Missouri Municipal League

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 2022

ARPA

American Rescue Plan Act

Overview & Reporting

www.mocities.com 1 Second Amendment Preservation Act | Solar Conundrums | FAQ: Lead And Copper

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THE MISSOURI MUNICIPAL

March/April 2022; Volume 87, No. 2

CONTENTS Features

American Rescue Plan Act

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It's Raining Money...Where's My Bucket? Leveraging The American Rescue Plan And Infrastructure Act To Achieve Community Goals

by Tom Kaleko

12 How To Prepare For ARPA Reporting

by Keenan T. McKinney 18

Demystifying The Second Amendment Preservation Act: A Guide For Cities And Police Departments

by Brian Malone

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Solar Conundrums

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News From The Bench: Filtering Social Media Comments And Blocking Commenters May Violate First Amendment

by Allen Garner and Cheryl Tinsley

by Paul Rost and Lyndee Rodamaker

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FAQ: Lead And Copper Rule Revisions

by Ramona Huckstep, Jeff Biberdorf and Sara Pringer

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Departments 4

President's Review

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MML Legislative Conference Photos

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Local Government Review: MML Appoints Sedalia Council Member Tom Oldham To Board Of Directors

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MML Calendar Of Events

MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS President: Joe Garritano, Council Member, Wildwood; Vice President: Michele DeShay, Mayor, Moline Acres; Damien Boley, Mayor, Smithville; *Chuck Caverly, Council Member, Maryland Heights; Bryant Delong, Council Member, North Kansas City; Jerry Grimmer, Council Member, Bridgeton; 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; Ken McClure, Mayor, Springfield; *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; *Matt Robinson, Mayor, Hazelwood; Mike Roemerman, Mayor, Ellisville; *Kathy Rose, Mayor, Riverside; *Carson Ross, Mayor, Blue Springs; Erin Seele, Attorney, Cunningham, Vogel and Rost; 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 EDITORIAL Laura Holloway / Editor Lholloway@mocities.com Richard Sheets and Lori Noe Contributing Editors GRAPHIC DESIGN Rhonda Miller The Review March/April 2022; Volume 87, 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

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President's Review

by Joe Garritano, Council Member, Wildwood, and MML President

What's On Their Mind?

Ever wonder how our state legislators really feel about local officials?

Each year, MML watches more than 400 bills that affect Missouri cities – a staggering amount. When these bills that affect Missouri cities need to be adjusted in some way, MML Director Richard Sheets is quick to reach out to the bill sponsor and share the municipal impact. Through his efforts and the work of Shanon Hawk, contract lobbyist for MML through AT Government Strategies, many proposals are revised to reflect the League's input.

With so many proposals made each year, and some that could potentially damage the ability for local community decisions, it can be easy to begin to think state legislators are not giving cities enough consideration. However, we just wrapped up a fantastic MML Legislative Conference, welcoming knowledgeable state officials and Missouri Governor Mike Parson. It was clear from these state officials that support is strong for communities, and many truly understand the value of decisions kept to a local level.

Representative Bill Falkner was the first to speak and is a longtime good friend of local government. As the former mayor of St. Joseph and MML board member, he knows firsthand the challenges cities can face. This year, he is working on a proposal to reduce the penalties for financial disclosure reports, and we are so appreciative of his work on this important issue.

I also appreciated a comment from Representative Louis Riggs. His tireless effort to bring broadband throughout the state is valuable and he is keeping local government interests in mind. It was clear that MML is a trusted source when he shared his appreciation for MML Executive Director Richard Sheets, saying “We know him. We like him. We trust him because he tells us things that are true.”

Governor Parson has also remained a strong supporter of local decisions throughout his time in office, and he meets regularly with local officials. We are so thankful to have the opportunity to share the important needs of Missouri communities so that we can truly work together to strengthen communities.

Many of the local officials attending the MML Legislative Conference took advantage of the time to visit personally with their legislator and connect as well. Those strong connections help to build a relationship that shows state officials we are here to help and to serve as a resource for the work they do. These positive relationships absolutely contribute to the success of each of our cities and the citizens we all serve.

Are you working to build your relationship now for when you need to reach them regarding important challenges in the future? How can you improve those relationships?

One way is to reach out to your state legislators throughout the year. Make sure they know you are a reliable source for information about your city. Also, keep them up to date on the regular happenings in your community. Make sure they receive your city’s newsletter and other publications. Finally, consider inviting them to an event in your community – from a council meeting to a grand opening. Let them be a part of seeing your city thrive.

The key point 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.

As always, thank you for all your service to your community. Your work makes a difference each day to your community and citizens, and your dedication is appreciated.

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theReview March/April 2022

www.mocities.com

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5

FEATURE Review

by Tom Kaleko

It's Raining Money...

Where's My Bucket?

Leveraging The American Rescue Plan And Infrastructure Act To Achieve Community Goals

Summary Un l e ss you worke d for l o c a l government in the 1960s, you have likely never experienced the influx of federal dollars we are seeing today. Two recent, significant pieces of federal legislation, the American Rescue Plan Act (ARPA) and the Infrastructure Investment and Jobs Act (IIJA), provide significant funding for Missouri cities. There could be more. While the Build Back Better Act (BBB) appears dead, the Biden Administration continues to pursue the “Build Back Better Framework” with many expecting that elements of BBB will emerge again in future legislation in the form of place-based programs intended to help communities and their residents.

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Expenditure of this money will take time. Your city has nearly two years to obligate its ARPA award and almost four years to get the cash out the door. Implementation of the many grant programs under the ARPA and IIJA must overcome pandemicrelated headwinds such as the Great Resignation and disrupted supply chains. The legislation creates a peak in demand that will take federal and state workforces time to address. Still, local governments hoping to capitalize on this generational opportunity to transform their communities should prepare now in order to succeed strategically later.

Your existing resource allocation processes are critical to getting the most from the ARPA and IIJA. Think strategic plan, comprehensive plan, long-term

financial forecast, capital improvement plan and operating budget. If these processes reflect current community priorities, are financially sound and supported by a diverse team of professionals, chances are you have what is needed to create a transformational ARPA and IIJA strategy. Perhaps, however, these resource allocation processes have weakened in recent years.

Maybe it was felt the few discretionary dollars available made the stakes too low to merit the investment in time and effort. Possibly, your professional team lacks the expertise to fully respond to the opportunities created in the ARPA and IIJA. In that case, quick action is needed to strengthen resources and processes to seize this opportunity before it slips away.

The American Rescue Plan Act The ARPA, signed into law on March 11, 2021, allocated $350 billion in pandemic-related aid to states, territories, tribes and local governments.

This includes $130.2 billion in State and Local Fiscal Recovery Funds (SLFRF) to local governments. The SLFRF Interim Final Rule released by the Treasury in May 2021 was superseded by the Final Rule when it was distributed in January 2022.

The Final Rule preserves the Interim Rule’s focus on promoting a strong, equitable recovery by: • Supporting COVID-19 response efforts.

• Replacing lost public sector revenue.

• Economically stabilizing i mp a c t e d h ou s e h ol d s an d businesses.

• Addressing systemic public health and economic challenges inequitably borne by certain populations.

The Final Rule also generally maintains previously authorized eligible uses.

However, it increases the flexibility with which the funds may be utilized and, in many cases, simplifies administration.

The Final Rule becomes effective on April 1, 2022. SLFRF obligations and expenditures incurred prior to that date should comply with either the Interim Final Rule or the Final Rule. The Final Rule will govern all obligations and expenditures incurred after April 1, 2022.

The most significant change in the Final Rule is a dramatic simplification to the lost revenue provision. To identify the general revenue amount lost due to the pandemic, recipients may now choose to do one of the following: • Pe r for m t h e re ve nu e l o s s calculation provided in the Final Rule.

• Assume a standard allowance of up to their entire award or $10 million, whichever is less.

Revenue loss dollars can be used for “government services” – essentially any service for which a local government normally spends money, including roads

Let’s face the future, together.

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Municipal bonds

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Debt management

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Operational finance

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Long-range financial planning

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Housing and economic development

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Capital improvement planning

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Investment services

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Executive recruitment

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Organizational management

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Classification and compensation advisory

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Community surveys

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Referendum strategies

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Strategic planning

Connect with us: +1 (816) 333 7200 | bakertilly.com/MunicipalAdvisory Baker Tilly Municipal Advisors, LLC is a registered municipal advisor and controlled subsidiary of Baker Tilly US, LLP, an accounting firm. Baker Tilly US, 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. © 2021 Baker Tilly US, LLP

and public safety. The overarching ARPA use prohibitions still apply, which are: debt service payments; extraordinary pension contributions; payment of legal settlements and judgements; and deposits into rainy day funds.

