Missouri Municipal Review

REVIEW

A U N I T E D V O I C E F O R M I S S O U R I M U N I C I PA L L E A G U E C O M M U N I T I E S

THE MISSOURI MUNICIPAL

March/April 2021

Managing Public Right Of Way

www.mocities.com Redistricting 2021 | Social | Supreme Midterm | Show-Me MunicipalIn Government 101Media • Positive PolicingCourt • Annual Conference Photos Zero1

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THE MISSOURI MUNICIPAL

March/April 2021; Volume 86, No. 2

CONTENTS Features 6 Same Infrastructure, Fewer Tools:

6

Managing The Ever-Increasing Demands For Private Use Of Public Right Of Way

by Greg H. Dohrman, Esq. and Joseph E. Bond, Esq.

13 Redistricting In 2021: A Brief

Overview For Local Government Officials

by Kevin O'Keefe and Katherine Henry

18

FAQ: Social Media

by Jennifer Baird and Nathan Nickolaus

23 Supreme Court Midterm For Local Governments 2020-21

26

by Lisa Soronen

26 WWTP Benchmarking: How

Does Your Wastewater Treatment Plant Compare?

by Justin Rundle and Ellie Blankenship

29 News From The Bench: Examining

The Question Of Residency For Elected Officials

by Margaret C. Eveker

Departments 5 President's Review

32

32 Local Government Review: Missouri Traffic Fatalities Increase 12% New Strategic Plan Identifies Solutions

35 Local Government Review:

MML Legislative Conference

36 Local Government Review: Getting To Know You: Jobe Justice

37 Member News 38 MML Calendar Of Events

MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS President: Chuck Caverly, Council Member, Maryland Heights Vice President: Joe Garritano, Council Member, Wildwood; Damien Boley, Mayor, Smithville; Paul Campo, Attorney, Williams and Campo, PC; Bryant Delong, Council Member, North Kansas City; Michele DeShay, Mayor, Moline Acres; Cemal Unmut Gungor, City Administrator, Grandview; Dwaine Hahs, Mayor, Jackson; Heather Hall, Council Member, Kansas City; *Debra Hickey, Mayor, Battlefield; *Chris Lievsay, Council Member, Blue Springs; *Norman McCourt, Mayor, Black Jack; Chris McPhail, Alderman, Clever; Sheryl Morgan, City Clerk, Blue Springs; Heather Navarro, Alderman, St. Louis; Lori Obermoeller, Finance Director, Creve Coeur; Len Pagano, Mayor, St. Peters; Cindy Pool, Council Member, Ellisville; Matt Robinson, Mayor, Hazelwood; *Kathy Rose, Mayor, Riverside; *Carson Ross, Mayor, Blue Springs; Matt Turner, Alderman, Harrisonville; *Gerry Welch, Mayor, Webster Groves; Jeana Woods, City Administrator, Osage Beach *Past President 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 EDITORIAL Laura Holloway / Editor Lholloway@mocities.com Richard Sheets and Lori Noe Contributing Editors GRAPHIC DESIGN Rhonda Miller The Review March/April 2021; Volume 86, No. 2 The Missouri Municipal Review (ISSN 00266647) 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 email the League at info@mocities.com.

Website: www.mocities.com. www.mocities.com www.mocities.com

33

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theReview March/April 2021

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President's Review

by Chuck Caverly, Council Member, Maryland Heights, and MML President

Cities Thrive Through Relationships What makes a strong city? Maintaining relationships of all kinds is a key component.

As a botanist with Native Landscape Solutions, it is positive relationships with clients and coworkers that help me contribute to the success of my organization. When I ran for council member in Maryland Heights, it was relationships developed as an active community member that helped me with my election.

As elected officials, we know that strong connections cannot take a pause after voting day.

In fact, strong relationships are even more crucial. I depend on our municipal employees for their expertise, and I want to assist them to be successful as well. It is important that the community knows I am always accessible to help address their concerns and explain the decisions made in council meetings. There is no question that positive relationships contribute to success.

"

I want to encourage you to consider another vital connection that benefits your community – your personal relationship with your state legislator. Are you working to build your relationship now for when you need to reach them regarding important challenges in the future?

The key is that your

state legislator needs to know who you are before they head to their committee hearings during session.

"

There are more than 400 bills MML follows each year that affect Missouri cities. That is a staggering amount of issues. You may already understand how what happens in Jefferson City directly affects your community, but do you realize how much individual power YOU have to affect those decisions?

The key is that your state legislator needs to know who you are before they head to their committee hearings during session. Even more, they need to appreciate the work you do and the challenges you face in your city.

How can you make that happen?

1. Start now! Meet with your legislator to introduce yourself in person. This could be in Jefferson City during session but may be even more impactful if you meet for coffee in your hometown.

2. Reach out to them throughout the entire year, not just when an important issue is under discussion at the Capitol.

3. Make sure legislators receive your city’s newsletter and other publications.

4. Invite them to a council meeting or other gathering, whether in person or virtually, to share a short update regarding the current session.

5. Are you celebrating a new business opening? Invite them! Let them be a part of seeing your city thrive.

6. Invite them to your economic development or transportation meetings. Give them the opportunity to meet your community leaders and learn more about the issues you are facing.

The big idea is that our state legislators need to be invested in your community and your issues. Developing those relationships throughout the year will help make that happen. Give them the chance to buy in to the great projects in your community. Help them see the many ways you are working to improve your community for their constituents.

And of course, keep your relationship with MML strong. Your MML advocacy team sends Capitol reports each Friday to members. Are you receiving them? If not, contact MML at (573) 635-9134 or info@mocities.com.

If you see them in your inbox, make sure to take a few minutes each week and understand the latest discussions. Things can move fast and change quickly during the legislative session. Your input, questions, and stories from your city help us shape important conversations at the Capitol.

www.mocities.com

5

FEATURE Review

by Greg H. Dohrman, Esq. and Joseph E. Bond Esq.

Same Infrastructure, Fewer Tools:

Managing The Ever-Increasing Demands For Private Use Of Public Right Of Way

Caption Here.

Managing a city’s right of way (ROW) and preserving its primary uses of vehicular and pedestrian traffic has become increasingly complex in the past decade. More and more users seek to utilize this limited city infrastructure to house the equipment and facilities they need to conduct business.

Continued evolution of state and federal statutes (particularly Chapter 67 RSMo) and regulations add complexity to this task because modern legislation typically attempts to 6

theReview March/April 2021

streamline ROW use for business while limiting municipal control over this critical infrastructure. The purpose of this article is to describe the boundaries of municipal authority over the ROW at present, highlight specific issues that may arise, and offer strategies to handle increasing use of a city’s ROW within those boundaries. Further, the approaches recommended herein are intended to set the stage for effective ROW management.

Per Missouri statute, the ROW is made up of the areas below or above public roads, streets, alleyways and the like, in that a city has an ownership interest.1 The statutory definition does not apply to many types of municipal property, such as stormwater or sewer systems and any non-road property owned by a city such as parks. For areas within the ROW definition, though, a city must consent to use by public utilities “to construct, maintain and operate all equipment, facilities … for the transmission or distribution of any service or commodity … .”2 The statutory definition of “public utilities” is phrased broadly, so that any entities that “provide a public utility type of service for members of the general public” qualify for this privilege.3 In addition to the obligation of cities to grant access to the ROW, cities are also under obligations to treat similarly situated users of the ROW “in a reasonable, competitively neutral and nondiscriminatory and uniform manner, reflecting the distinct engineering, construction, operation, maintenance and public work and safety requirements applicable to the various users … .”4 Different ROW users are typically considered to have “equal rights” to each other, yet all should recognize that the rights of the public to use the ROW are paramount.5

New Demands On ROW Due in part to the broad definition of “public utility” and the significant statutory rights afforded to such entities, more and more entities are seeking entry into cities’ ROW. Further accelerating consumption of the ROW by these new users is the city’s ability, or lack thereof, to charge fees for uses of the ROW. Generally speaking, Section 67.1846 RSMo currently reserves the ability for certain cities to charge a linear foot fee (that is, a rental fee amount based on footage in the ROW) on public utility ROW users. This statute also requires a credit to the linear foot fee for gross receipts taxes or business license taxes paid by that same entity. To be eligible to charge such fees, a political subdivision must have had in place, prior to May 1, 2001, an ordinance “reflecting a policy of imposing any linear foot fees on any public utility right-of-way user … .”6 As will be addressed below, it is even more crucial for such political subdivisions to have rules requiring identification of the specific entities owning facilities in the ROW, as those entities are eligible for credits against applicable linear foot fees. Cities also need accurate records of facility ownership to avoid issuing credits to fiber providers who are not paying gross receipts or business license taxes, including to entities that may be within the same corporate chain but are nonetheless ineligible for the credits. If your city has not done an analysis on whether the authority recognized in Section 67.1846 RSMo applies to it, we recommend you consult your

city attorney to review past city records on this issue, as there may be statutory authority for revenues your city has not previously utilized.

Many of the newer ROW users seek to provide services outside of the regulatory authority of the Public Service Commission (PSC), such as dark fiber, broadband connectivity, or fiber backhaul to support 5G networks.

