of 267 Outline City Law 101

Outline
City Law 101: The Basics
NOTE: Text includes citations printed in red; opinions, comments, and references to the web
printed in blue; and references to the appendix or other parts of the text, printed in green.
Improvements and corrections are welcome and should be sent to wpcronan@aol.com.
This outline is a collective effort of all the members of the Missouri Municipal Attorneys
Association. It is published on the web for the benefit of all city officials, but specifically for
new city attorneys. As with all publications, it is subject to error (including subsequent
changes in the law). This publication will not substitute for a lawyer. Any reference in this
publication to “I” or “my opinion” refer to Patrick Cronan, retired city attorney and
coordinator of this project. These opinions should be disregarded, unless your city attorney
agrees with me. Please do not duplicate this document, without permission from MMAA.
Contents
1.
Congratulations – Now What? – Page 2
2.
Type and Authority of Cities – Page 11
2A.
Missouri and U.S. Constitution Limits to Authority of Cities – Page 21
3.
Who Votes and How Often – Technicalities – Page 25
4.
Meetings – Page 26
5.
Finances – Page 29
6.
Contracts and Cooperative Agreements – Page 33
6A.
Real Estate – Not yet included in book
7.
Torts – Page 44
8.
Planning and Zoning – Page 44
9.
Taxation and Revenue – Page 52
10.
Basic Election Law – Page 54
11.
Employee Discharge Rights – Page 57
12.
Employee Right to Wages
13.
First Amendment Problems – Page 62
14.
Administrative Procedure Act and the Cities
15.
Economic Development Techniques
16.
Annexation – Page 109 – Not yet included in book
17.
Regulation of Businesses – Page 109 – Not yet included in book
18.
Water, Sewer, Electricity and other city-owned Utilities – Page 109
19.
Police and Traffic Regulations – Page 109
20.
Streets and Sidewalks – Privately owned utilities – Page 111
21.
Public Nuisances and Public Health Regulations – Page 116
22.
Creating a New Village or City – Page 123
23.
Ethics and Conflicts of Interest – Page 124
Appendice
Page 1 of 267
I.
CONGRATULATIONS!! – Now what?
A.
B.
Look at statutes first, then cases – because city is a creature of the state, created
by statute. Index to RSMo is better than index to Vernon’s. Internet search is the
wave of the future, but has limitations which you should understand.
1.
We are trained in law school by the “casebook method” which has the side
effect of emphasizing the importance of judges and decided cases. You
need to set aside that training when dealing with local governments,
because many statutes are never interpreted by a court, and many
questions can only be answered by reference to the statutes.
2.
May be worth your time to sit down with statute book and read the chapter
in RSMo that applies to your city. Perhaps every couple of years.
3.
It is also a good idea to read the state constitution, especially Articles VI
and VII, from time to time.
4.
Consider purchasing (and reading from cover-to-cover) the Missouri Bar
CLE publication on Local Government Law. (However, this publication
also tends to de-emphasize statutes.)
History – it is sometimes very difficult to understand the statutes and the cases
unless you remember medieval European history. Cities developed independently
of the feudal system, and depended upon money (coin) in order to function,
because the specialists who inhabited a city could not accept goods in trade –
there wasn’t enough room to store the goods, nor enough time (if one was busy as
a dressmaker, for example) to dispose of the bartered goods. Counties are a direct
descendant of the feudal system, and were originally based upon a barter
economy. In fact, the English word “county” is a direct descendant of the word
that used to describe the land of a Count, one of the lesser members of nobility.
1.
Although the common law has had over 400 years to develop in the
United States, cities and counties are still quite different things and are
treated differently in the law. Cities are more independent of state control.
2.
One can hope that eventually all local governments become less subject to
feudal vassalage and oversight from the state government, it is still true
that city governments are remarkably independent of the state, and in
some locations are even more important than the state government. (I am
thinking of the status of New York City in New York state, Chicago in
Illinois, or Los Angeles and San Francisco in California.)
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C.
Some general principles of statutory interpretation, that probably you were not
taught in law school:
1.
“Statute” does not include the bold face caption at the beginning, nor the
chapter name, both of which have been added by the revisor of statutes.
§§3.030 , 3.050 RSMo Most attorneys and most judges are ignorant of
this, however.
2.
Any statute that says “no person or corporation” shall do something does
not apply to a local government. For example, state minimum wage.
Wright v. State, (Cole co. circuit, opinion on MML web page). Webster
Groves v. Smith, 102 SW2d 618.
3.
COMPLICATION: “Once saved, always saved” ? §1.100 RSMo; State ex
rel. McNeal v. Roach, 520 SW2d 69; State ex rel. Woods v. Connett, 525
SW2d 69
“....Any law which is limited in its operation to counties, cities or other
political subdivisions having a specified population or a specified assessed
valuation shall be deemed to include all counties, cities or political
subdivisions which thereafter acquire such population or assessed
valuation as well as those in that category at the time the law passed.
Once a city not located in a county has come under the operation of such a
law a subsequent loss of population shall not remove that city from the
operation of that law....”
4.
Statutes don’t always mean what they say. Statutes may be mandatory, or
may be directory. A statute that is directory, there is no significant
consequence if you fail to follow it. (If no penalty, usually directory.)
McQuilllin § 10.32
a.
5.
This is a difficult concept for criminal or probate lawyers to
understand. And for probate judges to comprehend. I have a
general prejudice against letting a probate judge decide a
municipal law case, because I don’t think they can overcome the
“civil law” nature of their general work, and don’t seem willing to
learn much about the “common law.” (Remember: Probate was
established by the Church, and was based upon church law, which
is basically European civil law and generally doesn’t provide much
wiggle room.)
