Judge orders Missouri AG Andrew Bailey to sit for deposition over possible ethics breach

Missouri Attorney General Andrew Bailey speaks Jan. 20, 2023, to the Missouri chapter of the Federalist Society on the Missouri House of Representatives dais (Annelise Hanshaw/Missouri Independent).

Missouri Attorney General Andrew Bailey can be questioned under oath about interactions with a Jackson County official that appear to  have violated legal ethics rules, a judge ruled Tuesday.

The order forcing Bailey to sit for a deposition — which legal experts interviewed by The Independent agreed was highly unusual — stems from meetings he and one of his deputies had with Jackson County Legislator Sean Smith. The attorney general’s office is currently suing the county over its property assessment process.

Under Missouri Supreme Court rules, attorneys are not to communicate about a lawsuit with individuals represented in the case by another lawyer without the consent of the other lawyer. Both Bailey and Travis Woods, an assistant attorney general, discussed the case with Smith, according to Clay County Circuit Judge Karen Krauser’s order .

“The Missouri Attorney General’s Office is not exempt from the requirements of the state ethical rules, and this court finds that Travis Woods…violated the Rules of Professional Conduct,” wrote Krauser, who is handling the case after Jackson County judges recused themselves.

Krauser’s order came in response to a request for sanctions, including the ability to question Bailey, filed by attorneys representing Jackson County. She did not grant other sanctions that were requested, including disqualifying the attorney general’s office from the case.

“Missouri Attorney General Andrew Bailey and his office have exhibited a blatant disregard for the Rules of Professional Conduct in this case,” the motion filed by Jackson County says, “and their actions are sanctionable. Based on what we know so far, their actions were not innocent mistakes.”

Both Jackson County and Bailey’s office declined comment. Smith did not return a request for comment.

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In a filing in opposition to Jackson County’s, Bailey’s office accused the county of grasping for straws and said the rules don’t support “granting these radical requests.”

“This court should reject defendants’ latest attempt to distract from the facts and legal claims brought by the state government,” the state’s filing says.

Chuck Hatfield, a longtime Jefferson City attorney who served as chief of staff to former Democratic Attorney General Jay Nixon, said a lot of judges would be troubled by the meetings between the attorney general and Smith.

Jackson County’s lawyers, Hatfield said, should have been informed.

“It almost looks like they intentionally kept it from (Jackson County’s lawyers),” Hatfield said, “and that’s quite unprofessional. And the judge appears to think it was unethical, and that seems like a valid judgment to me.”

Hatfield said he wasn’t aware of a Missouri attorney general being deposed since John Ashcroft, who served in the late 1970s and early 1980s before going on to become Missouri governor, a U.S. senator and finally U.S. attorney general under President George W. Bush.

“This is really unusual,” Hatfield said of Bailey’s impending deposition.

Bailey filed a lawsuit in December over Jackson County’s property assessment process. It named as defendants Jackson County and its legislature; County Executive Frank White Jr.; director of assessment Gail McCann Beatty; the Jackson County Board of Equalization; and Tyler Technologies, a software company hired by the county.

The lawsuit accuses Jackson County of failing to comply with the law when it assessed properties in 2023, resulting in an average 30% increase in value across hundreds of thousands of properties. The lawsuit says more than 90% of residential properties saw an increase in property value, and values increased by at least 15% for three-quarters of properties in the county.

The increase in property value means owners will have to pay more in property taxes each year.

The attorney general claims Jackson County failed to notify owners of the property value increases and their right to a physical inspection — which is required before the assessor can increase a home’s value by more than 15% — in a timely manner. The county didn’t conduct all the required inspections before hiking values more than 15%, the lawsuit says.

Jackson County has denied the accusations and accused Bailey of waiting too long to file the case since tax bills have already been paid and money distributed. Beyond that, the county argues, the attorney general can’t file a case unless the State Tax Commission has attempted to resolve the issue first.

Attorneys for Jackson County filed a motion for sanctions against the attorney general last month, citing the meetings Smith had with Bailey in April and Woods in May.

“Based on what is known today, it is clear the Attorney General’s Office has been working with Sean Smith on trial strategy against Jackson County,” the county’s filing said.

The attorney general’s office filing in response says Smith has made numerous public statements criticizing the property assessment process.

“He has already testified at trial in this case, and in that testimony made clear that he believes Jackson County’s assessment practices were inappropriate,” the filing says. “He has voted on resolutions that are manifestly adverse to the rest of the county’s position in this case.”

Even so, the filing says, the attorney general’s office has ceased communicating with Smith, who is running for the U.S. House as a Republican.

Krauser agreed with the county, writing in her order that Smith regularly consults with the county’s lawyers regarding issues central to the lawsuit and has power as an elected official to impact the case.

“This court has the authority to impose sanctions for conduct which abuses the judicial process, which includes violations of professional conduct,” Krauser wrote.

After oral arguments in the case on Monday, the order says, Bailey’s office provided notes from Woods’ meeting with Smith. The notes didn’t include information subject to attorney-client privilege, Krauser wrote.

Another staffer in Bailey’s office sat for a deposition about the meeting between Bailey and Smith and their respective campaigns but gave little information about the conversation beyond that the two discussed the property assessment case and discussed “preparing a joint statement regarding this lawsuit.”

Smith posted to his campaign social media account that his team visited with Bailey.

“Both of us feeling great about our races,” Smith said. “Thankful for the efforts of the AG in holding those responsible for our property tax debacle accountable.”

Will Scharf, who is running against Bailey in the Republican primary for attorney general, said in a statement that the dispute was “yet another example of Andrew Bailey putting politics before his duties as attorney general.”

“It is absolutely outrageous,” Scharf said, “that this important litigation against Jackson County is now imperiled because Andrew Bailey wanted a quick hit for his campaign.”

This story was updated at 5:38 p.m. to include newly-disclosed filings in the lawsuit.

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