The Missouri Municipal
Review
The Official Publication of The Missouri Municipal League
January 2012
Plan to attend the MML Legislative Conference! See page 18 for Registration information.
Missouri State Capitol
Inside This Issue ♦ 2012 Legislative Report ♦ Why Missouri Municipalities Should Oppose The “Everything Tax” ♦ Prison Populations Create Complications At Redistricting Time ♦ Nuisance Abatement: Subjective Advice
2 / January 2012
The Missouri Municipal Review
www.mocities.com
The Missouri Municipal
Review
January 2012
VOLUME 77, NO. 1
The Official Publication of The Missouri Municipal League
contents
President
Mayor Norman McCourt Black Jack
4 / In Defense Of Bureaucrats by Jim Miller 5 / 2012 Legislative Report by Richard Sheets
Vice President
Councilmember Susan McVey Poplar Bluff
6 / The Seven Habits Of An Extremely Influential Association by Joe McCoy
Immediate Past President Mayor Carson Ross Blue Springs
8 / Why Missouri Municipalities Should Oppose The “Everything “Tax” by James R. Moody and Scott Charton
e
11 / Prison Populations Create Complications At Redistricting Time by Peter Wagner
MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS Donna Baringer, Alderman, St. Louis; Conrad Bowers, Mayor, Bridgeton; Denise Chisum, City Clerk, Lee’s Summit; Roger Haynes, Deputy City Manager, Mexico; Bill Johnson, Director of Administration, Fulton; Bob Kneemiller, Councilman, St. Charles; Bill Kolas, Mayor, Higginsville; Allison Light, Alderman, Harrisonville; Jan Marcason, Councilmember, Kansas City; *Ron Monnig, Councilmember, Slater; Reanne Presley, Mayor, Branson; Don Reimal, Mayor, Independence; Lisa Robertson, City Attorney, St. Joseph; Arthur Sharpe, Jr., Councilmember, University City; Paul Ward, Councilmember, Kirkwood; *Gerry Welch, Mayor, Wesbster Groves; Terry Wilson, Mayor, Pleasant Hill; *Kevin Wood, Mayor, Harrisonville. *Past President
e
18 / 42nd Annual MML Legislative Conference
departments 20 / Professional Directory 23 / News From The Bench 24 / FAQ: Fair Labor Standards Act (FLSA) 26 / Municipal Career - Classified Ads 26 / 2012 Calendar Of Events
Katie Bradley, Editor Contributing Editors: Dan Ross and Richard Sheets
AFFILIATE GROUPS: Missouri City Management Association; City Clerks and Finance Officers Association; Government Finance Officers Association of Missouri; Missouri Municipal Attorneys Association; Missouri Park and Recreation Association; Missouri Chapter of the National Association of Telecommunications Officers and Advisors; Missouri Chapter of the American Public Works Association; Missouri Association of Fire Chiefs. www.mocities.com
14 / Nuisance Abatement: Subjective Advice by Patrick Cronan
Missouri Municipal Review (ISSN 0026-6647) is the official publication of the Missouri Municipal League state association of cities, towns and villages, and other municipal corporations of Missouri. Publication office is maintained at 1727 Southridge Drive, Jefferson City, MO 65109. Subscriptions: $30 per year. Single copies: $5 prepaid. Advertising rates on request. Published bi-monthly. Periodicals postage paid at Jefferson City, Missouri. Postmaster: Send form 3579 to 1727 Southridge Drive, Jefferson City, MO 65109. To contact the League Office call 573-635-9134, fax 573-635-9009 or e-mail the League at info@mocities.com. The League’s Web site address is: www.mocities.com.
The Missouri Municipal Review
January 2012 / 3
IN DEFENSE OF BUREAUCRATS by Jim Miller
I
f you work in the public sector, you are probably feeling a little sensitive these days. The last few years have been especially difficult; many local governments have cut positions and, for those employees who remain, furloughs and wage freezes have been common. At the same time, demands for most services have not changed, even though resources have not kept pace with the cost of providing those same services. As if this weren’t enough, public sector employees themselves have come under growing scrutiny. It is increasingly common to hear complaints about public employees (sometimes by elected officials who see bashing government as appealing to their base): their salaries are greater than for comparable private sector positions, their pensions are too lucrative and unsustainable, and, well, many are not very competent. Such criticism is often derisively captured in the term “bureaucrat,” and too many people conclude we’d be better off with fewer of them and paying less for those that remain. As with most public policy discussions, the truth is more complex. Yes, some public sector positions are paid higher than those in the private sector, but certainly not all. That is especially true for managerial and professional positions. And, yes, many public sector pensions today are more lucrative than those offered by private employers, but that is not universally true. Furthermore, the disparity has been caused by the erosion of private sector pensions perhaps more than by improvements of those in the public sector. Then of course, the occasional report of a corrupt or inept public worker makes sensational news, but we don’t often hear of those who take extraordinary steps to save the public’s money. The reality is that public employees are as competent as those in the private sector and they also possess the same human shortcomings. But, if so, why are bureaucrats and bureaucracy held in such low esteem? In part, it’s explained by factors such 4 / January 2012
... the more we portray those who serve the public as the sole cause of our problems without giving due recognition to the value they bring, the harder it will be to ensure we have responsible government and not just less government. as pension discrepancies, but it is also occurs because the term “bureaucrat,” like teacher or lawyer, is generic and impersonal. This allows us to generalize in our observations without any real consequence. Saying “snowplow operators are incompetent” is much easier than saying “John Anderson is an incompetent snowplow operator.” The standards for propriety and truthfulness then become much higher. This distinction is repeatedly seen in surveys that find higher levels of public confidence and respect for individuals than for their respective professions. Unfortunately, the specifics from which many generalize about public servants often come from their negative experiences (the speeding ticket they didn’t deserve, the zoning variance their neighbor shouldn’t have received, etc.) or from similar anecdotes they hear, regardless of their veracity. Equally unfortunate is that during our most formative years our education system does an inadequate job of reinforcing the important role of government in society, making it more likely that as adults we fail to appreciate both the necessity of and contributions by those who actually are “government.” Moreover, some elected leaders are, if not openly critical of their employees, reticent to defend their good work and affirm their value. Why does any of this matter? First, because the most damaging implication of any stereotype is that it keeps us from seeing and responding to reality. This state (Minnesota) is now facing extremely difficult and potentially far-reaching decisions as it grapples The Missouri Municipal Review
with how to balance yet another huge budget deficit. The size of the public workforce, whether public employees are being compensated fairly, and other similar questions are fair game in solving this problem. But looking at solutions, such as eliminating local government aid based on the misguided assumption that this will only serve to reduce bloated local bureaucracies, is shortsighted and will have undesirable consequences. Equally important is the chilling effect that perpetuation of this pejorative stereotyping of public servants may have on those contemplating entering or remaining in government. We will always have government. As important as it is to make sure we have only the right amount of government is ensuring that we have good government. That cannot happen without dedicated, competent bureaucrats. Government leaders have always borne a responsibility to constantly seek ways to improve the efficiency and responsiveness of our bureaucracies. That is especially necessary today as resources have become scarcer. They must also, however, champion the true value our public bureaucracies bring to the quality of life in this country. When recognition is due, we must give it. And when change is necessary in our public services, we must make it, but do so for the right reasons and not because we have found a convenient scapegoat. The negative perceptions about government bureaucracy are deepseated and undoubtedly at times deserved. But the more we portray those who serve the public as the sole cause of our problems without giving due recognition to the value they bring, the harder it will be to ensure we have responsible government and not just less government. We all lose if that doesn’t happen. Jim Miller is executive director of the League of Minnesota Cities. Phone: 651-281-1205; e-mail jmiller@lmc.org. This article is a reprint from the Minnesota Cities magazine, issue January-February 2011.
www.mocities.com
mml legislative report by Richard Sheets
O
n January 4, the Second Session of the 96 th General A s s e m b l y convened in Jefferson City, beginning the race toward adjournment on May 18. The upcoming general election this November as well as the continuing state budgetary troubles will certainly influence the legislative agenda for this session. Any issue requiring money will be dead. We also anticipate a robust effort to modify a number of the state’s economic development incentive and finance programs. These programs are important components of local efforts to bring jobs to Missouri. It does not make sense to weaken economic development programs during these fragile economic times. Preserving local control over undeniably municipal matters will again be an issue this session. It is expected that special interests will attempt to usurp local authority over land use, purchasing, construction management, use of public streets, refuse collection and use of traffic devices.
