Missouri Municipal 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 2018

Proposition D: Vote YES For Safer Roads

Impeachment | Sovereign | Prevailing Wage www.mocities.com Municipal Government 101 • PositiveImmunity Policing • Annual Conference Photos

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theReview September/October 2018

THE MISSOURI MUNICIPAL

September/October 2018; Volume 83, No. 5

CONTENTS Features 4 Proposition D: YES For Safer Roads And Streets In Missouri

by Scott Charton

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8 Impeachment Redux: Lessons From Getting Beat Up

by Paul Martin

12 Sovereign Immunity

by David A. Streubel, Margaret C. Eveker, and Lindsay K. Gilmore

16 Prevailing Wage Revisions

by Missouri Department of Labor

19 2018 Supreme Court Review For States And Local Governments

by Lisa Soronen

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Departments 26 Local Gov Review: Civic

Leadership Awards And City Hall Selfie Day

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FAQ: Meeting Minutes

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MML Calendar Of Events/ Members' Notes

by Ed Sluys

MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS President: Mayor Matthew G. Robinson, Hazelwood; Vice President: Council Member Chris Lievsay, Blue Springs; Eric Berlin, City Administrator, North Kansas City; Rob Binney, Council Member, Lee's Summit; Paul Campo, Attorney, Williams and Campo, PC; Sally Faith, Mayor, St. Charles; DJ Gehrt, City Administrator, Platte City; Barry Glantz, Mayor, Creve Coeur; Tim Grenke, Mayor, Centralia; Debra Hickey, Mayor, Battlefield; *Bill Kolas, Mayor, Higginsville; Donald Krank, Council Member, Black Jack; *Norman McCourt, Mayor, Black Jack; Marcella McCoy, Finance Director, Harrisonville; Susan McVey, Council Member, Poplar Bluff; Cindy Pool, Council Member, Ellisville; *Immediate Past President Kathy Rose, Mayor, Riverside; *Carson Ross, Mayor, Blue Springs; Scott Wagner, Council Member, Kansas City; Eileen Weir, Mayor, Independence; *Gerry Welch, Mayor, Webster Groves; Jeanie Woerner, City Clerk, Raymore *Past President AFFILIATE GROUPS Missouri City Management Association; City Clerks and Finance Officers Association; Government Finance Officers Association of Missouri; Missouri Municipal Attorneys Association; Missouri Park and Recreation Association; Missouri Chapter of the National Association of Telecommunications Officers and Advisors; Missouri Chapter of the American Public Works Association; Missouri Association of Fire Chiefs EDITORIAL Laura Holloway / Editor Lholloway@mocities.com Dan Ross, Richard Sheets, Lori Noe Contributing Editors The Review September/October 2018; Volume 83, 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.

Subscriptions: $30 per year. Single copies: $5 prepaid. Advertising rates on request.

Published bi-monthly. Periodicals postage paid at Jefferson City, Missouri.

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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.

14 Cover Photo: Hilton Branson Convention Center, Branson, Missouri

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FEATURE Review

by Scott Charton

Proposition D: YES For Safer Roads And Streets In Missouri

Proposition D (Prop D) is a proposed law that will go before Missouri voters on Nov. 6, 2018, and it will provide substantial resources to boost local government transportation projects. The Missouri Municipal League (MML) strongly supports Prop D. Missouri’s lawmakers of both major parties voted to put nonpartisan Proposition D on the ballot, giving citizens the final say on boosting Missouri’s motor fuels tax for the first time in 22 years. MML has endorsed Prop D because of its tremendous support for municipal road, street and bridge projects – a 66 percent statewide funding increase for State Road Fund dollars going to local governments.

If passed, Proposition D will gradually raise the state motor fuels tax by 2.5 cents a gallon annually, spread over four years, beginning on July 1, 2019. For the average motorist, Prop D will cost about $1.25 per month for every 2.5 cents motor fuels tax increase.

Full funding will bring in an estimated $412 million annually in new money to the constitutionally protected State Road Fund. That fund may only be used for (1) the cost of collecting the tax, (2) the cost of the Missouri State Highway Patrol to enforce safety on roads, and (3) for the maintenance of Missouri’s roads and bridges at the state and local level.

“Stronger and safe transportation in Missouri is crucial for cities and all citizens. It affects every priority for the state, from recreation to business development to safety,” said MML President and Hazelwood Mayor Matt Robinson. “We need stronger, safer roads, and funding for this vital lifeline has been neglected for too long.”

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The Missouri Department of Transportation’s statewide road and bridge program is based on priorities set with more than two dozen local and regional planning organizations covering every city and county. Prop D’s new $288 million in annual MoDOT funding will accelerate these locally driven state priority projects.

In addition: • Thirty percent of Proposition D’s new money is reserved for Missouri’s cities and counties, split 50-50 statewide between municipal and county governments.

• That is approximately $124 million annually for local government road, street and bridge projects.

• That is about $62 million for cities, $62 million for counties, in new money each year.

Missouri has an additional 97,000 miles of local roads and streets and 14,000 local bridges. With Prop D, local governments will make local decisions on local priorities using new money.

“With Proposition D, Missouri’s cities will be able to apply local decision-making and work on local transportation priorities to address deteriorating roads,” said MML Executive Director Dan Ross. “The significant new funding for local projects in Prop D makes it a win for our citizens and our local and state economies.”

Cape Girardeau Mayor Bob Fox noted the gradual phasein of Prop D. “I am wholeheartedly for the phased-in tax

increase. Missouri is in desperate need of improved highways, roads and bridges. I can think of no fairer way to accomplish this than a tax we pay on gasoline. Those who use the roads should help pay for their upkeep,” Mayor Fox said. “It is vital that the people of Missouri support this muchneeded small tax for the betterment of our whole state.”

Missouri is near the bottom, 49th in the nation, with 17 cents per gallon state motor fuel tax. Oklahoma’s state motor fuels tax is no longer lower than Missouri’s, and unlike Missouri, Oklahoma also has toll roads.

When Prop D is fully phased in, Missouri will still be competitive with its neighbors.

For example: Missouri’s state motor fuels tax will still be more than 7 cents cheaper than that of Illinois, whose residents cross the Mississippi River to the Show-Me State to fuel up.