All of us have been taught in law school that the most important thing in
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interpreting a statute is INTENT. What did the legislature intend?
Unfortunately in Missouri there is no record kept from which one can
devise legislative intent. The legislature does not keep a journal of its
proceedings that includes debates between members, and it is very rare
that a legislative committee prepares a report about a bill it is considering.
6.
7.
a.
So, in Missouri, it is next to impossible to establish what the
legislature intended.
b.
War stories of individual legislators put on stand to testify as to
what the legislature intended?
Would newspaper reports be
relevant?
c.
About once every 10 years there is a court decision which
“shocks” all the politicos in Jefferson City (and sometimes many
attorneys), because they remember what was intended, while the
court enforced what was written.
Conflicting statutes
a.
When conflicting statutes exist, first consider if both of them might
be “directory” rather than “mandatory” and thus don’t conflict at
all.
(See above) For example, there are several statutes
authorizing cities to deal with debris and junk. All are valid in my
opinion, even if the statutes say different things.
b.
If statutes do conflict, last one passed is generally considered to
have repealed or amended the other statute.
c.
If both statutes were passed at the same session of the general
assembly, courts will attempt to harmonize the two versions, and if
that proves impossible will toss both statutes. (Reason: Missouri
does not publish or record any legislative history, so one cannot
determine what the legislature intended).
Context. Statutes don’t exist in a vacuum, but an electronic search
assumes they do. Take time to read (or at least scan) the statutes and
precede and follow the one you are interested in.
a.
For example, consider §115.350 which says:
“No person shall qualify as a candidate for elective public
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office in the state of Missouri who has been convicted of or
found guilty of or pled guilty to a felony under the laws of
this state.”
This means that the local convicted child predator cannot run for
Mayor in your town, right?
b.
But § 115.305 says:
“This subchapter [115.305 through 115.405] shall not apply
to [local elections]...”
So maybe the local child predator can be mayor? Consensus
answer among city attorneys is “yes,” although I was prepared to
argue “no” if Ken Storla had actually filed for the office of Mayor
in the City of Clark.
D.
Inaccuracies in the Revised Statutes of Missouri
1.
Revisor of Statutes is an employee of the legislature, and is more
concerned with enhancing the power of the legislature than with an
accurate rendering of the statutes.
2.
Statutes which have been declared unconstitutional by the highest court in
the state are routinely included in the published statutes, often without a
notation that the statute is unconstitutional.
3.
Injunctions which are outstanding against the state of Missouri which
forbid the state from enforcing statutes are never honored by the Revisor
of Statutes, who considers those injunctions to be a problem for the
executive branch. Example: recent circuit court ruling that minimum
wage statute does not apply to local governments and enjoining
enforcement (and which the executive department decided it would not
appeal) isn’t mentioned in the Revised Statutes.
a.
There is no central repository of outstanding injunctions and/or
adverse circuit court decisions against statutes. AG Office
considers it the responsibility of individual executive departments
to be aware of injunctions, adverse rulings.
b.
Municipal league web site has a few such injunctions – would be a
good place for others to be posted.
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4.
Hammerschmidt problems: The Missouri Constitution requires legislation
to concern only “one subject.” The legislature constantly ignores this
requirement. If you find a statute troublesome, it may be worth your while
to examine the original session law and see if you can get rid of the
statute.
E.
Treatise: McQuillin on Municipal Corporations (about 30 volumes) – about
$1,800 per year. Available on Westlaw. Find a copy at large law libraries, and
in law departments of larger cities. This treatise is often cited by Missouri courts,
especially on questions where there is no Missouri precedent. Also this book
professes to cite every published case relevant to its discussion, and it is an
excellent place to begin research. The original author of this treatise was a
Missouri lawyer, so original versions were heavy on Missouri authority. Some of
that continues into the current version of McQuillin.
F.
Sources of assistance:
1.
MML: (573) 635-9134 or www.mocities.com
2.
IMLA (or IMLA “lite”) www.imla.org
3.
APA and “Planning Advisory Service” www.apa.org. The publications of
the Planning Advisory Service generally include a detailed legal analysis
of the leading cases as of the date of the publication.
4.
Election questions: Secretary of State – Secretary of State’s people are not
attorneys, but generally know more about elections than most attorneys –
they often do have a staff attorney in the elections department who might
be consulted. In those places with a Board of Elections, there is generally
one or two attorneys retained to advise the Board – and those individuals
are usually quite helpful.
5.
Finance questions: State Auditor. Generally the deputy state auditors and
senior employees are quite knowledgeable, quite helpful, and do not
generally change with elections, even when a different party takes control
of the office.
6.
Purchasing and contracting questions: National Institute for Governmental
Purchasing, www.nigp.org and its Missouri chapter, www.mapp.org.
These organizations are particularly helpful in providing sample contract
specifications.
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7.
Other city attorneys. See list at Appendix 1.
8.
On-line ordinance codes and other resources
a.
Missouri Municipal League. Www.mocities.com Useful links to
city codes. Newsletter for city attorneys. List serve for city
attorneys. Call 573/698-3074 to arrange for list serve, and for
IMLA “Lite” membership (cities under 2,500 population).
b.
International Municipal Lawyers Association. Www.imla.org.
Offers an IMLA-lite membership for Missouri cities under 2,500
popullation. Contact MML for enrollment information in IMLAlite.
c.