While a permit for excavation or for attaching to poles within the ROW may still be required, in many cases a simple permitting structure does not offer the city as much information as it needs to effectively manage and coordinate uses of the ROW. One goal in effective ROW management should be to understand how these separate entities fit together and use the ROW to conduct different businesses, and this is also critical to treating similarly situated users in a uniform manner. Strategies to accomplish this goal, and others, are discussed below.

Strategies For Handling These New Demands To achieve municipal goals while remaining consistent with the broad statutory authority granted to public utilities, a city can and should enact certain municipal regulations to have clear, enforceable authority over permitting processes, excavations, relocation, restoration, interference and other activities of utilities that affect important governmental interests. For instance, a city generally has the ability to require relocation of a public utility’s facilities in the ROW, at the user’s expense, for projects with a public purpose.7 Establishing rules for payment and timing of relocation for public projects can improve how quickly ROW users will move their www.mocities.com

7

facilities, the level of cooperation to arrange movement of facilities between separate but intertwined uses (such as electric poles also containing communications lines), and the overall speed at which the city can get its projects done.

Because cities have authority to set certain requirements that address issues such as excavations, relocation, restoration and interference, as “reasonable rules and regulations of governmental bodies having jurisdiction of such public places[,]”8 establishing rules to effectuate a city’s goals on these issues, along with the recommended strategies listed below for a “belt-and-suspenders” approach, is a critical part of successful ROW management.

1. Require ROW Use Applications For any entity seeking to utilize the ROW, cities should require the filing of an application to use the ROW, and then enter into and maintain a ROW use agreement for the entire duration of the planned use. As an initial matter, the city needs to know which companies own each facility placed in the ROW so it may quickly and easily contact such entities in cases of emergencies or interference with municipal facilities.

Having this information is also particularly necessary to protect cities in instances of bankruptcies, mergers and acquisitions, all of which could result in changes in ownership over physical property within the ROW without knowing who those new parties are or without those parties knowing their obligations to the city. Further still, having reliable chain of ownership and contact information for these

facilities puts the city in a position to efficiently address bonding, insurance, restoration and restoration guarantee obligations owed by a ROW user. This helps to minimize city costs in enforcement of ROW user obligations and greatly increases the likelihood of recovery of costs a city incurs for any restoration work needed to ensure the ROW remains in a reasonably safe condition. Alternatively, if hazardous conditions created in the ROW by others are not restored, a city risks being held liable since such conditions can constitute an exception to the city’s sovereign immunity.9 Requiring applications can help ensure that all ROW users keep key information on file with the city, including: 1. The services a user is proposing to provide; 2. What regulatory regime the user would operate under; 3. Any potential exemptions under federal, state or local law that apply to such user; and 4. A user’s existing or proposed systems in the ROW. All of this information requires that the ROW user itself demonstrate the facts, any applicable legal exemptions, or other pertinent information relating to the user’s proposed operation. This approach allows cities to treat each individual entity the same as all others and requires the ROW user to identify if there are any lawful exemptions that apply to a city’s ROW usage rules. The approach also saves cities from having to become experts in each emerging trend for ROW usage and each individual use by creating a system where users proposing similar uses will be identified and placed on the same track as other similarly situated users. This expedites the process to get the correct authorizations in place to move forward on proposed projects.

Additionally, an application requires the ROW user to affirmatively state what rights it believes it has and gives cities an opportunity to examine that information before acting in a manner that may discriminate against a new or existing user. Thus, the application process alone provides a city with much more useful information about these proposed ROW users than it would receive with only a typical excavation permit and allows cities to quickly identify requirements that should apply to a particular type of ROW use. Furthermore, Chapter 67 RSMo allows for cities to deny applications

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theReview March/April 2021

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for a ROW permit or to revoke existing permits, but only in specific circumstances.10 Unless a city has accurate, detailed information about its ROW users, its ability to exercise this statutory authority will be substantially diminished.

2. Utilize ROW Use Agreements A ROW use agreement requirement can further clarify the regulatory relationship by using a contract to document the terms of a city’s ROW ordinance in one place while also addressing administrative details specific to each user.11 Such an agreement requirement was recently upheld by the Missouri Supreme Court in City of Aurora v. Spectra Communications Group LLC.12 These agreements help both parties establish how the ROW code functions, the process for applying for permits, and the obligations of the proposed user for its use of city ROW. Initially, a large company deploying facilities within a city’s ROW will often have outside contractors and subcontractors, or employees without proper authority, applying for excavation permits. By requiring the company to sign a ROW use agreement, the contract itself will likely be reviewed by corporate officers that will better understand and appropriately plan for the obligations it places upon the company. There is also the benefit that such an agreement can create a separate avenue for enforcement of a ROW code’s requirements, one that may be faster and easier than the traditional municipal ordinance violation procedures.

There are legitimate claims under Missouri law that may exempt certain users from being required to have a ROW use agreement, particularly when cities implement a new agreement requirement and seek to enforce such requirement on existing users, but those cases would need to be scrutinized individually depending on the use and user in question. One example of this preemption is included in newer Missouri legislation (Sections 67.5110-.5125 RSMo) the “Uniform Small Wireless Facility Deployment Act”

www.mocities.com

9

(USWFDA) regulating ROW use agreement applicability for small wireless facilities that is discussed in more detail below.

This Act generally prohibits cities from requiring a ROW use agreement for companies installing and using such facilities.13 However, generally speaking, new entrants to your city's ROW can and should be required to enter into a form ROW use agreement for such use.

3. Permit Conditions

insurance requirements (unless an entity is expressly exempt, such as with self-insurance16) should be in place prior to any issuance of permits. Once a city has received an application for an excavation permit, there is a 31-day “shot clock” to act on an excavation application or it is “deemed approved,” so cities need to track when permit applications are received and resolve all issues associated with the proposed work promptly.17 Thus, cities should have specific terms integrated into permit documents dictating how the excavation work is to be performed while also ensuring those terms and the process for issuance comply with Missouri law.

After receiving an application from a ROW user and entering into an agreement for such use, it is still important to have up-to-date permit documents to mitigate the potential hazards that can arise from installing physical facilities within The Newest Demands—Small Wireless the ROW and to provide a sufficient level of oversight. One type Facilities of permit condition will serve as a useful example: including In 2018, the Missouri Legislature passed the USWFDA a minimum depth for installation of underground utility in response to the stated plans of various communications lines in the ROW. This requirement enhances safety generally providers to quickly build out the next generation of and can also help minimize a city’s exposure to liability for technology for wireless communications, otherwise known damage claims from doing normal maintenance work such as “5G” networks. Since then, companies have moved as replacing a deteriorated concrete slab. If, as maintenance quickly to deploy these networks in crews performing that type of work certain areas and can be expected to sometimes discover, a utility line is expand into others over time. This placed just beneath the pavement, it What Goes Into Your City’s What Goes Into Your Cities’ work generally involves placement is practically inevitable that the line Right Of Way? Right Of Way? of numerous smaller antennae will be damaged by the removal of the installations on existing or new utility slab. One layer of defense available to poles in lieu of larger antennae on cities in such cases is this exclusion standalone towers. To appropriately from the definition of excavation handle this new demand on ROW, it in Missouri’s Underground Facility is critical that cities enact regulations Safety and Damage Prevention Act: requiring applicants to demonstrate “...the use of mechanized tools and that the proposed plans meet equipment to break and remove engineering standards and have pavement and masonry down only been graded structurally sound for to the depth of such pavement or such installations. The USWFDA masonry on roads dedicated to the expressly preserves a city’s ability public use for vehicular traffic.”14 Right Of Way Infographic to reject small wireless facilities Using that exclusion as a defense, however, may lead to a factual debate is now available for download! applications in instances that would cause safety issues in the ROW.18 This over how and when the damage www.mocities.com. step would occur when individual occurred. If a city has a minimum permits for sites are submitted, depth requirement clearly stated in as the structural analysis relates its regulations and permits, and has specifically to the pole proposed to kept that requirement in place over be installed or used. Additionally, cities may require installers time, one picture including a tape measure showing that of these facilities “to comply with reasonable, objective and the line was placed at too shallow of a depth can help avoid cost-effective concealment or safety requirements … .”19 arguments over liability.

More specifically, cities may prohibit these installations that As this example illustrates, good permitting documentation often involve much more than just small antennae attached provides an opportunity to simplify and even enhance to poles, from obstructing the usual uses of the ROW or protections for cities. Generally, permittees should be required interfering with or impairing the operation of existing utility to accept all ROW obligations outlined within the city’s code facilities or municipal pole attachments. As with other types and ROW use agreement as a condition of receiving the of work in the ROW, permits may be required for work permit. Doing so puts the excavator on formal notice of all that will involve excavation, obstruct traffic or materially requirements under the municipal code and limits possible impede the use of a sidewalk.20 The reasons a city may deny arguments that a permit document might somehow supersede permission for installation of small wireless facilities include the regular rules. Further limitations or protections can be to material interference with sight lines or clear zones, or require the use of boring technology instead of trenching, or noncompliance with applicable safety codes.21 Other safetyplacement of multiple lines in shared conduit. Missouri law oriented municipal goals, such as procuring as-builts or other does, however, provide limits on the costs a city can place on mapping of facilities installed within a city to prevent future 15 the ROW user for these requirements. Also, bonding and What is a Right of Way? What is a Right of Way? Right of Way (ROW) is a city-managed strip of land where streets, Right of Way (ROW) is a city-managed strip of land where streets, sidewalks, utilities, and other public and private facilities are located. sidewalks, utilities, and other public and private facilities are located.

