MML Review Magazine, September/October 2020 Issue

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

September/October 2020

Cybersecurity Lessons: Keep Your City Protected

Public Safety | Supreme101 Court Preview | 2020• Annual Innovation Awardwww.mocities.com Winners Municipal Government • Positive Policing Conference Photos

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theReview September/October 2020

THE MISSOURI MUNICIPAL

September/October 2020; Volume 85, No. 5

CONTENTS Features 6 Cybersecurity Lessons: Keep Your City Protected

by Scott Meyer

6

10 Public Safety: What City Officials Need To Know

by Kelly St. John and Jeremy Cover 15

Supreme Court Preview For Local Governments 2020-21

by Lisa Soronen

18 FAQ: Notice And Publication

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by Kendall Reeves and Mike Vangel

23 FAQ: COVID-19

by Allen Garner, Ivan Schraeder, James Hetlage, Julie Devine and MML Staff

25 2020 City Fiscal Conditions Report

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 Dan Ross, Richard Sheets, Lori Noe Contributing Editors GRAPHIC DESIGN Rhonda Miller

27 News From The Bench: Gross v.

The Review September/October 2020; Volume 85, No. 5 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.

Parson, et al.

by Kenneth Heinz

Departments 5 Director's Review

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*Past President

by Christiana McFarland and Jasmine Smith

MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS President: Debra Hickey, Mayor, Battlefield: Vice President: Chuck Caverly, Council Member, Maryland Heights; Damien Boley, Mayor, Smithville; Paul Campo, Attorney, Williams and Campo, PC; Bryant Delong, Council Member, North Kansas City; Michele DeShay, Mayor, Moline Acres; Joe Garritano, Council Member, Wildwood; DJ Gehrt, City Administrator, Platte City; Barry Glantz, Mayor, Creve Coeur; Dwaine Hahs, Mayor, Jackson; Heather Hall, Councilwoman, Kansas City; *Chris Lievsay, Council Member, Blue Springs; *Norman McCourt, Mayor, Black Jack; Marcella McCoy, Finance Director, Harrisonville; Len Pagano, Mayor, St. Peters; Cindy Pool, Council Member, Ellisville; *Kathy Rose, Mayor, Riverside; *Carson Ross, Mayor, Blue Springs; Samuel Snider, Alderman, Willard; *Gerry Welch, Mayor, Webster Groves; Jeanie Woerner, City Clerk, Raymore; Jeana Woods, City Administrator, Osage Beach

32 Local Government Review: 2020 Elected Officials Training Conference

34 Local Government Review: 2020 Innovation Award Winners

37 Member News 38 MML Calendar Of Events

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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.

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theReview September/October 2020

8/24/20 1:48 PM

Director's Review

by Dan Ross, Executive Director, Missouri Municipal League

A Year Of Firsts As 2020 continues to unfold you must wonder what other challenges and opportunities will impact our world, our country and our cities this year. Who could have forecasted the immediate and prolonged effect and threat that an unseen infectious virus from the other side of the globe could unleash on so many people in a short few months?

The ongoing loss of human life attributed to COVID-19 or the more prevalent flu varieties is significant. We all probably know of someone who suffered or died from these illnesses. The municipal response to these threats is born out of necessity to reduce costs and reallocate resources to provide priority services. While the impact on municipal resources varies by city in 2020, it appears cities, towns and villages will soon be heading into year two with ongoing revenue shortfalls and reduced or depleted reserves.

"

The year 2020 is a game changer in so many ways and there are still three months left.

What has not changed is that cities need resources and tools to operate and citizens need essential city services to be safe and healthy.

"

CARES Act funds have generally been held up at the county level for several months; unavailable to most cities until just recently. There is also a very limited scope for the use of the funds and the Dec. 31, 2020, deadline to expend them. It adds up to be a too-little, too-late lost opportunity to really help municipalities carrying the load of keeping this country running during the pandemic. CARES Act funding amounts to putting a band-aid on a serious wound.

MML and other state municipal leagues have been working with the National League of Cities on a Cities Are Essential campaign seeking flexible, direct funding to cities to address the very real and ongoing budget problems that have necessitated layoffs, furloughs, program and service cuts. The U.S. House and Senate appear to be deadlocked with competing and quite different funding bills. Unfortunately, funding for local government is caught in the middle of the standoff. It does not help that a presidential election looms and the battle lines are drawn. We, with your assistance, will continue to press our representatives and senators for their vote to provide flexible, direct funding for cities of all sizes in order to restore budgets and municipal jobs lost due to the COVID-19 pandemic.

The MML office has been closed to the public since March and MML staff have been alternating working from home and the office to provide the news and information you need to manage your city.

In a year of many other firsts, due to the threat of COVID-19 infection, I decided to change from our 86-year history of in-person annual conferences to a virtual conference format. This represents a significant change and a lot of work for MML staff, as well as changes for presenters, exhibitors and sponsors. We know this necessary change is a new direction for you as well. Together, we will navigate this new experience.

All indications are that the number of virtual conferences and meetings will grow but not permanently replace in-person events.

Significantly reduced travel, lodging and conference registration costs, combined with the ability to view the presentations on your schedule, will become part of the new normal for all of us.

The year 2020 is a game changer in so many ways and there are still three months left. What has not changed is that cities need resources and tools to operate and citizens need essential city services to be safe and healthy. MML and other state municipal leagues will continue to advocate for the much-needed resources. Thanks for all you do and please contact MML with any questions or concerns you might have. www.mocities.com

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FEATURE Review

by Scott Meyer, City Administrator, Cape Girardeau

Cybersecurity Lessons: Keep Your City Protected

As I prepared for the Martin Luther King holiday weekend, I looked forward to some time to stay in town, take in some of the MLK Celebration events, and rest. It had been a mild winter thus far, so I was thankful for the good fortune that might keep the city of Cape Girardeau from dipping into our contingency for snow and ice materials, and overtime hours for this fiscal year.

No one had a clue just how different and difficult 2020 was going to be, and the upside-down of 2020 started earlier than most.

The first clue that something was wrong was when my city account email stopped receiving emails. The next day our finance director notified me it was more serious, and by the end of that day, we were setting up an Emergency Operations Center (EOC) meeting to update key city officials and staff and set a course of action.

What we knew in the early hours after discovery of the problem was: • Our email system was down.

• Our phone system was not affected.

• Network files were inaccessible due to encryption.

• Files stored on individual computers were not affected • Data on some of the network storage device(s) was erased.

• Nothing on the servers was accessible including utility billing, accounting, licensing, permitting, cashiering, GIS and court software, as well as all daily working files for most departments.

Cloud based software and data was 6

theReview September/October 2020

still in place, including 911, e-ticketing, body camera recordings, parks and rec software, etc.

A cyberattack was suspected, and we were concerned that a server was taken down and destroyed. We soon found out it was an attack and ransom was demanded. Our data stores were encrypted by RYUK Ransomware, and hackers, through some type of password keylogger, acquired many of our administrators’ passwords and deleted all of the data from some of the city-owned network storage device(s).

Staff moved on several fronts: • Contacted FBI and its cyberattack unit.

• Contacted the insurance company for our cyber insurance.

• Developed a plan to keep up our business processes and continue serving customers.

1. Set up Gmail accounts that mirrored our city accounts.

2. Published cell phone options to reach city offices.

3. Began to work on utility billing and set up processes to accept money and credit card payments, as well as cut checks to pay vendors.

Fortunately, staff had just gone to an off-site, time-keeping and payroll system that meant our employees would be paid.

The FBI agent gave staff the authority to tell the public that the City had involved them and were taking the attack seriously. The FBI also provided statistics to share with our citizens.

• About 200 public agencies are attacked each year, almost one every other day.

• Most attackers are never caught.

Attackers are very sophisticated and helpful to the “client,” even to the point of having a “help desk” to get data unencrypted should there be an issue.

This cyberattack was a true emergency, one that required tapping into all redundant and backup systems to keep the City running, and to rely on our city experts. The insurance company took the lead in the City’s response. It was critical to not do anything that would jeopardize our coverage.