Revenue loss funds may be used to meet the non-federal cost share or matching requirement of other federal programs. However, these funds may not be used for the non-federal share of a state’s Medicaid program and/or Children’s Health Insurance Program (CHIP).

Nearly 97% of Missouri cities received ARPA awards less than $10 million and will want to choose the standard allowance, allowing them to expend their entire award for government services. If a recipient’s award is greater than $10 million and its general revenues have been significantly reduced during the pandemic, it may be advantageous to perform the revenue loss calculation.

Communities electing to calculate revenue loss now have the option to determine revenue loss on a fiscal year or calendar year basis. However, they must consistently apply whatever option they choose. They also may adjust their calculation based on certain tax increases and decreases adopted after Jan. 6, 2022. The revenue loss calculation still requires identification

of a pre-pandemic revenue growth rate to which actual revenue gain (or loss) is compared. Recipients may choose to calculate the actual rate or utilize a standard growth rate. The standard growth rate is increased in the Final Rule from 4.1% to 5.2%.

Entities will make an election whether to use the $10 million standard allowance or revenue loss calculation when they file their first Project and Expenditure report (P&E). Those required to report in January may change their revenue loss election with the P&E filed in April 2022.

A table summarizing ARPA reporting deadlines by recipient type is available in the next article of this March/April 2022 Review issue, on page 16.

The Final Rule also includes new or expanded provisions aimed at responding to the public health and economic impacts of COVID-19. These include: • Paid family and medical leave for public sector employees to enable compliance with COVID-19 public health precautions.

• Local government re-hiring up to 107.5% of its pre-pandemic baseline.

• Additional funding eligibility for employees who were furloughed www.mocities.com

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Employee Surveys

o r e x p e r i e n c e d p ay c u t s , worker retention incentives and administrative costs related to hiring, support and retention.

Notably, funds may be used to maintain inflationary adjusted compensation levels to avoid layoffs.

• Premium pay clarification and streamlining (although no substantial change to the benefit that may be provided).

• Clarity on capital expenditures permitted outside the infrastructure expenditure c at e g or y, w it h a d d it i on a l reporting requirements for capital expenditures over $1 million.

The Final Rule eases the identification of households, businesses and notfor-profits negatively impacted by the pandemic. Metrics are provided to help determine those “impacted” and “disproportionately impacted.” Those meeting certain defined thresholds may be presumed eligible. A methodology is available to identify eligible uses outside of those explicitly defined in the Final Rule.

Infrastructure eligibility is expanded in the Final Rule to include certain stormwater, residential well, lead reme di at ion and d am/res er voir rehabilitation projects. Broadband infrastructure eligibility is expanded to include cybersecurity modernization.

Infrastructure Investment And Jobs Act The Infrastructure Act, which represents the largest investment in the country’s infrastructure in decades, became law on Nov. 15, 2021.

The Infrastructure Act’s monumental five-year federal funding package will help state and local governments grow and sustain their economies, create jobs, enhance community resiliency and improve America’s infrastructure grade and global ranking. Much of the funding will be distributed to local government through a combination of formula and competitive grants.

The IIJA includes $550 billion in new funding for roads, bridges, public transportation, public power, water and sewer and broadband upgrades.

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$110 billion investment for roads, bridges and major infrastructure projects, including funding for bridge repair, replacement and rehabilitation; major projects considered too large or complex for traditional funding programs; transportation safety; and money to reconnect communities. $39 billion to modernize public transit, including repairing and upgrading existing infrastructure, improving accessibility and bringing transit services to new communities. Additionally, the deal calls for $66 billion to improve the Northeast Corridor passenger and freight rail service and bring transit service to new communities. This will be the largest federal investment in public transit in the country’s history. $65 billion to improve the nation’s broadband infrastructure (building on the billions of dollars provided for broadband deployment in the American Rescue Plan) and aims to help lower the price households pay for internet service and ensure ever yone has access to the internet.

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$65 billion to rebuild the electric grid and protect against power outages, improving the reliability and resiliency of the U.S. power grid. It will also boost carbon capture technologies and more e nv i r o n m e n t a l l y f r i e n d l y electricity sources like clean hydrogen. $50 billion through the U.S. E nv i ron me nt a l Prote c t i on Agency (EPA) to upgrade water and sewer infrastructure and improve utility system resiliency to protect from drought, floods and cyber-attacks. This includes more than $20 billion for safe drinking water, $15 billion to replace lead pipes and more than $12 billion to ensure clean drinking water for communities.

This will be the largest investment in clean drinking water and wastewater infrastructure in American history. $17 billion in port infrastructure and $25 billion in airport repair and maintenance, congestion and emissions reduction, and promotion of electrification and other low-carbon technologies.

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$21 billion to clean up Superfund and Brownfield sites, reclaim abandoned mine land and cap orphaned gas wells.

• $7.5 billion to build a nationwide network of plug-in electric vehicle chargers and another $7.5 billion for zero- and low-emission buses and ferries, aiming to deliver thousands of electric school buses to districts across the country.

Missouri will receive almost $7 billion from the IIJA and approximately $2.7 billion through the ARPA. Some of these funds will trickle down to cities.

As of this writing, Missouri’s Governor has indicated a desire to make a portion of the state’s Fiscal Recovery Funds available to cities for water, sanitary sewer, stormwater and broadband infrastructure.

Build Back Better Act When it passed in the House of Representatives and before it stalled in the Senate, the Build Back Better Act included an array of place-based programs intended to help communities and their residents. The $2.2 trillion bill included programs “aimed at combating the nation’s epidemic of uneven development, with spatially targeted funds that would promote a more equitable distribution of economic growth across the country.”1 While the Build Back Better Act appears dead, the Biden Administration continues to pursue the “Build Back Better Framework” with many expecting that elements of BBB will emerge again in future legislation.

Intersections C onsidering the adopted and proposed legislation, there are funding intersections that are of great importance to Missouri cities.

It is these intersections to which communities should compare their goals and dreams in order to leverage the ARPA and IIJA to their maximum benefit. The tools for making this comparison and creating a financing plan are your existing resource allocation processes. These include a strategic plan, 10

theReview March/April 2022

Figure 1

comprehensive plan, long-term financial forecast, capital improvement plan and operating budget. If these processes reflect current community priorities and are financially sound and supported by a diverse team of professionals, chances are you have what is needed to create a transformational ARPA and IIJA strategy. Perhaps, however, these resource allocation processes have weakened in recent years. Maybe it was felt the few discretionary dollars available made the stakes too low to merit the investment in time and effort.

Possibly, your professional team lacks the expertise to fully respond to the opportunities created in the ARPA and IIJA. In that case, quick action is needed to strengthen resources and processes to seize this opportunity before it slips away.

Prepare Now To Succeed Strategically Later The good news is that expenditure of awards and rollout of the myriad formulaic and competitive grant programs will take time. ARPA awards may be obligated through the end of 2024 and expended through the end of 2026. Many of the IIJA programs and rules are still being crafted. State use of ARPA and IIJA allocations are currently under consideration. In the background, there are pandemic-related headwinds that will slow progress. The workforce charged with implementation has been reduced through the Great Resignation. Supply chains for almost everything have been disrupted. Rising

interest rates and inflation must be factored into planned projects. Still, competition for these resources will be fierce. Like a long-distance racer, cities should move quickly now to separate themselves, creating space to execute a well-considered strategic plan. Here are questions to consider.

Do I have the needed expertise on my team? To take advantage of all the ARPA and IIJA have to offer, cities may need to add specialists focused on these Acts and their grant programs. Outside specialists can assist with determination of eligibility, pursuit, compliance, monitoring and reporting. There may also be additional engineering needed to make potential infrastructure projects to the point that they are “grant ready.”

Pursuit of transformational changes may require closer coordination with neighboring jurisdictions and the local council of governments or a regional planning agency.

Are community goals clear and current? Community goals must be up to date and prioritized in order to effectively match them to the ARPA/IIJA intersections (Figure 1). There is no right way to identify community goals. Cities should follow a process with the level of inclusivity preferred by their residents and governing body. Strategic plans and comprehensive plans are typical sources for identifying community goals. If these are not current or thorough, updating them may be a wise investment of ARPA award dollars. Remember, now is the time to think big.