Prop D will provide a major investment and infusion of dollars that will impact local communities with jobs, infrastructure and transportation progress. That is why Prop D has won strong support from a diverse and growing coalition of supportive groups and organizations, including MML, the Missouri Association of Counties, Missouri Farm Bureau, the Missouri Chamber of Commerce and Industry, labor organizations, statewide agricultural organizations and many more.

“It’s vital MoDOT has sufficient funds to maintain Missouri’s transportation systems,” says Hannibal Mayor Jim Hark. “A big part of this involves state matches necessary for securing federal highway funds that brings millions of federal transportation dollars back to Missouri for highways. Without adequate matching funds, MoDOT

cannot secure these larger federal highway dollars.”

“If approved by Missouri voters, this initiative also provides direct transportation funding to cities and counties,” Hark continues. “It’s time Missourians get behind this initiative to secure a better economic tomorrow for our state, our cities and counties.”

Much has happened with Missouri's roads and bridges in the last 22 years. The number of annual vehicle miles traveled on Missouri highways is up 37 percent – an increase of more than 14 million miles traveled annually. Approximately 2,500 miles of highways have been added to the state road system since 1996.

SINCE MISSOURI LAST RAISED ITS STATE MOTOR FUEL TAX IN 1996: • Total vehicle miles traveled in Missouri have increased by 25 million miles.

• The Missouri state highway system has grown by 6,500 miles for which MoDOT is responsible.

• Missouri now has the nation’s 7th largest state highway system, far surpassing any of our neighboring states.

• Missouri has about 34,000 miles of state roads and more than 10,000 bridges.

• Missouri has nearly 1,000 bridges in “poor” condition, and about 1,200 bridges with weight restrictions.

• Local governments have another 97,000 miles of county roads and city streets, plus approximately 14,000 bridges.

• There were 22,310 Missouri road deaths from 1996 through 2017.

www.mocities.com

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Today, Missouri has the nation’s seventh largest state road system. More than 1,200 Missouri bridges have limits on how much weight they can carry. Nearly 900 Missouri bridges are rated in “poor” condition.

More vehicle miles traveled. More state and local roads.

Poor bridges and weight restrictions. It all means more costs for law enforcement and first responders to protect and serve statewide. It means more costs for motorists, truckers, school buses, ambulances and police to make detours for safety and efficiency.

“The level of service expected today far exceeds the level of revenues received,” says Kirksville Mayor Chuck Long. “The additional 10 cent fuels tax for Missouri will help the city of Kirksville by giving us additional funds that can be used not only for pavement, but much-needed curb and gutter work."

No price in dollars can be put on the human cost of unsafe roads: Since the last state motor fuel tax increase was implemented in 1996, there have been 22,310 deaths and hundreds of thousands of injuries on Missouri roads.

“The bottom line is that Proposition D will provide critical resources for the state, cities and counties to work for safer roads and bridges for motorists and their families traveling Missouri,” says Col. Ron Replogle, retired superintendent of the Missouri State Highway Patrol and Honorary Chairman of SaferMO.com, the campaign committee advocating for passage of Proposition D. “This is the very definition of ‘To Serve and Protect’ that is the first command for law enforcement and first responders,” says Replogle. “The mission of protecting motorists and their families will be boosted dramatically with a ‘yes’ vote on Proposition D on Nov. 6.”

Costs of keeping roads safe and in service keep going up, while the Missouri Department of Transportation’s purchasing power from State Road Fund revenues keeps declining: • The 17 cents per gallon motor fuels tax put into place in 1996 buys 7 cents today.

• Concrete, steel and asphalt have doubled and tripled in cost since 1996.

• Today, Missouri ranks 46th in revenue spent per mile.

Thanks to MoDOT’s responsible management, efficiency and locally driven road and bridge priorities, the agency ranks 9th in cost-effectiveness. MoDOT has built a strong record of accountability and transparency in management and setting priorities. Proposition D will regain Missouri’s lost purchasing power for safer roads, streets and bridges.

Missouri’s natural geographic advantage makes the state America’s crossroads for motorists and freight. But, the steady erosion of buying power for road and bridge funding means Missouri is not maximizing its natural advantages through roads and bridges. These advantages will be empowered by Prop D: • Approximately 43 percent of the United States population is within 500 miles of Missouri.

• Consumers rely on freight shipping of local goods and more than ever for online purchases.

• Roads and bridges are vital to Missouri’s top industries: agriculture, tourism and trade.

Branson Mayor Karen Best says, “When fully funded, the proposed gas tax will result in an additional amount of

A YES vote on nonpartisan Proposition D is a vote to: • Make Missouri’s roads and streets safer.

• Invest significant new state money in local road projects.

• Regain 22 years of lost purchasing power for good roads and bridges.

• Secure stable funding for law enforcement to protect and serve on our roads.

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approximately $165,000 for the city of Branson. This will result in maintenance and repairs for approximately 250-lane miles in the city limits. These 250-lane miles are travelled by 10,520 citizens and approximately 7 million visitors each year.”

For these reasons, and for the future of Missouri's communities, MML urges Missourians on Nov. 6, to vote “YES” for safer roads, streets and bridges. Vote “YES” on Proposition D! Scott Charton is the communications director for SaferMO.com. To learn more about Proposition D, including the estimated dollars your city and county are estimated to receive with full implementation, visit www.SaferMO.com.

NOVEMBER 6, 2018, BALLOT LANGUAGE FOR PROP D: “Shall Missouri law be amended to fund Missouri state law enforcement by increasing the motor fuels tax by two and one half cents per gallon annually for four years beginning July 1, 2019, exempt Special Olympic, Paralympic, and Olympic prizes from state taxes, and to establish the Emergency State Freight Bottleneck Fund?”

BALLOT FISCAL SUMMARY: “If passed, this measure will generate at least $288 million annually to the State Road Fund to provide for the funding of Missouri state law enforcement and $123 million annually to local governments for road construction and maintenance.”

Photos courtesy of the Missouri Department of Transportation

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FEATURE Review

by Paul Martin

Impeachment Redux: Lessons From Getting Beat Up Nathan Nickolaus’ article from the March/April 2018 edition of The Missouri Municipal Review, “Impeachment: How Not To Get Beat Up On The Process,” provides an excellent overview of the steps involved in removing an elected official from municipal office. As a city attorney who has been in the thick of three impeachment efforts, and having gotten beat up significantly in one, I have learned a few lessons that may prove valuable to other municipal attorneys.