Fiscal Notes
An often overlooked component of the legislative process that is an invaluable lobbying tool is the legislative fiscal note. The Legislative Oversight Division prepares fiscal notes for bills being considered by the Missouri General Assembly. Among other things, a fiscal note indicates whether a bill would have a direct fiscal impact on any political subdivision of the state. A bill with a high fiscal note raises red flags and closer scrutiny by legislators. A low fiscal note conversely indicates less fiscal issues and less scrutiny. Therefore, it is very important that a fiscal note is submitted on all legislation affecting cities. The Oversight Division routinely sends out fiscal requests to www.mocities.com
pre-selected cities. However, the fiscal note requests sent to cities generally include requests for information on bills relating to other political subdivisions. With more than 1,000 bills introduced each year, fiscal note requests can become quite overwhelming and may ultimately be ignored. Because of their importance, the League staff will assist city officials in identifying those bills where the submission of a fiscal note would be helpful. Requests to submit fiscal notes will be included in the League’s weekly Legislative Report and occasionally in a special legislative action alert e-mail.
for financial contributions, but there are two assets that enable the MML to be effective in the Missouri General Assembly: 1) an organized membership of city officials who are committed to good government and are respected in their communities; and 2) an experienced staff that provides information and ongoing representation in Jefferson City. The success of the League’s 2012 legislative effort depends upon the effective use of both assets. When contacting legislators about a particular bill, be reasonably brief, but express your own opinion as completely as possible and give examples from your city to explain the effects of a particular piece of legislation. Put someone in charge. Make one official responsible for quick review of the MML Legislative Report and for being a quick contact with your legislator if requested by the League staff. To the extent possible, notify League staff of significant contacts with legislators. If your city is having a meeting with area legislators, please notify your League staff of any significant commitments or comments made by your legislator. If you are interested in a particular bill and would like to be notified of the committee hearing on the bill, contact the staff at the League’s office. Cities are strongest when they speak with a unified voice. You have the ability to show legislators how the decisions they make in Jefferson City impact your community. Together, we can strengthen the voice of cities, keeping decision making on local issues at the local level. Richard Sheets is the deputy director of the Missouri Municipal League. He can be reached at rsheets@mocities.com.
MML Legislative Strategy
The MML is a grassroots lobbying organization that differs from most others. There are no PACs or other funds The Missouri Municipal Review
January 2012 / 5
THE SEVEN HABITS OF AN EXTREMELY INFLUENTIAL ASSOCIATION by Joe McCoy
I
f you think of lobbying as a throng of people who congregate to influence legislators, then you only have part of the picture right. Statehouse lobbyists certainly spend countless hours talking to legislators in their offices or pulling them off the House and Senate floors to convey information or make a request. But unless a lobbyist is counted among a tiny minority of “power players,” these conversations will not in and of themselves achieve a desired legislative outcome. Successful lobbying is generally not simply a matter of registered lobbyists pressing their arguments. Successful lobbying is a total membership activity. This is particularly true when lobbying on behalf of an association like the Missouri Municipal League (MML). The MML does not have a political action committee that can curry favor with legislative leaders by making financial contributions to help candidates in targeted races. Nor is the MML in a position to throw an army of political troops into legislative races to elect “pro-municipal” candidates. These more conventional “political” models of legislative influence work very well for certain kinds of organizations. One may argue that our political system is not well-served by these models, but they are nevertheless historical and here to stay. When seeking influence, organizations like the MML must not define themselves by what they are not. We
6 / January 2012
should instead focus on what we are. And there are considerable resources to work with! We may not possess a “political army,” but we have a cadre of experienced political leaders and professional management teams who possess a vast knowledge of how cities work and how proposed legislation can help or hinder everyday operations and community growth. And these leaders and their expertise are dispersed throughout every single legislative district in Missouri. The network of meaningful legislative influence is in place. One of the primary missions of the MML is to make sure that this extensive network is activated, energized and engaged to the fullest extent possible. Achieving this objective requires a constant cultivation of certain basic habits. Let’s refer to them as “The Seven Habits of an Extremely Influential Association.” These habits are described below:
1. Accept That You Possess Influence
Accepting that you can make a difference is a question of attitude and represents the threshold barrier that must be overcome on the road to maximizing influence. Put simply, if you do not believe that you can be an agent for change, you will not be. As the saying goes, “whether you think you can or think you can’t, you’re right either way.” Imagine the difference between an association whose members believe that their actions to persuade legislators
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matter versus one whose members do not hold that belief. Which association is more likely to be successful in achieving desired legislative outcomes?
2. Educate Yourself
Once you have decided that you can make a difference over what happens, you need to stay abreast of the latest developments. The MML Web site was designed for this very purpose. We intend for the Web site to become the premier site for obtaining timely news about events that could affect municipal governments. Fresh stories go up every day and all tracked legislation has its own page with information about bills. Visiting the MML Web site at least twice a day should become a habit unto itself. We strongly encourage you to bookmark the page for easy access. The Web site address is www.mocities.com.
3. Build Relationships
Relationships are the critical ingredient to exercising influence. Your legislators are far more likely to pay attention to people that they know and with whom they have fairly regular interactions. And you don’t want to reach out to your legislators only when you need something. Call them occasionally to ask how they are doing and even if they need any help. If you see something favorable about them in the newspaper or on television, call and let them know. Investing in these relationships will pay long-term mutual dividends through greater influence and information flows.
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4. Become “Indispensable”
Legislators are inundated with thousands of issues during a typical legislative session. Information is put before them for a quick review followed by what can seem like a lightening vote. More often than not, legislators make decisions based upon the information that they have at the time – even if the information is incomplete. No legislator wants to make a decision only to hear after-the-fact that their municipal officials are upset with them. If you establish a trusting relationship based upon good counsel to your legislator, they will put you on speed dial as someone they can call to ask about how a bill might affect the cities in their district. You will have become “indispensable” to them.
5. Build Your Influence Team
Like politics, influence is a game of addition. The most effective way to influence a legislator is to make sure that they are hearing the same message from multiple sources. Many of our members have friendships and professional relationships with their counterparts in neighboring municipalities. You may have these relationships yourself. After you communicate www.mocities.com
with your legislators about how a bill will impact your community, reach out to your colleagues and ask that they convey a similar message. This is especially critical when the MML is seeking a favorable outcome on a politically contentious issue. Sometimes the best way for David to conquer Goliath is with an army of Davids.
6. Share Information
One of our primary objectives at the MML is to learn information about legislation and relay it to our members in a timely manner. This kind of information sharing needs to be a two-way street. The effectiveness of the MML legislative staff is greatly enhanced when our members call us to let us know what they are hearing from their legislators about issues. We also benefit when our members call us to let us know how a particular bill will affect their municipality. Our contact information is available on the MML Web site at www.mocities.com. We want to hear from you!
7. Exercise Boldness
particularly difficult when you already have a sense that the legislator is on the other side of the issue. It is important to remember that the legislator may take an adversarial view simply because they have yet to hear a contrary and compelling argument from you. Be bold and do not be concerned that there may be a disagreement. It happens and can be done respectfully. Keep in mind that a legislator who knowingly votes “against” you may look for another opportunity to vote “with” you to “balance out the ledger.” But this can only happen if they heard from you to begin with. Cultivating these seven habits will increase your influence with your legislators. The result will be a much stronger and effective MML that is well-positioned to meet the needs of our expansive and diverse membership. Joe McCoy is the senior legislative advocate for the Illinois Municipal League. This article is reprinted with permission from the June 2011 issue of the Illinois Municipal Review, published by the Illinois Municipal League. Wording for this article has been edited for clarity.
Sometimes it can be difficult to approach a legislator to ask them to vote a certain way on an issue. This can be The Missouri Municipal Review
January 2012 / 7
WHY MISSOURI MUNICIPALITIES SHOULD OPPOSE THE “EVERYTHING TAX” by James R. Moody and Scott Charton
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y now you’ve probably heard about efforts to put a constitutional amendment on the November 2012 ballot to replace the state personal income tax with a much higher, sweeping statewide sales tax on almost everything Missourians buy every day. We call this tax the “Everything Tax” because it literally taxes almost everything you buy from cradle to grave. It’s a terrible proposal, with devastating consequences not just for families but also for all levels of government and basic public services. The “Everything Tax” would: • Trigger a massive state general revenue shortfall forcing slashing of essential public services, from K-12 and higher education to health care, public safety and corrections. • Tie the hands of responsible public officials in confronting the costly mess and inevitable lawsuits resulting from the risky scheme. • Devastate Missouri’s economy by making our communities less competitive, especially along state borders that will derail any economic rebound. • Unfairly place a heavier tax burden on lower- and middle-income Missourians, particularly punishing families, senior citizens, the disabled and people on fixed incomes. 8 / January 2012
Of critical importance to responsible municipal leaders, the “Everything Tax” would act as a state constitutional Bigfoot – intruding on decisions and policies that have historically been left to local governments and local taxpayers who have an enduring vital interest in their hometowns.