Are financial planning processes in need of a refresh? The following question reveals ARPA and IIJA leverage points; “What investments have we wanted to make in the past that would have paid continuing dividends in the form of lowered operating costs, increased operating revenues or improved quality of life, but could not for a lack of funds?” This question is easily answered if the long-term financial plan and capital improvement plan are up to date and comprehensive. However, many communities allow these important tools to decline when discretionary money is scarce thinking that the stakes are too low to justify the time and effort.

With advent of the ARPA and IIJA, the stakes just got higher. Dust off that long-term financial plan. While you are at it, consider creating multiple plans assuming varying scenarios.

Today’s environment is so variable that a single plan with middle of the road assumptions may be of little guidance.

A set of plans assuming var ying potential circumstances will allow your organization to be nimbler.

Your capital improvement plan should be much more than a wish list. It should build on infrastructure facility plans and condition inventories to

create a holistic plan for maintenance, improvement and expansion of your community’s most valuable assets.

Deferred capital maintenance is one the most insidious and expensive costs that local governments incur. If facility plans and condition inventories are missing or out of date, this also would be an excellent investment from your ARPA award and will position your community well to compete for IIJA infrastructure grants. Examine the criteria you are using to prioritize projects in your capital plan. Do they include both criticality and condition of the asset?

Do they recognize new technologies and trends (e.g., smart meters, climate resistance)?

Conclusion The ARPA and IIJA represent a once-in-a-generation opportunity to make transformational improvements in Missouri cities. Accomplishing transformation will require many communities to move quickly now to strengthen their resource allocation processes to better match community desires to available funding and identify the most strategic uses of funds.

Tom Kaleko is a principal at Baker Tilly Municipal Advisors. He has provided financial advice to Missouri cities since 2005. Prior to 2005, he served for 20 years in various city management roles. Recognizing the importance of the ARPA and IIJA to municipal governments, Tom has expanded his municipal bond, public finance and economic development practice to incorporate this landmark legislation. He coordinates Baker Tilly’s ARPA reporting efforts and advises local government in Missouri, Kansas and Wisconsin on administration of their ARPA awards. He has held numerous live and remote ARPA training events on behalf of the Missouri Municipal League and is the author of several articles on the ARPA. End Notes: 1 Brookings Institute, “The House’s Build Back Better Act is a Milestone for place-based solutions,” Mark Muro, Robert Maxim, Anthony F. Pipa, Yang You, and Colleen Dougherty, November 23, 2021

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FEATURE Review

by Keenan T. McKinney

How To Prepare For ARPA Reporting On March 11, 2021, the American Rescue Plan Act (ARPA) was signed into law. The ARPA established the Coronavirus State Fiscal Recovery Fund and Coronavirus Local Fiscal Recovery Fund, which together make up the Coronavirus State and Local Fiscal Recovery Funds (SLFRF) program. This new program provides $350 billion to state, local, territorial and tribal governments to aid in response to the economic and public health impacts of COVID-19.

If you are a recipient of this funding, you must adhere to the reporting requirements, as outlined in the U.S. Department of the Treasury’s, “Compliance and Reporting Guidance – State and Local Fiscal Recovery Funds,” (Guidance). We highly encourage all governments receiving funding to review the Guidance for additional detail and clarification on recipients’ compliance and reporting responsibilities. See the Treasury’s website (https://home. treasury.gov/ ). (Note: Please check for updates, as the Guidance may be updated periodically.) The Compliance and Reporting Guidance includes “Table 2: Reporting requirements by recipient type,” that we have included at the end of this article.

This article will: • Highlight key elements of the SLFRF Compliance and Reporting Guidance.

• Share preparation tips for meeting the reporting requirements.

Key Elements Of The SLRF Compliance And Reporting Guidance There are three types of reporting requirements for the SLFRF program: 1. Interim Report: Provides initial overview of status and uses of funding. This is a one-time report.

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(Note: Per the Guidance, the Interim Report was due by Aug. 31, 2021, or 60 days after receiving funding if funding was received by Oct. 15, 2021. Non-entitlement units of local government were not required to submit an interim report. As the due dates will have passed as of the publish date of this article, we will not focus on the Interim Report in this article.)

2. Proj e c t a n d E x p e n d i tu re Reports: Report on projects funded, expenditures, contracts, subawards more than $50,000 and other information.

3. Recovery Plan Performance Report: Provides information on

the projects that large recipients are undertaking with program funding and how they plan to ensure program outcomes are achieved in an effective, efficient and equitable manner.

Let us take a closer look at the reporting requirements.

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Project And Expenditure Report

When are the Project and Expenditure reports due?

All recipients of funding are required to submit project and expenditure reports. Some recipients are required to submit quarterly reports, while other recipients are required to submit annually (see Table 2 for a summary of the category of recipients): • Q u a r t e r l y R e p or t i n g : For applicable recipients, the first report was due by Jan. 31, 2022.

For these recipients, the initial quarterly project and expenditure report covered the three calendar quarters from March 3, 2021, to Dec. 31, 2021. The subsequent quarterly reports will cover one calendar quarter and must be submitted to Treasury within 30 calendar days after the end of each calendar quarter.

• Annual Reporting: For applicable recipients, the first annual report is due April 30, 2022, and then annually thereafter, on April 30.

For these recipients, the first project and expenditure report will cover from March 3, 2021, to March 31, 2022. The subsequent annual reports will cover one calendar year.

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314.275.7277 What should I include in the Project an Expenditure Reports?

The information required in the project and expenditure reports for both quarterly and annual reporting includes: • • • •

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Projects: Project description, expenditure category, status of completion, etc.

Expenditures: Project obligations and expenditures.

Project Status: Group as “started,” “less than or greater than 50% completed,” or “completed”.

Adopted Budget (for specified recipients): Provide the budget adopted for each project by its jurisdiction.

Project Demographic Distribution Data (not due before April 2022): Information on projects that prioritize economic and racial equity and promote equitable outcomes.

Subawards: Provide detailed obligation and expenditure information for any contracts and grants awarded, loans issued, transfers made to other government entities and direct payments made by the recipient that are greater than $50,000.

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C i v i l R i g ht s C omp l i a n c e : Information on recipients’ compliance with Title VI of the Civil Rights Act of 1964, as applicable, on an annual basis.

Ineligible Activities - Tax Offset Provision (states and territories only): Information related to the Tax Offset Provision as described in section 602(c)(2) of the Social Security Act and implemented under 31 CFR 35.8.

Required Programmatic Data (other than inf rastr ucture projects): Will vary by expenditure category, please see details in the Guidance.

Required Programmatic Data for Infrastructure Projects (EC 5): Water, sewer and broadband expenditure categories. Please see details in the Guidance.

Non - E nt it l e m e nt Un it s Documentation (NEUs only): Prior to the due date for their first annual project and expenditure re p or t , c opi e s of f u nd i ng agreement, signed assurances and certain budget documents.

Recovery Plan Performance Report Recovery Plan Performance Reports are applicable to states, territories, metropolitan cities and counties with a population that exceeds 250,000 residents. The Recovery Plan will provide both the public and Treasury with information on the projects recipients are undertaking with program funding The report will also detail how project recipients are planning to ensure program outcomes are achieved in an effective, efficient and equitable manner.

The Guidance emphasizes transparency and requires that: • The plan must be posted on the public-facing website.

• Upload a link to the publicly available document report along with providing data in the treasury reporting portal.

Recovery Plan Performance Reports are applicable to states, territories, metropolitan cities and counties with a population that exceeds 250,000 residents.

When are the performance reports due?

The initial Recovery Plan will cover the period from the date of award to July 31, 2021 and must be submitted to Treasury by Aug. 31, 2021, or 60 days after receiving funding. Thereafter, the Recovery Plan will cover a 12-month period and recipients will be required to submit the report to treasury within 30 days after the end of the 12-month period (by July 31).

What should be included in the performance reports?

The information required in performance reports includes: • Executive Summary: High-level overview of the jurisdiction’s intended and actual uses of funding.

• •

•

• • •

• •

Uses of Funds: Describe in further detail your jurisdiction’s intended and actual uses of the funds.

Promoting Equitable Outcomes: Describe efforts to promote equitable outcomes, including how programs were designed with equity in mind.

C ommunity Engagement: Describe how you obtain input on use of funds that capture diverse feedback from your community.

L ab or Prac t ic es: D es cr ib e workforce practices on infrastructure projects.

Use of Evidence: Identify whether funds are being used for evidencebased interventions.

Table of Expenses by Expenditure Categor y : Table listing the amount of funds used in each expenditure category.

Project Inventory: List the name and provide a brief description of funded projects.

Performance Report: Include key performance indicators for the major projects.

•

Required Performance Indicators and Programmatic Data: Mandatory performance indicators and programmatic data must be included.