Municipal ordinance codes – Note that the MML website above
has links to member city websites, many including the ordinance
code of the city.
d.
1)
Municipal Code Corporation – codifies ordinances of cities
of
all
sizes,
but
mostly
mid-size
cities.
Www.municode.com.
2)
Sullivan Publications – codifies ordinances of Missouri and
some other Midwestern communities, mostly small sized.
Www.sullivanpublications.com.
3)
American Legal Publishing Co. – codifies ordinances,
mostly larger cities. Www.amlegal.com.
4)
Municipal Research and Services Center – centered in
Washington state, has a extensive internet library and
numerous city codes.
Affiliated with University of
Washington. Www.mrsc.org.
Internet “think tanks” and “public interest law firms” with useful
material (but with risk of a decided political bias) that you might
consult:
1)
First Amendment Center. Www.firstamendmentcenter.org.
This group provides much information about limitations on
speech and assembly. Decidedly anti-regulation in its
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political orientation, but its material seems to be relatively
unbiased.
9.
2)
Community Defense Center.
Www.communitydefense.org. This group is obsessed with
pornography and obscenity, and want to see it limited as
much as possible. Legal material relatively unbiased.
3)
Constitutional Accountability Center.
Www.theusconstitution.org.
Describes
itself
as
“progressive,” this group has absorbed the former
Community Rights Reporter. It opposes the burgeoning
“property rights” movement.
4)
Rutherford Institute. Www.rutherford.org. A conservative
group, concerned with religious freedom (particularly for
conservative Christians).
5)
Traffic Calming
Www.trafficcalming.org As its name
implies, this site provides information about speed bumps
and other measures to reduce traffic speed. Not much law
contained on website.
6)
Signlaw.com. Www.signlaw.com. Website maintained by
attorney Randal R. Morrison. All about billboard and sign
regulation, by an attorney who started out working for
billboard companies, but who appears willing to switch
sides.
7)
National Public Employer Labor Relations Association and
its Missouri Chapter.
Www.npelra.org. Membership
required to access web site.
DO NOT ASK ATTORNEY GENERAL if you want a correct answer.
When the AG’s office is advising their client (the state and its agencies)
they are quite good. When the AG is advising the public, you generally
get a politically expedient answer backed by minimal thought and
research.
a.
In some areas an opinion (or AGO) is the only thing available.
These opinions are published on the web and can be searched by
topic or key word. Remember, however, that an AGO has no more
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authority than the opinion of any other attorney, and you would be
better off following the opinion of the lawyer you are paying.
G.
How to look competent to your clients – some deadlines to remember:
(Items marked with * may be adjusted to fit fiscal year of city)
1.
January
a.
Prior to Jan. 1 (or start of fiscal year) adopt budget.*
b.
Publish semi-annual financial statement*
c.
End of filing period for city office sometime around January 20.
For exact date, see “Election Calendar” for current year at
Secretary of State’s web page.
d.
Notify election authority (county clerk or Board of Elections) of
form of ballot to be used in April election before sometime around
January 27. For exact date, see “Election Calendar” for current
year at Secretary of State’s web page.
e.
Send forms 1099s and W2 to IRS; distribute to taxpayers. (Note
form 1099 may be required to uniform or other expense allowance;
certain private use of public equipment; certain services provided
by city to taxpayers. I defer to city’s auditor for advice in these
areas.) Forms must be distributed to employees and others by
February 1, must be submitted to IRS by March 1 if sent on paper,
or March 31 if sent electronically.
2.
February
3.
March
a.
Campaign expenditure report due if candidate expects to spend
over $500
b.
City attorney conducts class for candidates on election law,
elementary duties in office? I don’t do this, but one of my
colleagues does because the city has asked him to. He suggests
that these classes give him an opportunity to explain a bit about
campaign financial disclosure rules, and to provide preliminary
information about the city’s budget, and to generally try to
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demonstrate to the candidates that he is indispensable. Of course
these candidates are not the “client” of the city attorney.
4.
5.
April
a.
Beginning in 2010, prepare estimate of taxes for later in the year,
send to county.
b.
Municipal election day, sometime around April 7 For exact date,
see “Election Calendar” for current year at Secretary of State’s
web page.
May
a.
6.
June
a.
7.
If city collects its own taxes, begin preparation for delinquent tax
sale.
July
a.
8.
Financial disclosure reports due
Publish semi-annual financial statement.*
August
a.
New laws go into effect around August 28. Often it will be
necessary to adopt new city ordinances that mirror state
misdemeanor statutes, so you can prosecute these offenses in
municipal court, and (1) make more efficient use of police officer
time, and (2) retain the revenue for city coffers.
b.
City must conduct its “open window” tax rate public hearing, with
7 day newspaper notice. §67.110.2
c.
Delinquent tax sale – city has to conduct its own sale if city
collects its own taxes; county will add to the county’s tax sale if
the county has agreed to collect your city’s taxes. Regardless of
who conducts sale, city should buy everything within its boundary
(at least those properties offered for the third time) as a way to
prevent the creation of nuisance properties.
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9.
d.
City must set its tax rate, and notify county prior to September 1 if
county is collecting the tax. §67.110.1
e.
City may need to re-adopt its ordinance that reduces the required
financial disclosure, if it has an annual operating budget in excess
of $1 million. This is actually only required every-other year, but
if you do it every year you have more room for error. Required by
September 15. §105.483(11) and §105.485.4
September
a.
10.
11.
October
a.
Budget preparation should be well underway
b.