At first, daily meetings were held to work t hroug h problems and develop communication strategies, both internally and externally. It was important to manage and coordinate all messaging with the insurance company.

The early message was that it was an IT issue, but quickly migrated to a cybercrime that could not be discussed due to the FBI investigation, and then to a more vague description of a cyberattack that included a ransom. At the direction of the insurance carrier, the City did not disclose the amount of ransom paid.

The insurance company set up a negotiation team and arranged for the ransom payment. An IT consultant was assigned and arrived quickly to assess and diagnose the system and develop a plan to bring all systems back online.

Forensics testing was completed to determine how the breach occurred, how to prevent it from occurring again, and to determine if the City was negligent in any way.

As staff began to set services in place using redundant methods and developing new ways to work and communicate with customers, staff provided grace periods to utility customers and developed alternate processes to conduct city business.

• Suspended utility disconnects and late fees.

• Extended license renewal periods.

• Waived credit card fees and encouraged customers to use this method of payment.

• Handwrote accounts payable checks.

By the second week of February, the de-encryption key was received, and the process began to “clean” the servers and restore the backups. This took about five to six weeks. Unfortunately, our digital plan review software and data were lost as the hackers deleted the storage unit, and the backup storage unit that hosted the application. This system is now being rebuilt from the ground up.

Our basic order of server and file restoration was: • Munis Server: including finance, accounting, cashiering/bill pay, utility billing, licensing and permitting.

• Email • Server files (daily working files): police, parks and public works • Engineering and GIS

Insurance Consultant Forensics: The consultant found only a few clicks on phishing emails. The hacker was rather sophisticated — got in our

system, snooped — and gained access to server passwords. The hacker not only encrypted files, but also took down servers that caused several longer-term problems. The consultant used a software that quickly found the ransomware. While the City did have malware installed on all systems, the ransomware was undetected. Hackers write virus code faster than malware can write definitions to catch it. Our IT Manager then worked directly with our own consultant to finish rebuilding servers and develop a comprehensive strategy to address the weaknesses: • Discontinued use of Malwarebytes and Symantec as they were ineffective in stopping the attack.

• Installed Falcon by Crowdstrike that was approved by our cyber expert for hacker detection.

• Installed Cisco Umbrella client to block endpoints from accessing known bad websites that could spread a virus.

• Installed internal firewalls to add another layer of server protection.

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Required new sophisticated password protocol with multifactor authentication for 1. Administrative privileged access 2. Remote access all users 3. Remote email access all users Purchased additional backup storage to provide redundant backups and additional protection of data.

Moved several servers to off-site hosting in a secure data center to handle the ongoing increase in storage needs.

Increased training for end users.

Insurance Renewal Because of the improvements made, and after several meetings and sharing of information, our insurance policy was renewed for next year. This was received as good news from the City’s insurance broker, given the recent volatility in the public entity cyber insurance marketplace. If the City had to seek coverage alternatives with other carriers, the options would not have been favorable from a pricing or coverage standpoint considering the ongoing claim.

Lessons Learned •

•

Buy cyberattack insurance. It is a good resource and provides more than financial help, including expertise in navigating the attack response.

Stay involved in the negotiation even though you may not be in it. In the end, the insurance company requested us to sign off on the amount to be paid,

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theReview September/October 2020

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we agreed to their assessment that the negotiated amount was the best way to fix our issue, and we supported them by paying that amount under the terms of our policy. It was a tightrope to walk, but something similar was needed to protect the City and make the insurance company comfortable.

• Bit Coin is a thing. Because of the ease of transactions between pseudonymous addresses and cryptocurrencies, it is especially attractive to criminals who both exploit technological vulnerabilities and prefer to move funds through these transaction networks to avoid detection by law enforcement.

• B an k i ng rel at i onsh ip s are important (manual check writing, cash flow etc.)

• Have backup processes in place for computerized services.

• Look into getting key processes off site and/or cloud based.

It took an extended amount of time to get our utility accounts back in order, and utilities have not been disconnected since the time of the attack, also partly due to COVID. We will be faced with approximately 1,500 of 17,000 accounts being disconnected for non-payment.

Costs Insurance deductible - $25,000 New virus software on every computer and system - $23,000. The new anti-virus software was at a comparable cost as we had experienced prior.

Cloud storage - $180,000 for three years of service.

Re-installation and configuration of plan review software not able to be restored - $22,725 TOTAL = $250,725 For tu nately, t he C it y ha d an emergency reserve fund used to cover these expenses.

Impact On Budget Preparation There was still a lot of data that remained inaccessible in March and April that made it very difficult to prepare the budget in the same way we had in years past. We had to design a

different way to put our budget together and make projections. Once COVID-19 hit, many of the numbers became irrelevant. In some ways, it was a good thing because we were able to get a jump on looking at ways to address the budget in a new light.

Conclusions • • •

Have cyber insurance.

Be flexible, nimble and pragmatic when looking for ways to provide continuity of service.

Do not jump to a solution – several times the biggest (most expensive) solution proved to be unnecessary, i.e. moving everything to the cloud, or hosted solutions. When we worked through our backups, we were able to restore and get back most everything. Our bank was able to electronically pay vendors and issued us some checks to hand write to get by.

•

• •

Work with the insurance company from day one. They have a lot to lose (and gain) by how the problem is resolved.

Be the first and best source of information. Tell what you can and tell why you cannot tell more.

See what you can do today to harden your IT systems to a potential cyberattack.

Scott Meyer has served as Cape Girardeau's city manager for 11 years. A lifelong public servant, he was also the director of facilities for Southeast Missouri State University and a district engineer for MODOT. He earned a Bachelor of Science degree in civil engineering from Missouri University of Science and Technology.

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FEATURE Review

by Kelly St. John and Jeremy Cover, Attorneys, Lauber Municipal Law, LLC

Public Safety:

What City Officials Need To Know

When discussing public safety issues within municipalities, there are often three fundamental categories: fire and emergency medical services, police and code enforcement.

All persons in these departments serve crucial roles in our cities. When city officials have a better understanding of certain aspects of public safety, it is a benefit to everyone.

Dedicated Revenue Sources For cities interested in establishing a dedicated revenue source for public safety, there are two sales taxes of which city officials should be aware.

Fire Protection Sales Tax The fire protection sales tax is available to cities and fire protection districts operating a fire department. Even though this sales tax is available to all cities that operate a fire department, it only applies to fire districts with identical boundaries to a city consisting of a population of at least 30,000, but not more than 35,000 residents, while being located in a first class county (except for St. Louis County).

If approved by the voters, a sales tax of up to one-half of one percent (increased from one-quarter of one percent as of July 2019) is imposed for fire protection purposes.1 As a dedicated revenue source for a vital municipal service, most fire protection sales taxes placed on the ballot are approved by the voters.

Public Safety Sales Tax Unlike the fire protection sales tax, the public safety sales tax is not currently available to all municipalities. For a city to have the ability to place this tax on the ballot, it must first 10

theReview September/October 2020

obtain special statutory permission via the Missouri State Legislature. When and if a city obtains the necessary statutory authorization to place a public safety sales tax on the ballot, it is then subject to approval by the voters. The public safety sales tax can be imposed for up to one half of one percent and utilized for expenditures such as equipment, employee salaries and benefits, and facilities for police, fire and emergency medical providers.

Police Reports And Sunshine Law Issues There are three types of police reports and each one is treated differently under the Sunshine Law, Missouri’s open records law found in Chapter 610 of the Missouri Revised Statutes. Arrest reports, incident reports and investigative reports all have separate and specific limitations when it comes to obtaining or closing them.

Arrest Reports An arrest report is defined as a “record of a law enforcement agency of an arrest and of any detention or confinement incident thereto together with a charge therefor.”2 While arrest is defined as the “actual restraint of the person of the defendant, whereby his or her submission to the custody of the officer, under authority of a warrant or otherwise for a criminal violation that results in the issuance of a summons or the person being booked.”3 Under the Sunshine Law, arrest reports are considered open records, unless the charge is dismissed or unless there are no charges filed within 30 days of the arrest. Also, when a person is charged with a crime and receives a suspended imposition of sentence, those records are considered open until probation is successfully completed.