Lesson One: It’s An Elected Official When considering impeachment, council members and city attorneys naturally are concerned with the “wrongs” perpetrated by the wayward member and the manner by which those wrongs might be righted.

This may be especially true if the attorney and council have been in office for some time, and the wayward member is disrupting the council’s customs and practices. However, ultimately in most cases, a majority of the city’s voters have decided to put that member in office.

Impeachment, while a lawful tool, strikes at the heart of this democratic process; it allows a select few to undo that which has been done by the many.

It is a very serious step to take, and it should be approached cautiously, without passion or prejudice, and for the right reasons.

Lesson Two: What Are The Right Reasons?

“Without passion or prejudice” essentially means moving forward

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as objectively as possible. A council should not be allowed to undermine the electorate’s will simply because of differing personalities or adverse politics. It is critical, at the outset, to objectively assess whether the offending member’s behavior presents actionable grounds for impeachment.

As Nickolaus noted in his article, Missouri case law provides guidance in assessing the grounds for impeachment, but the law is helpful only in the abstract. The go-to impeachment case in Missouri, Fitzgerald v. City of Maryland Heights, 796 S.W.2d 52 (Mo. App. 1990), establishes parameters for assessing the grounds for impeachment in a third-class city. These same parameters would apply to fourth-class cities, and

they would also serve to inform the process for charter cities, although a city’s charter may specify differen According to Fitzgerald, the grounds for impeachment must: • sp ecif ically relate to and affect the administration of the office; • be of a substantial nature that directly affects the rights and interests of the public; • be limited to objective reasons that reasonable people, regardless of their politics, can agree would render the office holder’s performance ineffective; and • constitute acts of misfeasance (the improper performance of a lawful act), malfeasance (the performance of an act outside of the actor’s lawful authority), or nonfeasance (the failure to perform a required duty) in office.

In theory, these parameters make perfect sense. In practice, they must be applied to the facts of each particular case. In some cases, the

acts of complaint may have been committed in a purely private context, or before the actor was elected. Such acts are not related to the office itself or its performance, and they cannot serve as grounds for impeachment. In other cases, the offensive act may be so extreme that impeachment is the obvious remedy such as using the office to embezzle public funds. In many, and, perhaps, most cases, the suspect council member’s actions may be offensive, disruptive, ineffective or in violation of the council’s established protocol, but do they satisfy the legal criteria for removal from office? To answer that question, outside help is required.

Lesson Three: Hire A Special Prosecutor To make an informed, dispassionate choice on whether to move forward with an impeachment, at least in the hard cases, an independent lawyer is needed. Your city attorney is more than capable of calling the balls and strikes

on the easy cases, but there are several reasons to hire outside counsel for the hard ones.

To start, your city attorney may have a conflict. The city attorney works closely with the mayor, council and staff, and those relationships may well predispose the attorney to the perspective and will of these city officials at the cost of an independent, dispassionate assessment of the situation. Also, since the attorney presumably experiences the same or similar difficulties as others in dealing with the contrary council member, the attorney could be a witness at the impeachment hearing.

These circumstances can lead to flawed judgments, or at least, questions of partiality.

City attorneys, beware! You may be utterly convinced in the rightness of the decision to impeach, and your loyalty to a city council and staff may be admirably deep. You may be aware of the financial cost of a contested impeachment using outside help and

confident in your own ability to see the process through. However, these virtues can turn to vices easily enough if you permit them to invade your decision-making. The attorney who spearheads an impeachment can be confronted with challenges unknown and unlooked for, and the attorney must respond to those challenges within the factual and legal context of the proceedings without concern for personal desires or sensitivities or those of others. To do otherwise risks your own reputation as well as the successful prosecution of the case.

Hire an outside lawyer as special prosecutor, with a fresh set of eyes and ears and an independent mind, to investigate the alleged bad acts; to apply the law to the known facts; to assess the legal propriety of an impeachment; and to recommend to the city council whether the impeachment of the suspect offender is legally justified. After receiving that recommendation information, the council can then choose to abandon

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any further proceedings or to direct the special prosecutor to draw up and move forward with articles of impeachment.

Lesson Four: Do Not Hide The Ball

If you are confronted with a colleague’s bad acts, you likely will speak with your fellow council members, and perhaps your city attorney, outside of the public eye. Impeachment, after all, is a drastic step, and a council member would understandably want to be on sure ground, both legally and politically, before going public.

The desire for secrecy may be further fueled by the electoral popularity of the offending member. While there is nothing illegal about these preliminary conversations, provided they do not violate the Missouri’s Sunshine Law, take care to address concerns publicly.

This is not to say that you should not meet in closed session with your lawyer(s) for legal advice, but having resolved to consider the possibility of impeachment, you must inform the public of the problem and allow the public to be heard on the question. The council must be open to the public’s input and have an open discussion about moving forward. Without a public process, the suspect member can claim to be the victim of a conspiracy, and the member’s supporters may lash out at the council for “railroading” the member. Such claims inevitably distract everyone from the central question of whether the member’s actions merit impeachment; and they can be used to attack the fairness of the process, regardless of its legality.

Lesson Five: It Is Okay To Have An Opinion; It Is Not Okay To Have A Closed Mind A note about fairness: the council’s decision to levy impeachment charges against a member, and then try the member at an impeachment hearing, naturally raises the question of council bias. The suspect member, or his or her supporters or the media, may very well claim that the process is a sham, because

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the council has already made up its collective mind. But the law recognizes that the act of bringing impeachment charges does not disqualify a council member from sitting in judgment on those charges.

It is a simple truth that the elected officials who judge the merits of an impeachment are often the very people most intimately aware of an offending member’s behavior. Naturally they will have some familiarity with, and may have even come to a preliminary conclusion about the guilt of the charged member. The law still permits these people to sit in judgment, provided they have not reached an unalterable conclusion that the charged member has committed the acts in question and should be removed from office. If a member of the board of impeachment is incapable of fairly weighing the evidence at the hearing, that member must be disqualified from participating in the process. Absent disqualification for bias, a council member can sit on the board of impeachment, regardless of his or her preliminary conclusions.