Adopt annual ordinance imposing tax liens for services such as
mowing, building demolition, unpaid sewer bills, etc. and record in
land records.
November
a.
12.
Beginning in 2009, any city with a TIF district must file an annual
report of the economic activity of the district with the state
Department of Economic Development. Generally these reports
are due around mid-month. Failure to file the report disqualifies to
the from having another TIF district for 5 years. §99.865
December
a.
H.
City plans for municipal election, adopts ordinance (?), and clerk
publishes notice of election. May extend into October or
November.
Filing for municipal elective office begins sometime around
December 20. For exact date, see “Election Calendar” for current
year at Secretary of State’s web page.
If you want to get paid when city is ready to fire you, prepare a contract.
§432.070
1.
Then you need a new contract if you raise rates, etc.
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See below, Chapter VI
G.
II.
Ethics: More than “Code of Professional Responsibility.” See below, Chapter
XXIII. We lawyers have the “Code of Professional Responsibility” drilled into us
in lawschool and in seminars, to the extent that we forget that statutes (bribery,
financial disclosure) and constitution (nepotism, disqualification of legislators)
also apply to us.
Types and Authority of Cities
A.
Five kinds of municipalities: There is no logic to the classification of cities. Voter
approval is required to change from one class to another. It is probably “best” to
be a Home Rule (Constitutional Charter) City, but the classification is ordinarily
not very significant.
1.
Town or village – 5 “trustees,” no mayor, but “chairman” – Chapter 80
RSMo
a.
b.
c.
City council is called “Board of Trustees”
1)
Five trustees, elected at large
2)
If more than 2,500 population, voters may authorize 9
trustees, also elected at large. §80.040
Mayor is actually the “Chairman of the Board of Trustees” elected
by trustees for a 1 year term.
1)
No veto power
2)
However, must sign ordinance, or it is void – so in effect
court has given (mistakenly?) veto power to chairman
Chairman is supposed to “print and publish” ordinances.
1)
Is ordinance invalid if isn’t “printed and published”?
§80.120
2)
Is publishing on the web good enough?
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2.
d.
Maybe with a village administrator. No statutory authority.
e.
No wards (election districts)
f.
Village law seems strange to Missourians
1)
“Village common”
2)
“taxable inhabitants” (I presume this originally meant a free
white male. Now I think it is synonymous with “resident.”)
3)
Adopted in 1809 by Indiana Legislature (acting in its
capacity as the temporary legislature for the Missouri
Territory.)
Fourth class city – 4 or more “aldermen,” mayor, others – Chapter 79
RSMo
a.
City council is called “Board of Aldermen”
1)
Default is 2 year term §79.060 There is a problem with
§79.030, which says that elections are held every two years,
which is impossible if aldermen have staggered two year
terms. You must hold an election every year. It is my
assumption that §79.030 was amended at the same time that
fourth class cities were given the option of having 4 year
terms. So I suggest §79.030 may be safely ignored if your
city has two year terms.
2)
Two or more wards required – meaning must be at least 4
aldermen, with no maximum. §79.060 Most fourth class
cities have 4, 6, or 8 aldermen, in my experience.
3)
Qualifications for aldermen (§79.070):
a)
at least 21 years of age
b)
citizen of the United States
c)
inhabitant and resident of the city for one year next
preceding his or her election
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d)
b.
a resident, at the time he or she files and during the
time he or she serves, of the ward from which he or
she is elected
Mayor is called “mayor”
1)
Default is 2 year term
2)
Qualifications for mayor (§79.080):
a)
at least 25 years of age
b)
citizen of the United States
c)
A resident of the city at the time of and for at least
one year next preceding the election.
c.
Maybe with a city administrator §77.042 This is not a misprint.
Although this statute is located in the chapter relating to third class
cities, it expressly includes all cities under 30,000 pop., but not
villages.
b.
Maybe without wards (>1,000 pop.)
c.
Maybe 4 year terms for mayor and collector (by ordinance)
§79.050.2
d.
Maybe 4 year terms for aldermen (w/voter approval) §79.050.3
e.
Maybe a combined office of collector & marshal §79.230
f.
Maybe with a chief of police; voter approval was required §79.050
i)
Can voters reverse decision? No, says Cronan
g.
City clerk: indefinite or fixed term?
h.
Maybe with an appointed collector; voter approval required
§79.050
i.
NOTE: May collect attorney fee for nuisance abatement §79.383
Page 14 of 267
i)
j.
May a third class city charge for attorney fee?
Cronan: I have a third-class city that does so; will a court
agree it is permitted? Maybe, but I’m going to fold if
challenged.
Maybe with various independent or semi-independent boards (Pay
for board members? §79.365; §77.440)
1)
Board of public works §§ 91.450 to 91.550
a)
Often have their own check book and control their
money themselves, maybe separate attorneys
i)
2)
3)
Cronan thinks this violates statutes on
money being in the custody of treasurer. No
case yet to confirm that opinion. But see
§91.520 for ammunition for contrary
argument.
b)
Operate some or all of city utilities
c)
Sets utility rates without reference to city council.
§91.540
d)
Cannot “sue or be sued”
Park board §§90.500-.570
a)
Separate checkbook?
Separate employees?
Separate attorney?
Cronan thinks checkbook
should be at city hall; city attorney is board’s legal
advisor.
b)
Cannot “sue or be sued”
Library board – §§ 182.480 to 182.500
a)
Boundary frozen at 1964 city limits, or when county
library comes into existence. §182.480.
b)
Separate independent unit of government; can “sue
and be sued.”