For example, some real estate transactions would be exempted under a version that has been circulated, but the Missouri Association of REALTORS® recognizes that responsible lawmakers will have to act to fix the huge general revenue shortfall so they oppose it.
Big Sales Tax Increases, But Huge Revenue Shortfall
The “Everything Tax” Hurts Local Governments
The “Everything Tax” would dump the existing personal income tax that provides critical state general revenues, and would nearly double the current state sales tax of 4.225 percent to 7 percent. It allows local sales taxes of up to 3 percent – which for many municipalities would mean a substantial cut in local revenues – making the combined sales tax rate an enormous 10 percent. Despite the massive increase in sales taxes for Missouri consumers, the “Everything Tax” still manages to fall drastically short of providing a revenue source that is comparable to the income tax to pay for critical services. Even the state auditor’s official fiscal note acknowledges that state general revenues could fall $1.5 billion short, which is bad enough. But we believe the shortfall will be far worse – perhaps $3.2 billion, or more than one-third of state general revenues. The shortfall is caused, in part, by proponents’ political calculation to exempt a large number of transactions.
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As these lopsided, constitutionally authorized sales tax increases hit almost everything consumers buy every day, local governments will have their hands tied with fewer local options to make up lost funding. The 3 percent cap on local revenues will cause many municipalities to drastically cut their local services while facing similarly dramatic state cuts. You might ask what the point is of capping local sales tax rates at 3 percent; the answer - nothing. That’s because the backers of the “Everything Tax” want to strangle government, not create jobs. What’s more, if local governments decide to ask their voters to increase the sales tax rate above 3 percent, the “Everything Tax” scheme would require an extraordinary vote – a four-sevenths vote on primary and general election dates, and a two-thirds majority on other election dates. In addition, the statewide ban on local earnings taxes, which was sold to voters in 2010 as reasonable because the prohibition was merely statutory and could be changed by lawmakers, would
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now be enshrined in the Constitution. Municipalities would effectively have their future ability to generate revenue severely constrained.
The “Everything Tax” Hurts Local Businesses
One of the side effects of the “Everything Tax” scheme is that local sales taxes would be very high relative to Missouri’s bordering states; thereby, raising the potential of declining municipal revenues as citizens cross state lines to buy goods and services where tax rates are lower. When Missouri promotes economic development, we don’t mean economic development for Kansas, Nebraska, Iowa, Illinois, Kentucky, Tennessee, Arkansas and Oklahoma. One big pitch of the proponents is that Missouri should change its tax structure to more closely resemble the tax structure in Tennessee. However, what they fail to tell you is that Tennessee has the 39th lowest per capita income in the country while Missouri ranks 32nd, with per capita income that is $1,672 higher than that in Tennessee. Thus, the proponent’s economic development strategy is to emulate a state where per capita income is lower than in Missouri.
Hurting Families And Senior Citizens
Significantly, the “Everything Tax” would raise the state’s current 1.225 percent sales tax on groceries to 5.5 percent – more than quadrupling the state sales tax bite on the same apple, the same gallon of milk, the same loaf of bread and the same jar of baby formula. And the local 3 percent sales tax would be added on top of the dramatic state grocery sales tax boost. The “Everything Tax” on goods and services will make just about everything more costly for Missouri families. Imagine forcing families to find more money in their stretched budgets for clothing, diapers, car repairs, emergency room visits, in-home care and funeral flowers, just to name a few. Proponents of the “Everything Tax” like to claim that residents will receive an immediate 6 percent pay raise because they would do away with the personal income tax. However, while Missouri’s top marginal personal income tax rate is 6 percent, no one in the state pays an
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effective rate of 6 percent. In fact, most Missourians pay state taxes of less than 3 percent on their gross income; many working families pay 1 percent or less. For example, a two-income family with one child and gross income of $30,000 would pay just $388 – or 1.29 percent of gross income – in state income taxes. As a municipal official, consider how many citizens you represent and work for who live day-to-day on less than $30,000 in annual income. Clearly, the “Everything Tax” would severely punish average citizens trying to get by, but it’s particularly hard on senior citizens. In Missouri, many seniors pay no state income tax, because the state eliminated its income tax on Social Security and public pensions. So getting rid of the state income tax does little for these seniors – but huge sales tax increases would add frightening burdens when they pay for food, medicine and in-home care. For example, out-of-pocket costs for health care would rise. In a letter to the Attorney General about calculations in his fiscal note, the State Auditor notes serious questions raised by the Missouri Department or Revenue (DOR). DOR says terms in the “Everything Tax” regarding health care, such as “pharmaceuticals,” are vague and will surely generate massive legal fights at the taxpayers’ expense. The revenue agency also cautions: “This appears to tax
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any reimbursement of pharmaceuticals and medical services or those pharmaceuticals and medical services that could be recouped by insurance companies, but may not be. … many pharmacies have indicated they are not able to collect sales tax from insurance companies.”
The “Everything Tax” would dump the existing personal income tax that provides critical state general revenues, and would nearly double the current state sales tax of 4.225 percent to 7 percent. It allows local sales taxes of up to 3 percent – which for many municipalities would mean a substantial cut in local revenues – making the combined sales tax rate an enormous 10 percent. Another cradle-to-grave example: The professional services of an embalmer or funeral director may be exempt from the “Everything Tax,” but many services involved in the funeral
January 2012 / 9
are not performed by those two types of professional licensees. For example, the fellow operating the backhoe to dig a grave may not be one of those licensed people. The monument engraver also may not be one of those licensees – and monuments would also be subject to the higher sales tax, as would flowers, caskets and urns. The proposal does not just add tax to a funeral bill – it adds to the family’s stress during this most trying time.
Who’s In This Fight?
Over the last year, a political committee called Let Voters Decide has filed 13 different versions of the “Everything Tax” proposal with the Missouri Secretary of State. The committee’s major financial backer is Rex Sinquefield, a wealthy, retired investor from St. Louis. Eleven versions have now been withdrawn, leaving versions 12 and 13 pending. Recent polling has shown a discouraging result for the scheme’s promoters: despite spending nearly $500,000 on pro-tax advertising, voters reject it, in fact, the more voters learned about the “Everything Tax,” the less they like it. The Coalition for Missouri’s Future and Missourians for Fair Taxation
10 / January 2012
were organized to oppose bad ideas that impede Missouri’s progress, ideas like the “Everything Tax.” The organizations are made up of tens of thousands of real Missourians from business, labor, education, health care, professional and trade associations, civic groups and individuals who have come together to educate our neighbors. Local leaders can join the effort in several ways, such as adding your municipality’s name to our list of supporting organizations. You can find the current lists at: • Missourians for Fair Taxation: http://missouriansforfairtaxation.com/about/ • Coalition for Missouri’s Future: http://www.missourifuture.org/about-3/ Also, help educate your communities about the effects of the “Everything Tax,” while we spread the message that voters should “Decline To Sign” the petitions to put the “Everything Tax” on the ballot. In addition to the member organizations, Missourians for Fair Taxation and the Coalition for Missouri’s Future are powered by thousands of Missouri residents who are concerned about the impact of the “Everything Tax” on our The Missouri Municipal Review
state. Residents of your municipality are welcome to join our efforts to defeat the “Everything Tax.” They can learn more about it and sign up at: Coalition for Missouri’s Future: http://www.missourifuture.org Missourians for Fair Taxation: http://missouriansforfairtaxation.com For more information about either organization, please feel free to e-mail us at info@missouriansforfairtaxation. com or info@missourifuture.org. James R. Moody served as commissioner of administration, responsible for day-to-day operations of Missouri government during the two terms of Republican Governor John Ashcroft. Moody currently serves as a lobbyist and public policy analyst for multiple clients working to build Missouri’s economy and keep cities thriving. He has traveled across Missouri to inform civic leaders about the flaws in the “Everything Tax.” Mr. Moody is a spokesman for the Coalition for Missouri’s Future. Scott Charton spent more than a dozen years directing Missouri government and political coverage for the Associated Press. He also served three presidents of the University of Missouri System as director of communications. In 2010, Mr. Charton directed communications for the Missouri Association of REALTORS® campaign in support of Amendment 3 to protect property owners from transfer taxes. He is a spokesman for Missourians for Fair Taxation.