ROW ROW widths vary,vary, but typically consist of the street andand widths but typically consist of the street approximately 20 feet on both sidessides of the roadway approximately 20 feet on both of the roadway measuring fromfrom the center lineline of the roadway. measuring the center of the roadway.

The The RightRight of Way requires coordination of Way requires coordination between cities andand utilities to to between cities utilities maintain safety, traffic flowflow andand maintain safety, traffic reconstruction/maintenance. reconstruction/maintenance.

10

theReview March/April 2021

LOCAL GOVERNMENT WORKERS | ALWAYS ESSENTIAL

Thank You to All Public Servants Working to Keep Our Communities Safe & Healthy. /missourilagers

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entities from boring into existing or new lines can also occur at the permitting process as a way to close out the ticket and ensure the work was done up to a city’s standards.22 It is also important to note that an entity conducting excavation in the ROW has a statutory obligation to restore the excavation area for four years.23 Finally, the 31-day “shot clock” discussed above also applies to excavations for installation of these new facilities, so cities must track receipt of the applications and act promptly.24 There are additional, special rules put into effect by the USWFDA that give small wireless facility installers more abilities to install such facilities within the ROW. A city must allow such attachment of small wireless facilities to a city’s utility poles, except for poles used by a municipal electric utility,25 and cannot require a ROW use agreement for such attachments.26 Cities may only deny attachment of small wireless facilities to municipal poles in specific instances.27 A city is also limited in annual attachment rates for small wireless facilities to municipal poles at $150/year per attachment.28 Cities are also limited in insurance or bonding over these small wireless installations,29 but careful attention should be paid to all of the activities a ROW user is performing, given that this exemption may be more limited to the specific activities in comparison to the work being done by a ROW user claiming these exemptions.

Conclusion This area of the law is subject to fairly frequent changes.

Currently proposed legislation in Jefferson City includes a bill, HB 386, that would decrease the maximum allowable percentage of video service provider’s gross receipts from 5% to 2.5% by August 28, 2027, fees, as well as create a “Task Force on the Future of Right-of-Way Management and Taxation.” The direction this task force might take is yet to be determined, but if the trends over the past couple of decades are any indication, it could serve as a vehicle for efforts to further limit municipal authority over its ROW. As always, the Missouri Municipal League, with the support of the Missouri Municipal Attorney’s Association, will be watching for further developments and seeking to advance municipal interests when possible.

If your city is encountering any of these new demands for use of the public ROW, we encourage you to consult with your city attorney to review its current ROW regulations and consider options for enhancements in line with the approaches recommended herein.

Greg H. Dohrman, Esq. and Joseph E. Bond, Esq. are attorneys with Cunningham, Vogel & Rost, P.C. They are legal counselors to local government. Learn more at https://www.municipalfirm.com.

Endnotes: Due to print space restrictions, endnotes are available by request. Contact MML at (573) 635-9134 or info@mocities.com to request this article with full endnotes. www.mocities.com

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MML ELECTED OFFICIALS TRAINING CONFERENCE

2021 Agenda Thursday, June 10 9:00 a.m.

Registration

10:00 a.m.

Welcome - Richard Sheets, Interim Executive Director, MML MML Services - Ramona Huckstep, Policy & Membership Associate, MML

11:00 a.m.

Fundamentals of Municipal Government - Kevin O’Keefe, Attorney, Curtis, Heinz, Garrett & O’Keefe

12:00 p.m. Lunch & Municipal Resource Showcase 1:30 p.m.

Conducting City Business – Ordinances, Resolutions, Motions & Parliamentary Procedure - John Young, Hamilton Weber

2:30 p.m.

Personnel Law - James Hetlage, Attorney, Lashly & Baer, P.C.

3:30 p.m.

Public Works Contracting - Joe Lauber, Lauber Municipal Law

4:30 p.m.

Break

4:45 p.m.

Round Table Discussion/Networking

5:30 p.m.

Reception/Networking

Friday, June 11

12

7:30 a.m.

Breakfast

8:00 a.m.

KEYNOTE: How Creative Communications Led to a More Inclusive, Equitable Community - Kent Wyatt, Communications Manager, Tigard, Oregon and Co-Founder, Engaging Local Government Leaders (ELGL)

9:00 a.m.

Planning & Zoning - Dan Lang, City Administrator, Dardenne Prairie

10:00 a.m.

Revenue Sources - Erick Creach, Gilmore & Bell

11:00 a.m.

Sunshine Law - Casey Lawrence, Missouri Attorney General’s Office

12:00 p.m.

Adjourn

theReview March/April 2021

Keynote Speaker KENT WYATT Kent Wyatt is the Communications Manager for the City of Tigard, Oregon and co-founder of Engaging Local Government Leaders (ELGL).

In Tigard, he has created two podcasts (Talking Tigard and En Contacto), managed the creation of the City Report Card, and developed ‘Late Night in Tigard with Mayor Snider’.

Previously, he worked as a Senior Management Analyst for Tigard and a Senior Associate Legislative Analyst for the Joint Legislative Audit and Review Commission in Richmond, Virginia. He has served on the Clackamas County Budget Committee, West Linn-Wilsonville School District Long Range Planning Committee and Just Compassion Board of Directors. Kent graduated from Elon University with a Bachelor’s of Science in Business Administration and obtained his Masters of Public Administration from the University of North Carolina at Chapel Hill.

8 hours of MGI credit available!

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FEATURE Review

by Kevin O'Keefe and Katherine Henry

Redistricting In 2021: A Brief Overview For Local Government Officials

In 2021, most Missouri cities will face the challenge of redistricting the wards or districts from which members of their governing bodies are elected. The act of redistricting consists of drawing lines on a map of the city to define the geography and population from which local legislators are elected.

This issue arises every 10 years because the U.S. Census is conducted every 10 years, and is the source of the population data upon which the constitutionality of existing districts is measured and upon which the legality of new districts is assessed. Redistricting is a process fraught with political volatility and entails some measure of legal risk for every government.1

Delayed Data In 2021, the redistricting process will be especially challenging because the Census Bureau announced on Feb. 12, 2021, that the census results they normally report on or before April 1 will not be available until Sept. 30, 2021.

This allows very little time for cities to compile the relevant population and geographic data; assess whether existing districts need to be revised in order to meet constitutional standards; consider options for new district boundaries; enact legislation to adopt new boundaries; work with the applicable election authority to implement new jurisdictional lines for

election administration; and orient the public as to where the new lines are. It impacts the time for people to make a decision about whether to run for an office, especially when candidate filing begins in mid-December.

One Person, One Vote The necessity for redistricting legislative districts arises from longst and i ng fe d e r a l c onst itut i ona l and statutory obligations generally encompassed by the rubric “One Person, One Vote.” When new census data shows disparity in the populations of districts, the evidence needed to successfully sue the city for a civil rights violation is www.mocities.com

13

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laid out on a platter just waiting for any aggrieved voter and hungry attorney to come along (and recover attorney fees in the process). Problematic data cannot be ignored, swept under the rug or wished away.

More than 50 years ago, the U.S. Supreme Court made it clear in Reynolds v. Sims, 377 U.S. 533 (1964) that the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution requires that legislative districts within a jurisdiction be comprised of substantially equal population. And, Section 2 the federal Voting Rights Act of 1965, as amended in 1982, also prohibits any electoral practice that results in abridgment of the right to vote based on race or color.

These constitutional and statutory requirements are as applicable to municipal electoral districts as they are to state and federal legislative and congressional districts. If census data establishes that municipal electoral districts do not have substantially equal population, the Constitution requires district boundaries to be redrawn so that the disparity is erased. Additionally, if racial or ethnic groups are discriminated against by reason of an electoral practice (e.g., district boundaries) that results in less opportunity to participate in the political process and to elect 14

theReview March/April 2021

representatives of their choice, the Voting Rights Act mandates redrawing the boundaries to eliminate such a discriminatory result.

Redistricting Process Missouri statutes specify that ward boundaries in third-class cities (Sec. 77.030 RSMo) and fourth-class cities (Sec. 79.060 RSMo) “shall” be established “by ordinance.” There is nothing in state law specifying any other body or entity with authority to establish ward lines. Accordingly, it falls to the city council or board of aldermen to adopt a redistricting plan in third- and fourthclass cities.

Sec. 82.110 RSMo applies to charter cities in Missouri and specifies that ward redistricting “may be done by ordinance.”

This leaves open the possibility for home rule charter cities to establish a separate redistricting body or committee to assist or to actually carry out redistricting of city wards or districts under the broad grant of charter authority under Missouri Constitution Art VI, Section 19(a). Some Missouri home rule charters have provisions to establish a separate redistricting body with final authority to determine district lines (e.g., St. Louis County Charter, Sec. 2.035), while others provide for an advisory group to

report to the governing body that retains discretion to modify and finally adopt new boundaries (e.g., City of Hazelwood Charter, Art. I, Sec. 4).