Incident Reports Incident reports are records of a law enforcement agency consisting of information gathered due to an initial report of a crime.4 Incident reports contain the who, what, when and where related to a police contact.4 Incident reports are generally open and often only include the information specifically described in the statutory definition.5 Items such as phone numbers, addresses, etc., thatcan be included in an incident report, are not necessarily subject to disclosure.5 Even though incident reports are generally open, there are exceptions that can cause them to be closed to some extent. “Information that is reasonably likely to pose a clear and present danger to the safety of any victim, witness, undercover officer or other person,” information that would “jeopardize a criminal investigation, including records that would disclose the identity of a source wishing to remain confidential or a suspect not in custody,” or information that “would disclose techniques, procedures or guidelines for law enforcement investigations or prosecutions,” can be considered closed and the information redacted.6 Citizen complaints that are filed with a law enforcement agency involving an officer are considered to be incident reports.7 The complaint does not have to be about an alleged commission of a crime or about an accident, but it will still be considered an incident report and an open record.7 When reviewing a request for an incident report its important to consider the exceptions for accessing closed information,8 including information that should be open.9

Investigative Reports An investigative report is any record consisting of anything that has been associated with a law enforcement investigation.10 Investigative reports can include interviews, phone calls, documents, etc., and are closed until the investigation is inactive.11 Cities and law enforcement agencies have different ways of interpreting what it means for an investigation to be inactive.

Some agencies consider an investigation to be inactive when there is an arrest made, while other agencies consider an investigation inactive when a case has reached its final disposition in court. An investigation should be considered inactive, when no further action will be taken due to no charges being filed; the statute of limitations applying and charges can no longer be filed; or there is a finality of convictions of all persons involved.12

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City Marshal V. Police Chief Fourth class cities, by statute, have elected city marshals as their chief law enforcement officers.13 The main difference between a city marshal and police chief is that a city marshal is elected while a police chief is appointed.

Some cities that have an elected marshal might refer to that person as the police chief, even though they are technically a marshal.

As of 2013, when a city desires to remove a police chief, what is essentially an impeachment proceeding must occur prior to removal. The statute applies to “any nonelected chief law enforcement officer of any political subdivision.”14 (i.e., the statute is only applicable to police chiefs and not city marshals, who are elected). Although www.mocities.com

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Municipal Court Cities that utilize a municipal court can also issue citations for code violations. Citations can be issued in conjunction with or separately from the administrative process outlined above. Often a municipal prosecutor will dismiss a citation if it has been addressed in a timely manner, as compliance and abatement are typically more important to cities than punishing someone with a fine. Unfortunately, some property owners will ignore citations or just pay fines instead of addressing a violation; in these situations, cities will typically need to utilize the administrative process if they really want to enforce their codes and address the issue.

Missouri Sheriff’s Retirement Fund the statute lists various situations where just cause exists to remove a police chief (e.g., has been found to have violated any law, statute or ordinance that constitutes a felony), it does not contain less serious but more common circumstances, such as disagreements over policies, personnel decisions, etc. City officials should always consult with their legal counsel prior to taking any action to remove a police chief.

Code Enforcement Options Code enforcement that can be done administratively or through municipal court, is an important component of public safety.

Administrative When a city wants to address a code violation (e.g., an overgrown lawn), it will often send the property owner a notice informing them of the violation and what they need to do to correct it.

If the property owner does not correct the violation or request a hearing then the city may end up using city funds to address the issue and then sending a bill to the property owner (if a hearing is requested then it should be held prior to the city taking any further action). If the property owner ignores the bill or refuses to pay, then the city can file the bill as a lien against the property. While the administrative route can often be an effective way to address a code violation, it can also be expensive, as cities do not typically get reimbursed in a timely manner, if at all.

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In August of 2017, a lawsuit was filed in the Jackson County Circuit Court challenging the constitutionality of the assessment of certain court costs on municipal court cases, specifically the $3.00 surcharge added to tickets for the Missouri Sheriff ’s Retirement System, a retirement system for former Missouri sheriffs and their beneficiaries. Municipal courts, at one time, were exempt from collecting this fee, but that has since changed.

In March of 2020, the court found in favor of the Sheriff ’s Retirement System by concluding that to determine the appropriateness of the surcharge the expense needed to be reasonably related to the administration of justice. Even

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brownsmithwallace.com though sheriffs do not typically have a role in municipal courts, the court found that due to the variety of services provided, a “rational basis” existed “for the Missouri General Assembly to incentivize attracting and retaining more qualified individuals to become Missouri Sheriffs.”15 The plaintiffs have appealed the case to the Missouri Supreme Court.

Public safety is a fundamental component of the services provided by Missouri municipalities, no matter their size.

By becoming more aware of some of the issues and options associated with public safety personnel, city officials are in a better position to support them and their community.

This article is intended as an overview of certain public safety issues and should not be construed as legal advice. City officials should contact their legal counsel with any questions.

Kelly St. John is an attorney with Lauber Municipal Law, LLC, and practices in the areas of general municipal law, municipal prosecution, and litigation. Kelly serves as the city prosecutor for the city of Weston and as the assistant city attorney for multiple Missouri cities. Kelly can be reached at (816) 525-7881, or via email at kstjohn@laubermunicipal.com.

Jeremy Cover is a partner with Lauber Municipal Law, LLC, and practices in the areas of general municipal law, public safety issues, and economic development. Jeremy serves as the city attorney and city prosecutor for multiple Missouri cities. Jeremy can be reached at (816) 525-7881, or via email at jcover@laubermunicipal.com.

End Notes: 1

§321.242, RSMo

2

§610.100.1(2), RSMo

3

§610.100.1(1), RSMo

4

§610.100.1(4), RSMo

State ex rel. Goodman v. St. Louis Bd. of Police Com'rs, 181 S.W.3d 156, 159 (Mo.App. E.D. 2005)

5

6

§610.100.3, RSMo

State ex rel. City of Springfield v. Brown, 181 S.W.3d 219, 221 (Mo.App. S.D. 2005)

7

See §610.100.4, RSMo for how to access to closed information in an incident report

8

See §610.100.6, RSMo for how to open information in an incident report believed to be unlawfully closed 9

10

§610.100.1(5), RSMo

11

§610.100.2, RSMo

12

§610.100.1(3), RSMo

13

§79.050.1, RSMo

14

§106.273.1, RSMo

15

Daven Fowler et al. v. Mo. Sheriffs Retirement, SC98484

www.mocities.com

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Thank you to all Missouri local officials and municipal employees for your hard work and dedication during this challenging year!

We hope we can all meet together again soon!

14

theReview September/October 2020

FEATURE Review

by Lisa Soronen, State and Local Legal Center, Washington, D.C.

Supreme Court Preview 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.

As of mid-July, the Supreme Court’s 2020-2021 docket looks a little different than usual. It includes 10 cases the Court was supposed to decide in the 2019-2020 term but did not due to COVID-19.

This article discusses two of those cases, that were previously discussed in the SLLC’s Supreme Court Midterm article for local governments. Since that article was published, the Court has accepted two more cases of interest to local governments, also discussed in this article.

New Cases In Fulton v. City of Philadelphia* the Supreme Court will decide whether local

governments may refuse to contract with foster care agencies who will not work with gay couples.

The city of Philadelphia long contracted with Catholic Social Services (CSS) to place foster care children.

The City stopped doing so when it discovered CSS would not work with same-sex couples. Philadelphia requires all foster care agencies to follow its “fair practices” ordinance, that prohibits sexual orientation discrimination in public accommodations.

CSS claims the City violated the First Amendment by refusing to continue contracting with it because of its religious beliefs. The Third Circuit ruled in favor of the City.

The Supreme Court has interpreted the First Amendment’s Free Exercise Clause to forbid “government acts specifically designed to suppress religiously motivated practices or conduct.” But, per the Court in Employment Division v.