• Ineligible Activities=Tax Offset Provision (states and territories only): Requires certain information be provided to ensure funds are not used for ineligible activities.

How do I submit the expenditure and performance plan reports?

You are probably thinking, “How do I summarize and report all of this information to the treasury”? “Do I need to build report templates”? Well, the Treasury has created a portal that facilitates the entry and submission of the data. The Treasury’s website has guides and instructions to enter information on the Treasury Portal, including the Project and Expenditure Report User Guide and Treasury’s Portal for Recipient Reporting. However, your organization may still need to prepare some external source reports (e.g., spreadsheets, Word documents, other existing reports, etc.) that can be uploaded to the Portal.

Preparation Tips For Meeting The Reporting Requirements We have given you an overview of the reporting Guidance, now your next thought, other than trying to wrap your brain around the amount of detail in the Guidance, may be how can my organization get ready? Here are a few tips: • R EV I EW T H E T R E ASU RY GUIDANCE! … And review it again!

• Get familiar with the Treasury’s portal for submitting the reports (e.g., user credentials, navigating the portal, etc.).

• Identify and evaluate the sources of information within your organization (e.g., systems, people, leverage existing reports, etc.).

• Evaluate the ability of your f i n an c i a l an d op e r at i on a l reporting systems to provide the necessary data.

• If you received Coronavirus Relief Funds (CARES Act), there are some similarities in report data elements. Leverage those data sources and lessons learned from the reporting process.

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•

Assign key roles and responsibilities (e.g., financial information, programmatic information, data entry into the portal, reviewer/certifier, etc.).

• Establish a timeline for gathering the information and submitting the reports by the due dates.

• Utilize your internal audit department or other similar function/service provider to evaluate your reporting systems, processes and the final report package.

• Submit any questions to the Treasury as soon as you identify them.

For full information on the Guidance, please visit the Department of Treasury’s website at: https://home.treasury.gov/ Keenan T. McKinney, CIA, CCA, is a director in the Armanino Risk Assurance & Advisory Services practice. Keenan has more than 27 years of internal auditing and project management experience, including more than 10 years of government internal auditing experience. For more information on preparing for ARPA reporting, contact Keenan McKinney of Armanino’s Risk Assurance and Advisory practice. He can be reached at (314) 983-1316 or Keenan.McKinney@armaninoLLP.com

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FEATURE Review

by Brian Malone

Demystifying The Second Amendment Preservation Act:

A Guide For Cities And Police Departments Missourians can be forgiven for not realizing that the Second Amendment was in need of preservation. The General Assembly has spent decades dramatically scaling back Missouri’s already loose restrictions on firearms, and curtailing the ability of cities to enact local restrictions. It is legal in Missouri for people to carry firearms most anywhere, without a permit.1 Having pared Missouri’s restrictions down to a minimum, the General Assembly set its sights on federal law. In 2021, the General Assembly enacted the “Second Amendment Preservation Act,” (SAPA), purporting to invalidate federal firearms laws it deems invalid.

Under the U.S. Constitution, federal law is the supreme law2 of the land. Even SAPA’s proponents seem to acknowledge that it may be invalid.3 Still, it has had an immediate impact. The chief in O’Fallon resigned shortly after SAPA’s passage.4 Police departments withdrew5 from federal task forces. St. Louis City and St. Louis County filed suit.6 A judge denied their request for an injunction, ruling that they must raise their claims in other lawsuits.7 The case is now before the Missouri Supreme Court. That SAPA may eventually be invalidated is little comfort to cities that must now grapple with what law enforcement activities could trigger liability.

SAPA manages to both be sweeping in scope and yet only enforceable in narrow factual scenarios. That may be the point, as the law is chilling law enforcement agencies from cooperating with the federal government, even if officers are not directly engaged in activities that would violate SAPA. The end result is a statute with huge practical consequences for cities, but that is unlikely to result in actual liability except in rare circumstances.

Section 1.420 of SAPA purports to nullify the following federal firearms laws: (1) any “tax, levy or stamp imposed on firearms;” (2) “registration, or tracking of firearms;” (3) registration or tracking of ownership of firearms; (4) any “act forbidding the possession, ownership, use or transfer of firearms,” accessories or ammunition by “law-abiding citizens;” and (5) any “act ordering the confiscation of firearms … from law-abiding citizens.”

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theReview March/April 2022

Rather than penalizing individual officers, SAPA’s enforcement provisions (§§ 1.460 and 1.470, RSMo) penalize a city or its police department for its employees’ acts. SAPA provides two ways in which a city/department could be liable: 1. by employing an officer who knowingly enforces or attempts to enforce the federal laws identified in § 1.420, or who knowingly deprives a Missouri citizen of his/her rights under the Second Amendment (or Missouri’s counterpart, Mo. Const. Art. I, § 23); or 2. by knowingly employing an individual acting (or who formerly acted) as a federal agent, “or otherwise acted under the color of federal law within the borders of this state,” who has knowingly … [e]nforced or attempted to enforce any of the infringements identified in Section 1.420; or … [g]iven material aid and support to the efforts of another” who does so.

Penalties for cities that violate SAPA include a $50,000 fine, plus attorney’s fees.

Section 1.460 To asses a city’s liability under § 1.460, one must determine if a police officer knowingly enforced (or attempted to enforce) one of the federal laws listed in § 1.420, or knowingly deprived a person of his/her rights under the Second Amendment (or Missouri’s counterpart).

Several of the federal laws listed in § 1.420, such as those regarding registration or taxes on firearms, are laws that a municipal officer would not typically be called upon to enforce. Section 1.420 includes federal laws forbidding possession, ownership, use, transfer or confiscation of a gun by “law abiding citizens.” A “law abiding citizen” is a lawful resident of Missouri “who is not otherwise precluded under state law from possessing a firearm … .”8 Federal law provides several categories of persons who are ineligible to possess a firearm who are not disqualified under Missouri law, including persons convicted of misdemeanor domestic

violence, persons subject to a full order of protection, persons dishonorably discharged from the military, unlawful users of drugs, and persons under 18.9 However, a city would only be liable under § 1.460 if an officer knowingly enforces (or attempts to enforce) federal laws listed in § 1.420, and local officers are not typically involved in the enforcement of federal firearms laws. Cities and law enforcement agencies should work to ensure that officers distinguish between those persons prohibited by state law from possessing a firearm and those prohibited by federal law.

While § 1.460 purports to penalize cities that employ a person who violated someone’s Second Amendment rights, this is likely less of a concern. While there are many things that someone can do with a gun that are not illegal under Missouri law, that does not mean that such acts are protected by the Second Amendment. States cannot expand the meaning of the U.S. Constitution.10 The U.S. Supreme Court held in Heller v. District of Columbia11 that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” However, “we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”12 Bans on carrying concealed firearms were historically held not to violate the Second Amendment, and Heller did not disturb that conclusion.13 The Court stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as schools and government buildings … .”14 In other words, states have some ability to restrict who may carry firearms and where they may be carried15 without violating the Second Amendment.

Police officers enforcing such laws generally would not be violating the Second Amendment. Since the General Assembly has preempted any firearms ordinances that do not “conform exactly”16 with Missouri statutes (with a few narrow17 exceptions), it is unlikely that an officer’s actions enforcing state law or a city ordinance would violate the Second Amendment. A federal court in Missouri ruled that the lawful seizure of a firearm from a person does not violate the Second Amendment, so long as a person is not entirely prohibited from possessing any firearms.18 However, improperly seizing (or retaining) a firearm could violate the due process clause of the Fourteenth Amendment.19 Though Article I, § 23 of the Missouri Constitution appears more expansive than the Second Amendment, the Missouri Supreme Court has found that they are functionally equivalent, both before and after Missouri’s amendment in 2016.20 Furthermore, “Article I, Section 23 did not itself authorize a person to carry a concealed weapon, but that did not prohibit the legislature from authorizing the public to do so.”21 Thus, an officer preventing a person from carrying a firearm in a particular place would not necessarily violate the Second Amendment or Missouri’s counterpart.

Since actions by local police officers are unlikely to directly violate the Second Amendment, and since local officers

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typically do not knowingly enforce federal firearms law in their day-to-day duties, liability under § 1.460 seems likely to be relatively rare, though officers should exercise care in determining who is a “law-abiding citizen” of Missouri.