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PRISON POPULATIONS CREATE COMPLICATIONS AT REDISTRICTING TIME by Peter Wagner
M
issouri c i t i e s that host prisons have a unique question on their hands at redistricting time: Should the people who live next to the prison be given more influence over city affairs than other residents? The Supreme Court requires cities and other forms of government to update their legislative districts once per decade to ensure that each contains the same number of people. In this way, each city will ensure compliance with the federal constitutional principle of “One Person One Vote” that gives each person the same access to government regardless of where in a city he/she lives. (For a detailed introduction, see William Geary, “Redistricting in 2011: A Brief Summary for Local Government Officials” Missouri Municipal Review, May 2011.) The question of prison populations arises because the Census Bureau counts prisoners as residents of the city in which they are incarcerated, and the federal census is the typical source of the population data used to draw legislative districts. The Census Bureau does this even though prisoners aren’t allowed to vote and the Missouri State Constitution says that a prison cell is not a residence: “For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while … confined in public prison.” (Art. VIII, § 6). In many Missouri municipalities, a prison can account for a substantial portion of a ward’s population, giving the residents of the ward with the prison substantially more influence, and diluting the votes of all city residents in other wards. The ideal solution, in my view, is for the Census Bureau to count in-
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carcerated people as residents of their home communities, not the prisons where they are incarcerated. A federal fix would solve a lot of the problems that contribute to the problem we call “prison-based gerrymandering,” but a city council trying to draw new wards right now must find other solutions. The next best solution for a city is to simply remove the prison populations prior to redistricting. As I explain below, this is clearly acceptable under federal law but Missouri state law may not be so clear cut. I’ll discuss how some Missouri cities have handled this problem in the past, and review some the precedent from other states.
Federal Law
Cities are required by federal law to redistrict each decade, but federal law does not mandate the use of federal census data. Most cities rely on the U.S. Census for redistricting because the data is of high quality and it’s free. But the Supreme Court has said that states, and by extension local governments, are free to use other sources of data.1 One Supreme Court case, Burns v. Richardson, implicitly approved the type of adjustments to prison populations discussed here:
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“Neither in Reynolds v. Sims nor in any other decision has this court suggested that the States are required to include … persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”2 Cities are therefore free, at least under federal law, to create their own censuses from scratch or to simply correct how the federal census counts prisoners.
Missouri State Law Seems To Allow These Adjustments
Missouri law somewhat restricts the flexibility granted by federal law, by requiring municipal districts to be based on the U.S. Census: “The population of any political subdivision of the state for the purpose of representation … is determined on the basis of the last previous decennial census of the United States.”3 In my view, a city could conclude that the statute allows them to determine which decennial census product can best be used as the basis of their city council districts. Recent changes in how the Census Bureau publishes its data makes it possible for a city to use census data to draw its council wards without including the prison population. Although this isn’t commonly understood, there is no one monolithic decennial “census.” There are at least three different decennial data products provided by the U.S. Census Bureau that are relevant to redistricting each with their own purpose, methodology and numbers. The first is the state-level counts that include military and federal employees
January 2012 / 11
Municipal Redistricting Decisions Do Not Affect Funding
Discussions about whether and where to count incarcerated people for redistricting purposes frequently raise the importance of federal and state funding formulas to municipal budgets. Our research has found that both sides of the debate greatly overstate the impact. In general, prison populations have very little impact on the distribution of federal and state funds, and changes to the redistricting data would have no impact whatsoever because there are no formulas tied to municipal redistricting data. This confusion arises in part because the Census Bureau encourages participation in the census by appealing to the important use of census data in funding formulas.12 This leads to a misunderstanding about how the population data is actually used. Most large federal and state funding formulas, particularly those targeted to individual municipalities or school districts, do not use “total population” for their population component. Instead, they use more targeted factors, like people in poverty (which does not include prisoners or other people not in households), the number of school-age children, or non-census data like the number of enrolled children. As a result, the impact of prison populations on funding formulas tends to be quite small. Each funding formula is a complicated effort to match the program’s resources with the need being addressed. Any changes to the redistricting data be it for state redistricting or municipal redistricting, will have no effect whatsoever. Each formula has its own specific data sources and methodology, none of which rely on state or local redistricting data. That makes sense. The Missouri cities of Farmington and Licking decided that for redistricting purposes the prisons should not be included as residents of their cities. But this decision about internal redistricting matters will not cost – or earn – the cities a dime.♦ overseas and is used for congressional apportionment. The second is the PL94171 redistricting data file, produced since 1980, that is most commonly used for redistricting. The third is the Advance Group Quarters Summary file, produced for the first time after this census, for the explicit purpose of helping governments with a problem of prison-based gerrymandering. As the Census Bureau explains: This early release of data on the Group Quarters population may be beneficial to many data users including those in the redistricting community who must consider whether to include or exclude certain populations in redrawing boundaries … It will permit state and local redistricting officials to overlay this file with the 2010 Census Redistricting Data (Public Law 94-171) Summary File data.4 Potentially complicating matters is an advisory 2002 Missouri Attorney General Opinion that predates the Census Bureau’s Advance Group Quarters data file. This opinion states that “inmates of state correctional institutions should be included in the population count.” 5 However, I note that the Attorney General makes it 12 / January 2012
clear, in footnote 1, that the opinion was “limit[ed] to whether to count prisoners for federal and state funding purposes.” The Attorney General discussed why the Census Bureau has chosen to count incarcerated people as residents of the prison location but did not address the far more significant vote dilution issues involved in the redistricting context.
Removing Prison Populations Is Common
At least two Missouri cities (Farmington and Licking) recently decided to exclude the prison populations when drawing city council wards. Nationally, our research has found that the majority of municipalities and counties with large prisons exclude the prison populations. In Licking, the construction of the South Central Correctional Facility doubled the City’s census population. Including the prison population would have resulted in drawing a district that was entirely incarcerated and would have no way to elect a representative. The city of Farmington did not include the Farmington Correctional Facility in its third ward during the most The Missouri Municipal Review
recent redistricting and the redistricting completed after the 2000 Census. Had they done otherwise, the prison would have been 65 percent of the district. Every resident of the third ward would have had more than twice the influence of residents in other wards. In a few states, removing prison populations when drawing local districts is mandatory. Michigan requires cities and counties to exclude prison populations when redistricting, 6 and Colorado has a state law requiring counties to do the same. 7 Maryland and New York, as part of new state laws that reallocate incarcerated people to their home addresses for redistricting purposes, prohibit municipalities with prisons from using the prison populations when redistricting. 8 Virginia law encourages counties with large prisons to exclude the prisoners when redistricting, 9 and the Mississippi Attorney General encourages counties to exclude prison populations as well.10 Other municipal and county governments take action on their own without a state directive. In my research conducted after the 2000 Census, I found municipal and county governments that excluded prison populations when redistricting in Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Massachusetts, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota and Texas.