In general, in third- and fourthclass cities and charter cities where no process is specified, there would not appear to be any prohibition against the governing body appointing an advisory body to study options and recommend new boundaries. There is also not a bar to having a public engagement process whereby the governing body and/or an advisory group solicit public input on redistricting issues and help identify (and document in the event of future litigation) issues bearing on communities of interest, minority voter impact, natural dividing lines (highways, rail lines, topography, creeks, etc.), and community circumstances that may have a legitimate role in deciding exactly where a line should be drawn.

Redistricting Criteria Of course, it goes without saying that the overriding and constant consideration in drawing new district lines is equality of population. A basic principle universally referenced in case law is that legislative districts should be “compact” and “contiguous” and avoid the “legislative evil commonly known as the ‘gerrymander’.” Preisler v. Doherty, 284 S.W.2d 427, 435 (Mo. banc 1955).

A city can help avoid a challenge to its districts by using standard redistricting criteria, although standard redistricting criteria does not guarantee a lawful map. Standard criterion includes (1) population equality; (2) compact districts of contiguous territory; (3) retention of existing neighborhood boundaries; (4) retention of precinct boundaries; (5) cohesion of other existing communities of interests; (6) desire to retain historic boundaries; and (7) consideration of incumbency.

How Equal Is Substantially Equal?

As stated above, local districts, wards or zones must have substantial equality of population among the various districts. When applying this standard to state and local districts, courts have generally acknowledged a concept that,

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while numeric equality is the goal, consideration of the kinds of criteria listed above, if supported by facts in the record, can allow a “de minimus” total deviation of not more than 10% between the largest and smallest districts. The formula courts have almost universally and exclusively adopted in determining an “acceptable” population deviation from the ideal is based on a Supreme Court opinion in White v. Regester, 412 U.S. 755 (1973) that can be described as follows: The combined percentage of deviation of the most populous district and the percentage of deviation of the least populous district from the ideal district population may not exceed 10% and all other district populations must fall within that narrow range.

For example, assume a city has 20,000 residents and four wards. Ideally, each district would have 5,000 residents.

(20,000 people ÷ 4 wards = 5,000 people per ward). Now assume the city’s four wards have the following population: Ward 1 – 4,875; Ward 2 – 4,600; Ward

3 – 5,275; Ward 4 – 5,250. The deviation for each ward is a comparison to the perfect district; in this example that is 5,000 people. The formula is (population of largest district – ideal population) ÷ ideal population + (population of ideal district – population of smallest district ÷ ideal population) = total deviation.

In this example, Ward 3 has the largest population (5,275) and exceeds the ideal population by 275 (5,275 – 5,000) that is a deviation 5.5% (275 ÷ 5,000). Ward 2 has the smallest population (4,600) and falls short of the ideal population by 400 (5,000 – 4,600) that is a deviation of 8% (400 ÷ 5,000).

The plan for these four wards then has a total deviation of 13.5% (5.5% + 8%) and lies outside the range that satisfies the one person, one vote “substantially equal” standard.

Note that the goal of redistricting is equality and setting out to draw a map with a 10% deviation is a dangerous approach. Without a proper justification, using a 10% deviation as the goal of

redistricting shortchanges the residents and risks a legal challenge by an affected protected group. The better approach is to use traditional redistricting criteria then determine the deviation to ensure equality.

Who Counts?

It is important to remember that members of a city council or board of aldermen represent people, not voters.

Who is counted includes all persons living in an area on Census Day, April 1.

• • • • •

Homeless people are counted where they sleep.

Persons in the United States without proper immigration status are included in the count.

Children are included.

Persons prohibited from voting are counted.

Incarcerated persons are counted as population of the location where they are incarcerated.

(Some states have changed www.mocities.com

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Clean Missouri Redistricting Plan

their procedures for allocating incarcerated persons for legislative and congressional redistricting purposes, but Missouri has not.)

• Students residing in an area to attend school, whether on campus or nearby, are counted where they live on April 1, not where their family home might be.

Ultimately, the Census counts all people, not just eligible voters. Even if there is a large difference between voting age people in districts that are substantially equal in total population, a city can safely act on the basis of census data total population figures. Efforts to cherry-pick what census data to use and efforts to use non-census data in lieu of reported census figures, are fraught with risk and it is likely that plans based on such alternative data will be challenged in court and thrown out by a judge.

Voting Rights Act Of 1965 The Voting Rights Act of 1965 must be considered when drawing wards, districts or zones. The Act invalidates any “voting qualification or prerequisite to voting or standing, practice or procedure” that results in a denial or abridgement of the right to vote because of race or color, or because a person is a member of a language minority. The protections guaranteed by the Act are directly implicated by redistricting.

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A violation is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the political subdivision are not equally open to participation by members of a class of protected citizens in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

When the following three factors all exist, districts are almost certainly improperly drawn because they unlawfully dilute the voting power of a minority group.

(1) The racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) The racial group is politically cohesive; and (3) The majority votes as a bloc to enable it to usually defeat a minority group’s preferred candidate.

Although these factors are not sufficient to unqualifiedly establish a violation of the Voting Rights Act without a case-by-case determination of unique local circumstances, it seems few redistricting plans where all three factors are found will survive legal challenge.

On Tuesday, Nov. 4, 2020, Missouri voters passed Amendment 3 that ended the state legislative district redistricting system that voters previously passed in 2018, widely known as “Clean Missouri.”

The Clean Missouri plan would have empowered a demographer to draw state House and Senate districts. However, because voters passed Amendment 3, either bipartisan commissions or, potentially, appellate judges will draw state legislative maps.

Neither the Clean Missouri 2018 process nor the 2020 revisions, however, have any bearing on local government redistricting procedures or standards.

The constitutional one person, one vote and substantial equality requirement and the procedures and considerations referenced in this article continue to govern municipal redistricting.

Conclusion For a vote to count for something, it must have the potential to affect something. Traditional redistricting factors will guide a city through the redistricting process, helping it support its map. A deviation of less than 10% between the largest and smallest districts and sensitivity to minority voter interests will help, although not guarantee, a lawful map and a successful redistricting effort.

Kevin O'Keefe is a lawyer with Curtis, Heinz, Garrett and O’Keefe, PC in Clayton, Missouri. He concentrates his practice on representing local governments. He is a recipient of the Distinguished Service Award from the MML and a frequent speaker on municipal law issues at MML programs.

Katherine Henry is a lawyer with Curtis, Heinz, Garrett and O’Keefe, PC. in Clayton, Missouri. She practices municipal law and assists in litigation ranging from alleged Constitutional violations to land use and regulation. She serves as assistant city attorney to many of the firm’s municipal clients.

This article was updated from an MML Review Article in May 2011, authored by Bill Geary.

End Notes: 1 Town and village trustees and the governing bodies of some charter cities are elected at large without the use of wards or districts, so there is nothing to redistrict in those communities.

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17

FAQ: Social Media

by Jennifer Baird and Nathan Nickolaus

Social Media And The First Amendment, Missouri Sunshine Law, And Records Retention

“A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”1 “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace – the ‘vast democratic forums of the internet’ in general, and social media in particular.”2 The internet has changed the way people communicate with each other and how they conduct business, including local governments. While the internet has provided greater transparency and greater public participation, it has also generated a number of questions to consider when public officials and employees utilize this tool.

When the city uses the internet, including social media platforms such as Twitter, Facebook and Instagram, to post about official city business, has the city created a public forum?

It depends. A public forum means that the particular place, event or platform is open to all to present their views. If a forum is truly a public forum, the government generally cannot regulate the speech that takes place there or discriminate between the speakers based on their viewpoints.

“To determine whether a public forum has been created, courts look ‘to the policy and practice of the government,’ as well as ‘the nature of the property and its compatibility with expressive activity to discern the government’s 18

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intent.’”3 “Opening an instrumentality of communication ‘for indiscriminate use by the general public creates a public forum.4 In general, if the city is using social media platforms to disseminate information only, then more than likely the city has not created a public forum. However, if the city allows for interaction on the social media platform, then it may have created either a public forum or a limited public forum.

Can elected officials block accounts?

It depends. If the social media account is a personal account, as further explained below, then the elected official can more than likely block the account. However, if the account is a forum “public or otherwise – viewpoint discrimination is not

permitted by the government.5 Keep in mind that “[r]eplying, retweeting and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is, therefore, a symbolic message with expressive content.”6

Are elected officials’ personal social media platforms a public forum?

They could be. Courts have concluded that although forum analysis does not apply as a whole to the social media platform, it does apply to the “interactive space” in which other users may directly interact with the content of the message.7 The courts will look at “how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”8 If the elected official has a personal social media account where no government business is discussed, access to the account is limited and others view the account as a personal account, then more than likely the court would find that the personal account is a private account. As a practical matter, if the elected official wishes to communicate by social media to constituents about government business, then the elected official should create a separate social media account specifically for government business.