Section 1.470 Section 1.470 imposes liability on a city that knowingly employs a person who, after the effective date of SAPA, acts as an agent of the U.S. Government, “or otherwise acted under the color of federal law” to enforce a federal law identified in § 1.420, or gives “material aid and support” to the efforts of another who does so or attempts to do so. “Material aid and support” is defined to “include voluntarily giving or allowing others to make use of lodging; communications equipment or services, including social media accounts; facilities; weapons; personnel; transportation; clothing; or other physical assets.”22 A few quick points on this statute … First, it applies only to actions taken by an employee “after the adoption of this section.” That would be either June 12, 2021 (the day the bill was signed) or Aug. 28, 2021 (the date listed in § 1.480.5, RSMo). Either way, a city would not violate SAPA by hiring someone who enforced a federal firearms law prior to the effective date.

Second, the statute applies only to actions taken by an employee who acts or has acted as a federal agent or “under the color of federal law” within Missouri. To determine if a person is acting under “color of law” … “we look to see whether a sufficient nexus exists between the official’s public position and the official’s harmful conduct.”23 “A person acts under color of federal law in respect to a cause of action by claiming or wielding federal authority in the relevant factual context.”24 In most instances of an officer’s day-to-day work, he/she is going to be acting pursuant to state law, not federal law.

Finally, §1.470 makes no mention of the Second Amendment or Missouri’s counterpart. It is concerned only with federal employees/agents enforcing the federal firearms laws listed in §1.420.

Section 1.470 is more troublesome than § 1.460 because it penalizes not just enforcing prohibited federal laws, but giving “material aid and support” to one who does so. “Material aid and support” is defined broadly so that virtually anything could potentially qualify. While there are exceptions listed in the statute, they are convoluted enough to fill another article.

Suffice it to say these exceptions will rarely come into play and would be difficult to formulate policy around.

However, because § 1.470 applies only to acts taken under color of federal law, and only to acts taken after June 12, 2021, (or Aug. 28, 2021), it likely would not apply to most actions taken by local police officers. That being the case, there would not be a need to determine if the officer gave “material aid and support” to someone enforcing a federal firearms law.

The two most concerning areas for law enforcement under § 1.470 are likely: (1) entering data into federal databases, such as the National Crime Information Center (NCIC), or the National Integrated Ballistic Information Network (NIBIN); and (2) working with state/federal task forces. Both NCIC and NIBIN are voluntary systems used as a resource for both state and federal law enforcement.25 To show a violation of SAPA, a plaintiff would have to show that such officer was knowingly enforcing or attempting to enforce a federal firearms law. Or, a plaintiff would need to show that the officer was working under color of federal law by entering such data and thereby knowingly gave material aid and support to a person enforcing a federal firearms law. It may be a stretch for a plaintiff to argue that an officer knowingly gave material aid and support (or that the officer acted under color of federal law) merely by entering data into a voluntary database used by state and federal agencies, solely because that data was later used in a federal prosecution.

Task forces involving federal and state officials likely would present problems for municipal officers. While an officer could reasonably endeavor to not personally enforce any federal firearms laws as a member of the task force, the officer could be construed as operating under color of federal law if another member of the task force attempts to enforce a federal firearms law. In such case, the officer could be deemed to have given material aid and support in a way that violates SAPA.

Conclusion SAPA is a very convoluted statute.

Even experienced lawyers, police officers and gun enthusiasts may struggle to understand it. Below are some bullet points for cities to keep in mind:

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•

•

The Second Amendment permits states to restrict certain persons from carrying firearms, and restricting certain locations where a person can carry a firearm and most existing state and federal laws restricting possession/use of firearms have not been found to violate the Second Amendment; Missouri’s counterpart to the Second Amendment, Mo. Const. Art. I, § 23, has been construed to be substantially similar to the Second Amendment;

•

Seizing a firearm pursuant to an arrest or search warrant generally do es not violate the S econd Amendment, unless the owner is thereby prohibited from possessing any firearms (and even then it may not violate the Second Amendment); • Cities could be liable under SAPA in two ways: • § 1-460 – If the city employs an officer who knowingly enforces or attempts to enforce federal firearms laws against a “law-abiding citizen;” or • § 1-470 – If the city employs an officer who acts or acted as a federal agent or who acted “under color of federal law” within Missouri, and after June 12, 2021, and such officer knowingly enforces a federal firearms law, or knowingly gives material aid and support to another who does so.

As always, cities and law enforcement agencies should work closely with their attorneys to ensure that their officers do not put the city at risk of liability under SAPA. Brian Malone is an attorney at Lashly & Baer, P.C. in St. Louis. Brian advises cities, school districts, library districts and other governmental bodies in Missouri.

End Notes: 1 § 571.030, RSMo. Arizona v. United States, 567 U.S. 387, 399 (2012) (“The Supremacy Clause provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’ Art. VI, cl. 2.”).

2

“Gov. Parson will sign Second Amendment bill declaring federal gun laws ‘invalid’ in Missouri,” Jean Kuang, Kansas City Star, June 10, 2021 (“Parson’s spokeswoman Kelli Jones wrote in a statement, ‘The Governor is aware of the legal implications of this bill, but also that, now more than ever, we must define a limited role for federal government in order to protect citizen’s rights guaranteed by the Second Amendment of the United States Constitution.” Emphasis added.); https://www.msn. com/en-us/news/politics/gov-parson-will-sign-second-amendmentbill-declaring-federal-gun-laws-invalid-in-missouri/ar-AAKVgo8, last accessed August 27, 2021.

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“O’Fallon, Mo. police chief resigns over new second amendment protection law,” June 18, 2021, Fox2Now; https://fox2now.com/news/ ofallon-mo-police-chief-resigns-over-new-second-amendmentprotection-law/, last accessed August 27, 2021.

4

“Cole County judge sinks lawsuit by St. Louis, St. Louis County over new gun law,” Jack Suntrup, St. Louis Post-Dispatch, August 27, 2021, https://www.stltoday.com/news/local/govt-and-politics/cole-countyjudge-sinks-lawsuit-by-st-louis-st-louis-county-over-new-gun-law/ article_e11e59fb-bb28-5171-9399-8df568841f89.html, las accessed August 28, 2021.

5

City of St. Louis, et al. v. State of Missouri, 21AC-CC00237, Supreme Court case no. SC99290.

6

The two lawsuits were apparently 21AC-CC00280, a lawsuit filed by an inmate against the City of St. Louis arguing that his conviction is the result of the City’s enforcement of federal gun laws, and another lawsuit in Ripley County alleging that a law enforcement agency violated SAPA, but that lawsuit, 21RI-CV00361, has now been dismissed.

7

8

§ 1.480.1, RSMo.

9

See 18 U.S.C. § 922(g); § 571.070, RSMo.

10

See Rose v. City of Mulberry, 533 F.3d 678, 680 (8th Cir. 2008).

11

554 U.S. 570 (2008).

12

Id. at 595.

13

Id. at 626.

14

Id. at 626-627.

15 The U.S. Supreme Court will soon hear a case, New York State Rifle Association, et al. v. Corlett, et al., that could expand the rights protected by the Second Amendment. This case will challenge a New York state statute requiring a license to carry firearms outside one’s home, and such a license can be denied upon “proper cause.” This case could establish that the Second Amendment right to carry firearms

outside one’s home, which would be an expansion on the Supreme Court’s decision in Heller. Since Missouri law already permits most citizens to carry a firearm most anywhere, it is unlikely the New York case will have much impact here.

16

§ 21.750.3, RSMo.

Id. (authorizing ordinances that go beyond state law regulating discharging, or open carrying firearms in a city, though CCW permit holders are exempted by the statute from these open carry ordinances).

17

18

See Walters v. Wolf, 660 F.3d 307, 318 (8th Cir. 2011).

19

Id.

for an effective criminal identification procedure, thereby promoting effective law enforcement.” United States v. Rabadi, 889 F. Supp. 757, 759 (S.D.N.Y. 1995). “The NCIC information is available to all federal and state law enforcement agencies nationwide.” United States v. Walker, 92 F.3d 714, 715 (8th Cir. 1996); see also 2018 WL 4929337, News Release, October 18, 2018, “Justice Department and ATF Name 22 Sites To Receive New National Integrated Ballistic Information Network Equipment,” – “As the only crime gun ballistic network in the United States, NIBIN compares images of cartridge casings recovered at crime scenes and firearms recovered by law enforcement to connect shooting incidents and identify shooters.”

The 2016 amendment “did not substantially change article I, section 23 but rather simply set out ‘a declaration of the law as it would have been declared by this Court after McDonald mandated that the fundamental right to bear arms applied to the states.’” State v. Clay, 481 S.W.3d 531, 536 (Mo. banc 2016) (internal citations omitted).

20

21

Id. at 538.

22

§ 1.480.2, .3, & .4, RSMo.