Best Practices
Nationally, the methods used to adjust the census vary, as do the level of detail that are given to documenting the rationale. Some municipalities and counties adjust the census figures, some cut a hole in their map where the prison is, and some “overpopulate” the district that contains the prison by the exact size of the prison. To the line drawer, these methods are very different, but the outcome of each is identical and the redistricting professional’s convenience should dictate the methodology. The justifications and documentation of the redistricting process are more important. In a few cases, we’ve seen municipalities and counties note the adjustment on their redistricting map, but the best practice might be illustrated in New York’s Essex County, where the County explained their rationale for excluding the prison population in Local Law Number 1 of 2003: www.mocities.com
… Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which … the correctional facilities where they are incarcerated are located. The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County. This is particularly so if the 1,898 inmates in the town of North Elba are included in its population of 8,661 since those inmates would then represent 21.914 percent of the North Elba’s population. The board of supervisors finds that the population base to be utilized in and by the plan apportioning the Essex County Board of Supervisors should exclude state and federal inamtes.11 Putting this rationale into the public record would show the basis for an adjustment to any court looking at the districts, and would make it more likely that the city council in a decade’s time would recall and repeat the previous decision. (In our research, we’ve found many examples where municipalities and counties were unaware of the basis of their previous maps until we per-
formed a population analysis for them.) In any event, municipalities that host prisons have to make a choice at redistricting time: Do they include the prison populations and give extra influence to the residents who live next to the prison, or do they fix the Census Bureau’s prison miscount? Peter Wagner is executive director of the Massachusetts-Based Prison Policy Initiative. For the last decade, he has worked with state and local governments to develop solutions to the problem of prison-based gerrymandering. He can be reached at pwagner@prisonpolicy.org. Footnotes: 1 See Mahan v. Howell, 410 U.S. 315, 330332 (1973) (rejecting Virginia’s argument that it was compelled to use Census Bureau assignments of residences of military personnel in its states legislative redistricting, and suggesting that a state may not use Census data it knows to be incorrect). And as the Third Circuit has explained:
Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature. Borough of Bethel Park v. Stans, 499 F.2d 575, 583 n.4 (3 rd Cir. 1971). 2
(1966)
Burns v. Richardson, 384 U.S. 73, 92
3
Mo. Rev. Stat. § 1.100(1)
U.S. Census Bureau, Redistricting Data, 2010 Census Advance Group Quarters Summary file, available at: http://www.census. gov/rdo/data/2010_census_advance_group_ quarters_summary_file.html (last viewed Nov. 30, 2011) 4
5
Mo. Att’y Gen. Op. 65-2002 (2002)
Mich. Comp. Laws § 117.27a(5) (municipal redistricting) Mich. Comp. Laws § 46.404(g) (county redistricting) 6
7
C.R.S. 30-10-306
Maryland HB496/SB400 (2010) and New York Part XX of A9710D/S6610C (2010) 8
9 Va. Code Ann. § 24.2-304.1, see also proposed amendment HB 13, 2012 Session Gen. Assem. (Va. 2012) available at http://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+hb13 10
2002).
Miss. Att’y Gen. Op. 2002-0060 (Miss.
11 For the full text, please see archived copy at http://www.prisonsofthecensus.org/ nycounties/essex.html 12 On average, each person in the census is worth about $1,400 a year in federal funds, but the funds are not distributed on an average. Very little of this money goes directly to municipalities on the basis of population. The largest federal funding formulas are block grants to states, and population plays only one part in most of the formulas.
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The Missouri Municipal Review
January 2012 / 13
NUISANCE ABATEMENT: SUBJECTIVE ADVICE by Patrick Cronan
A
lexander Adams inherited his mother’s house when she died 12 years ago. The house is in a small town in Missouri; Adams lives in Los Angeles. When he first inherited the house, he left it alone (almost like a shrine) because he didn’t want to deal with disposing of his mother’s things. After a few months, Alex’s wife talked him into having a sale of things that had any value, and in throwing away the stuff that didn’t. His wife got a local real estate agent to list the house, and when it didn’t sell talked Alex into renting the house. Unfortunately, one tenant was all it took to convince Alex that he wasn’t cut out for the rental business – for the last nine years the house has been vacant, deteriorating. Every couple of months the City would come by the house and mow the grass, and Alex would grudgingly pay the mowing bill. Alex also paid the taxes each year. After years of neglect, the roof of the house has caved in; there is extensive water damage. The City recently sent Alex a letter saying he must either fix up the house or tear it down. Alex got
14 / January 2012
bids: fixing the house would cost more than $20,000; tearing down the house would cost approximately $6,500. Alex decided to do nothing – the City has bluffed in the past and he thinks they are probably bluffing now. Besides, with very few acting jobs available either for Alex or his wife, they are
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having to live on their “day jobs” of store clerk and waitress respectively, and there is no way for them to come up with the money to do anything with the house. ♦ Brittany Bethume owns a house in a small town in Missouri that she has never seen. Brittany bought the house over the Internet; she paid almost $15,000 thinking that the house shown in the photo on the Web looked like a good place to retire. Unfortunately the Internet photo looked much better than the photos recently sent to her by the city: showing a front porch that had caved in; a door that had been forced open; and tires, junk cars and concrete blocks scattered throughout the yard. Brittany has decided to stop paying taxes on the house, thinking that eventually her problem will go away. ♦ Charles Cutright has been unemployed for the last 27 months, ever since the factory closed in his small Missouri community. Charles and his wife Mary had to file for bankruptcy. They told the bankruptcy court that they were going to surrender their home because they were overburdened with debt. Behemoth Bank has a first mortgage for $65,000; and First Fidelity Small Loan Company has a $17,000 second mortgage. Charles and Mary moved out of their home and told anyone who would listen that they no longer owned it. Neither of the creditors holding a mortgage has accepted ownership of the house, and neither has spent a dime trying to keep up the house, and both have ignored letters from the City about mowing the grass. The house is in fairly good shape, because Charles was very industrious and kept good care of the property; but it is worth only approximately $45,000 in today’s market. Neither financial institution has shown any willingness to accept a short sale. The house is slowly deteriorating. Unfortunately, Behemoth Bank has been paying the taxes, so this problem is likely to continue for decades. ♦ Dudley Drover figures it is easy to get rich. All he needs to do is collect rent from people who aren’t as smart www.mocities.com
as he is. Dudley recently purchased a trailer park in a small Missouri community, and (sure enough) the rent rolled in. Dudley, however, does not like maintenance. All his properties are eyesores. Recently there was a fire in one of Dudley’s trailers from people trying to get rich by making Meth. The Meth lab exploded; and the trailer was destroyed. Dudley’s tenants were arrested, and their two young children were put into foster care. After the fire, the local natural gas company inspected the trailer park and decided that the plumbing was so bad in all the trailers, that all but two were denied future natural gas service. Dudley’s rent stream dried up. Dudley (known as “Dudley the Dud” at city hall) has cut back even more on the attention he gives the property, and the trailers are attractive places for squatters (until Dudley spots them), for floating crap games, for thieves who think Dudley’s furniture might be salable. The city has been harassing Dudley, so he recently “sold” the trailer park to his cousin, on the theory that the city will back off for at least a couple of years. Nuisance abatement is a difficult subject – forcing people to take care of their property when they don’t want to (or can’t afford to) does not make friends. However, junk properties have an adverse effect on neighboring properties. Values decline, sloppiness spreads, crime increases. In this article, I am going to describe the nuisance abatement program in Slater, Missouri, which has been relatively successful. I am not certain that we know the best way to tackle this problem, but I do know we do a much better job than many other small rural towns. I am going to distill my experience into some “rules” that you are free to adopt or modify as you see fit.
1. Letters Sometimes Work
In my experience people will pay attention to a letter about one-third of the time. Letters from a lawyer works better than letters from the mayor. Letters that demand action and threaten further consequences work better than letters that try to be friendly. I like to establish hard deadlines in my letter, saying that if the work is not completed by a certain date bad things will happen. Realistically, however, my hard deadline turns into soft deadlines once the politicians get involved. The city council is always urging that someone with a long history as a scofflaw will www.mocities.com
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suddenly behave responsibly if we only give them another 30 days. Don’t establish a hard deadline unless you can back it up.
2. A Digital Camera Is A Wonderful Invention
I like to take five to seven pictures of each property. I include copies of the photographs with the letter. (I prefer 8x10 photos printed on regular paper, because shiny photo paper can make anything look pretty.) I do not trespass on the property when I take the pictures (I use a telephoto lens instead). Color prints have more impact than black and white. When I take pictures, I try to get at least one shot showing the house number (to avoid future disputes about which house it is). And I always remember I am trying to document ugly – no artistically arranged photos are welcome here.
3. Municipal Court Sometimes Works
Maybe 10 percent of the time, someone prosecuted will actually clean up their property before the court date. Maybe another 10 percent will clean up after the court date (assuming the judge is willing to give them a month to do so). You need to remember that (1) the maximum fine in municipal court is $500, and (2) the municipal judge wants to be a nice guy and can almost always be talked into giving the scofflaw another chance. If the problem
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is an unlicensed automobile (which can be towed for $100 or with a little effort) the municipal court can perhaps solve the problem. If the problem is a junk house (which will cost $5,000 or so to demolish) the municipal court is unlikely to help.
4. Forcing People To Spend Money Is Expensive!
If you want someone to tear down a junk house (which would cost $5,000 or so), you will spend almost as much in attorney fees to get the job done. In Slater, we have a goal of getting rid of five eyesores a year. We have a budget of around $50,000 to do so. About half the money is spent on attorney fees, and half on demolition contractors. We are always looking for ways to reduce the costs, but we haven’t found many.