Note that on Jan. 27, 2021, the 8th Circuit Court of Appeals in Campbell v. Reisch, determined that Representative Reisch did not act under color of state law because she runs her Twitter account in a private capacity, namely, as a campaigner for political office.9 Running for public office is not a state action; it is a private activity. The Court did recognize that personal accounts can morph into public forums; however,

in this case, the Court determined that the tweets made after she was elected did not alter the account as such tweets were too similar to her pre-election tweets. Therefore, because the Court determined that the Twitter account was a private account, Representative Reisch could control who posts on her Twitter page.

If the elected official creates a social media account for government business, what does that mean?

It means that the elected official cannot engage in viewpoint discrimination that results in the intentional, targeted expulsion of individuals from the social media forum as it violates the Free Speech Clause of the First Amendment.

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Can cities discipline employees for posts they make on social media?

Yes, but in order to determine whether an employee should be disciplined, the city would need to balance its interest as an employer to manage the affairs of the city against the first amendment rights of the employee. Specifically, “the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.”10 In situations on whether to discipline an employee for posts made on social media, the city must balance the right of the employee to speak as a private citizen upon matters of public concern against the interest of the city in ensuring its efficient operation.11 “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record.”12 www.mocities.com

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Cities can also discipline employees for (1) violating the employer’s social media policy, as long as the social media policy does not prohibit protected activities, prohibit speech that is a matter of public concern, or prohibit political or other protected speech; and (2) excessive use of social media during work hours.

What should be included in a city social media policy?13

passwords should only be known by the administrator (or team members). Passwords should be updated when anyone who has access to the site leaves the city or no longer needs access.

•

Identify the owner of the social media account and to whom its contents belong.

•

Include a statement to address who is making the comments on behalf of the city, which department the person commenting works for, and provide context to images, audio and video, if necessary. If certain types of comments are not permitted, the policy should state what is not permitted. Be careful. It is probably safe to exclude discriminatory content, threats, content that violates copyright or trademark laws, and any content that violates federal, state or local laws.

•

A disclaimer should be included that any comment posted by a member of the public is not the opinion of the government.

•

A disclaimer should be included that any comment posted may be subject to disclosure under the Missouri Sunshine Law, as well as subject to Missouri Record Retention laws.

•

A disclaimer that reserves the right of the administrator (or team member) to remove content that violates the policy or applicable law. If content is removed for violation of the policy or applicable law, then the city should follow the policy diligently.

If a city is going to use social media as a platform to interact with the public, then the city should have a social media policy. Some things to consider when drafting a social media policy are: •

•

•

Include a purpose statement explaining the purpose of the city’s social media platform (i.e., obtain and convey useful information in an expedient manner, etc.) and whether there are any limitations to the interactive component of the social media platform.

Decide who has the authority to open a social media account on the city’s behalf. This person, in most cases, must agree to some type of terms of use agreement in order to open the social media account.

Appoint an administrator (or team) to oversee and supervise the social media platform. The administrator (or team members) needs to be trained in the terms of the policy and social media laws. Further, any usernames and

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theReview March/April 2021

•

Waiver of liability statement to protect the city from various types of lawsuits such as: defamation, invasion of privacy, breach of contract, violations of due process, etc.

•

Lastly, make sure that the comment policy is posted to the social media site or a link to the policy is posted and an acknowledgement statement that the commentor understands and accepts the city’s terms of use of the social media platform.

What should be included in an employee usage policy?14 Social media has become a way of life for most people.

The city should have a social media policy that addresses employee usage. Some things that the employee usage policy should address are: •

Determine if social media in the workplace is allowed, prohibited or monitored;

•

If social media is allowed, a statement that there is no expectation of privacy while using the city’s internet or equipment;

•

Personal Accounts – employees should not use their personal accounts to conduct city business (note: this should apply to elected officials as well). If an employee does use their personal accounts to conduct city business, then the records generated must be maintained pursuant to Missouri Record Retention laws, may be subject to Missouri’s Sunshine Law, and are considered discoverable information in case of litigation. Further, employees who identify themselves as employees of a particular government should post a disclaimer that any postings or blogs are solely the opinions of the employee and not the employer;

•

Include a confidentiality statement that employees are to protect confidential and sensitive government information;

•

Avoid overbroad policies as such policies may prohibit employees from speaking on matters of public concern;15

•

Consider whether employees may use city logos, uniforms or equipment in their private posts;

•

Enforce social media policy consistently;

•

Have social media administrator train employees on the policy; and

•

Have employees sign an acknowledgment that they have read the employee usage policy and that they received training for the same.

Are the contents of a city Facebook page public records?

To understand how Missouri’s Sunshine law affects Facebook accounts, one needs to understand how Facebook works.

When you post a picture on Facebook, it is uploaded to Facebook’s servers. Though you see it on your screen, the data is not stored on your computer. This is important because,

in Missouri, records are public if they are retained by a governmental body. In other states, the open records laws are largely based on the purpose of the record, not the possession of it. In Missouri, if you store a picture of your cat on your city computer, that picture is a public record and subject to the Sunshine Law. The Sunshine Law does not require a city to retain records that are governed by Missouri’s Record Retention law.16 Missouri’s Records Retention law has a different definition of what is a record. Under that definition, a record is something “made or received pursuant to law or in connection with the transaction of official business.”17 In addition, the Records Retention law does not carry a penalty for its violation.

If a city puts content on Facebook, the original content is still held by the city, so it is a record both under the Sunshine Law and the Records Retention law. The Facebook page itself is not in the possession of the city, so it is not subject to the Sunshine Law. But since it was created to transact public business, it is subject to the Records Retention law. Likewise, comments posted on a city’s Facebook page by the general public have never been in the possession of the city. But, they may be considered the transaction of public business.

Capturing Facebook pages, indeed any internet page is problematic. Facebook provides an “Archive” feature that saves material, but still, such material is retained on the Facebook servers. It is possible to manually download pages, comments and images. However, content is constantly changing. If someone posts a comment, they may take it down shortly thereafter. There is software that can constantly archive material, but it can make having a Facebook page prohibitively expensive for small cities.

Can comments be deleted from a city Facebook page? Must they be archived?

It depends on how the page was created and what rules it operates under. The safest advice is not to allow any public comments on a city page. In this way, the page remains an instrument purely for speech by the city and is not a public forum. If comments are allowed, then rules can be established as to what sort of comments are allowed. These must not discriminate between viewpoints. So you could not have a rule that prohibits saying bad things about the city. However, you www.mocities.com

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can limit the comments to certain topics. You should also have a policy about how long such comments will be retained on the page.

The Missouri Secretary of State takes the position that all postings on government-created sites are public records and therefore should be retained.18 Therefore, under that analysis, the comments should be retained. As discussed above this can be difficult. If as the Secretary of State recommends, posts are archived locally, then they clearly are subject to the Sunshine Law. If comments are going to be allowed, the city should establish rules of conduct. What can and cannot be said, again, without discriminating based on viewpoint. Without such a policy, there is very little ability to regulate the comments.

Specific and direct threats against person and property can be removed. But comments that are less specific generally cannot. Obscene language can be removed, but since most social media providers already prohibit that, the best course of action is to report the comment to them.

Are Zoom meetings public records, and must they be recorded?

In the last year, more and more public bodies have turned to holding virtual meetings using software such as Zoom, Facebook Live, Go-to-Meeting or Microsoft Teams. Each of these applications have the ability to record the meeting. Some, such as Facebook Live, may be recording it without your knowledge.

Under the Sunshine Law, if such meetings are recorded and saved by the city, they may be requested to be disclosed.19 However the Sunshine Law never requires a city to create a record, so the Sunshine Law does not require such meetings to be recorded.

Likewise, the Records Retention law does not require a record to be created, but if it is it should be retained.

Can the public record electronic meetings?

Most applications allow the host (that is the city) to decide if participants can use the record feature on the application. The 22

theReview March/April 2021

Sunshine Law specifically provides that “A public body shall allow for the recording by audiotape, videotape, or other electronic means of any open meeting.”20 Although this has never been applied to this sort of recording, reading the statute literally and construing it in favor of openness, such recording should be allowed upon request.

Jennifer Baird is a partner with Lauber Municipal Law, LLC, and practices in the areas of general municipal law, personnel, planning and development, and economic development. She serves as the city attorney for multiple Missouri cities. Jennifer can be reached at (816) 525-7881, or via email at jbaird@laubermunicipal.com.

Nathan Nickolaus is an attorney with Lauber Municipal Law, LLC. Mr. Nickolaus received his B.A., 1985, from Westminster College and J.D., 1988, from the University of Missouri-Columbia, and a Masters of Public Administration from Indiana State University in 2016. He is the former city counselor for Jefferson City. He is the former general counsel for the Missouri Department of Economic Development. He is a 2012 recipient of the Lou Czech Award.

Endnotes: Due to print space restrictions, endnotes are available by request. Contact MML at (573) 635-9134 or info@mocities.com to request this article with full endnotes.

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FEATURE Review

by Lisa Soronen

Supreme Court Midterm For Local Governments 2020-21

The State and Local Legal Center (SLLC) files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. *Indicates a case where the SLLC has filed or will file an amicus brief.

This year’s U.S. Supreme Court Midterm article for local governments features a decision in a case of significance to local governments. In December and January, the Court typically issues just a handful of decisions, this year including City of Chicago v. Fulton.