It is also important to understand that the process does not end with the impeachment hearing. The charged member, if removed from office, may appeal to the circuit court, and the issues raised before the court may include whether a particular member or members should have been disqualified for bias and whether the evidence presented at the hearing supports the impeachment decision. In other words, if convincing evidence of disqualifying bias exists, or if the record facts do not support the impeachment charges, the circuit court can reverse the impeachment and restore the impeached member to office.

While the court’s protections can lead to frustrating delays and considerable expense, they remain available to an impeached official. The impeachment process is thus designed to provide a charged member with a full and fair opportunity to be heard, even in the face of preliminary conclusions of guilt by the members of the board of impeachment.

Lesson Six: Hire A Hearing Officer A capable hearing officer can advise and guide the council through the thicket of issues that can arise when sitting as a board of impeachment.

The officer can rule on discovery and other preliminary pre-hearing matters; preside over the impeachment hearing; rule on procedural and evidentiary issues during the hearing; document all motions and corresponding decisions; and ensure that the record of the impeachment hearing is properly preserved in case of an appeal to the circuit court. In sum, an experienced hearing officer is an essential and critical role in the impeachment process.

Conclusion The impeachment of an elected official is a serious and complicated business, made only more so when the charges are not capable of obvious resolution and when the targeted official has popular support among the electorate. To wade through this process, consider hiring an independent special prosecutor and an independent hearing officer to guide the council, sitting as a board of impeachment, through the factual and legal morass.

Always remember that an impeachment should be pursued openly, and with appreciation for the seriousness of the action – the removal by a few of one who was elected by the many. Good luck!

Paul Martin is the city attorney for St. Louis County cities of Olivette, Rock Hill, Crystal Lake Park, and Breckenridge Hills and has served as special counsel to Missouri local governments since 1992. He has advised, litigated, presented, and published on many local government law issues and is the Local Government Editor (Eastern District and Missouri Supreme Court) for the Missouri Bar Courts & CLE Bulletin. He is a past officer of the Missouri Municipal Lawyers Association and a past member of the Board of Directors of the Missouri Municipal League. Contact him at paul@paulmartinpc.com.

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FEATURE Review

by David A. Streubel, Margaret C. Eveker, and Lindsay K. Gilmore

Sovereign Immunity For Non-Tort Claims: Application And Limits Sovereign immunity prevents lawsuits against the government without its consent. Prior to 1977, sovereign immunity existed for all claims – tort and non-tort. A tort is a wrongful act, other than a breach of contract, that injures another and for which the law imposes civil liability. Claims for personal injuries are tort claims.

Torts can be intentional (such as civil battery, assault, trespass, or false imprisonment) or they can arise from negligent behavior (for example, many slip and fall cases). Other examples of torts include defamation, certain types of misrepresentations, and interference with business relations. Non-torts include

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statutory, breach of contract and equitable claims.

However, in Jones v. State Hi g hw ay C o m m i s s i o n , t h e Missouri Supreme Court began distinguishing sovereign immunity for tort and non-tort claims and did away with sovereign immunity for tort liability. 557 S.W.2d 225, 230 (Mo. banc 1977). The Court noted that its opinion dealt “with immunity from tort liability” only and that there “remains the matter of immunity from suit.” Id. Therefore, although Jones abolished sovereign immunity for torts, it did not eliminate or diminish sovereign immunity for non-tort claims. This distinction is frequently overlooked and has led to the common misconception that sovereign immunity applies only to torts.

In 1978, the legislature revived sovereign immunity for tort liability. Section 537.600 RSMo was enacted to overrule Jones and to reinstate sovereign immunity in tort in Missouri as it had existed prior to Jones, with two exceptions: (1) injuries directly resulting from public employees’ negligent operation of motor vehicles; and (2) injuries caused by dangerous conditions of a public entity’s property.

See § 537.600 RSMo. The legislature also enacted a statutory “cap” on the amount of liability that political subdivisions are subject to for claims covered by those two exceptions. See § 537.610 RSMo. This amount has changed over time, but the limit is currently $2,000,000 for all claims arising out of a single accident or occurrence and $300,000 for any one person in a single accident or occurrence (except for workers’ compensation claims).

The statute further prohibits awards of punitive damages against public entities for such claims.

With Missouri LAGERS These laws had nothing to do with Starting Throughout your sovereign immunity for non-tort claims.

Your Career Unfortunately, however, the enactment of § career Your benefit will The longer you 537.600 RSMo lead to even more confusion grow every month work, the more your regarding the viability of sovereign Ready for financial you work. benefit grows. immunity in non-tort cases. Some courts independence Receive a secure even interpreted the statute to mean that retirement income Jones had gotten rid of sovereign immunity Becoming Eligible from LAGERS. entirely.

After 5 years, you are eligible for a In 2004, the Missouri Supreme Court benefit. attempted to set the record straight regarding tort and non-tort sovereign immunity. In Kubley v. Brooks, the Supreme Court recognized that there is “a fundamental, but not uncommon, confusion of the doctrine of sovereign immunity from liability in Missouri Local Government Employees Retirement System tort with a separate, but related, doctrine that the sovereign cannot be sued without molagers.orG its consent.” 141 S.W.3d 21, 29 (Mo. banc 2004). The Court noted that “Section 537.600 expressly states it applies only to … may sue and be sued, implead and be impleaded, defend suits in tort,” the statute “did not negate” the general rule that and be defended in all courts of law and equity ….”). Likewise, the sovereign may not be sued without its consent; therefore, any charter city that includes similar language in its charter the statute “does not address or govern the liability of the presumably makes the same waiver of sovereign immunity. state under non-tort theories of recovery.” Id. Thus, despite However, this result is untenable. Enabling statutes and the common misconception that sovereign immunity applies charter language should not inadvertently define the contours only to tort claims, there can be no question that sovereign of an entity’s sovereign immunity. Rather, enabling statutes immunity is not just about torts – it applies to tort and nonand charters that provide that a government can “sue and be tort claims alike. sued” merely allow a government to be a party in a proper Today, as it was prior to 1977, sovereign immunity is court action. the rule, not the exception. In the absence of a recognized Kubley’s finding of a broad immunity waiver resulting from common law (i.e., court-made), exception or an express enabling statutes is wrong for at least two reasons. First, Kubley exception in a statute (e.g., § 537.600 for torts), sovereign ignores the “fundamental maxim that statutory provisions immunity applies to all suits against public entities. that purport to waive sovereign immunity must be strictly Moreover, all waivers of sovereign immunity are strictly construed. ” State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 construed, meaning that courts will narrowly interpret any S.W.2d 184, 186 (Mo. banc 1985); Kleban, 247 S.W.2d at 837 alleged waiver. With only a single common law exception (“[S]tatutes waiving the immunity of the sovereign from suit for breach of contract, Missouri cities should enjoy robust are strictly construed. ” ).