5. Buy Every Property At The Tax Sale
One way to save on attorney fees is to keep the junk properties out of the hands of the bottom feeders. Each August we try to purchase every property inside our City that the county collector sells. Then we tear down the eyesores. The one problem with buying at tax sales is that you don’t get “good title.” In order to resell the property you either (1) must hold the property for 31 years and nine months1, or (2) file a quiet title lawsuit, which usually takes about six months and at least $1,000 in attorney fees. (However, we have sometimes
January 2012 / 15
sold land that we have bought at a tax sale without doing either – if someone is wanting the additional land in order to expand their garden, they may be willing to accept a deed without good title.)
6. The Fire Department Cannot Help (Legally)
It is a myth (and untrue, besides) that the fire department can do a “practice burn” and help you get rid of a junk house. In order for the fire department to burn a junk house it is necessary (1) to get a burn permit from DNR, (2) remove all asbestos from the house (shingles, siding), and (3) according to some DNR people, remove all pre-1978 paint from any wood (because of possible lead contamination). Complying with these rules will be too expensive – a bulldozer and dumpster is cheaper.
7. Your Citizens Expect You To Comply With DNR Rules
You might be tempted to burn anyway. If you try, you will find that the DNR hotline will soon produce a DNR inspector at your city hall. Don’t try it. (However, we have learned that our citizens do not call the hotline if the burning is being done by a private citizen, with a relatively small burn barrel – especially if the burning occurs on the weekend when DNR inspectors aren’t working. While DNR expects the city to enforce their burn rules when private citizens are burning illegally, nothing requires the city to do so.)
8. Buy The Eyesores!
Another way to avoid attorney fees is for the city to offer money to buy the eyesores. In Slater, we have a standing offer of $1,000 for any junk house, plus we will then tear down the house at our expense. If a property owner is given the choice of spending $5,000 or more to tear down an eyesore or receiving $1,000 to let somebody else tear down the eyesore, most will let sentiment go and take the money. We will not pay the $1,000 unless we get “good title.” This means that we purchase an “O&E” report (Ownership and Encumbrance) from our local title company for about $100 before we do the deal. Remember what grandma said: “You catch more flies with honey than vinegar.” (Large cities that use federal money for nuisance abatement efforts cannot follow this suggestion, because federal rules against “land-banking” does not allow the city to end up owning the property.
9. Use Circuit Court
Large cities (I include cities such as Marshall, Columbia and Mexico) use an administrative procedure to get abatement orders to demolish houses. In Slater, we have abandoned this approach. We file suit in circuit court. I am certain that the administrative procedure can be cheaper and faster. However, the procedure must be done right. Even if you do it right, the federal courts
are available to a disgruntled property owner for a civil rights lawsuit claiming he was screwed. Even one unsuccessful federal civil rights lawsuit against you can be very expensive, and often without insurance coverage for the city. I believe you run a smaller risk if you use circuit court and give the property owner all the “due process” possible. In fact, we try to give the property owner more process than is really due. So far (knock on wood) we haven’t faced a civil rights lawsuit since we switched to circuit court.
10. Banks And Finance Companies Are Scum
Nuisance properties can be classified thus: the “easy stuff” and the “hard cases.” Eventually you will work your way through the easy stuff. When it comes to the hard cases, about half of the really difficult junk houses have been abandoned by their owners, and the people calling the shots work for the banks and finance companies that are stuck with them. It is very difficult to get these people to face reality. Heck, it is even difficult to get them to answer a letter or return a phone call. My opinion is that you are wasting your time even trying to communicate with them (unless you are fortunate to be dealing with a local bank, with local control over all decisions). Sue them! Once they are in court, they can’t ignore you as easily.2
11. “We Sold That Loan” Is Not A Defense
When you sue the bank, they will try to tell you that they have sold the loan and it isn’t their problem. The local real estate records will show the mortgage is with Behemoth Bank, but some idiot in a Wall Street law office will have told them it is okay to sell the loan (maybe bundle it into a security) and they don’t have to record anything in the local land records. Your position needs to be that we believe what the land records tell us, not what some hot-shot in New York claims – and we won’t let you out of the lawsuit. The bank sometimes won’t even be able to tell you who bought the loan. If the bank is lucky enough to know who the current owner might be, even then make the bank file a third-party lawsuit bringing in the new so-called owner. Don’t let them off the hook unless they release the mortgage. You don’t have to make life easy for some gigantic bank or loan company.3
16 / January 2012
The Missouri Municipal Review
www.mocities.com
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12. You Won’t Come Out Even
When you file your lawsuit, ask the court to order the defendants to pay all of your demolition expenses (including attorney fees). But don’t hold your breath. You are probably going to have to front the money for demolition expenses, and even with a judgment ordering someone else to pay, you probably can’t collect. Certainly it won’t be easy to collect. At some point, you are going to have to acknowledge your loss.
13. Get Rid of Vacant Lots
After you have acquired a lot of junk houses, and torn down the eyesores, you will be left with several vacant lots that you need to mow. These lots may be too narrow or too small for someone to build on, according to your zoning ordinance. You need to aggressively work to get the lots back onto the tax rolls. There are some good reasons why the federal regulation against land banking exists. You don’t want the city owning large swaths of land inside your community. Slater is willing to give away any lot, if someone will build on it. We have given lots to Habitat for Humanity. 4 We have given lots to real estate speculators, willing to put up a “spec house” and try to sell it. (We gave a developer three adjoining lots, or enough land for two houses. We had to file a quiet title lawsuit to clean up the title to one of the lots, which had no owner after 1934.) We also have used some of our vacant lots to expand the city park located in the poorest part of town. A small park that once occupied a single lot has now grown to occupy an entire city block. We have given lots to people who want to buy a doublewide and put it on the lot. We have sold lots (for around $1,000 – certainly not for the money we have invested!) to people who want to add a garage or www.mocities.com
a workshop, a larger garden, or simply to prevent another eyesore.
14. Sometimes You Get A “FixerUpper”
If you are lucky enough to acquire an eyesore that is structurally sound, sometimes you can find a carpenter who will fix up the property and turn it into a rental. We will sell the house to the carpenter (although we usually don’t transfer title until the house is again habitable), and he collects the rent. Keeping an eye out for fixer-uppers will hold down your demolition expense and help reduce the (inevitable) criticism that you will receive – that you are driving poor people out of town. Once we acquired a structurally sound three-story Victorian house (almost a mansion) that had suffered some fire damage on the third floor. We thought that approximately $40,000 spent for materials and lots of sweat equity could restore the house to a showplace. We offered the house free to anyone who would fix it up. That got our community a lot of favorable publicity in newspapers all over the state. Eventually a family moved into town and accepted our offer. Everyone profited.
15. Management Required
A nuisance abatement program requires someone willing to devote several hours per week to managing the effort. In Slater, we are fortunate enough to have a long-time city administrator who is always striving to get rid of eyesores. If you want to set up a nuisance abatement program in your community you need to find someone to manage the work. I think it requires approximately 10 hours a week to manage; I suppose a volunteer could do it. But it requires commitment. Good luck!
The Missouri Municipal Review
Patrick Cronan has for the past 25 years or so served as city attorney for Slater, a town of 2,000+ residents in Saline County. The opinions expressed in this article are not necessarily those of the Missouri Municipal League.
Footnotes
Normally the statute of limitations on real estate title problems is 10 years. However, for tax sales there is the “fertile octogenarian” rule that suggests that a child could have been conceived on the day of the tax sale, be born nine months later, take 21 years to reach adulthood, and then on the last day of the 10th year of his majority, the child might file suit over a defect in the tax sale. Also, don’t always believe that the way they do it in St. Louis County will work where you live. There is a different procedure for tax sales in the urban counties. What I describe is the procedure used “outstate.” 1
2 However, even when they were sued, Bank of America continued to give Slater the cold shoulder. They defaulted on our lawsuit, and we got a judgment for about $15,000 against them. It was only when I sent the sheriff to take $15,000 out of their till that they paid attention. 3 One of the largest banks in Kansas City was forced into the position where they released the mortgage on a loan they claimed to no longer own. The actual risk of a pending lawsuit from Slater was greater than the theoretical risk of a lawsuit from an unknown owner of the loan and the bank decided to fall on its sword. They, of course, were not happy and tried to talk their way out of a lawsuit. If we had let them off the hook, our litigation would have been much more complicated. 4 The Missouri Constitution throws several roadblocks in front of any city that wants to give away vacant lots. Your city attorney must satisfy himself that giving away the property is legal. Giving a religious organization, such as Habitat for Humanity, can be particularly problematic. I have satisfied myself that Slater’s program provides adequate public benefit to offset the potential legal risks. But you shouldn’t rely upon my opinion – you should “dance with the one you brought.”