As of the end of January 2021, the Supreme Court has filled its docket with all the cases it intends to hear this term.

The last opinions of this term should be issued by the end of June. Since the summer of 2020, when the SLLC published its "Supreme Court Preview for Local Governments 2020-2021," the Supreme Court has decided to hear a number of other

cases impacting the local governments on a wide range of issues. Two of the most interesting and significant cases for local governments are summarized below.

In an 8-0 decision in City of Chicago v. Fulton,* the Supreme Court held that the city of Chicago did not violate the Bankruptcy Code’s automatic stay provision by holding onto a vehicle impounded after a bankruptcy petition was filed.

The city of Chicago impounds vehicles where debtors have three or more unpaid fines. Robbin Fulton’s vehicle was impounded for this reason. She filed for bankruptcy and asked the City to return her vehicle; it refused.

The Seventh Circuit held the City violated the Bankruptcy Code’s automatic stay provision. The Supreme Court unanimously reversed.

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23

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consequence of the bankruptcy petition is a “stay” that prevents creditors from trying to collect outside of the bankruptcy forum.

The automatic stay prohibits “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” The Bankruptcy Code also has a “turnover” provision that requires those in possession of property of the bankruptcy estate to “deliver to the trustee, and account for” that property.

The Supreme Court held that “mere retention” of a debtor’s property after a bankruptcy petition is filed does not violate the automatic stay. According to Justice Alito, “[t]aken together, the most natural reading of . . . ‘stay,’ ‘act’ and ‘exercise control’ - is that [the automatic stay provision] prohibits affirmative acts that would disturb the status quo of estate property as of the time when the bankruptcy petition was filed.”

However, the Court, conceded it did not “maintain that these terms definitively rule out” an alternative interpretation.

According to the Court, “[a]ny ambiguity in the text of [the automatic stay provision] is resolved decidedly in the City’s favor” by the turnover provision.

First, reading “any act . . . to exercise control” in the automatic stay provision “to include merely retaining possession of a debtor’s property would make that section a blanket turnover provision,” rendering the turnover provision “largely superfluous.”

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theReview March/April 2021

Second, the turnover provision includes exceptions that the automatic stay provision does not include. “Under respondents’ reading, in cases where those exceptions to turnover . . . would apply, [the automatic stay provision] would command turnover all the same.”

The issue the Supreme Court will decide in Caniglia v.

Strom* is whether the Fourth Amendment “community caretaking” exception to the warrant requirement extends to the home.

A police officer determined Edward Caniglia was “imminently dangerous to himself and others” after the previous evening he had thrown a gun on the dining room table and said something to his wife like “shoot me now and get it over with.” Officers convinced Caniglia to go to the hospital for a psychiatric evaluation after apparently telling him they would not confiscate his firearms. The officers went into his home and seized the guns regardless.

Caniglia sued the officers for money damages claiming that he and his guns were unconstitutionally seized without a warrant in violation of the Fourth Amendment.

The First Circuit held that the Fourth Amendment’s “community caretaker” exception to the warrant requirement applies in this case and that neither of the seizures violated the Fourth Amendment.

The Supreme Court first applied the community caretaking exception in Cady v. Dombrowski (1973). In this case, the

Supreme Court held police officers could search without a warrant a disabled vehicle they reasonably believed contained a gun in the truck and was vulnerable to vandals. Police activity in furtherance of the community caretaker function is permissible as long as it is “executed in a reasonable manner pursuant to either ‘state law or sound police procedure.’”

Importantly, the Supreme Court has never extended the community caretaking exception beyond the motor vehicle context.

The First Circuit decided to do so in this case in light of the “special role” that police officers play in society. The First Circuit reasoned: “[A] police officer — over and above his weighty responsibilities for enforcing the criminal law — must act as a master of all emergencies, who is ‘expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety.’”

In Cedar Point Nursery v. Hassid,* the Supreme Court will decide whether a temporary easement is a taking.

The U.S. Constitution’s Fifth Amendment allows the government to “take” private property as long as it pays “just compensation.”

In this case, a number of agriculture employers argue California statutes “take” their property by allowing union organizers access to agricultural employees on the grower’s property. The access period may be during four, 30-day periods each year for up to three hours each day. The union organizers must provide notice to the employers.

The Ninth Circuit ruled against the employers. According to the Ninth Circuit, “[t]he Growers base their Fifth Amendment argument entirely on the theory that the access regulation constitutes a permanent physical invasion of their property and therefore is a per se taking.” The Ninth Circuit found no permanent physical invasion in this case.

The lower court compared this case to Nollan v. California Coastal Commission (1987), where the California Coastal Commission offered to give a homeowner a permit to rebuild a house in exchange for an easement allowing the public to cross the property to access the beach. In Nollan, the Supreme Court required the Coastal Commission to provide just compensation for the easement. Here, according to the Ninth Circuit, “[t]he regulation significantly limits organizers’ access to the Growers’ property. Unlike in Nollan, it does not allow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.”

Conclusion Beyond the cases discussed in this article, this has been a banner term from local governments. The Court will decide cases on a wide range of issues where Philadelphia, San Antonio and Baltimore are a named party. While City of Chicago v. Fulton was unanimous, it is not likely most of the other cases will be including Cedar Point Nursery v. Hassid or Caniglia v. Strom.

Lisa Soronen is the executive director of the State and Local Legal Center (SLLC). This article reprinted with permission from the SLLC. Learn more at https://www.statelocallc.org/.

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FEATURE Review

by Justin Rundle and Ellie Blankenship

WWTP Benchmarking:

How Does Your Wastewater Treatment Plant Compare?

With the onset of COVID-19 and residents spending more time in their homes, municipal services are being put to the test in ways never imagined. This is exacerbated by the fact cities are losing vital tax revenue from the closure of their businesses, as well as their residents’ ability to afford utility payments and other fees due to unprecedented job loss. Now more than ever, cities are truly being asked to provide more with less, thus making efficient city services essential in weathering the storm and preparing for what comes next.

Wastewater treatment is one of the most important municipal services in protecting the health of communities. Wastewater treatment plants (WWTP) are also typically the highest energy-using facilities for cities. Efficient operations mean the city is providing the citizens good value. Benchmarking a WWTP’s performance with other WWTPs allows a city to know if they are operating their WWTP efficiently.

It can also point to areas where the City can make improvements.

A city’s wastewater treatment plant (WWTP) is probably the most energy intensive facility the city owns and operates. If the WWTP is not operating efficiently, citizens are paying more than they should for this service. With the onset of COVID-19 and residents 26

theReview March/April 2021

spending more time in their homes, municipal services are being put to the test in ways never imagined. Wastewater treatment is one of the most important municipal services in protecting the health of communities. So how can city administrators begin to evaluate

the efficiency of their WWTP and ensure they are providing the best value to their residents? It can start with benchmarking, that compares their WWTP metrics to other similar WWTPs.

Determining Your Benchmarking Metric WWTP operators typically provide monthly or annual operating reports showing how much wastewater has been treated. City administrators know the amount of electricity used to treat the wastewater. When the amount of energy used in kilowatt-hours (kWh) is divided by the amount of wastewater treated in millions of gallons (Mgal), a benchmarking metric is determined.

For example, if a WWTP used 2,196,000 kWh in one year to treat an average flow of 1.43 million gallons per day (mgd), the benchmarking metric is (2.196 M kWh per year) / (1.43 M gpd x 365 days per year) = 4,212 kWh per Mgal treated.

This benchmarking metric is also known as the energy use index (EUI) or energy intensity.

Benchmarking Comparison Using WEF MOP No. 32 The Water Environment Federation ( W E F ) p u b l i s h e s a Ma nu a l o f Practice (MOP) No. 32 titled “Energy Conservation in Water and Wastewater Facilities.” Appendix C in this MOP provides four tables indicating how many kWhs are used for treating wastewater at a typical facility. One of these four tables showing the EUI for various wastewater flows is summarized in Figure 1.

Note that if a WWTP is treating an average of 1.43 mgd, a simple equation can pro-rate the benchmarking value … you will be 1.43 - 1 / 4.00 = 11% less than the values for 1 mgd. For the example 1.43 mgd WWTP, the WEF MOP benchmarking metric is 2,569 kWh / Mgal.

Figure 1. Benchmarking table from WEF MOP No. 32, with green column added for 1.4 mgd WWTP. (Re-printed courtesy of WEF.)

How Do I Compare?

What Can We Do?

If the metric for the WWTP being reviewed is below the benchmarking value, the plant is providing efficient wastewater services for the community. If it is slightly more, the plant is somewhat typical for an older community with an older facility. If the plant is well above the benchmark, the city can many times implement improvements to improve operations to reach the benchmarking value. For our example 1.43 mgd WWTP, the difference between

If you have a low benchmarking score, typical wastewater improvements to save energy are aeration upgrades, VFDs on motors, new pumps, and process optimization. If your city has an interest in energy efficiency improvements, CTS Group (a Veregy company) and other energy services companies will usually visit your City at no cost to review options. After this site visit (sometimes called an AHSRAE Level 1 audit, a preliminary energy audit, or a feasibility

the existing and benchmark EUI is (4,212 – 2,569) = 1,646 kWh of potential savings per Mgal treated. If the city pays 10 cents per kWh, the potential annual savings is (1.43 mgd x 365 days per year x 1,646 kWh per Mgal x 10 cents per kWh) = $85,891 per year. This means that if the city spends $860 K to improve the plant to meet the benchmark, the city will have a 10-year simple payback, and your community will appreciate being efficient and providing good service.