Page 15 of 267
c)
4)
Probably the library board can set its tax levy
independently of the city council, although in most
cities the city council sets the tax rate. Also the
library board can set its own budget, etc., because it
has been converted to a separate unit of
government.
Housing authority §§99.010 – 99.230
Board members may only be removed “for cause”
§99.070
Separate independent unit of government; can “sue
and be sued.” §99.080
a)
b)
5)
3.
c)
Under thumb of HUD
d)
Has separate audit, because feds say so. §99.055
Cemetery board
a)
Beware of inadequate records, unmarked graves,
potential for gross embarrassment and [limited] tort
liability.
b)
Separate cemeteries for different races? Religions?
c)
“City cemetery” considered a demeaning name by
persons from big cities.
6)
Planning & Zoning (discussed later in Part VIII)
7)
Others
Third class city – 4 or more “councilmen”, mayor, other officers maybe –
Chapter 77 RSMo
a.
Maybe with a city administrator §77.042
b.
Maybe with a city manager §§ 78.430 to 78.720
c.
Maybe with a commission form of government §§ 78.010 to
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78.400
d.
Maybe with a chief of police – and a police personnel board §§
86.541 to 85.571
e.
Maybe an elected CITY prosecuting attorney (who is called “city
attorney” by the statutes, while an appointed attorney is called the
“city counselor.”) §77.370 It isn’t clear from reading the statutes
that the elected “city attorney” must be relegated to the position of
city prosecutor, but that is the way it works in every Third Class
city we know about. Certainly the title “city counselor” implies
that individual has primarily civil responsibilities.
f.
Maybe with an elected (or appointed?) Assessor
g.
1.
No authority to deviate from county assessor’s assessment
NOTE: Recall possible, but high voter signature required §77.655
f.
4.
Maybe with various independent or semi-independent boards –
Same as discussed above for 4th Class City, except items 7 & 8.
(Pay for board members? §79.365; §77.440)
1)
Board of public works
2)
Park board
3)
Library board
4)
Housing authority
5)
Cemetery board
6)
Planning and zoning
7)
Airport Board §305.230
8)
Hospital Board §96.160
9)
Others
Special Charter city – Chapter 81 RSMo and individual Legislative
Charter
Page 17 of 267
5.
Home Rule city – Art. VI, §19(a) of Missouri Constitution and Chapter 82
RSMo, and individual city charter (and perhaps drafting notes? Minutes?)
a.
Usually very similar to “old” city operations because only 1 year to
draft charter
b.
Model City Charter, published by Missouri Municipal League
1)
B.
C.
Commentary useful to interpret your city’s charter.
Authority of municipality
1.
Town or village – List of 40 powers including those “not repugnant to and
contrary to the laws of the state...” §80.090
2.
4th Class:
3.
3rd Class: §§ 77.470 to 77.590
4.
Special charter:
5.
SUMMARY: Generally courts do not wade through the various statutes,
but generalize to say that statutory cities possess a delegation of the
“police power” of the state. It might be better for a city litigating a
question to point to a specific statute than rely on the generalized “police
power” argument. In theory the “police power” of the city is equal to the
“police power” possessed by the Missouri General Assembly, because the
legislature hasn’t reserved or limited city police power. HOWEVER, this
is theory. Many judges believe their political views of what a city ought
to do limit cities to adopting only “reasonable” ordinances.
5.
PROBLEM: Dillon’s Rule.
6.
Home Rule: All the powers consent with the Missouri Constitution and
state laws. Dillon’s rule is reversed. Broad to tailor a form of government
that its citizens believe will best serve their interests, State ex rel Petti v.
Goodwin-Raftery, 190 SW3d 501,505.
Authority of individual officers – mostly a matter of custom
1.
In all cases, city council wins (if they have the guts)
Page 18 of 267
2.
D.
a.
However, may require concurrence of council for mayor to remove
another officer.
b.
Example: Fourth class city, 5 person city council (mayor + 4
aldermen). Aldermen split 2 - 2 on most questions. Mayor wants
to get rid of city attorney. Two aldermen want to keep city
attorney, mostly because mayor wants to fire her. City attorney
gets to keep her job, if she wants it..
Authority over employees
1.
E.
In most cases, mayor wins (if he/she has the guts)
“no man can serve two masters...”
a.
Primary argument against accepting a city job.
b.
Presence of an advisory or supervisory board can exacerbate this
problem.
c.
City manager or city administrator can (if city council doesn’t
interfere too much) reduce this problem.
d.
Primary job of city attorney is to prevent these problems and try to
encourage a “chain of command”?
How a city speaks
1.
No individual speaks for city (i.e., no “apparent authority”)
2.
Paper required
a.
Ordinance – necessary to put people in jail
b.
Resolution – except for a resolution adopting a budget, a resolution
is simply an expression of the wishes of the person/group issuing
it.
c.
Motion
1)
“Roberts Rules of Order” is not law, and does NOT trump
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the statutes.
d.
2)
But it is essential to have a procedure to handle meetings,
to ensure fair discussion of the issues. This should be
established by ordinance, and may well be that the council
wants to adopt Robert Rules of Order as their meeting
rules.
3)
See also “Jefferson’s Rules” and others
4)
Roberts Rules of Order are designed for a large meeting
(i.e., 75 or more people). There is an appendix at the back
with changes for smaller meetings, primarily:
i)
No second required to a motion
ii)
Discussion can occur before a motion is made.