Smith (1990), individuals must comply with “valid and neutral law[s] of general applicability” regardless of their religious beliefs.

CSS first argues that Philadelphia’s “fair practices” ordinance is not applied to it neutrally. According to the Third Circuit, the test for neutrality is whether the City treated CSS “worse than it would have treated another organization that did not work with same-sex couples as foster parents but had different religious beliefs,” which the City did not do. www.mocities.com

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CSS has asked, and the Supreme Court has agreed, to reconsider the Court’s holding in Employment Division v. Smith.

CSS a ls o claims Phi ladelphia is requiring it to “adopt the City’s views about same-sex marriage and to affirm these views in its evaluations of prospective foster parents,” in violation of the First Amendment’s Free Speech Clause. The Third Circuit agreed that the City couldn’t condition contracting with CSS on it officially proclaiming support for same-sex marriage but it could condition contracting with CSS on refusing to work with same-sex couples.

The question the Supreme Court will decide in Uzuegbunam v. Preczewski* is whether the government changing a policy after a lawsuit has been filed renders the case moot if the plaintiff has only asked for nominal damages.

Georgia Gwinnett College students Chike Uzuegbunam and Joseph Bradford sued the college over its Freedom of Expression policy, that only allowed students to engage in expressive activities in two designated areas after getting

a permit. They sought an injunction preventing the college from enforcing its policy and nominal damages.

The college then changed the policy.

The Eleventh Circuit also agreed with the district court that the students’ claims for nominal damages do not keep this case alive because nominal damages would not “have a practical effect on the parties’ rights or obligations.” According to the Eleventh Circuit, circuit precedent held that nominal damages have no practical effect absent “a well-pled request for compensatory damages.”

Uzuegbunam and Bradford did not ask for compensatory damages.

Moved Cases

The district court concluded the students’ claims for injunctive relief were moot — Uzuegbunam’s because he graduated, and Bradford’s because the college changed its policy. Uzuegbunam and Bradford do not challenge these conclusions.

In City of Chicago, Illinois v. Fulton* the Supreme Court will decide whether a local government must return a vehicle impounded because of code violations immediately upon a debtor filing for bankruptcy.

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 turn over her vehicle; it refused.

Fulton claims the Bankruptcy Code’s “automatic stay” provision requires

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theReview September/October 2020

the City to immediately return her vehicles even though she did not pay her outstanding tickets. The Seventh Circuit agreed.

The “automatic stay” provision provides that a bankruptcy petition “operates as a stay, applicable to all entities, of … 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.” In a previous case, the Seventh Circuit concluded that “exercise control” includes holding onto an asset and that “exercise control” is not limited to “selling or otherwise destroying the asset.” So, the lower court reasoned in this case, the city of Chicago “exercised control” over Fulton’s car in violation of the automatic stay by not returning it after she filed the bankruptcy petition.

The Supreme Court has held that excessive force violates the Fourth Amendment’s prohibition against “unreasonable searches and seizures.”

The question in Torres v. Madrid* is whether police have “seized” someone they have used force against who has gotten away.

In this case, police officers approached Roxanne Torres thinking she may have been the person they intended to arrest.

At the time Torres was “tripping” from using meth for several days. She got inside a car and started the engine.

One of the officers repeatedly asked her to show her hands but could not see her clearly because the car had tinted windows. When Torres “heard the flicker of the car door” handle, she started to drive thinking she was being carjacked.

Torres drove at one of the officers who fired at Torres through the windshield.

The other officer shot at Torres as well to avoid being crushed between two cars, and to stop Torres from driving toward the other officer. Torres was shot twice.

After she hit another car, she got out of the car she was driving and laid on the ground attempting to “surrender” to the “carjackers.” She asked a bystander to call the police, but left the scene because she had an outstanding warrant. She then stole a different car, drove 75 miles, and checked into a hospital.

The Tenth Circuit found no excessive force in this case because Torres was not successfully “seized” under the

Fourth Amendment. In a previous case the Tenth Circuit held that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.”

Conclusion COVID-19 isn’t going to slow the Supreme Court down next term. It is likely that the Court will not hold in-person oral arguments when next term begins on October 5. Instead, the Court will likely continue holding oral arguments using live audio open to the public. This format was very popular when the Court used it to hear 10 cases last May. The big question for the Supreme Court and Americans is whether the Court will continue to offer live arguments available to the public when the pandemic is over.

Lisa Soronen is the executive director of the State and Local Legal Center (SLLC). Prior to joining the SLLC, Ms. Soronen worked for the National School Boards Association, the Wisconsin Association of School Boards, and clerked for the Wisconsin Court of Appeals.

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FAQ: Glad You Noticed! Notice And Publication

by Kendall M. Reeves and Mike Vangel, Cunningham, Vogel and Rost

This summary, and the examples provided herein, is intended for discussion purposes and to provide readers with useful guidance on the topics and issues covered. The contents of this article should not be considered exhaustive. It is also not intended to be, and should not be construed as, legal advice for a specific factual situation. Although we have made every effort to ensure the accuracy of the contents of this article, neither the authors nor Cunningham, Vogel & Rost, P.C. assumes any responsibility for any individual’s reliance on the information presented.

Sunshine Law, planning and zoning statutes, federal and state constitutional due process considerations, and other laws require political subdivisions to post public notices before taking certain actions. The timing, format, audience, method and content of the notice will vary depending on the circumstances.

Why is a public notice so important?

Public notices, and the hearings that frequently follow, provide an important function in governmental transparency and public participation. They also help protect the rights and interests of property owners or others who may be specifically impacted by a governmental decision, such as with a proposed zoning change to a neighboring property.

The Fourteenth Amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution prohibits depriving any person of property without due process of law.

“Procedural due process imposes constraints on governmental decisions that deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

Missouri law has held that “in order for the requirements of due process to be met, parties whose rights are to be affected must give notice and the opportunity to be heard.” City of Kansas City v. Jordan, 174 S.W.3d 25, 42 (Mo. App. W.D. 2005) (citing Fuentes v. Shevin, 407 U.S. 67, 80 (1972)). “It is the purpose of legal notices and advertisements to give notice of legal and public events and proceedings.” Press-Journal Pub. Co. v. St. Peters Courier-Post, 607 S.W.2d 453, 458 (Mo. App. E.D. 1980).

When is a municipality required to give public notice?

There are many different contexts in which a municipality is required to post or publish public notices. Examples include (but are not limited to): • Before holding a meeting (See § 610.020 RSMo); • Before adopting a zoning code (See § 89.070 RSMo) (Note that in contrast to amending an established zoning code, initial adoption of a zoning code requires a two-hearing process, involving separate public hearings before the municipality’s planning and zoning commission and its legislative body. See Moore v. City of Parkville, 156 S.W.3d 384, 390 (Mo. App. W.D. 2005); Murrell v. Wolff, 408 S.W. 842 (Mo. 1966)); 18

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• Before making any amendments to the zoning code (See § 89.050-060 RSMo); • Before annexation (See, § 71.015.1(3) RSMo); • Before abating any nuisance property or dangerous buildings (See, for example, § 67.410 RSMo. (dangerous buildings); §71.285 RSMo. (accumulation of weeds or trash)); • Before charging a special assessment (See, for example, §§ 67.461 – 67.463 (special assessments by neighborhood improvement districts)); • Before creating certain economic development districts or special taxing districts (See, for example, § 67.1431 RSMo (community improvement districts), or § 99.830 RSMo (tax increment financing redevelopment projects)); (See also §§ 67.800-860 providing additional notice requirements for nonresidents of a political subdivision who request notice relating to public works or improvements); and • Before setting the ad valorem property tax levy amounts (See § 67.110 RSMo).