These types of measures are needed now more than ever in this time of economic uncertainty.

audit) the options for energy efficiency improvements are reviewed, many times with costs, savings, and payback.

Justin Rundle, PE, CEM, LEED-AP, works for Veregy Companies and is a self-professed nerd when it comes to energy savings at water and wastewater plants. He has specialized in water/wastewater energy efficiency projects since 2010.

Ellie Blankenship is a local government account executive at CTS Group specializing in the development of innovative energy efficient facility and system solutions for the local government market.

CTS Group, a Veregy member company, is an energy services company that provides no cost water and wastewater energy audits to qualified municipalities. If you are interested in an energy savings audit for your town or city, contact Ellie Blankenship at eblankenship@ ctsgroup.com or JRundle@Veregy.com.

Reprinted with permission from Manual of Practice No. 32— Energy Conservation in Water and Wastewater Facilities, Copyright ©2010, Water Environment Federation, Alexandria, VA. www.wef.org

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theReview March/April 2021

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FEATURE Review

by Margaret C. Eveker

News From The Bench:

Examining The Question Of Residency For Elected Officials M i s s o u r i l aw r e q u i r e s m a ny elected officials to satisfy “residency” requirements in order to qualify for election and hold office. Such laws are meant to ensure a connection between elected officials and their constituents, so that officials may serve “with sensitivity and understanding.” Datt v. Schroer, 613 S.W.3d 64, 68 (Mo. App. 2020).

Residency requirements are applicable to both statewide and local office seekers.

For instance, in third class cities, a city council member must be an inhabitant of the city for one year and a resident of his or her ward for six months prior to election (courts have generally treated the terms “inhabitant” and “resident” synonymously). § 77.060 RSMo. The mayor of a third-class city must be a resident of the city for two years preceding his or her election. § 77.230 RSMo. Similarly, state law requires an alderman in a fourth-class city to be an inhabitant and resident of the city for one year preceding the alderman’s election and a resident of his or her ward at the time of filing and throughout his or her term. § 79.070 RSMo. A mayor of a fourth-class city must be a resident of the city for one year preceding his or her election. § 79.080. Charter cities also typically have residency requirements in their charters.

Many times, the question of whether an individual satisfies these residency requirements is decided in the courts after a legal challenge from the political opponent of a candidate. Whether a candidate or an elected official satisfies a residency requirement can be a tricky determination for courts to make. It is a fact-intensive inquiry, and courts analyze many factors. No single factor is determinative. For example, courts

typically consider the location where one’s immediate family lives to be a significant factor, but it is not necessarily the deciding factor. See, e.g., Henderson v. Murray, 78 S.W.3d 147, 150 (Mo. App. 2002) (recognizing that “factual findings are relevant when attempting to determine one’s legal residence,” so the fact that official was staying at a friend’s home in the city three to four days each week but spending most weekends with his wife at their out-of-town residence did not in itself disqualify official from serving). The Missouri Supreme Court has said that whether an elected official or candidate satisfies a residency requirement is “largely a matter of intention.” State ex rel. King v.

Walsh, 484 S.W.2d 641, 644 (Mo. banc 1972). Case law analyzing the residency requirements for statewide offices is typically applicable to the residency requirements of municipalities.

In Datt v. Schroer, the Missouri Court of Appeals was recently presented with another tricky residency case. The court rejected an attempt to remove Missouri House Representative Schroer from the

ballot in the November 2020 election over a residency requirement in the Missouri Constitution. Representatives in the Missouri House are required by Article III, Section 4 of the Missouri Constitution to be “twenty-four years of age, and next before the day of his election shall have been a qualified voter for two years and a resident of the county or district which he is chosen to represent for one year … ” Representative Schroer’s opponent in the November election filed a petition seeking to remove him from the ballot claiming that Representative Schroer was no longer a resident of the district he sought to represent.

Representative Schroer was first elected in 2016. He had lived in his district with his family since 2013.

However, prior to the 2020 election, he and his family sold their house in the district and purchased a house located approximately 15 minutes outside the district. Representative Schroer was a co-borrower on the loan to purchase the home and checked the box next to his name indicating he intended to occupy the house as his primary residence (he

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form, campaign bank account, driver’s license, voter registration card and his court account.

Investment Banking, Municipal Bonds, Leases Municipal Advisors However, he listed the out-of-district house Realizing Your Community’s True Wealth as his address on a car McLiney And Company brings together the proven vision and time-tested values that help communities realize their full potential. loan application and SERVING MISSOURI MUNICIPALITIES SINCE 1966. car insurance policy. He 5201 Johnson Drive, Suite 415 | Mission, Kansas | 66205 testified that he spends (800) 432-4042, (816) 221-4042 time at both homes but www.mclineysamco.com sleeps at the rental space in the district. testified that he believed the box must The trial court believed Representative be checked if either borrower intended the house to be his or her primary Schroer’s testimony that he did not residence). However, according to intend to abandon his residency in the Representative Schroer, while his family district, and the trial court therefore intended for their primary residence to held that he satisfied the residency be at the new house outside the district, requirement of the Constitution. In he did not intend for it to be his primary reviewing that decision, the Court of residence. Instead, Representative Appeals noted it must consider all the Schroer entered into a lease agreement acts and statements of the person and to rent “space” in a family friend’s house the circumstances of the case. Residency within the district for his primary is considered the place where a person residence. The lease on that space was has “his true, fixed and permanent home set to expire at what would be the end and principal establishment” to which of his term if he were reelected in 2020. he “has the intention of returning.”

He listed the in-district space as his A person can only have one place of residence on his candidate committee residence. While the location where

one’s family resides is a “significant” fact, it is not the only relevant fact. The court reasoned that if there is conflicting evidence, there is a presumption that the “original” location remains the location of residency. Ultimately, the Court of Appeals held that because there were conflicting facts in this case, and the trial court specifically found Representative Schroer’s testimony to be credible, the conflicting facts meant that there was a presumption that Schroer’s original location of residence (the district) remained his place of residence. The Court of Appeals upheld the trial court’s determination that Representative Schroer should remain on the ballot.

Datt v. Schroer highlights the importance of the totality of the facts and, even more important, the trial court’s determination of witness credibility on this issue that is “largely a matter of intention.” It also illustrates, yet again, that the question of “residency” is often more complicated than it seems.

Margaret C. Eveker is a senior associate attorney at Cunningham, Vogel & Rost, P.C.

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theReview March/April 2021

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LOCAL GOVERNMENT Review

by Missouri Coalition of Roadway Safety

Missouri Traffic Fatalities Increase 12%

New Strategic Plan Identifies Solutions

Preliminary reporting for 2020 indicates Missouri traffic fatalities increased by 12% compared to the previous year.

According to the Missouri State Highway Patrol, 989 lives were lost in Missouri traffic crashes in 2020, up from 881 in 2019.

“Nearly every fatal crash that occurs is preventable,” said Missouri State Highway Patrol Public Information and Education Director, Cpt. John Hotz. “Over 90% of these crashes were the result of someone simply making a poor decision, primarily: driving too fast, driving distracted or driving impaired. Many of those killed were not wearing a seat belt.”

Despite traffic volumes in the state being significantly down for much of the year, Missouri experienced its largest number of traffic fatalities since 2007. In particular, there were notable increases in unbuckled and speed related fatalities, with both experiencing approximately a 25% increase from the previous year. In 2020, 67% of drivers and passengers killed in car crashes were unbuckled and preliminary numbers indicate 389 people were killed in crashes involving excessive speed or driving too fast for conditions. In addition, there were 126 pedestrians killed in 2020 –the largest number of pedestrian fatalities in Missouri ever recorded.

“The pandemic reminded us even if a large portion of vehicles are removed from the roadways, poor driving behaviors still have significant and often deadly consequences.” said MoDOT State Highway Safety and Traffic Engineer Nicole Hood. “We continue to work diligently in achieving the ultimate goal – zero traffic fatalities in Missouri. This year, 32

theReview March/April 2021

we’re excited to introduce Missouri’s new strategic plan, a tool we hope will help us eventually reach that goal.”

The Missouri Coalition for Roadway Safety has launched a new strategic highway safety plan, Show-Me Zero, Driving Missouri Toward Safer Roads. The plan identifies four key focus areas to help turn the tide: occupant protection (seat belts, car seats and helmets), distracted driving, speed and aggressive driving, and impaired driving. More than that, the plan identifies ways all Missourians can help reduce the number of fatalities on Missouri roadways. Show-Me Zero includes strategies for families and individuals, as well as

The following actions are suggested by the Missouri Coalition for Roadway Safety for cities and counties.

•

• • • • • • •

Provide critical highway safety information and training to newly elected officials, administrators, department heads and other positions of leadership.

• Adopt policies and ordinances that reinforce a culture of safety.