Kubley, and Jones on which Kubley immunity from non-tort claims. Regrettably, the Missouri relies, provide no analysis of why they interpret enabling Supreme Court in Kubley incorrectly interpreted the enabling statutes to be waivers of sovereign immunity from non-tort authority for many Missouri cities to be a waiver of sovereign claims.

Jones only states, and Kubley merely repeats, that immunity for those non-tort claims. following Jones’ abrogation of sovereign immunity in tort, Kubley, relying on Jones, held that sovereign immunity is waived for non-tort actions if the statute creating a public . . . there is no reason to give the words “sue and be sued” entity or describing the entity’s powers (an enabling statute) any meaning other than the usual and ordinary one conveyed states that the entity can “sue and be sued.” As a result, by the language used, which is that the entity in question may Missouri cities of the third and fourth class may be deemed sue and be sued, without restriction as to kind of liability sought to have waived their sovereign immunity for non-tort claims. to be imposed.

See § 77.010 RSMo. (“Any city of the third class … may sue and be sued, implead and be impleaded, defend and be Jones, 557 S.W.2d at 230, quoted in Kubley, 141 S.W.3d defended in all courts of law and equity, and in all actions at 30. whatever….”); § 79.010 RSMo. (“Any city of the fourth class

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No reason? What happened to strict construction of sovereign immunity waivers? Those cases do not consider at all whether strict construction of the supposed waiver language in enabling statutes is a reason to find that the legislature only meant to allow public entities to participate in appropriate legal proceedings when it established that they could sue and be sued.

Second, Kubley ignores cases that specifically and correctly construe enabling statutes to not be waivers of sovereign immunity, but only authorizations for governments to participate in court actions. For example, in Pratt, which Kubley acknowledges, the court concluded that “[t]he reasonable explanation of the legislature’s intent in using the ‘may sue and be sued’ language is that it intended thereby merely to empower creditors and other proper claimants to sue the hospital district in its own name,” not to waive sovereign immunity. 687 S.W.2d at 187; Kubley, 141 S.W.3d at 34, n.11. Similarly, in State ex rel. St. Louis Housing Authority v. Gaertner, 695 S.W.2d 460 (Mo. banc 1985), the court held that although the statute provided that the St. Louis Housing Authority could sue and be sued, the statute “d[id] not waive sovereign immunity.” Id. at 462.

Other states confronting this issue disagree on the effect of the statutory language “sue and be sued.” Some states 14

theReview September/October 2018

froz en p ipes

hold that such phrasing merely signifies the entity’s ability to enter court on proper cases, while other states conclude that this language is a waiver of sovereign immunity. The better reasoned cases are the former. Just as the Kubley decision failed to provide any analysis of why it construed an enabling statute to be a waiver of sovereign immunity in non-tort cases, other courts that have reached the same conclusion have similarly provided no analysis.

In Kubley’s wake, Missouri cities are left with the tantalizing prospect of being shielded by sovereign immunity from most non-tort claims. But, Kubley takes away almost as much as it gives by wrongly construing the enabling authorities of many cities to be a waiver of that immunity.

Charter cities could overcome Kubley and maximize their immunity by not including or eliminating the “be sued” language from their charters. Cities of the third and fourth class, however, will have to wait for a solution from the Supreme Court or the legislature.

David Streubel and Margaret Eveker are attorneys at Cunningham, Vogel & Rost, P.C. where Lindsay Gilmore is a 2018 summer associate.

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LEGISLATIVE Review

by the Missouri Department of Labor and Industrial Relations

Prevailing Wage Revisions HB 1729, passed in 2018, makes major changes to Missouri’s prevailing wage law.

What is the “Public Works Contracting Minimum Wage”?

The Public Works Contracting Minimum Wage (PWCMW) is used instead of the prevailing wage in counties where fewer than 1,000 hours are reported for a particular occupational title. The PWCMW is calculated by multiplying the average wage rate in each county by 120 percent. This average rate for each county is computed annually by the Missouri Economic Research and Information Center (MERIC), part of the Missouri Dept. of Economic Development (DED).

Until the new annual wage order is released in 2019, what rate should contractors and public entities use to calculate wages in the meantime?

The current wage order from 2018 will continue to be in effect until the new wage order is released in 2019. The 2019 annual wage order will contain both the PWCMW and the prevailing wage rates in each locality.

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theReview September/October 2018

Since the new annual wage order issued by the Missouri Dept. of Labor and Industrial Relations (DOLIR) will not be released until 2019 (as late as July 1st), public entities and contractors will not be able to determine if they must pay the prevailing wage or the PWCMW, since this will depend on whether or not 1,000 hours of work in a particular occupational title category in a particular county are reported.

The law provides that the existing wage order will remain in effect until replaced by a new one.

However, in some cases, the changes in the new law will take effect more quickly. See the sidebar on page 18 for a breakdown of the new changes.

When determining the Prevailing Wage and PWCMW rates, are fringe benefits added to the to the hourly rate?

Yes. In calculating the prevailing wage rate, DOLIR will continue to factor in fringe benefits as spelled out in Sec. 290.210 RSMo.

The PWCMW is calculated by multiplying the average hourly wage number (developed by DED) by 120 percent. The extra 20 percent added to the average wage by this formula is used to estimate a fringe benefit for workers in that county.

How would a valid contract for a public works project be impacted by HB 1729 once effective?

If a contract was entered into before Aug. 28, 2018, it is likely that the terms of the contract would control. Current regulations require that wage rates attached to an initial bid remain in effect for the duration of the contract (See 8 CSR 30-3.010(4)). However, DOLIR is not able to provide legal guidance on individual contracts and how they might interact with Missouri law. All contracts entered into on or after Aug. 28, 2018, need to comply with any applicable provisions of the new law.