January 2012 / 17
42nd Annual Missouri Municipal League Legislative Conference Capitol Plaza Hotel ♦ Jefferson City, MO ♦ February 14-15, 2012 TUESDAY, FEBRUARY 14, 2012
*Tentative Program
12:00 noon
Registration
1:30 p.m.
Welcome and Opening Remarks
1:45 p.m.
Overview of the 2012 Session: MO House of Representatives
2:15 p.m.
Overview of the 2012 Session: MO Senate
2:45 p.m.
2012 MO House of Representatives Minority Caucus Perspective
3:15 p.m. 3:45 p.m.
Break Reform of Missouri’s Initiative Petition Process
4:15 p.m.
Prevailing Wage Legislation
4:45 p.m.
MML Legislative Briefing
5:00 p.m.
Adjourn
5:30 p.m.
Legislative Reception
6:30 p.m.
Dinner On Your Own With Legislators
WEDNESDAY, FEBRUARY 15, 2012 ** All events at MO State Capitol ** 7:30 a.m. 8:00 a.m.
The Honorable Jay Nixon, Governor, State of Missouri (Invited) - Capitol, First Floor Rotunda Registration and Buffet Breakfast - Capitol - Third Floor Rotunda
8:30 a.m.
Visits with Legislators
Join fellow local leaders from across the state at the MML Legislative Conference to share information, learn about legislative issues, and visit with state legislators. The Conference will provide you with a unique opportunity to: ♦ Learn more about the issues pending in the Legislature; ♦ Participate in discussions with legislators and peers on a wide range of municipal issues; ♦ Visit informally with Senators and Representatives during the legislative reception and breakfast at the Capitol; ♦ Hear first-hand from invited state officials and learn more about their programs and how they will affect your city. 18 / January 2012
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www.mocities.com
HOTEL RESERVATIONS: Conference room block to open January 4. Please make room reservations directly with the Capitol Plaza by calling 1-800-338-8088. (Additional rooms have been reserved at the Baymont Hotel Inn and Suites, across the street from the Capitol Plaza Hotel, call 573-636-5231 for reservations.) 42nd Annual Legislative Conference February 14-15, 2012 Capitol Plaza Hotel, Jefferson City, Missouri Return to: Missouri Municipal League, 1727 Southridge Drive, Jefferson City, MO 65109 or fax to 573-635-9009. Number
officials will attend from
Municipality
Registration fee: $130 per person; (includes reception and breakfast). Register Online! Cancellations received by February 7, 2012 will receive a full refund. No refunds can be made after that date.
Payment:
Check enclosed
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Places to Dine in Jefferson City - please call for reservations for your delegation. Alexandro’s
2125 Missouri Blvd.
634-7740
Applebees
2319 Missouri Blvd.
636-6368
Bingham’s (Truman Hotel-formerly Ramada Inn)
1510 Jefferson
635-5388
Bones
210 Commercial Ave.
636-8955
Chili’s
3515 Missouri Blvd.
761-4765
Colton’s Steak House and Grill
2415 Missouri Blvd.
635-5336
Das Stein Haus
1436 Southridge
634-3869
Domenico’s Italian Restaurant & Lounge
3702 W. Truman Blvd.
893-5454
Hunan’s
1416 Missouri Blvd.
634-5253
Longhorn Steakhouse
3545 Missouri Blvd.
636-9100
Madison’s Café
216 Madison
634-2988
Ria’s
3550 W. Edgewood Dr.
636-5221
O’ Donoghue’s Steak & Seafood
900 East High St.
635-1332
Sapphire’s - Doubletree Hotel
422 Monroe St.
636-5101
Prison Brews
305 Ash Street
635-0678
Red Lobster
www.mocities.com
Yen Ching
3519 Country Club Drive
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2208 Missouri Blvd.
635-6737
January 2012 / 19
635-5225
A marketplace for products and services . . .
20 / January 2012
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professional directory
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January 2012 / 21
professional directory
A marketplace for products and services . . .
Visit Vendors online by clicking on the Products and Services Guide at www.mocities.com!
22 / January 2012
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news from the bench by W. Dudley McCarter
DENIAL OF SUBDIVISION PLAT WAS ARBITRARY
A
lexander & Lindsey, LLC (“Alexander”) owned 16.7 acres in Platte County, Missouri and submitted a preliminary subdivision plat to the County. The application proposed to divide the property into five lots for commercial development; the property was zoned CH (Highway Commercial) by Platte County. The director of planning & zoning determined that the application met all the requirements of the County’s subdivision regulations. After a public hearing, the Planning & Zoning Commission denied approval of the preliminary plat by vote of 7-1. Alexander then appealed the Planning & Zoning Commission’s denial to the County Commission of Platte County, which upheld the Planning & Zoning Commission’s denial by a vote of 2-1. Both the Planning & Zoning Commission and the County Co m mi ssi o n a do pted Find ings of Fact which stated that the application would result in substantial detriment to the public good and would impair the intent, purpose and necessity of the Platte County zoning orders and subdivision regulations. Alexander filed its petition with the circuit court seeking a review of the denial, and the circuit court upheld the denial by the County Commission. The court of appeals reversed however, in State of Missouri, ex rel. Alexander & Lindsey, LLC v. The Planning & Zoning Commission of Platte County, Missouri, No. WD 73167 (Mo.App. W.D. 2011). When procee ding under the subdivision regulations, the County
Commission is acting in an administrative capacity and not in a legislative capacity. State ex rel. Westside Dev. Co. v. Weatherby Lake, 935 S.W.2d 634, 640 (Mo.App. 1996). “The law does not permit administrative bodies to exercise an arbitrary and subjective authority over the granting or denying of subdivision plats.” Furlong Cos. v. City of Kansas City, 189 S.W.3d 157, 164 (Mo.banc 2006). “The exercise of discretion and judgment vested in the administrative body is to determine whether a plan meets the zoning or subdivision requirements.” Id. The County Commission does not have the authority to deny a subdivision plat that complies with the County’s subdivision regulations. Id. “If the plat complies, then it is the ministerial duty of the commission and the council to approve it, and they have no discretion to deny it.” Id. at 164-64. When subdivision regulations specify minimum standards to which a preliminary plat must conform, it is arbitrary as a matter of law for the County Commission to deny approval of a preliminary plat that meets those standards. See State ex rel. Schaefer, 847 S.W.2d 867, 872 (Mo. App. 1992). The purpose clause of the subdivision regulations cannot be used to justify a plat denial. State ex rel. Schaefer, 847 S.W.2d at 872. The County Commission is not allowed to exercise an arbitrary and subjective authority over the denial of the preliminary plat. Furlong, 189 S.W.3d at 164. The exercise of discretion and judgment vested in the County Commission is to determine whether the preliminary plat
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meets the County’s subdivision regulations, and the County Commission does not have the authority to deny a subdivision plat that complies with the County’s subdivision regulations. Id. The approval of a preliminary plat merely gives the subdivider authorization to proceed with the planning and development phase of the project. Benton v. Dismuke, 230 S.W.3d 10, 14 (Mo. App. 2007). Alexander’s preliminary plat met the requirements of the subdivision regulations, and the County Commission’s decision denying the preliminary plat was arbitrary. W. Dudley McCarter is with the law firm of Behr, McCarter and Potter, P.C., St. Louis.
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Frequently Asked Questions Each day your Missouri Municipal League staff answers dozens of questions on municipal issues. This column discusses some of the most common questions. For this issue of The Review, the FAQs will focus on the Federal Fair Labor Standards Act (FLSA). This is the law that sets the minimum wage and in many instances requires overtime pay. As with all legal matters, municipal officials are urged to consult their city attorney for guidance with the specific issues faced by their municipality. Answers provided in this column should serve only as a general reference. Further, this article focuses on the application of the FLSA to municipal government; some answers might be different for private employers.
Q. How Much Is the Minimum Wage?
The Federal minimum wage provisions for covered, nonexempt employees are contained in the Fair Labor Standards Act (FLSA). The federal minimum wage is currently $7.25 per hour. Various minimum wage exceptions apply under specific circumstances to workers with disabilities, full-time students, youth under age 20 in their first 90 consecutive calendar days of employment, tipped employees and student-learners. Missouri has its own state minimum wage; however, a 2008 court case found that Missouri municipalities are exempt from the Missouri minimum wage law. The federal minimum wage law does apply to Missouri municipalities.