• Adopt a policy requiring seat belt use for all county/city officials and employees when conducting official business.

• Adopt a policy restricting the use of handheld electronic devices while driving for all county/city officials and employees when conducting official business.

• Enact a primary seat belt ordinance allowing enforcement of seat belt use as a stand-alone violation.

• Enact an ordinance restricting the use of handheld electronic devices for all drivers.

Make a commitment to vigorous, visible traffic enforcement.

Upgrade computer-aided dispatch systems and protocols to ensure responders are sent to the correct location the first time and receive critical information to provide an appropriate level of care.

Launch a 911 system accessible to all residents, preferably a Smart 911 system.

Implement safety improvements in infrastructure projects.

Adopt design standards that encourage alternate modes of travel and enhance safety for pedestrians, bicyclists and other non-motorized users.

Use traffic offender programs to educate first-time or repeat offenders on the risks and societal impacts of poor driving decisions.

Research the use of DWI and drug courts for treating repeat impaired driving offenders.

groups such as schools, businesses, local public agencies, law enforcement, health organizations and statewide officials.

“So, how can you help? Ultimately, our success will be dependent upon everyone’s willingness to take personal responsibility for safely using the transportation system and demanding others do the same,” Hood said.

Drivers carry a huge responsibility in operating a vehicle, and other road users like pedestrians also share responsibility when using the roadways. Nearly all these fatalities

E

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1, 2021

ENTR

APRIL

are preventable when roadway users resolve to use the transportation system in an appropriate manner. When we make good decisions, lives are saved.

Show-Me Zero highlights four simple actions we can all take to improve safety on Missouri’s roads: Buckle up. Put the phone down. Slow down. Drive sober. Take a look at the new plan and do your part to create a safer Missouri.

The plan can be viewed in its entirety at www. savemolives.com. #BUPD

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Learn more at www.mocities.com www.mocities.com

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Tri-Faith Bridge / Omaha, Nebraska

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theReview March/April 2021

LOCAL GOVERNMENT Review

MML Legislative Conference Nearly 150 municipal officials and staff attended the 2021 MML Legislative Conference Feb. 9-10, 2021, either in person in Jefferson City or virtually.

Attendees had a full agenda, with speakers from both the Missouri House and Senate, as well as Missouri Governor Mike Parson, Missouri Secretary of State Jay Ashcroft and Missouri State Treasurer Scott Fitzpatrick. Topics included Internet sales, utilities and right of way, Senate and House Caucus perspectives, CARES funding, election issues and more.

This year, organized visits were not allowed at the Missouri State Capitol, but many officials met with their state legislators on their own. As always, members are encouraged to develop relationships with their state legislators and visit them in Jefferson City when possible to share a municipal point of view.

www.mocities.com

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LOCAL GOVERNMENT Review

Getting To Know You. . .

JOBE JUSTICE Alderman City of Memphis What sparked your interest in serving in local government?

I did not have much interest until I was asked to fill in for an alderman who was leaving due to relocation. Serving for that year is what sparked my interest. Although my job took up much of my time and I did not run the next term, I did run the term after that.

What has been the toughest lesson you have learned during your career in local government?

The toughest thing I have learned is that nobody likes change, whether good or bad. “We have always done it that way” is a common term in city government that bothers me. You can be an elected official for too long.

That is what I have learned. Just because you want to do right by the people that elected you does not mean it is going to be easy.

In your opinion, what are the most important issues facing local government in Missouri?

Complacency.

How has COVID-19 impacted your community?

COVID-19 has affected our community in a fashion that used to be unimaginable. Human contact such as a handshake or a hug is the essence of living a small-town life. Seeing people you have known all your life not even able to give their wife a hug goodbye who is in nursing home or hospital, knowing it may be the last time they see them, is heart wrenching. I believe that is as bad as I have seen.

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theReview March/April 2021

What advice would you offer to someone considering service as a local government official or employee in their community?

Remember why you are there and who you serve. Never forget.

How would you describe your city to someone who has never visited?

Paradise as it relates to this world, with a hospital, a great school system, beautiful lakes and campgrounds. We offer the best hunting in Missouri, a grocery store and many Mennonite shops. We own our electric grid and water and sewer systems. We live 45 minutes from a Walmart in any direction. We are in the middle of nowhere. Paradise.

What are your interests outside of local government?

My interests include travel, spending time with my kids and grandkids and family. I am a member of the Masonic Lodge.

I am interested in fundraisers, tinkering and rebuilding ice cream machines.

Where would you most like to travel, and why?

I would love to go see Glacier National Park. I think I could spend a month out there. I would like to visit all of our nation’s national parks. My wife and I are getting close to retirement and have purchased our first motorhome. I look forward to seeing this great nation in all its diversity and learning more about its history by experiencing and seeing it.

We took our grandson to Yellowstone a few years back. I was driving towards Denver through Wyoming and stopped at a small-town gas station. It just happened to be the same small town where Sacajawea was laid to rest. We paid our respects and moved on. It was in the middle of nowhere and nobody was there. It is an experience our grandson will not soon forget.

MEMBERS' News Governor Appoints Current and Former Municipal Officials to Boards

Dr. Timothy Faber, of Laurie, was appointed to the Missouri Commission on Human Rights.

Sue Allen, of Town and Country, was appointed to the State Board of Health and Senior Services.

Dr. Faber currently serves as the director of the Lake of the Ozarks Baptist Association. He is a Baptist Minister and has served churches in Warsaw, Kidder and Boonville. He is a past member of the city of Kidder City Council and a current member of the Christian Life Commission of the Missouri Baptist Convention.

Ms. Allen currently serves as an alderman for the city of Town and Country and as chair of the Ways and Means Committee. Previously, Ms. Allen was a Missouri State Representative for the 100th District and served as chair of the Missouri House of Representatives Committee on Fiscal Review.

Brent Buerck, of Perryville, was appointed to the Missouri Development Finance Board.

Mr. Buerck has served the city of Perryville as public administrator for more than 11 years. Previously, Mr. Buerck was a senior program administrator for the Missouri Division of Youth Services. He is a member of the Missouri City Manger’s Association and Missouri National Veterans Memorial, among others. He was also named 573 Magazine Person of the Year in 2020.

Derek Holland, of Raymore, was appointed to the Missouri Commission on Human Rights.

Mr. Holland owned and operated Unemployment Insurance Services, Inc. for more than 35 years. In 1982, Mr. Holland was elected to the Missouri House of Representatives representing constituents from Lee’s Summit, Blue Springs, and Independence. He left the House of Representatives in 1989. Mr. Holland was elected to a nonpartisan position on the Lee’s Summit City Council and served in that capacity from 2012 to 2016.

Members can now access

MML’s updated Technical Bulletins!

September 2020

Manual For Missouri Municipal Clerks Price: $20.00 (Single copies available to member cities at no charge.

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August 2020

Manual For Newly Elected Officials Price: $20.00 (Single copies available to member cities at no charge.

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Published by Missouri Municipal League 1727 Southridge Drive Jefferson City, MO 65109

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Personnel Manual For Missouri Municipalites Price: $20.00 (Single copies available to member cities at no charge.

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Find these manuals at:

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37

MEMBERS' Notes MML Calendar of Events March 2021 7-10 ����� 2021 National League of Cities' Congressional City Conference (Virtual) 17-19 ����� Spring Tech: Online Training for Employees Who Design, Operate and Maintain Utilities (MPUA, Virtual)

April 2021 6 ����� Municipal Election Day 8 ����� MML Webinar: Fraud Prevention and Detection 12-14 ����� 2021 Main Street Now Conference (Virtual) 21 ����� MML Webinar: Code Enforcement, General Policy Considerations

May 2021 5-7 ����� MCMA Spring Conference, Lake Ozark, Missouri 7 ����� Truman Day Observed (MML Office Closed) 9-13 ����� IIMC Annual Conference, Grand Rapids, Michigan 14 ����� Missouri General Assembly Adjourns 31 ����� Memorial Day (MML Office Closed)

June 2021 10-11 ����� MML Elected Officials Training Conference (In Person OR Virtual) Find more events and details on www.mocities.com and in the MML monthly e-newsletter.

At Baker Tilly, we are passionate about building strong communities. That’s why we created a top ten independent municipal advisor within one of the nation’s largest and most diverse advisory and accounting firms. Where others have partial answers to your challenges and opportunities, we deliver comprehensive solutions.

Let’s face the future together.

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Art Davis

Principal Public Finance tom.kaleko@bakertilly.com

Director Human Capital Management art.davis@bakertilly.com

Ben Hart Director Public Finance ben.hart@bakertilly.com

Tom Denaway Director Economic Development tom.denaway@bakertilly.com

Jack Ryan-Feldman Director Public Finance jack.ryan-feldman@bakertilly.com Baker Tilly Municipal Advisors, LLC is a registered municipal advisor and wholly owned subsidiary of Baker Tilly Virchow Krause, LLP, an accounting firm. Baker Tilly Virchow Krause, LLP trading as Baker Tilly, is a member of the global network of Baker Tilly International Ltd., the members of which are separate and independent legal entities. © 2020 Baker Tilly Municipal Advisors, LLC.

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theReview March/April 2021

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