23

Ramirez-Peyro v. Holder, 574 F.3d 893, 900 (8th Cir. 2009).

24

United States v. Tohono O’Odham Nation, 563 U.S. 307, 313, (2011).

See 28 U.S.C. § 534 and 28 C.F.R. § 20. “Pursuant to 28 U.S.C. § 534(a), the Attorney General of the United States is required to acquire, retain and disseminate criminal records…. The acquisition, preservation and dissemination of criminal records fulfills the compelling public need 25

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M

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FEATURE Review

by Allen Garner and Cheryl Tinsley

Solar Conundrums Solar panels are gaining popularity as costs of installation decreases and federal tax incentives are extended. The overall impact of customer-based solar panels can create conundrums for local governments.

The Missouri Net Metering and Easy Connection Act (Section 386.890, RSMo (2007)) requires utilities to allow customers to “sell back” electricity generated, but not used, to the electric utility serving the customer.

Solar Panels: Incentives For Homeowners And Businesses

What Is Net Metering?

The current climate is ripe for a bumper crop of additional solar panel installations on residential homes and local businesses. Federal and state tax incentives continue through 2023 at this point, with extensions possible and probably likely.

In December 2020, Congress passed an extension of the solar investment tax credit (ITC) that provides a 26% tax credit for residential solar systems installed in 2020-2022, and 22% for systems installed in 2023. (Systems installed before Dec. 31, 2019, were eligible for a 30% tax credit.) The tax credit expires starting in 2024 unless Congress renews it. There is no maximum amount that can be claimed. Businesses are eligible for a similar tax credit under the Business Energy Investment Tax Credit. Note this is a credit against tax liability and may be carried forward if not fully utilized in any given year.

In addition to the federal tax, MO SB 564 (2018) provides solar rebates in the state, from January 1, 2019 through Dec. 31, 2023. For systems installed after June 30, 2019, the rebate is 25 cents per kilowatthour (kWh.) Systems installed between Jan. 1 and June 30, 2019, can receive a 50 cent per kWh rebate.

These rebates are mandated to be provided by privately-held electric utilities in Missouri.

Net metering refers to a meter that runs both directions.

Meters may be known as bi-directional meters, or in some cases, smart meters. When a customer’s solar panels generate more electricity than the customer can use, their electric meter essentially runs backwards, selling back electricity to the utility. When the customer needs more electricity than the solar panels generate (such as at night) the customer pulls electricity from the utility, and the meter runs forward. See the example in Figure 1 below showing off-grid and on-grid solar panel users.

Figure 11

COMMUNITY PLANNING ECONOMIC DEVELOPMENT URBAN DESIGN WWW.PGAVPLANNERS.COM 24

theReview March/April 2022

Cost Declining The cost of installing solar panels has decreased over the last 10 years. Despite the global COVID-19 pandemic, U.S shipments of solar photovoltaic (PV) modules (also referred to as solar panels) reached a record high of 21.8 million peak kilowatts (kW) in 2020, 5.4 million peak kW more than in 2019. Although the supply chain for PV module components was disrupted a few times in 2020, the cost of PV modules has declined significantly since 2010, helping drive the growth of solar PV module shipments. The average value (a proxy for price) of solar shipments decreased from $1.96 per peak watt in 2010 to 38 cents per peak watt in 2020. Lower supply chain costs and an oversupply of modules because of increased production are largely responsible for the declines in the average value of solar PV modules over the past decade. (see Figures 2 and 3)

Figure 22

How Does Solar Panel Installations Impact Local Government?

Net metering will reduce a customer’s overall electric bill, thus reducing the amount of sales tax collected based on usage. In the example provided in Ameren’s "Understanding Your Net Metering" fact sheet, the customer sees about a $4 reduction in their monthly taxes on their utility bill, or around $50 per year (see Figure 4).

Figure 44

The impact to electric utility taxes on a municipality’s taxes may seem relatively small based on the residential customer example, but consider your local businesses, and the impact their use of solar energy would have on the city’s tax income.

The Solar Energy Installation Association’s (SEIA) “Solar Means Business” report of 2019 lists Walmart, Target and IKEA among the top 10 companies adding solar installations.

Currently the top two businesses with onsite solar installations are in the St. Louis metro area, with IKEA and AnheuserBusch combining for 1.4 MW of tracked commercial solar capacity5.

The current commercial solar capacity is set to increase, however, based on corporate goals from businesses like Walmart. One of Walmart’s corporate goals is “Harvesting enough wind, solar and other renewable energy sources to power its facilities with 100% renewable energy by 2035.”6

Planning And Zoning Issues

Figure 33

The Solar Energy Installers Association (SEIA) shows in its state solar spotlight for Missouri that Missouri currently has 361.6 megawatts (MW) of solar installations. SEIA estimates growth of an additional 937 MW over the next five years. (see diagram below) Information from SEIA.org/State Solar Spotlight: Missouri

As onsite solar installations continue to increase in popularity, municipalities may want to include solar regulation in city codes. Failure to include solar regulatory language in planning and zoning regulations may leave the local government and the business/homeowner vulnerable to installations that impose on neighbors and neighborhoods.

As zoning codes are being written, keep in mind that in Missouri, the issue of by-right solar PV is covered by state statute. Solar energy is a property right with a unique twist, eminent domain is restricted. Section 442.012 (RSMo 1979).

The right to utilize solar energy is a property right but eminent domain may not be used to obtain such property right. Solar easements shall include, but not be limited to: The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement and any terms or conditions or both under which the solar easement is granted or will be terminated. Easements for solar light shall be considered a negative easement and cannot be acquired by prescription but must be negotiated expressly.

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Now is the time to build.

Missouri’s municipalities and utilities are reevaluating capital improvement plans to advance critical infrastructure projects. Combining today’s financial backing with design‑build delivery makes now an opportune time to pursue your projects. To learn how to capitalize on the opportunities, listen to our webinar at burnsmcd.com/MML22022.

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Approaches to planning, zoning and development can have a very significant impact on solar energy growth. Factors such as aesthetics, height, special use or historic districts, setbacks and by-right solar PV all must be considered in planning and zoning codes. Planning resources are available at www.solsmart.org.7 SolSmart is a national program led by the International City/County Management Association and the Interstate Renewable Energy Council (IREC), along with a team of partners, including the National League of Cities, with deep expertise in solar energy and local governments.

The issue of moving some or all of building permitting processes to online has already been accomplished by some local governments. Allowing contractors to submit plans and pay fees online reduces the amount of staff time needed to collect plans and fees. If your entity has not yet provided an online permitting tool, the federal government is now offering assistance through SolarApp+ for solar panel installations.

Solar App+ was launched jointly by the National Renewable Energy Laboratory (NREL) and the United States Department of Energy to “streamline and automate rooftop solar permits,” according to the press release announcing the launch on July 15, 2021, by the Solar Energy Industries Association (SEIA).

The App is free for participating public entities, but there is a charge to the contractor, in addition to any local permit fees.

Curious about why the U.S. Department of Energy would create a national online permitting tool for solar permits when so many local governments already have online permitting processes in place?

The answer likely lies in the modified version of the American Energy Opportunity Act (S 2657). The original bill sustained an unsuccessful floor vote on Mar. 20, 2020.

However, a modified version of the bill was attached to the omnibus appropriations legislation for fiscal year 2021, was passed by Congress on Dec. 21 and signed by President Trump Dec. 27, 2020. Senate amendment to H.R. 133 - United States-Mexico Economic Partnership Act [Consolidated Appropriations Act, 2021] contains Division Z – Energy Act of 2020 - Section 3004 – Solar Energy Research and Development - $300 million funding for FY21 through FY25.8 In short, funding is available for solar energy research and development at the federal level. In Missouri, 28 bills containing “solar energy” were introduced during the 2021 legislative session. Three of the 28 passed.9

Conclusion Solar panels offer benefits to homeowners and businesses and can be used by electric utilities as a way to decrease reliance

on fossil fuels. However, there are issues for municipalities to consider as customer-based solar panels continue to increase in popularity. These issues include managing zoning before issues arise and considering the potential reduction in tax revenue as more customers reduce their overall taxable energy use through net metering.

Allen Garner, a licensed attorney, is owner and principal at Allen Garner Law, LLC ,with a practice focused on local governments, nonprofit organizations, business transactions and personnel.

Previously, Mr. Garner served as the city attorney for Jefferson City and Independence, Missouri. Mr. Garner has served as a municipal judge, municipal prosecutor, assistant county prosecutor, member of the Missouri Municipal League Board of Directors, and as a member of several private boards.