It is important to check the relevant statute for details relating to the notice required (e.g., time and content) to be posted or published. For example, Sunshine Law provides that “[a]ll public governmental bodies shall give notice of the time, date and place of each meeting, and its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered” and that such notice “be given at least twenty-four (24) hours, exclusive of weekends and holidays when the facility is closed, prior to the commencement of any meeting of a governmental body.” (§ 610.020.1;2 RSMo) Amendments to the zoning code, however, will require additional, more strenuous notice requirements: “[a]t least fifteen (15) days notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality.” (§ 89.050 RSMo)

What if there is an emergency and the city needs to act too quickly to allow time for notice or publication?

In rare circumstances, a political subdivision may need to act quickly to address an emergency issue. See, for example, City of Kansas City v. Jordan, 174 S.W.3d 25 (Mo. App. W.D. 2005) (holding that when it was determined that a building “created an emergency situation or posed an imminent threat of harm to the public,” it was not a taking of private property for public

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specify that the property is to be vacated, if such be the case, reconditioned or removed, listing a reasonable time for commencement; and provide that such notice be served either by personal service or by certified mail, return receipt requested, but if service cannot be had by either of these modes of service, then service may be had by publication…”

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use or violation of due process that the City acted quickly to abate it before holding a public hearing).

(§ 67.410.3 RSMo)

What qualifies as a newspaper?

Section 493.050 provides that “[a]ll public advertisements and orders of publication required by law to be made and all legal publications affecting the title to real estate shall be published in some daily, triweekly, semiweekly or weekly newspaper of general circulation in the county where located.”

These circumstances tend to be very fact-specific and are not frequently upheld by courts. Municipalities should exercise this sparingly and cautiously so as not to violate any due process requirements or Sunshine Law provisions (for example, if an emergency requires a city council meeting to take place with less than a twenty-four (24) hour notice, the “nature of the good cause justifying that departure from the normal requirements shall be stated in the minutes”). (§ 610.020.4 RSMo) Additionally, in some contexts, there may be no such “emergency.” As mentioned above, § 89.050 RSMo requires at least a fifteen (15)-day notice of a public hearing to amend the zoning code; anything less is fatal.

To qualify, the newspaper must also:

When does notice have to be published in a newspaper?

Online publication, such as publishing in an online-only newspaper or on the municipality’s website, is not currently authorized as a substitute for legal publication or notice, although a political subdivision is certainly able to supplement and provide additional notice in this way. There have been several bills introduced in recent Missouri Legislature sessions that would allow for online publication (See, for example, HB 1966 (2020), SB 370 (2020); SB 268 (2019), SB 515 (2019), SB 580 (2018), HB 335 (2017), and SB 47 (2017)). However, thus far, none of these measures have made it far past the committee level.

Certain statutes require publication of notice in a newspaper.

For example, a city’s planning and zoning commission must provide notice of a public hearing to adopt a city plan at least 15 days before such hearing “in at least one newspaper having general circulation within the municipality.” § 89.360 RSMo; see also § 89.050 RSMo (required for zoning code amendments).

Others provide newspaper publication as an alternative option (See, for example, § 67.110.2 RSMo that requires the governing body of all political subdivisions of the state to hold at least one public hearing on the proposed rate of ad valorem taxes and requires notice of such hearing either be posted in three public places within the political subdivision or “published in at least one newspaper qualified under the state of Missouri of general circulation in the county within which all or the largest portion of the political subdivision is situated.”).

In other circumstances, publication in a newspaper may be required if a municipality is unable to ascertain the location or identity of the property owner. For example, the enabling statutes authorizing local governments to regulate, repair and demolish dangerous buildings require that the local government enact a dangerous buildings ordinance that includes, in part, the following:

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“[The ordinance must] (3) Provide for service of adequate notice of the declaration of nuisance, which notice shall

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• be admitted to the post office as periodicals class matter in the city of publication; • be published regularly and consecutively for a period of at least three years; and • have voluntary, bona fide subscribers (customers “who have agreed to pay a stated price for a subscription for a definite period of time”). (§ 493.050 RSMo)

What about online or digital publications?

What does it mean for a newspaper to be “of general circulation”?

The general statute applying to legal publications and notices requires the newspaper to be “of general circulation in the county where located” (See § 493.050 RSMo), but some statutes have more specific requirements (for example, notice of a public hearing about a planning commission’s adoption of a comprehensive plan for a city must be published “in at least one newspaper having general circulation within the municipality” (§ 89.360 RSMo)(emphasis added), and notices of public hearings relating to a tax increment finance district must be published “in a newspaper of general circulation in the proposed redevelopment area or redevelopment project area, as applicable.” (§ 99.830.2 RSMo) (emphasis added)).

Courts have not yet explicitly defined “general circulation,” though there is some interesting discussion, drawing from cases in other jurisdictions, in State ex rel. Reorganized School Dist. No. R-6 of Daviess County v. Holman, 275 S.W.2d 280, 282 (Mo. banc 1955):

"We have found no decision in this State defining a newspaper of ‘general circulation’. One of the leading cases from other jurisdictions is Burak v. Ditson, 209 Iowa 926, 229 N.W. 227, 228, 68 A.L.R. 538, 541, which has this to say on that subject: “A study of the decisions bearing on the question before us suggests the following criteria: First, that a newspaper of general circulation is not determined by the number of its subscribers, but by the diversity of its subscribers. Second, that, even though a newspaper is of particular interest to a particular class of persons, yet, if it contains news of a general character and interest to the community, although the news may be limited in amount, it qualifies as a newspaper of ‘general circulation.’” [Citing several cases from other states.] This case has been generally followed. [Citing several cases from other states]. In the case of State ex inf. Latham ex rel. Dawes v. Allen, Mo.Sup., 237 S.W.2d 489, 490, it was conceded that two newspapers having, respectively, fifty-one and forty-nine subscribers in one of the counties affected by a special school election were newspapers of general circulation in that area …"

Beyond Holman, courts have specified what “general circulation” is not, namely that it does not require the newspaper necessarily be published in the county (or municipality, etc.), but rather that it have a “sufficient nexus” to the county. Press-Journal Pub. Co. v. St. Peters Courier-Post, 607 S.W.2d 453, 457-458 (Mo. 1980).

What if a city is not sure whether a particular newspaper qualifies?

If unsure whether a newspaper meets the requirements, a

city may request the paper to provide a letter stating that they do comply. In first-class counties, cities may also petition the circuit court to issue an order approving a newspaper for notice publication. (§ 493.027 RSMo)

What do we do if there was an error or discrepancy in the notice, such as a mix-up in the date or day of a hearing?

While there is no statute or clear rule on what errors courts would not allow, courts seem to prefer clarity and accuracy.

For example, Missouri’s Supreme Court once held invalid a newspaper notice intended for William N. Woodruff, but printed toward “W. N. Woodwruff,” because “W.” was not a “universally known” abbreviation like “Wm.” See Woodruff v.

Bunker Culler Lumber Co., 146 S.W. 1162, 1164 (Mo. 1912). In another case, the same court held that a notice published in a German language newspaper, but printed in English, did not suffice. See Graham v. King, 50 Mo. 22 (Mo. 1872). In a different context, Missouri’s Supreme Court has held that where a trust deed required the trustee to give a 20-day notice before the estate sale, a clerical error in the publication (printing the correct date, but “Sunday” instead of “Monday”) rendered notice invalid until the mistake was corrected that only occurred 19 days before the sale. See Wolff v. Ward, 716 S.W. 161 (Mo. 1891).

Errors or deficiencies in the description of a public hearing can also prove problematic. In one case, a city gave notice of a city council meeting, describing their intent to “clarify and reaffirm” existing zoning laws, and to consider zoning amendments applicable to a described portion of the city.

At the meeting, they instead passed a zoning ordinance applicable to the entire city that the court invalidated, except as it applied to those areas specifically named in the notice.

The court wrote that “[i]t is, at least, not too much to ask that any ambiguity in the notice to the public of so important a change, which is the only notice that the public has, should be resolved against the notice.” State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 126 (Mo.App.1975) (quoting Palmer v. Mann, 201 N.Y.S. 525, 528 (N.Y. App. Div. 1923)). In other words: When in doubt, re-publish.