Are the mandatory rates for overtime and holidays based only upon the hourly rate or on the total hourly wage including fringe?

The overtime and holiday rates are based on the total amount of wages and fringe benefits combined. The rate of pay for overtime is one and a half times the amount of the prevailing hourly rate of wages or the public works contracting minimum wage (whichever is applicable). The rate for holidays is twice the applicable rate.

How does the new law impact the ratio of journeymen to “apprentice” and “entry-level” workers and their rate of pay?

Rate of pay – As of Aug. 28, 2018, each apprentice and entry-level worker will be paid half of the rate of a journeyman (including fringe) working in their same occupational title classification in the county where the public project is

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located. Ratio of apprentice/entry-level workers – The new law mandates no more than a 1:1 ratio of journeymen to apprentices/entry-level workers based on their chosen occupational title for a particular project. This provision of HB 1729 became effective Aug. 28, 2018.

Does the new law affect the existing timeline for calculating the annual prevailing wage rate?

No. The timeline under the new law remains the same. For example, contractor hours for the calendar year must be reported by no later than January 31 of the following year. The DOLIR will make an initial determination of prevailing wage rates

by March 10 of each year and the final wage order will be issued no later than July 1 of each year.

If a public body were to split up a project into phases, each of them costing less than $75,000, would the prevailing wage apply?

Splitting a project up into smaller projects for the purpose of evading the requirement to pay a prevailing wage or a public works contracting minimum wage is not permitted.

Are the administrative rules currently proposed by DOLIR going to be revised to reflect the changes in HB 1729?

Yes. DOLIR anticipates withdrawing the currently proposed rules and resubmitting a more comprehensively revised set of rules in the future.

Prevailing Wage The following changes were effective Aug. 28, 2018 • Public works projects valued $75,000 and under are not subject to the Prevailing Wage Law and projects valued at $10,000 and below are not subject to a competitive bidding process.

• No project may be split up into smaller projects valued at less than $75,000 for the purpose of evading the requirement to pay a prevailing wage or public works contracting minimum wage.

• Hours worked on holidays will be paid at twice the normal rate, including fringe benefits. Overtime hours will be paid at time and a half of the normal rate, including fringe benefits.

• Contractors may employ one "apprentice" or "entry-level" worker for each journeyman hired and pay them 50% of the pay, including fringe benefits, of a journeyman in their same occupational title.

Other important provisions of the new law will not be fully implemented until the release of the next Annual Wage Order in 2019. These include: • The Department of Labor will only use the hours reported by contractors on non-resident projects in calculating the annual wage order in 2019. This includes both public and private, and whether or not the projects were subject to a collective bargaining agreement.

• A new "Public Works Contracting Minimum Wage" of 120 percent of the average county wage will be used instead of a prevailing wage in counties where fewer than 1,000 hours are reported for a particular occupational title.

• An initial Annual Wage Order containing the prevailing wage and the public works contracting minimum wage will be released by March 10, 2019 with a final wage order released by July 1, 2019. Until the final wage order is released, Annual Wage Order 25 will continue to control on projects valued at over $75,000.

Changes to Occupational Titles and Categories Learn more from the Missouri Department of Labor and Industrial Relations' website at h t t p s : / / l a b o r. m o . g o v / prevailing-wage.

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theReview September/October 2018

• HB 1729 consolidates the list of occupational categories, reducing the number down to 20 such titles. Individuals submitting information may continue to use old occupational titles and the system will automatically sort this information into the correct titles as set forth by statute.

LOCAL Review

by Lisa Soronen

2018 Supreme Court Review For States And Local Governments South Dakota v. Wayfair In South Dakota v. Wayfair* the Supreme Court ruled that states and local governments can require vendors with no physical presence in the state to collect sales tax. In a 5-4 decision, the Court concluded “economic and virtual contacts” are enough to create a “substantial nexus” with the state, allowing the state to require collection. In an opinion written by Justice Kennedy, the Court offered three reasons for why it was abandoning the physical presence rule from Quill v. North Dakota (1992). “First, the physical presence rule is not a necessary interpretation of the requirement that a state tax must be ‘applied to an activity with a substantial nexus with the taxing state.’ Second, Quill creates rather than resolves market distortions. And third, Quill imposes the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow.” To require a vendor to collect sales tax, the vendor must still have a “substantial nexus” with the state. The Court found a “substantial nexus” in this case based on the “economic and virtual contacts” Wayfair has with the state, reasoning that a business could not do $100,000 worth of business or 200 separate transactions in South Dakota “unless the seller availed itself of the substantial privilege of carrying on business in South Dakota.”

held that a citizen who was arrested for making comments at a city council meeting (possibly because the City had an official policy of retaliating against him) was not barred from bringing a First Amendment retaliatory arrest claim against the City even if it had probable cause to arrest him. Fane Lozman was an “outspoken critic” of the city of Riviera Beach’s proposed plan to redevelop the city-owned marina using eminent domain, and sued the City claiming it violated open meetings law. He alleged that the city council held a closed-door meeting in which it devised an official plan to

intimidate him in retaliation for his lawsuit. Five months after the closeddoor meeting, a councilmember had Lozman arrested during the public comment period for discussing issues unrelated to the City and refusing to leave the podium. Lozman conceded that the City had probable cause to arrest him, but he claimed the City should be liable for violating the First Amendment because its strategy to intimidate him to stop speaking was a “but for” cause of his arrest. In contrast, the City argued that Lozman could not sue it for retaliatory arrest under any circumstances (Cont'd on page 20.)

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19

Amendment protection the constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application. Indeed, its name alone should make all this clear enough: It is, after all, an exception for automobiles.”