Proclamations, Awards, Certificates – “Ceremonial Documents”
1)
Does freedom of speech extend to “Government Speech?”
Can mayor issue a proclamation to favor one side of a
controversial question, and refuse to do the same for the
other side?
2)
Old GAP publication called “Ceremonial Documents”
available on MML website.
e.
Many cities discuss a proposal until a concensus develops, and
then move on to the next problem. This won’t work; it is
necessary for the presiding officer (mayor, or whomever) to
schedule and require a vote. Minutes of a meeting that report that
“the concensus was” to do this, or that “everyone agreed” to do
that will not work; the fault is not the city clerk or the individual
who took the minutes. The blame lies with the mayor and maybe
some with the city attorney.
f.
Differing procedures to “pay the bills” – discussed below under
“budget” requirements
g.
Contract (discussed below)
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IIA.
F.
Impeaching or Supplementing the Public Record
G.
De Facto and De Jure Officers
H.
Removing an Elected Official from Office
Constitutional Protections of, and Limits to Municipal Authority. This chapter is
primarily for Missouri constitutional provisions not mentioned elsewhere in this outline.
See Chapter 13 for a discussion of the First Amendment to the US Constitution; and
Chapter 11 for Employee Discharge Rights, which includes discussion of US
Constitutional rights.
A.
General Limits on State Government Power. Provisions that might be used to
invalidate statutes that otherwise lawfully adopted by the state legislature:
1.
General assembly may not act in an extra session called by the governor,
upon subjects not mention in the call. Article III, Sec. 39(7)
B.
Limits on State Government’s Power over Local Governments
1.
General assembly:
a)
Shall not give or lend credit to any person or municipal
corporation. Article III, Sec. 39(1)
b)
Shall not pledge credit of state to pay debts of any person or
municipal corporation. Article III, Sec. 39(2)
c)
Shall not grant, nor authorize any county or municipal authority to
grant retroactive extra pay. Article III, Sec. 39(3)
d)
Shall not pay, or authorize city to pay on an invalid contract.
Article III, Sec. 39(4)
e)
Shall not release, or authorize city to release any debt without
“consideration.” Article III, Sec. 39(5)
f)
Shall not remove the seat of government from Jefferson City.
Article III, Sec. 39(8)
g.
Shall not impose a use or sales tax upon the use, purchase or
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acquisition of property paid for out of the funds of any county or
other political subdivision. Article III, Sec. 39(10)
h)
2.
Shall not pass any local or special law. Article III, Sec. 40, and
note specifically subparts (15), (16), (17), (18), (19), (20), (21),
(22), (23), (28), (29). Also note that subpart (30) says that no local
or special law may be passed “where a general law can be made
applicable, and whether a general law could have been made
applicable is a judicial question to be judicially determined
without regard to any legislative assertion on that subject.”
State
a)
State support to local governments not to be reduced, additional
activities and services not to be imposed without full state funding.
Article X, Sec. 16 & Sec, 21 This is the so-called “mandates
clause” of the Hancock Amendment.
1)
Note that this provision doesn’t merely limit the legislative
branch – it also applies to the executive and maybe even to the
judicial branch.
2)
Although there has been much litigation concerning
“additional activities and services,” no one has litigated over
reductions in “state financed proportion of the costs” of local
activities. I think new sales tax exemptions, various tax holidays,
and decreased or level state appropriations in aid of local activities
would be things that ought to be called to the attention of the
courts.
C.
Provisions relating to Local Government Officers
1.
The terms of city offices shall not exceed four years. Article VI, Sec. 10
2.
Nepotism. Article VII, Sec. 6 “Any public officer or employee in this
state who by virtue of his office or employment names or appoints to
public office or employment any relative within the fourth degree, by
consanguinity or affinity, shall thereby forfeit his office or employment.”
See discussion in Chapter 22, Part G.
3.
Tenure of office. Article VII, Sec 12. “Except as provided in this
constitution, and subject to the right of resignation, all officers shall hold
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office for the term thereof, and until their successors are duly elected or
appointed and qualified.”
4.
D.
Limitation on increase of compensation and extension of terms of office.
Article VII, Sec. 13
Provisions to Regulate Local Governments
1.
Classification of cities and towns – uniform laws. Article VI, Sec. 15 The
general assembly may create dfferent classes of cities, not to exceed
four…. “so that all municipal corporations of the same class shall possess
the same powers and be subject to the same restrictions.”
a)
This part of constitution is frequently ignored by the General
Assembly.
2.
Cooperation with other governments authorized. Article VI, Sec. 16 A
very broad grant of authority, not requiring a statute to go into effect.
3.
Consolidation and separation of political subdivisions may be authorized
by statute. Article VI, Sec. 17
4.
Home Rule. Some cities authorized to adopt charter form of government.
Article VI, Sec. 19, 19(a), and 20
a.
State may make no law creating or fixing the powers, duties or
compensation of any municipal office or employment of officer of
charter cities. Article VI, Sec 22
5.
Reclamation of blighted, substandard or insanitary areas. Article VI, Sec.
21
6.
No use of tax money for private benefit.
a.
City may not own stock in private corporation. Article VI, Sec. 23
b.
City may not lend its credit or grant public money to private person
or group. Article VI, Sec. 23 and Sec. 25
c.
With voter approval, city may acquire and furnish industrial plant.
Article VI, Sec. 23(a)
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d.
May provide pension, retirement plan, death benefits for public
employees and families. Article VI, Sec. 25
e.
Medical benefits may be provided for officers, employees and
dependents. Article XIII, Sec. 2
7.