Cheryl Tinsley, owner of Tinsley Risk Solutions, worked in the public sector risk management arena for 30 years. She has earned the Associate in Risk Management (ARM) certification from the Institutes, is an Accredited Business Communicator through the International Association of Business Communicators and is recognized by the American Water Works Association as a Water Utility Safety Manager.

She served on the board for the Missouri Self Insurers Association and is a past president of the Missouri chapter of PRIMA. Tinsley Risk Solutions helps companies and public entities solve risk challenges through practical solutions, coaching, training, and positive relationships. She earned a Bachelors’ degree from the University of Missouri-Kansas City, and a Master’s degree from Webster University, and is a part-time instructor at Kansas City’s Metropolitan Community College - Blue River Campus.

End Notes: Figure 1: www.paradisesolarenergy.com/blog/difference-between-offgrid-and-on-grid-solar-energy Figures 2 & 3: www.eia.gov, September 2, 2021 Figure 4: https://www.ameren.com/-/media/missouri-site/files/samplenet-metering-energy-statement.pdf 5

https://www.solarmeansbusiness.com

https://corporate.walmart.com/newsroom/2021/04/29/settingrecords-walmart-continues-moving-toward-becoming-a-totallyrenewable-business 6

7

www.solsmart.org

Division Z, the Energy Act of 2020, can be found on Page 3194 of 5593 of the Rules Committee Print 116–68 Text of The House Amendment to The Senate Amendment To H.R. 133 [Showing the text of the Consolidated Appropriations Act, 2021]. Section 3004 begins on page 3425.

8

9

https://legiscan.com/gaits/search?state=MO&keyword=solar+energy

www.mocities.com

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NEWS FROM THE BENCH

by Paul Rost and Lyndee Rodamaker

Filtering Social Media Comments And Blocking Commenter May Violate First Amendment After a jury trial, a federal judge in Arkans as has r uled t hat t he Arkansas State Police violated the First Amendment when it blocked an individual from and used a specific filter on its Facebook page.

In Tanner v. Ziegenhorn, et al., employees of the Arkansas State Police removed from its Facebook page comments made by a local critic, Tanner, that the State Police deemed offensive. Tanner complained and the comment was later re-added to the page by the State Police. Later, Tanner began sending the State Police’s Facebook page private messages that contained various criticisms and profanity, including phrases like “fascist pigs” and other fourletter words. The State Police warned Tanner that he would be blocked from the page if he continued to use profanity in the private messages. Ultimately, Tanner responded with another profanity-laced private message and the State Police blocked him from their Facebook page.

This resulted in all of Tanner’s previous comments on the public Facebook page being blocked from view, and blocked Tanner from interacting with the page completely. Tanner sued the State Police on the grounds that the blocking violated his First Amendment rights. During the trial, it was discovered that the State Police applied an added filter to scan comments for various words over and above Facebook’s own “community standards” filter. The State Police’s compiled list of words deemed offensive included “copper,” “pigs,” and “jerk” that if used on the Facebook page would result in the posting being blocked from 28

theReview March/April 2022

view. It was also discovered that the State Police had set Facebook’s community standards settings (guidelines and rules set by Facebook that users agree to upon signing up to use the service and are not controlled by individual users) on their Facebook page to “strong,” meaning that it would filter more words that could potentially be considered profane or offensive than it might if it were set to the “weak” or “medium” setting.

The court determined that while the State Police cannot necessarily control the profanity filter contained in Facebook’s community standards, the use of Facebook does not absolve the government of its First Amendment duties. The court suggested that the agencies decision to set the setting to “strong” may be filtering too much speech, and therefore not sufficiently tailored to be in compliance with the

First Amendment. It recommended a setting to “weak” or turning the profanity filter off altogether and supplementing with specific, profane words to block.

The court further determined that the agency’s separate list of terms such as “copper,” “pig,” and “jerk” went awry of the First Amendment because the list included no context and could be blocking speech that is not otherwise offensive. The court further said that the term “jerk” is hardly offensive and should never be blocked.

This case is just another example of why local governments using social media, like Facebook, should consider all ramifications of implementing such a “two-way” avenue of communication.

If a municipality does use Facebook, it may want to review the page settings to ensure that filtering devices are not unintentionally blocking protected speech of persons wanting to comment on the municipality’s page. Additionally, a municipality should ensure that an adequate social media policy is in place.

Consult with your city attorney if you have any questions.

Paul Rost is a founding principal with Cunningham, Vogel and Rost, P.C. His principal practice involves land use and zoning issues along with other matters affecting municipalities and other governmental entities.

Learn more at www.municipalfirm.com.

Lyndee J. Rodamaker is an associate attorney with Cunningham, Vogel & Rost, P.C. She represents the firm's municipal clients in land use law and general municipal issues.

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FAQ: Lead And Copper Rule Revisions

by Ramona Huckstep, Jeff Biberdorf and Sara Pringer

The following are responses to frequently asked questions.

The answers are not intended as legal advice and are not a substitute for consulting with your legal counsel.

According to a national report, Missouri has among the highest number of lead pipes in the nation. The Natural Resources Defense Council estimates there are at least 330,000 lead pipes supplying tap water into Missouri homes and other buildings - the sixth highest of any state. More durable and flexible than iron, lead was often the material of choice for water pipes, particularly in the early 1900s. Some cities, such as Chicago, even took it a step further and mandated the use of lead pipes in building codes. Though the federal government banned lead pipes more than 30 years ago, many water systems and utilities have yet to replace them.

Lead is a powerful toxin with wide-ranging, often insidious effects on human health. Even in small quantities, it can cause heart and kidney disease, fetal miscarriages and premature birth. In children, lead exposure can permanently damage the brain and nervous system and lead to behavioral problems.

According to the National Resources Defense Council, many cities have adjusted their water pH or added special anticorrosion chemicals to keep lead from leaching into the water. Unfortunately, changes in water chemistry or physical disturbances to pipes during construction can release lead in drinking water.

“As long as you have that lead pipe in the ground, it is essentially a ticking time bomb; it is going to go off at some point,” staff with the National Resources Defense Council stated.

However, it will all be changing in the next several years. On Dec. 16, 2021, the U.S. Environmental Protection Agency (EPA) announced that the Lead and Copper Rule Revisions will go into effect to support the development of actions to reduce lead in drinking water. Due to these new regulations, water utilities will be required to report information on their lead service lines, both on the public and private side. These reports, known as lead service line inventories, will need to be submitted by the compliance deadline of Oct. 16, 2024.

What is a Lead Service Line?

According to the EPA definition, “Lead service line means a service line made of lead that connects the water main to the buying inlet. A lead service line may be owned by the water system, owned by the property owner, or both. For the purpose of this subpart, a galvanized service line is considered a lead service line if it ever was or is currently downstream of any lead service line or service line of unknown material.”

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What if my municipality does not have lead service lines?

Due to the new requirements, regardless if your municipality does not have lead service lines, you will still be required to create and validate a lead service line inventory.

What are some key changes included in the Lead and Copper Rule Revisions?

1. Lead Service Line Inventory: • Utilities must compile and manage an inventory of public and private portions of all service lines within their service area by 2024.

• Submission recurrence is now based on a system’s monitoring compliance schedule and the first inventory must be submitted within three years (or otherwise prove you do not have lead service lines).

• Inventories must be made publicly available, and each customer serviced by a lead service line or a line with unknown material must be notified annually.

2. Water Sampling: • A first- and fifth-liter draw and analysis for any home served by a lead service line is now required.

• The Tier List will be based on the lead and service line inventory and all Tier 1 samples must be collected from any home served by a lead service line.

• A new “find and fix” provision requires a second look at homes with high lead levels.

3. Testing for Schools and Childcare Facilities • Utilities must sample 20% of elementary schools and 20% of all childcare facilities in the service area each year.

• Secondary school sampling must also be provided, when requested.

• Results and public education must be provided to each sampled facility, primary agency and health department.

4. Public Communication • Any customer with an individual sample result greater than 15 parts per billion must be notified within 72 hours.

• After all monitoring round samples are in, consumers must be notified within 24 hours if the 90th percentile levels are greater than 15 parts per billion.

• Lead service line inventory information must be made public and included in the Consumer Confidence Report.

• Systems must provide public education materials when doing mandatory lead service line replacement • With municipal populations over 50,000, the data must be available online. With municipal populations under 50,000, the data must be available upon request.

What other changes are proposed related to the Lead and Copper Rule Revisions?

The EPA will announce details of the Lead and Copper Rule Improvements before the Oct. 16, 2024, compliance deadline, that will entail changes to the following rule aspects: • Lead service line replacement plans.