Byrd v. United States

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if probable cause existed to arrest him. In an opinion written by Justice Kennedy, the Court declined to decide whether to extend either the “but for” cause rule proposed by Lozman or the absolute bar to retaliatory arrest claims proposed by the City to the “mine run” of First Amendment retaliatory arrest claims. Instead, the Court held that because of the unique facts of the case Lozman “need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City.”

the Fourth Amendment automobile exception does not permit police officers to search vehicles parked in the curtilage of a home without a warrant. Per the automobile exception to the Fourth Amendment, police officers may search vehicles without a warrant if they have probable cause to believe they will find contraband or a crime has been committed. But officers may not enter the curtilage of a home to gather evidence without a warrant. In an opinion written

by Justice Sotomayor, the Supreme Court concluded that the automobile Collins v. Virginia exception “extends no further than In an 8-1 decision in Collins v. the automobile itself.” Two rationales Virginia, the Supreme Court held that justify the automobile exception: the “ready mobility” of vehicles and their “pervasive regulation.” “To allow an officer to rely on t h e aut om o bi l e exception to gain entry into a house Communities across Missouri or its c ur t i l age trust the Power of PeopleService. for the purpose of conducting a vehicle search would unmoor the e xc e pt i on f rom its justifications, render hollow PeopleService.com • 877-774-4311 Ext. 5 the core Fourth 20

theReview September/October 2018

In Byrd v. United States, the Supreme Court held unanimously that the driver of a rental car generally has a reasonable expectation of privacy in the rental car even if he or she isn’t listed as an authorized driver on the rental agreement. A state trooper pulled Terrance Byrd over for a possible traffic infraction. Byrd’s name was not on the rental agreement, and he told the officer a friend had rented it. Officers searched the car and found 49 bricks of cocaine and body armor. While the Fourth Amendment prohibits warrantless searches, generally probable cause a crime has been committed is needed to search a car. To claim a violation of Fourth Amendment rights a defendant must have a “legitimate expectation of privacy in the premises” searched. The United States argued drivers not listed on rental agreements always lack an expectation of privacy based on the rental company’s lack of authorization. The Supreme Court, in an opinion written by Justice Kennedy, rejected this argument, reasoning that “the government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.” The Court also noted that a legitimate expectation of privacy may be tied to property rights—including the right to exclude others. The United States agreed that Byrd could exclude third parties from the rental car even though he wasn’t listed on the rental agreement.

National Association of Manufacturers v. Department of Defense In National Ass ociation of Manufacturers v. Department of Defense, the Supreme Court held unanimously that a legal challenge

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to the definition of “waters of the United States” (WOTUS) must begin in a federal district court, not a federal court of appeals. In 2015, the Obama administration issued a new WOTUS definitional rule per the Clean Water Act (CWA). While most challenges to EPA actions must be fil1ed in federal district court first, the CWA lists seven categories of EPA actions where “review lies directly and exclusively” in the federal courts of appeals. One of the categories providing courts of appeals exclusive jurisdiction is an EPA action “in approving or promulgating any effluent limitation or other limitation” under various sections of the CWA. The Court rejected the argument the WOTUS rule is an “effluent limitation or other limitation” because both terms refer to EPA restrictions on the discharge of pollutants. The second category providing courts of appeals exclusive jurisdiction is an EPA action “in issuing or denying any permit” under a particular section of the CWA. According to the Court, the WOTUS rule “neither issues nor denies a permit” under the EPA permitting program at issue.

Lisa Soronen is the executive director of the State and Local Legal Center, (SLLC) Washington, D.C. The (SLLC) files Supreme Court amicus curiae briefs on behalf of state and local governments. Learn more at www. statelocallc.org.

This material is reprinted with permission from the State and Local Legal Center. For the full article with additional case summaries, please visit http://www.statelocallc.org/.

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theReview September/October 2018

Oct. 4, 2018 (10-11 a.m.)

LEGACY LEADERSHIP Ron Holifield, Chief Executive Officer, Strategic Government Resources Oct. 24, 2018 (10-11 a.m.)

DERELICT PROPERTIES: HOW LOCAL GOVERNMENT CAN TAKE ACTION Stephanie Karr, Attorney, Curtis, Heinz, Garrett & O'Keefe, P.C. Oct. 30, 2018 (10-11:30 a.m.)

UNDERSTANDING NEW MISSOURI COLLECTIVE BARGAINING LAWS EFFECTIVE AUG. 28, 2018 Ivan L. Schraeder, Attorney, Wagner Law Group Nov. 8. 2018 (10-11 a.m.)

BUILDING BETTER CITIES Joe Lauber, Attorney, Lauber Municipal Law, LLC Dec. 12 (Noon-1 p.m.)

FRAUD FACTS: WHAT YOU NEED TO KNOW TO PROTECT YOUR ORGANIZATION Ron Steinkamp, Partner, Advisory Services and Public Sector, Brown Smith Wallace, LLP

Register at www.mocities.com! www.mocities.com

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• Current Job Opportunities

• Webinars • Daily Local News • MML Conferences • Latest Legislative Action

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theReview September/October 2018

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25

LOCAL GOV Review

MML West Gate Division Civic Leadership Awards The West Gate Division of the Missouri Municipal League hosted its annual Civic Leadership Award Banquet in Independence, Missouri, at the organization’s July meeting. This banquet gives West Gate communities an opportunity to recognize the outstanding contributions of business and civic leaders in developing stronger cities. Each mayor selected an outstanding civic leader in his or her community.

The West Gate Region of the Missouri Municipal League consists of member municipalities in the five metropolitan counties of Jackson, Clay, Platte, Ray and Cass.

Honorees were recognized from the following cities: Belton, Blue Springs, Excelsior Springs, Gladstone, Grandview, Harrisonville, Independence, Kearney, Lake Tapawingo, Lake Winnebago, Lee’s Summit, Liberty, Oak Grove, Parkville, Pleasant Valley, Raymore, Raytown, Richmond, Riverside, Smithville, Sugar Creek, Weston, and Wood Heights.

Thank you all for your tremendous service to your community!

26

theReview September/October 2018

LOCAL GOV Review

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FAQ Review: Meeting Minutes

by Ed Sluys

The following are responses to some frequently asked questions. The answers are not intended as legal advice and are not a substitute for consulting with your legal counsel.

What needs to be included in meeting minutes?

Section 610.020 RSMo requires that minutes of open and closed meetings include any votes taken, including: the specific vote of each member for roll call votes, the date, time, place, names of members present and members absent.

Local ordinances or adopted rules of procedure may contain additional requirements for the minutes. Note: for fourth-class cities the minutes also need to reflect a roll call vote taken if two or more members of the board of aldermen request that a roll call vote be taken. (Section 79.150 RSMo.) The minutes should also include the topics discussed, as well as any actions taken.