Prohibition of public aid for religious purposes and institutions. Article
IX, Sec. 8
8.
Limitations as to debt.
a.
Without voter approval: may borrow equal to the income and
revenue of year, plus any unencumbered balances. Article VI, Sec.
26(a)
1)
9.
This provision has been comforting, when I have been
asked to sign an “opinion letter” authorizing a
“lease/purchase” over 3 years of a copying machine (for
$10,000 total, or 1/3 that amount each year). The fact that
the city has $4,000,000 in reserves makes the borrowing
lawful, even if the lease/purchase document has some
provisions I don’t think would hold up if the city really
needed to borrow the money.
b.
With voter approval. Article VI, Sec. 26(b), 26(c), 26(d), 26(e),
26(f), 27, 27(a), 27(b), 27(c), 28 and 29. Because debt issues
normally require a specialized opinion from bond counsel, little
detail is provided in this outline.
c.
Refunding bonds. Article VI, Sec. 28
d.
Application of funds derived from public debts. Article VI, Sec. 29
“The moneys arising from any loan, debt, or liability contracted by
the state, or any county, city, or other political subdivision, shall be
applied to the purposes for which they were obtained, or to the
repayment of such debt or liability, and not otherwise.”
e.
Immunity of private property from sale for municipal debts.
Article X, Sec. 9
Zoning: shall not regulate construction of state highways within
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municipality. Article IV, Sec. 31.
10.
Taxation.
a.
City taxation only on basis of power granted to it by the general
assembly. Article X, Sec. 1
11.
III.
b.
City may not give away its taxing powers. Article X, Sec. 2
c.
City taxes may only be levied for public purposes, and must be
uniform. Article X, Sec. 3
d.
City property not subject to taxation. Article X, Sec. 6
e.
Private property immune from sale for municipal debt. Article X,
Sec. 9
f.
City tax limited to maximum of $1 per $100 assessed valuation.
Article X, Sec. 11(b)
g.
Increase beyond $1 authorized. Article X, Sec. 11(c)
h.
Bonded debt not included within $1 limit. Article X, Sec. 11(e)
i.
Taxes in addition to ad valorem taxes authorized. Article X, Sec.
11(f)
j.
Voter approval required for increases in taxes, some licenses and
fees. Article X, Sec. 22. The Hancock Amendment.
k.
New taxes on transfer of real estate prohibited. Article X, Sec. 25
Local consent for street railroads. Article IX, Sec. 11
Who Votes and How Often? Technicalities
A.
General rule: RSMo § 1.050.
B.
Special rule: ordinance
C.
Mayor pro-tem votes twice?
Page 25 of 267
D.
1.
Yes: AGO
2.
No: Cronan
3.
Try to avoid litigating this question
Formalities necessary to adopt an ordinance – these formalities
1.
Must be in writing
2.
“Magic words” §80.100; §79.130; §77.080
3.
“Read” multiple times (twice most places, three times in certain charter
cities).
4.
a.
Read by title only?
b.
Don’t record how was read in minutes.
Vote recorded by name in minutes
a.
5.
Ordinance signed (even where mayor has no veto)
6.
Title required in most charter cities – not in statutory cities
a.
IV.
Can correct with “nunc pro tunc” order. Fargo v. City of Irondale,
364 Mo 500
Mostly because included in MML’s Model Charter.
7.
Penalty
8.
Severability Clause
Meetings
A.
No requirement when or how often meetings are held
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B.
Very little about meeting procedure – should have ordinance
1.
Robert’s Rules of Order is not law, and people’s perception that a motion
dies for lack of a second, or that the presiding officer cannot express an
opinion, or other so-called “truths” from Robert’s are not necessarily
correct.
2.
Not required to let audience talk, but most cities do. People only have a
“right” to attend the meeting, watch, and listen. They are not elected to
office and have no “right” to speak. So, you can limit time allotted to each
speaker, or limit number of speeches that one speaker is allowed to make
on a single topic.
a.
2.
C.
If you permit people to talk you have created a “limited public
forum” and you have to be open to adverse criticism, and be
careful not to stifle free speech. See Wilson and Alcarez, “Arrest
That Woman for Disrupting the Hearing!” – Handling the Unruly
Speaker, 52 Municipal Lawyer, No. 1, page 6.
1)
Reasonable to remove a disruptive speaker, who won’t stay
on topic. Steinburg v. Chesterfield County Planning
Commission, 527 F.3d 377 (4th Cir., 2008). Or who is
repetitive and truculent, and repeatedly interrupted the
chairman of the meeting. Eichenlaub v. Township of
Indiana, 385 F.3d 274 (3d Cir., 2004)
2)
Unreasonable to arrest speaker who gave a silent Nazi
salute, when a ruling from the chair upset him. Norse v.
City of Santa Cruz, 118 Fed. Appx. 177, 2004 WL
27557528 (9th Cir., Dec. 3, 2004 (Unpublished decision).
Or for saying “God damn!” when addressing the council,
and thus “using the Lord’s name in vain,” to the distress of
the mayor. Leonard v. Robinson, 477 F,3d 347 (6th Cir.,
2007).
Should not permit audience to interrupt council members.
“Sunshine Law” – Open Meetings and Records Law – Chapter 610 RSMo
1.
Must have a written policy. Otherwise everything is open.
a.
AG’s suggested policy is probably the worst, but is most
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frequently adopted.
b.
Two suggested policies on MML web site
c.
Should not be misplaced or lost – therefor suggest an ordinance be
used.