• Compliance tap sampling protocols.

• Action and trigger levels.

• Prioritizing historically underserved communities.

How will these lead and copper projects be funded?

Projects such as line inventories and line replacement, can be funded under the Bipartisan Infrastructure Law (BIL).

The law reauthorizes the Drinking Water State Revolving Fund capitalization grant allotment and expands the Drinking Water State Revolving Fund program with three new sources of supplemental funding in Federal Fiscal Years (FFY) 2022 through 2026. Missouri’s estimated Drinking Water State Revolving Fund allotment over the next five years is approximately $689 million. These funds will be split as follows for various uses: • Drinking Water State Revolving Fund base program – FFY 2022 through 2026, approximately $174 million (approximately $28,520,386 for FFY 2022) • Drinking Water State Revolving Fund supplemental – FFY 2022 through 2026, approximately $197 million (approximately $31,654,000 FFY 2022) • Drinking Water State Revolving Fund Lead Service Line Replacement – FFY 2022 through 2026, approximately $251 million (approximately $49,848,000 for FFY 2022) • Drinking Water State Revolving Fund Emerging Contaminants – FFY 2022 through 2026, approximately $67 million (approximately $13,293,000 for FFY 2022) Note: Water systems that wish to take advantage of this funding for lead service line revisions must complete their inventories by the Oct. 16, 2024, date to be eligible for the funding.

What are other available funding sources for water infrastructure (both clean water and drinking water)?

In addition to the Bipartisan Infrastructure Law, there are numerous other sources of funding to assist with infrastructure issues related to water. The Missouri Department of Natural Resources (MoDNR) provides subsidized loans and additional subsidization (grant and principal forgiveness loans) through the Clean Water and Drinking Water State Revolving Fund

programs. The EPA provides financing through the Water Infrastructure Finance and Innovation Act Program. The U.S. Department of Agriculture – Rural Development has funds available through various programs in their agency.

Community Development Block Grants administered through the Missouri Department of Economic Development (MoDeD) are another source of infrastructure funding.

The American Rescue Plan Act (ARPA) is the newest source of funding and $2.6 billion was allocated by the federal government to the state of Missouri, as well as funds that were allocated to each county and each municipality in the state. The Governor’s budget recommendation appropriates $310 million in State ARPA funds to invest in Missouri’s water infrastructure through community grant programs administered by MoDNR. If appropriated by the General Assembly, MoDNR will offer four grant programs; wastewater, drinking water, storm water and lead service line inventories.

Other state agencies are also awaiting the final decision by the legislature that hopefully will be made by mid-May and applications may be available by early summer of this year.

What should my municipality do first to come into compliance with the Lead and Copper Rule Revisions?

It is recommended that the first priority for a municipality that provides drinking water is to conduct an inventory of all water lines. Municipalities must develop a preliminary inventory of both public and private side service lines by the deadline.

The compliance date for initial service line inventories to be submitted to the Missouri Department of Natural Resources is Oct. 16, 2024.

The municipality will use this preliminary inventory to create a replacement plan for known or possible lead service lines. It is www.mocities.com

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theReview March/April 2022

What resources are available to help my municipality with Lead and Copper Rule Revisions and future updates?

d? nfiel

Brow d inate m a t Con ite?

S ed ndon Aba erty?

Prop nt pme o l e ev Red tential?

Po ...

If so

It is recommended that municipalities keep a watchful eye for additional information on the Lead and Copper Rule Revisions and Improvements on the EPA website. With regard to funding opportunities with the state of Missouri it is suggested to review the Office of Administration ARPA Toolkit at https:// oa2.mo.gov/ARPAtoolkits.

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Do not forget to check the Missouri Municipal League’s resources including a weekly newsletter called “The MML Weekly Voice"; the League’s website, www.mocities.com, that has related information on the One Stop, as well as specific pages on ARPA and grants; and webinars on topics associated with funding and environmental issues.

Ramona Huckstep, policy and membership associate, MML

recommended that inventories detail the following public and private information for a service line inventory that will stand the test of time and protect public health, per the Federal Code of Regulations 40 CFR 141.84(a)(4): • Lead.

• Galvanized Requiring Replacement.

• Non-lead.

• Lead Status Unknown.

Note: Lead pipes (that are not lead service lines), fittings and copper pipe with lead solder are considered premise plumbing (in home) and are not regulated for removal by the Lead and Copper Rule Revisions. Lead service lines and galvanized requiring replacement are regulated for removal by the Lead and Copper Rule Revisions.

Jeff Biberdorf, partnerships account manager, 120Water, 120water.com Sara Pringer, director, Water Protection Program’s Financial Assistance Center, Missouri Department of Natural Resources References Cites: Biberdorf, Jeff. Partnerships Account Manager, 120water.com, Lead and Copper Rule Revisions (presentation), Feb. 2022 National League of Cities, Lead and Copper Rule: What Cities Need to Know (presentation), March 2021 McKelvey School of Engineering, Missouri Has Hundreds Of Thousands Of Lead Pipes, Among The Highest In The U.S., July 26, 2021.

Pringer, Sara. Sara Pringer, Director, Water Protection Program’s Financial Assistance Center, Missouri Department of Natural Resources.

Feb. 2022.

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33

LOCAL GOVERNMENT Review

MML Legislative Conference Nearly 250 municipal officials and staff attended the 2022 MML Legislative Conference Feb. 15-16, 2022, in Jefferson City. Attendees had a full agenda. Representative Bill Falkner, chair of the House Local Government Committee and former Missouri Municipal League board member, spoke about current local government issues. Representative Louis Riggs provided an update on Missouri broadband initiatives, and attendees then spent the afternoon at the Missouri State Capitol visiting with their state legislators.

On Wednesday, Governor Mike Parson shared his appreciation for the important work of local officials.

Representative Doug Richey also covered the latest developments regarding federal stimulus funding.

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.

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theReview March/April 2022

www.mocities.com

35

LOCAL GOVERNMENT Review

MML Appoints Sedalia Council Member Tom Oldham To Board Of Directors The Missouri Municipal League appointed Tom Oldham, council member with the city of Sedalia, to the MML Board of Directors at the most recent board meeting last week in Jefferson City. He was appointed to fill a board vacancy.

Oldham was elected to the city council in 2020. He serves as an active member of MML’s Economic Development and Human Resources Policy Committee and as the secretary of MML’s Central Region.

He is a member of the Lions Club, Kiwanis Club and Missouri Cattleman’s Association. Within the city council, he serves as chairman of public works, and member of the Whiteman Air Force Base Community Council, Military Affairs Committee and Missouri MainStreet Organization.

Tom is recently married to his wife Kali.

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MML and the Municipal League of Metro St. Louis have produced a Use Tax Campaign Toolkit for cities seeking to put the Use Tax on an upcoming ballot. The information is designed to assist municipal officials and community groups in their effort in passing a local use tax.

Learn more about materials for Prop. U:

www.mocities.com 36

theReview March/April 2022

Thank You To The 2022 MML Business Advantage Program Sponsors PLATINUM SPONSORS Burns & McDonnell NLC Service Line Warranty Program by HomeServe Missouri American Water

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MEMBER News & Notes MML Calendar of Events March 2022 6-9 �����National League of Cities Congressional City Conference, Washington, D.C. 14-18 �����Legislative Recess

April 2022 5 �����General Municipal Election Day 26-29 �����Heartland Economic Development Course

May 2022 1-7 �����Missouri Local Government Week 4-6 �����MCMA Annual Spring Conference, Lake of the Ozarks 9 �����Truman Day, Observed (MML Office Closed) 13 �����Last Day of Missouri Legislative Session

June 2022 9-10 �����MML Elected Officials Training Conference, Columbia, Missouri 16 �����MML Policy Committee Meetings, Columbia, Missouri

July 2022 15-17 �����MMAA Summer Seminar, Osage Beach, Missouri

August 2022 2 �����Primary Election Day 4 �����MML Resolutions Committee Policy Meeting, Jefferson City, Missouri

September 2022 11-14 �����MML Annual Conference, Osage Beach, Missouri Find more events and details on www.mocities.com and in the MML monthly e-newsletter.

2021-2022 Directory of Missouri Municipal Officials Free Download to Members

EXPAND YOUR HORIZON MML’s Municipal Governance Institute rewards your commitment to learning new skills and abilities in the local government field.

Learn how to become a

www.mocities.com 38

theReview March/April 2022

NEW! An Advanced MGI program is now available, offering custom-crafted modules with increased challenges and rewards.

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