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Kendall M. Reeves is an associate with Cunningham, Vogel & Rost, P.C. in St. Louis, where she represents the firm’s municipal clients in land use law and general municipal issues.

Mike Vangel is a 2L at Washington University in St. Louis, and was a law clerk with Cunningham, Vogel & Rost in summer 2020.

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FAQ: COVID-19: Very Frequently Asked Questions

by Attorneys, Allen Garner, Ivan Schraeder, James Hetlage, Julie Devine and MML Staff Every workday your Missouri Municipal League staff answers dozens of questions on municipal issues. This column provides an opportunity to share some of the most frequently asked questions. The COVID-19 pandemic has been a top issue of discussion since March. Answers provided in this column were put together by League staff in consultation with attorneys: Allen Garner, Ivan Schraeder, James Hetlage, and Julie Devine. As with all legal matters, municipal officials are urged to consult their city attorney for guidance on the specific challenges faced by their municipality.

Can we require the public to wear masks when entering city hall?

The short answer is yes. The more detailed answer depends on how strict the city wants to be on enforcing this. Putting up a sign stating a requirement to wear masks is ok, and for most cities could be done with direction from top staff or the mayor. As with any city policy, enforcement should be fair and uniform. Consideration should be given to potential health accommodations for those who cannot wear a mask. A sign and verbal requests from staff may be enough to encourage most citizens to wear a mask. Cities considering stricter enforcement of mask rules are advised to consult their city attorney and would likely need to have council adopt an ordinance if fines are to be imposed as a penalty. Lastly, any city implementing such a mask requirement policy is reminded that if the public is expected to adhere to a policy it will behoove the city staff (and officials) to follow that policy just as strictly.

Can our city impose a citywide mask ordinance?

What steps are missouri cities taking to reduce the COVID-19 exposure risk for their workforce?

The COVID-19 pandemic is continuing to affect the way city hall and other city offices operate, from plexiglass at the utility clerk counter, to staggered work schedules, to virtual council meetings. Many cities are continuing to allow staff members that can work from home to do so. Some employees are able to do most of their job from home but may come in one or two days a week to take care of activities that absolutely require them to be at city hall. Other measures cities are taking to reduce exposure include using drop boxes for payments; offering incentives to encourage ACH (Automatic Clearing House) payments that come direct from the customer’s bank or online credit card payments; and using teleconference or video conference options for staff and other meetings. Most municipalities have imposed strong sanitization policies — not just staff and visitors with gloves and hand sanitizer but also doing deep cleans and considering installation of COVID-19 filters to HVAC systems.

So far St. Louis, Kansas City, Springfield, Columbia, North Kansas City and Branson have imposed local ordinances requiring citizens to wear masks when in public. Cities are encouraged to consult their local county health department regarding the need for enforcement at the municipal level. Mask ordinances have become very controversial and consulting the local city attorney regarding passage is advised. A Springfield area attorney has brought a lawsuit against Springfield’s mask ordinance. A decision in the case is still pending, although the judge recently refused to issue a temporary restraining order to stop enforcement. Home rule charter cities may have clearer authority for mask ordinances statutory cities should look to 77.350 RSMo.(3rd), RSMo 79.380 (4th) RSMo. 80.090 (Villages) for authority to address contagious diseases. www.mocities.com

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Can we require employees to have a COVID-19 test if we suspect they have been exposed?

There is no prohibition in any employment law or regulation that prohibits employers from requiring a negative test result for return to work for employees who may have exhibited symptoms or who have been exposed to COVID-19. However, the Missouri Department of Health and Senior Services (MoDHSS) and the Centers for Disease Control and Prevention (CDC) discourage solely relying on test results as a return-towork measure. Instead, consultation with the local health department about selfisolation and symptoms depending on the circumstances is encouraged.

What obligations does a city have under HIPPA to protect information about employees who test positive for COVID-19?

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The city has obligations under HIPAA to protect individualized employee health care information. However, there is no prohibition from reporting to the local health authority that the employer has employee(s) who have tested positive for COVID-19. The health authority will have protocols in place for handling these circumstances.

Is a city responsible for employees gossiping about a coworker who is on leave due to COVID-19?

The city has to keep COVID-19 health-related absences confidential, just as it would for any other health-related absences under HIPAA. What staff think or believe on their own is not the employer’s problems so long as the employer and its agents make no disclosures.

Is the paid leave requirement of the new federal EPSLA triggered when a city requires employees to self-quarantine following travel to a COVID-19 hot spot or for other reasons, including when the city’s standard is more strict than the local county health department?

The federal Families First Coronavirus Response Act (FFCRA) provides employees with up to two weeks of paid sick leave under what is termed the Emergency Paid Sick Leave Act (EPSLA). Paid leave is to be provided under six specific categories. The first is when the leave is required because “The employee is subject to a federal, state or local 24

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quarantine or isolation order related to COVID-19.” The attorneys who wrote the article in the MML Review Magazine, May/June issue, titled “Families First Coronavirus Response Act: What Municipalities Need to Know,” suggest that because the individual is employed by a city and thus the order to self-quarantine is a local order to quarantine or isolate due to COVID-19, the leave qualifies as paid leave under EPSLA. Cities are encouraged to consult their city attorney or employment counsel for compliance issues regarding the FFCRA.

Is there any federal reimbursement available to cover COVID-19-related sick leave?

Municipal governments were left out of the tax credit program that does allow for reimbursement of employees who miss work due to COVID-19 related issues. CAREs funding can be used to cover the costs of paid sick and paid family and medical leave to public employees to enable compliance with COVID-19 public health precautions.

MML Resources: • MML Review Magazine, May/June issue • “Families First Coronavirus Response Act: What Municipalities Need to Know,” https://cdn.ymaws.com/mocities.siteym.com/resource/resmgr/may_review_ files/FFCRANeedtoKnow.pdf

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Families First Coronavirus Response Act:

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• MML Website: www.mocities.com, featuring a section on all COVID-19 FAQs, latest resources, links to state and federal actions, considerations by topic and more.

FEATURE Review

by Christiana McFarland and Jasmine Smith, National League of Cities

2020 City Fiscal Conditions Report: Financial Health Of America's Cities, Towns And Villages On The Brink

In its 35th year, NLC released the "2020 City Fiscal Condition Report " during a virtual release event with special guest and Chief Economist, Dr. Mark Zandi of Moody’s Analytics.

Findings in the report revealed that America’s cities are experiencing the fiscal consequences of this pandemicdownturn at an unprecedented speed – and like recent recessions, it will take years for municipal budgets to recover from the impact of COVID-19. This is the unfortunate reality that local leaders are facing from the coronavirus and the increasing revenue loss cities, towns and villages are facing.

Key takeaways from the report: • Nearly 90% of cities will be less able to meet the fiscal needs of their communities in fiscal year 2021 than in fiscal year 2020. We have

not seen a lack of fiscal capacity reported like this since the low point of the Great Recession.

• Budget estimates for 2020, that were collected only two months after the pandemic started, demonstrate the immediate impact the coronavirus had on sales and income revenues.

• All major local tax revenue sources slowed in fiscal year 2020, with severe year-over-year-declines in sales (-11%) and income tax (-3.4%) receipts, and on average, cities anticipate a 13% decline in fiscal year 2021 general fund revenues over fiscal year 2020.

As the event continued, Dr. Mark Zandi, shared his expertise that discussed the grave fiscal impact of the coronavirus pandemic on America’s cities, towns

and villages and the broader impact of local fiscal health on national economic recovery.

“Aid to state and local governments is a particularly efficacious way to support the economy … The single most effective way to support the economy, bottom line, the top of the list of things that lawmakers need to do for pandemic recovery … is providing that support to state and local governments. Without it, state and local governments will have to cut millions of jobs and make it very difficult to return to full employment.”