Q. When Is Overtime Pay Required?
For employees covered by the FLSA, overtime pay is required for any hours worked in excess of 40 hours in a seven-day work period. Special rules apply to police and firefighters.
Q. Are There Special FLSA Rules That Apply To Police Officers And Fire Fighters?
Yes. The FLSA in Section 207(k) provides that employees engaged in fire protection or law enforcement may be paid overtime on a “work period” basis. The employer is responsible for setting the “work period.” A “work period” may be from seven consecutive days to 28 consecutive days in length. For ex-
24 / January 2012
Fair Labor Standards Act (FLSA) ample, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day period (53 hours in a seven-day work period), while law enforcement personnel must receive overtime after 171 hours worked during a 28-day period (43 hours in a seven-day work period).
Q. How Is Overtime Pay Calculated?
Employees covered by the FLSA must be compensated at a rate of one and one-half times their standard rate of pay for each hour worked in excess of 40 hours in a seven-day work period.
Q. May Compensatory Time Off Be Granted In Lieu Of Monetary Compensation For Overtime?
Yes. Compensatory time off (comp time) may be granted at a rate of one and one-half comp time for each hour worked in excess of 40 hours in a sevenday work period. Special rules apply to police and firefighters.
Q. Is There A Limit To How Much Comp Time May Be Accumulated?
Yes, most employees may not accumulate more than 240 hours of comp time. For police and firefighters the limit is 480 hours. Employees who reached their maximum amount of comp time must be paid in monetary compensation for overtime work.
Q. Is Extra Pay Required For Weekend Or Night Work?
Extra pay for working weekends or nights is a matter of agreement between the employer and the employee. The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.
Q. How Are Vacation Pay, Sick Pay, Holiday Pay Computed And When Are They Due?
The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (federal or otherwise). These benefits are matters of agreement between an employer and an employee. The Missouri Municipal Review
Q. How Many Hours Per Day Or Per Week Can An Employee Work?
The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
Q. Employees Who Are On Salary Need Not Be Paid Overtime, Right?
Wrong. Designating an employee as being on salary does not necessarily make them exempt from the FLSA. Factors such as the type of work and responsibilities that a position entails, as well as minimal salary amounts are all part of the equation used to determine if a position is exempt from the FLSA. Employees who are paid on a salary basis and yet perform work that is not exempt under the FLSA may be entitled to overtime compensation and significant amounts of back pay. Municipal officials are encouraged to consult the city attorney or a human resource expert to determine whether a specific employee qualifies as exempt from the FLSA.
Q. What Makes An Employee Exempt From the FLSA?
Determining whether a specific position is exempt from the FLSA is something that should only be done in consultation with an attorney or a human resource expert. Some of the more general requirements for exemption are as follows: At a minimum, to be exempt the employee generally must be paid at not less than $455 per week ($23,660 per year) on a salary basis. Further, the employee’s primary duties must meet the characteristics as outlined for a particular exemption such as executive, administrative, professional or computer employee exemptions. To qualify for the executive exemption the employee must supervise two or more full-time employees, have management as employee’s primary duty, and have the power to hire and fire other employees. To qualify for the administrative exemption, the employee must perform office or non-manual labor directly related to management operations and the employee’s primary duty must include the exercise of discretion and independent judgment. The professional exemption requires advanced knowledge in science or learning and www.mocities.com
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Q. When Are Pay Raises Required?
Pay raises are generally a matter of agreement between an employer and employee. Pay raises to amounts above the federal minimum wage are not required by the FLSA.
Q. When Must Breaks Be Provided?
The FLSA does not require breaks or meal periods be given to workers. These benefits are a matter of agreement between the employer and the employee. However, all employers covered by the FLSA must comply with the Act’s break time for nursing mothers provision.
Q. Does The City Have To Pay Employees When On Break Or For Lunch?
Rest periods of 20 minutes or less must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need to be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.
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Q. When Is “On Call” Time Required To Be Compensated?
An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated. Consult the city attorney or a human resources expert to determine how and when restriction rises to the level of requiring compensation.
Q. Are Periodic Performance Evaluations Required?
The FLSA does not require performance evaluations. Performance evaluations are generally a matter of agreement between an employer and employee.
Q. How Many Hours Is Full-Time Employment? How Many Hours Is Part-Time Employment?
The FLSA does not define fulltime employment or part-time employment. This is a matter generally to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA. When determining eligibility for benefits municipal officials should consult their insurance policy, personnel manual and/or retirement plans.
Q. When Can An Employee’s Scheduled Hours Of Work Be Changed?
The FLSA has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. Therefore, an employer may change an employee’s work hours without giving prior notice of obtaining the employee’s consent (unless otherwise
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subject to a prior agreement between the employer and employee or the employee’s representative).
Q. When Is Double Time Due?
The FLSA has no requirement for double time pay. This is a matter of agreement between an employer and employee.
Q. Are Pay Stubs Required?
The FLSA does require that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees pay stubs.
Q. Must An Employee Be Compensated For Travel From Job Site To Job Site?
Generally, time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked. An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.
Q. Our Police Department Has Only Two Officers And A Police Chief, Are We Required To Pay Overtime?
No. Section 13(b)(20) of the FLSA provides an overtime exemption to law enforcement or fire protection employees of a public agency that employs less than five employees in law enforcement or fire protection activities. Much of the material for this FAQ comes from information available on the Federal Department of Labor’s Web site: http://www.dol.gov/compliance/laws/ comp-flsa.htm. Municipal officials needing guidance about labor situations in their communities are urged to consult their city attorney and staff. January 2012 / 25
2012 CALENDAR OF EVENTS
Jobs, bids and equipment . . .
career - classified ADS View all career and classified ads online at www.mocities.com! CITY MANAGER. The City of Collinsville (IL), is accepting applications for the positions of full-time city manager. The city manager is the chief administrative officer of the City and is responsible to the mayor and city council for the management and operations of all affairs of all departments of the City. As chief administrative officer, the position has management and control of all matters and things pertaining to the dayto-day operations of the City. The city manager also shall have supervision responsibilities over departments and/or officers that may be created or appointed in the future. Duties shall be performed in conformity with the ordinances or resolutions of the City and the statutes of the state. Standard office hours are required, along with substantial overtime work on nights, weekends, holidays, etc,. as necessary. This position is a highly visible position requiring the ability to interact with the public, employees, elected officials, and outside agencies such as union officials, contractors, developers, architects, attorneys, auditors, legislators, state, local, and federal government officials, citizens, and others. A high degree of oral and written communications skills is required, along with the ability to speak in public and represent the City in an official capacity. Strong knowledge of sound performance management/measurement/ budgeting principles and practices, finance and personnel are a key requirement for this position. The minimum requirements of this position are as follows: master’s degree in public administration, political science, or a related field. A minimum of 10 years experience with progressive responsibility in municipal government with population of at least 25,000, with at least five years in a leadership or administrative capacity. This is a non-union position. Salary commensurate with experience. To view full details of this job and/or apply please visit: www. collinsvilleil.org and click on the “employment” tab. Resumes accepted until position filled. EOE. FOR SALE Russellville Waterworks has Smith-Blair repair clamps for sale at 50 percent of their original cost. PVC saddles (4) 8.54 – 8.94 / 12 1/2 in. long. (2) 6.56 – 6.94 / 12 1/2 in. long. For cast iron (12) 4.74 – 5.14 / 12 1/2 in. long. Contact Russellville City Clerk 573-782-3511 phone and fax or e-mail: russellville@embarqmail.com.
January 4 17 19
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Local Government Week MO GFOA Spring Institute, Lake Ozark, MO General Assembly Adjourns International Institute of Municipal Clerks Annual Conference, Portland, OR Nation Public Works Week
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MML Newly Elected Officials Conference, Capitol Plaza Hotel, Jefferson City, MO
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Missouri Municipal Attorneys Association Summer Seminar, Tan-Tar-A, Osage Beach, MO MML Annual Conference, Hilton Branson Landing, Branson, MO Financial Disclosure Ordinance Deadline ICMA Annual Conference, Denver, CO
International Assn. of Chiefs of Police Annual Conference, San Diego, CA Election Day NLC Congress of Cities, Boston, MA
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