Do minutes need to be approved?

Section 610.020 RSMo does not require the approval of minutes.

However, by local ordinance or adopted rules/practices many (if not most) communities approve the minutes.

Note: closed meeting minutes should not be made public during the approval process, unless they have become open records themselves.

Who is charged with preparing minutes?

In third- and fourth-class cities it is the city clerk, by statute, who is required to maintain a journal and, therefore, the minutes of the proceedings (Sections 77.410 and 79.320 RSMo, respectively).

By ordinance and/or charter, most (if not all) other cities, would also charge the clerk with preparing the minutes.

How may minutes be amended?

As most (if not all) legislative bodies approve the minutes by motion, an amendment to the main motion can be approved or, if there is no objection, amendment can be by consensus of the legislative body. Most cities will allow for minor edits by the clerk, such as correcting typographical errors, without any formal action.

If a member of the legislative body requests draft minutes be amended prior to the minutes being presented to the board or council, how should the clerk handle this?

If the clerk agrees with the suggested

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theReview September/October 2018

edits, e.g. it corrects a mistake, then the clerk could make the changes and resend the packet or present it at the meeting. If the clerk does not agree with the edits, he/she can suggest that the issue be discussed at the meeting where the minutes are to be considered.

If minutes are approved by the board/council can they be amended later?

Yes, but it would be good practice to include an explanation (such as, an error previously overlooked).

What can and cannot be amended?

Anything in the minutes can be amended, provided they accurately reflect what occurred at the meeting to which they pertain.

Can a vote be rescinded?

The minutes cannot be amended in any manner that alters what happened at the meeting to which they pertain; i.e. a vote cannot be rescinded from a prior meeting by amending the minutes.

There are various ways rescission can be achieved, such as a new ordinance that repeals the prior ordinance after following applicable procedures.

Are minutes available to the public?

Open meeting minutes are available to the public. Closed meeting minutes are generally not available to the public unless, under the provisions of the Missouri Sunshine Law, they (or portions thereof) are to be made available upon the occurrence of an event.

When do minutes need to be completed?

Good practice is to have the minutes approved for the prior meeting at the subsequent meeting. Local ordinances

or practices may address the question of timing.

What is the difference between draft and approved minutes?

Draft minutes are not an official record of the proceedings until approved as required by local requirements.

When are closed meeting minutes released?

Closed meeting minutes are never “released,” in the sense of being proactively provided to the public.

However, in certain circumstances they (or portions thereof) are available to the public upon the occurrence of an event; e.g. 72 hours after a personnel decision has been made, or upon the closing of a real estate transaction.

How are closed meeting minutes approved?

This will depend upon the community. One approach is to provide them to the members of the legislative body in a form that is not included in the publicly available materials and have the board/council vote to approve them at the same time as the open minutes. Other cities approve them at the next closed meeting.

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Does approval of closed minutes require a closed meeting?

No.

May councilmembers who miss a meeting view closed meeting minutes?

Yes, unless they missed the meeting (or part thereof) due to a conflict of interest.

Must the city clerk be allowed to attend closed meetings to take the minutes?

No, it is for the legislative body to decide who may attend the closed session. It is not unusual for the city manager or city attorney to take the minutes in a closed session.

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Ed Sluys is a principal in the law firm of Curtis, Heinz, Garrett & O’Keefe, P.C., where he concentrates his practice in the areas of municipal, public election, public utilities, commercial litigation and appellate law. He serves as the city attorney and prosecuting attorney for a number of communities in the greater St. Louis County metropolitan area.

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29

MEMBERS' Notes Autism-Friendly City

MML 2018 Calendar of Events September 19-21 ����� Missouri Public Transit Association Conference, Columbia, Missouri

October 4 ����� MML Webinar: Legacy Leadership 17 ����� MML Central Regional Meetings, Sedalia, Missouri

The city of Bolivar has become the second autism-friendly city in the state of Missouri. It joins the city of Battlefield, Missouri, in this designation. Bolivar has taken the pledge to educate its citizens sharing information about autism to become more inclusive.

Lou Czech Award Winner

18 ����� MML Northwest Regional Meeting, Lathrop, Missouri

Congratulations to Kennett City Attorney Terry McVey as the 2018 recipient of the Missouri Municipal Attorney Association’s Lou Czech award. McVey was honored in July at the association’s annual meeting in Osage Beach. The award recognizes public service that displays the same high standard of accomplishment, professionalism and ethical conduct as exhibited by Czech. McVey was nominated and chosen by his peers in MMAA.

24 ����� MML Webinar: Derelict Properties 25 ����� MML Southeast Regional Meeting, Jackson, Missouri 25 ����� MML West Gate Regional Meeting, Raymore, Missouri 30 ����� MML Southwest Regional Meeting, Bolivar, Missouri 30 ����� MML Webinar: New Missouri Collective Bargaining Laws

November 1 ����� MML Northeast Regional Meeting, Hannibal, Missouri 6 ����� Election Day 7-10 ����� National League of Cities City Summit, Los Angeles, California 8 ����� MML Webinar: Building Better Cities

Man Of The Year

12 ����� Veterans' Day (observed): MML Offices Closed 22-23 ����� Thanksgiving Holiday: MML Offices Closed 27-28 ����� 61st Annual Missouri S & T Asphalt Conference

December 1 ����� First Day for Filing Legislation for the 100th Missouri General Assembly 11 ����� First Day for Municipal Candidate Filing 12 ����� MML Webinar: Fraud Facts

Nixa Police Department D.A.R.E. Officer Brent Forgey was recognized by the "Springfield Business Journal" as one of the 2018 Men of the Year. Officer Forgey serves the children of Nixa by teaching them safety and health programs. Earlier this year, Officer Forgey also earned the Lifetime Achievement Award from the Missouri D.A.R.E. Officers Association.

January 2019 9 ����� Missouri General Assembly Convenes Find more events and details on www.mocities.com and in the MML monthly e-newsletter.

Welcome New MML Members!

MML is happy to welcome three new members: City of Miller @mocities www.facebook.com/mocities www.linkedin.com/company/mocities www.mocities.com (573) 635-9134

City of New Bloomfield Missouri Main Street Connection Barry Lawrence County Ambulance District Play & Park Structures

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www.mocities.com

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theReview September/October 2018