“That’s why we have the federal government … to step in and provide that necessary support to make sure things don’t evaporate. State and local governments are here because this is a catastrophic event. That narrative that we are bailing cities out is a false one.” www.mocities.com

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For full details and enrollment form visit:

www.mocities.com “This isn’t a problem in one part of the country. We’re not talking about an issue in New England or Southern California – it’s coast to coast. It doesn’t matter where you are, you got hit hard by this. Every city and state is struggling, some more than others, but every corner of the country is struggling with this and needs help.”

Concluding the "2020 City Fiscal Condition Report" release event, local leaders were committed to calling on Congress for direct federal funding for America’s hometowns to move the economy forward.

This blog post reprinted with permission from the National League of Cities. View post at https://citiesspeak.org/2020/08/14/2020city-fiscal-conditions-report-financial-healthof-americas-cities-towns-and-villages-onthe-brink/ Christiana McFarland is NLC’s research director.

She leads NLC’s efforts to transform city-level data into information that strengthens the capacity of city leaders and that raises awareness of challenges, trends and successes in cities.

Jasmine Smith is the senior digital content specialist at the National League of Cities.

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FEATURE Review

by Kenneth Heinz, Principal, Curtis, Heinz, Garrett & O'Keefe, P.C.

News From The Bench Ten Points Of Light: The Case of Gross v. Parson, et al.

If you have been struggling with ambiguities in the Sunshine Law over the past 40 years like me, this is a case to read. In a lengthy opinion and another concurring opinion, the Court of Appeals for the Western District of Missouri recently answered 10 questions that were presented by two Sunshine Law requests made to Governor Parson’s office.

Plaintiff Elad Gross sent the Sunshine requests in an attempt to find “dark money” contributions, i.e., anonymous campaign contributions made to circumvent campaign finance laws.

Gross made two Sunshine Law requests.

To the first request, the Governor’s Office (Office) responded that they would be able to provide a cost estimate within one month. About a month later, the Office sent Gross another letter stating they had found 13,659 documents and that the estimated cost to provide them would be $3,618.40. The Office asked for payment before they would prepare the information and stated that once they received that amount, it would take 120 business days to complete this request. An enclosed invoice estimated that research/processing would take 90.46 hours at the rate of $40 per hour.

Gross then sent another letter to the Governor’s Office requesting records regarding the Office’s response to his first request. Several weeks later the Office

responded to the second request with a set of 17 pages of documents with two pages partially redacted. A second set of documents consisted of 40 pages that were not redacted. No charge was made for these documents.

Gross then filed a petition in the Circuit Court of Cole County with eight counts. The Governor’s Office filed an answer and motion for judgment on the pleadings. The Circuit Court held a hearing and dismissed Gross’ petition.

Gross appealed to the Western District of the Court of Appeals.

Gross asserted 10 points on appeal alleging a Circuit Court error in entering judgment in favor of the Governor’s Office. The Court addressed each seriatim.

Gross’ first point was that the Office acted arbitrarily in denying his request

to waive or reduce fees. The Court found that Gross failed to properly raise a constitutional challenge on this issue.

In his second point, Gross claimed error in charging him attorney fees to access the public records. Since Gross requested both documents and electronic records, the Court addressed each separately. As to documents, Subsection 610.026.1(1)RSMo provided that fees may be assessed for “search, research and duplication time.” The Office argued that the subsection allows for attorney research time to determine whether unclassified documents were open or closed prior to disclosure.

Therefore, the Office asserted that an attorney was required to perform research on attorney/client privilege and legal work product. The Court approved charging for attorney review so long as the charge is at the rate of the lowest paid attorney in the office. As to electronic documents, Subsection 2 of Section 610.026.1 allows fees to be charged for “providing access to public records maintained on computer facilities.”

However, it limits the fees to “include only the cost of copies, staff time that shall not exceed the hourly rate of pay for staff.” The Court held that with respect to electronic records, it appeared that the person in charge of the search for documents received $19 per hour.

Subsection 2 makes no express provision www.mocities.com

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theReview September/October 2020

for research fees to be assessed to the requestor. The Court found no authority for assessing research or attorney fees to a request for electronic records under Subsection 2.

In his third point, Gross alleged the Governor’s Office violated the Sunshine Law by not providing him the earliest time the request for records would be available. The Office argued that it was sufficient to provide an estimate of 120 business days. Since Gross’ first Sunshine request asked the Office to notify him in advance of research or copying if the fees exceed $100, the Office could not provide an exact date that the records would be available. The court said the Office responded in the best way possible under the parameters set by Gross.

In his fourth point on appeal, Gross alleged error since the Office failed to provide a detailed explanation of why the request required 120 business days. The Court agreed with Gross that the Office had not provided a detailed explanation for the delay.

In his fifth point, Gross alleged that the Office impermissibly redacted portions of records provided to Gross.

The Court again agreed with Gross and stated that the Office bears the burden to establish that the material could be redacted because of attorney/client privilege.

The sixth point was also related to the redactions. The Governor’s Office argued that Gross had the burden to request a review by a court in camera of the redacted materials. The Court disagreed and stated that the burden was on the Office to prove compliance with the Sunshine Law by requesting an in camera review of the redacted materials.

In points seven and eight, Gross alleged that the Court erred in dismissing his petition because he alleged a knowing violation of the Sunshine Law. The Court stated that Gross failed to plead that the Office had a duty to produce documents under the first request. The Court found that since Gross failed to pay the estimated costs, the Office did not have an obligation to provide the records.

Waiving fees is discretionary. Therefore, there was not a knowing violation of the Sunshine Law. However, the Court found that Gross had properly pleaded a knowing violation to the second request.

On his ninth and 10th points, Gross argued that the redactions were improper and were a “purposeful” violation of the Sunshine Law. Gross alleged that the Office violated the Sunshine Law by purposely avoiding providing information that could affect the election of Governor Parson or Josh Hawley. The Court found that Gross’ Petition did not plead any facts to indicate the Office was aware that the redaction would delay Gross’ investigation or cause him to incur substantial costs pertaining to the second request. The Court denied points nine and 10.

In a concurring opinion, one judge disagreed with the majority on the issue of whether the Office could charge attorney fees with regard to producing records in electronic form. The judge stated that he felt that attorney work

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S® could be charged but only at the average, hourly rate of pay of staff. He concurred, however with the other two judges in reversing the Circuit Court’s grant of judgment on the pleadings.

So what does a city make of all this?

Gross informed me that the Office applied to be heard by the Supreme Court of Missouri. He is awaiting a ruling of that application. If granted, the Supreme Court may or may not agree with any of the rulings of the Western District. If not granted, the case becomes the law, at least in the Western District.

As to the points on which the Court reversed, further rulings on remand would be needed by the Cole County Circuit Court.

What to do in the meantime? The safest course may be to follow the Western District ruling. Attorney fees can be charged for document review at the lowest attorney rate but not for electronic documents — for these only

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theReview September/October 2020

the rate of staff time for production.

Redactions should be explained and perhaps examined in camera. Delays should be explained. Obviously, avoid “knowing” and “purposeful” violations.

Kenneth J. Heinz is a principal with Curtis, Heinz, Garrett & O’Keefe, P.C. He serves as general counsel for several communities.

Heinz has been active as special counsel to many municipalities in Missouri and Illinois on municipal issues. He has delivered seminars to many public and private groups at the local and state level on municipal issues, such as municipal contracts, zoning and Sunshine Law. Contact the firm at 314-725-8788 or www. chgolaw.com.

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LOCAL GOVERNMENT Review

2020 Elected Officials Training Conference MML’s Elected Officials Training Conference took place Aug. 6-7, 2020. It was a hybrid event and a new experience for MML members and staff, with approximately half of the attendees meeting in Columbia, Missouri, and half watching the presentations virtually. Sessions covered topics such as conducting city business, how municipal government works, economic development and more. We look forward to when we can all gather in person, but appreciated this new way to reach members with training on the most-pressing topics local leaders face!

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theReview September/October 2020

While much has changed within the last several months, and we will not be reuniting in person at this year’s MML, the Cochran team is still here and committed to providing exceptional client service to your communities. With many communities needing to pivot and change direction due to budget impacts, we commit to doing our best to find ways to complete your projects, plan for future projects and help your community “Rally!” We exist because of you and your belief in us. From water & waste water to transportation, our team is ready to provide services in your best interest and with great value.

