the city, residing in a halfway house.

Keeping the suit alive, Ward 11 Alderwoman Laura Keys joined as plaintiff 2023. The city has argued that this subbing in and out suggests that there is an undisclosed “third party who is directing the litigation.”

In February, the city counselor’s office filed a motion asking a judge to compel Keys and her attorney, Elkin Kistner, to disclose who is funding the suit. “The fact that none of the original plaintiffs is currently a party in this lawsuit raises the inference that there is an unidentified third party directing the course of the litigation and there has been since the suit’s filing,” Associate City Counselor Erin McGowan wrote.

Forcing the disclosure of the suit’s backer is necessary, McGowan wrote, because “unusual circumstances exist pointing to the involvement of a third party who is directing the litigation and making ultimate litigation or settlement decisions, and accordingly, discovery into litigation funding is appropriate.”

The city notes that, in a deposition last August, Keys seemed to have minimal knowledge about some of the basics of the lawsuit. She seemed unaware of the conflict-of-interest provisions of Prop R, the city alleged, though she did express reservations about the People’s Commission. When asked what those reservations were, she said, “Well, I’m suspicious when I see things that are called ‘The People’s.’ I want to know who—who the people are, you know, so that’s always my concern.”

Keys said she didn’t want to comment on the suit beyond saying, “I am not aware of any other funder.” The notion that there is one, she added, was new to her. 

Reached for comment, Kistner referred SLM to his filings in this case. He argued in those filings that the city’s theory of a third-party funder was based on “mere speculation.” He added that the “reason that Ald. Keys joined this lawsuit at the time that she did may simply be explained by the timing of her appreciation of the utter confusion wrought by the Charter Amendment in question.” 

Of course, Kistner’s use of “may” does draw some attention to itself. Kistner also pointed out that in the August deposition, Keys voiced many legitimate criticisms of Prop R, including that aldermen in general seem to be confused by it.

Kistner’s filings also highlight what he sees as a deep irony: that the city is fighting to preserve Prop R while failing to implement “a shred” of its provisions.

To his point, Alderman Bret Narayan says aldermen were already filling out both a local and state conflict-of-interest form every year, and neither changed after the passage Prop R. “Consequently, the City has cast the Charter Amendment into the dustbin for dead letter laws,” Kistner wrote, “forcing at least one lawyer to learn the meaning of the term ‘desuetude.’” (“Desuetude” refers to a state of disuse.) Kistner went on to refer to the law as having a “zombie”-like status, technically on the books but unenforced.

In their filings, the city has argued that Keys is incapable of being a plaintiff in the suit because she hasn’t been able to show she has been negatively affected by it. Kistner has countered by wondering, in legal filings, how anyone could be injured by a law that has gone unimplemented. “Consequently,” he wrote, “under the City’s paradigm, nobody—as in, not a soul or entity in our galaxy—has the ability to challenge the Charter Amendment due to the City’s defiant refusal to implement a whit of it.”

The next hearing in the suit is set for September. At some point thereafter, Circuit Judge Joseph Whyte will rule on both the city’s motion to force Keys and Kistner to disclose any third-party funders, as well as on Keys’ motion asking him to grant her side summary judgment, invalidating Prop R.