So, join Cochran and let’s “Rally,” and continue to grow and revitalize our communities.

To our community partners and many friends, we value and thank you for your friendship and the opportunity to serve you. Be safe and see you soon!

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LOCAL GOVERNMENT Review

MML Honors 2020 Innovation Award Winners MML is proud to announce the winners of the 2020 MML Innovation Awards! These awards honor outstanding projects happening in communities across Missouri that enhance the quality of life for Missouri cities. Awards are based on city population size, with the exception of a Members’ Choice award, where MML members vote for their favorite project regardless of city size. Learn more about this year's winners!

City of O’Fallon

(Extra Large City, with population more than 30,000)

O’Day Park

O’Day Park is the culmination of concepts that stand alone as innovative, but together offer a multifaceted strategy to be in concert with today’s environmental concerns. In 2001, the city of O’Fallon was gifted 54 acres of land off Highway DD, one-mile south of Interstate 64, to build and develop a natural park that would provide green space and nature-based amenities on the south end of town. This project would satisfy a desire for such space within the community and expand the footprint of O’Fallon’s park system.

O’Day Park is the culmination of concepts that stand alone as innovative, but together offer a multi-faceted strategy to be in concert with today’s environmental concerns.

Funding for the project was approved by voters in 2016 through Proposition PARKS. The O’Day Park project team, consisting of the mayor, city council, parks and recreation department, engineering department, SWT Design, and Navigate Building Solutions, set out to maintain the natural character of the land, protect the habitats and ecosystems native to the area, conserve and reuse water for irrigation in the rest of the park, create an adventure playground and provide indoor and outdoor event space.

Building Resilience & Sustainability

This unique park opened to the public on April 27, 2019, and has been well received by visitors.

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theReview September/October 2020

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City of NixaÂ

(Large City, with population 15,000 -30,000)

#9pmRoutine: Crime Prevention Through Social Media The Nixa Police Department wanted to reduce theft of valuables from unlocked cars parked in driveways or unclosed garages. After learning of the idea from Pasco County, Florida, Nixa Police Lieutenant Jeremy Whitehill began using Facebook to create awareness of the importance of removing valuables from your car every night, locking your doors, closing your garage door, and leaving lights on outside your home. They call it the #9pmRoutine.

In 2019, the department posted 134 times about the #9pmRoutine using creativity, humor, and internet memes to help it stick in the memory of city residents. The posts reached more than a quarter million people and were seen a total of 330,000 times, garnering engagement from more than 18,800 individuals. Members of the Nixa community thanked the department for reminding them of easy ways to prevent themselves from becoming property crime victims.

The police department became known in the area for this effort and earned positive media coverage for it.

The campaign worked, contributing to a 41% reduction in thefts from motor vehicles year over year, and a 60% reduction in monetary losses by  citizens to such thefts.

In 2019, the Nixa Police Department posted 134 times about the #9pmRoutine using creativity, humor, and internet memes to help it stick in the memory of city residents.

What could updated infrastructure mean for your community?

Infrastructure Investment Updating treatment plants, smart metering and process improvements can improve long-term utility operations within your city.

Economic Growth Updated and modern facilities can bring economic stimulation and job growth to your community.

Energy Savings Updating your city with energy efficient systems like LED lighting can help save money, and be more sustainable.

For more information, contact Peter Hinkle: peter.hinkle@se.com (913) 433-6609

www.mocities.com

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City of Cameron

(Medium, with population 5,000 – 15,000 and also Members’ Choice)

The city of Cameron, Missouri, offers the opportunity to remove dilapidated structures that are of an imminent danger to the community through a demolition program.

Dilapidated To New

Dilapidated properties can cause many issues for a community, such as increased crime, a risk to health and welfare, and municipal costs for the community. The city of Cameron, Missouri, offers the opportunity to remove dilapidated structures that are of an imminent danger to the community through a demolition program.

In many cases, property owners either inherit property, abandon, or neglect issues that have plagued communities for years. This program allows the City to encourage property owners to remove certain structures that are substandard, hazardous and dangerous through several options.

Each year the city of Cameron appropriates funds to partner with residential property owners to remove these structures. Dangerous structures are defined as properties that are hazardous and dangerous to the public health and welfare and are beyond repair.

The City offers two programs for demolition of these properties.

Property owners can elect to participate in the 50/50 or 100% demolition program. The 50/50 demolition program is designed to allow property owners the opportunity to share the cost of removing dilapidated structures. The average cost per structure is $7,000 per single family home. The 100% program allows property owners with limited funding to sign over the property entirely and allow the City to remove the structure.

The City covers the total cost of the demolition process. Once the structure is removed, the property is placed for sale. As part of the demolition agreement, the buyer will be responsible for constructing a single-family home within two years.

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theReview September/October 2020

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MEMBERS' News Greg McDanel Recipient of Jay T. Bell Award Greg McDanel, city manager for the city of Maryville, was chosen as the 2020 Jay T. Bell Professional Management Award winner by the Missouri City/ County Management Association (MCMA).

The award recognizes a member’s outstanding commitment to the profession of local government management and is the association’s highest honor for members.

MCMA established the award in honor of Jay T. Bell, who served as executive director of the Missouri Municipal League from 1965 until 1981. The award recognizes public service that displays the same high standards of accomplishment, professionalism and ethical conduct.

McDanel has served as city manager of Maryville since 2012. Born and raised in Marshall, Missouri, McDanel obtained a B.S. in Geography from Northwest Missouri State University and a M.P.A. from the University of Missouri – Kansas City. He worked for the city of Independence, Missouri and served as city administrator of Cherryvale, Kansas, prior to returning to Maryville as city manager.

McDanel is an ICMA-Credentialed Manager and received the 2016 Public Service Award from the Northwest Missouri State University Alumni Association. He was also named one of the “50 Missourian’s You Should Know” and in the “40 Under Forty” 2020 class by Ingram’s Magazine.

City Clerk Honors Certified and Master Municipal Clerks Congratulations to the following city clerks for earning distinctions from the International Institute of Municipal Clerks (IIMC).

• Linda Drummond, city clerk for the city of Smithville, Certified Municipal Clerk (CMC) • Helen Ingold, city clerk for the city of Crestwood, Master Municipal Clerk (MMC)

To earn the CMC designation, a municipal clerk must attend extensive education programs often totaling more than 120 educational hours. The CMC designation also requires pertinent experience in a municipality. To qualify for the MMC designation, one must first earn the Certified Municipal Clerk Designation (CMC), as well as commit to lifelong learning by attending extensive advanced education programs and making significant professional contributions to the community and municipality in which they serve.

Grandview Welcomes New Director of Economic Development The city of Grandview is excited to announce David Carranza as director of economic development.

David comes to Grandview from Tucson, Arizona. With years of experience as a business owner, newspaper executive, and eventually an economic development director in municipal government.

His diverse background and real world experiences allow him to connect with any business or development team wanting solutions to economic development and growth.

David’s expertise is developing and nurturing institutional relationships and moving any project forward to completion. He earned his MBA, economic development education and certification from Oklahoma University. You can reach David at (816) 316-4821.

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www.mocities.com

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MEMBERS' Notes MML Calendar of Events September 2020 14-16 ����� MML Annual Conference (Virtual) 15 ����� Financial Disclosure Ordinance Deadline 23-26 ����� ICMA Annual Conference (Virtual)

October 2020 2-4 ����� Missouri Municipal Attorneys Association, Osage Beach, Missouri (rescheduled from July 2020) 27-29 ����� National Recreation and Park Association Annual Conference (Virtual) 29-30 ����� Missouri LAGERS Annual Meeting, Osage Beach, Missouri

November 2020 3 ����� Election Day 11 ����� Veteran's Day 18-21 ����� National League of Cities, City Summit (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.

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Let’s face the future together.

Tom Kaleko

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 September/October 2020

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theReview September/October 2020