2.
See definition of “governing body”
3.
Advance 24 hour notice of agenda
4.
a.
Any “agenda packet” should be available to public on request &
payment
b.
Any “standing requests” don’t have to be honored, but should.
How to have a closed meeting
a.
Advanced 24 hour notice
1)
Do you have to give reason? Cite statute? AG’s office
says “yes”
b.
Motion (and second?) required.
c.
Roll call vote, recorded by name in minutes
d.
Must take (minimal) minutes of closed meeting
e.
Do not make audio or video tape of closed (or for that matter an
open) meeting!!
d.
e.
Must vote to end the closed meeting and return to open session.
Disclose result of closed meeting, within time limit.
f.
Adjourn open meeting.
g.
Council should not stray from closed meeting topic
– but how do you stop them? No answer from Bar “Advisory”
committee.
5.
Records
Page 28 of 267
6.
a.
Do not have to conduct a “search” – do have to produce records if
requested
b.
Fees – cannot exceed 10 cents per page, and salary of lowest paid
employee.
Never believe what the AG, a reporter, or Jean Meinke tell you about the
Sunshine Law.
a.
V.
Useful book: Schwing, Open Meeting Laws 2d, Falcon Publishing
Co., 2002. No discussion of FOI issues. Have not found a good
FOI text.
Finances
A.
CONSTITUTION: “Public purpose” for expenditure
B.
“Warrants” and checks
1.
Statutes pre-date banking
2.
Three finance officials
a.
Clerk
b.
Treasurer
c.
Collector
3.
AG says cannot consolidate two or three offices into one individual. Most
small cities do.
4.
State auditor says must have two signatures on checks – some banks
refuse to allow two signature accounts.
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C.
Budget – must have one §§67.010 to 67.100
The budget must include
information about the current year (estimates of income and expenses – since you
will only have 8 - 10 months of data when you begin the process), previous year
(actual income and expenses), and estimates of income and expenses for next
year.
1.
Budget hammer rule §67.080 If you don’t have a budget, a court will
enjoin any expenditures (including normal payroll), which would probably
encourage city to do what the law requires.
2.
Budget must be balanced § 67.010.2 A balanced budget is easy, since you
can over-estimate income. However, if the city is reasonably honest,
balancing may be harder.
3.
Adopting budget usually appropriates the money §67.020.2 This means
that the council only considers expenditures once a year? That is actually
the way it works in larger cities, but as noted below in ¶5, many smaller
towns find literal compliance with the budget statute unacceptable.
4.
MML publishes “Technical Bulletin” on budgeting, free to city officials.
5.
However, most small town ignore statute and have a custom about how
bills are paid – wide variety of customs, almost all permissible. (Example:
perhaps city clerk passes arround a folder containing all bills received for
current month, or perhaps a list of current checks is prepared, or perhaps
the checks themselves are presented for council members to sign.) It
would be better if the custom were written down somewhere, but often
that is not the case. Controversy is often created when the custom is not
followed, even though the individual who failed to follow the custom
might have done nothing illegal.
a.
Can department heads spend money w/o advance approval?
Budget law implies that answer is yes, because money has already
been appropriated. However, usually small city councils expect
department heads to ask specifically for each purchase, or at least
those purchases which are not routine.
Page 30 of 267
D.
b.
Can mayor or city manager authorize purchases to a pre-set limit?
Again, budget law implies that mayor or city manager have
authority to spend once budget approved. However, many city
councils in small towns will limit that authority to a set amount.
c.
Can mayor or city manager purchase outside budget in a real or
perceived emergency? Budget law implies a “no” answer to this
question, unless there is a contingency fund line-item in the
budget. However, sometimes it is necessary to be practical. A
skillful politician can get by with more in this area than someone
who the council considers an adversary.
Security for public money
1.
$100,000 (“Temporarily” $250,000) FDIC Insurance per city, not per
account.
2.
“Collateral pledge” for over FDIC. A collateral pledge is similar to what
happens at a pawn shop. The bank has to pledge “stuff” to secure the
city’s money which your city is lending to the bank. The “stuff” that is
pledged should be things suitable for direct city investment (i.e., U.S.
Gov’t bills and notes, investment grade Missouri bonds, etc.). The “stuff”
is placed in the custody of an independent third party (often the Federal
Reserve Bank) which gives its receipt (similar to a pawn ticket) to the city.
a.
Suggest get 110% of amount over the FDIC Insurance
b.
Check collateral daily? Weekly? Never?
E.
“Bid” for depository?
F.
Liability of treasurer – almost absolute!
I.
Investment policy – required – sample at www.treasurer.mo.gov.
G.
MoSIP, www.mosip.org.
H.
C-DAR program for certificate of deposits
Page 31 of 267
I.
Borrowing
1.
Voter approval required
2.
Get around vote by lease/purchase
3.
If you don’t really need the money
4.
Your opinion letter
a.
Discuss with your malpractice carrier
b.
Obtain specialized help?
J.
Petition audits
K.
L.
Fixing ad valorum property tax rates §67.110
Semi-Annual Financial Statement §77.110;
M.
Bankruptcy §427.100
N..
Does Your City Need to Have an Audit?
1.
Missouri Constitution says a firm “maybe”
2.
No state statute requires it.
3.
Receipt of federal money (either pass-through-state or directly) in excess
of $_______ triggers federal requirement for audit.
4.
Your opinion letter to accounting firm.
a.
Insist request is signed by your city, and on the city’s letterhead
(i.e., partial waiver of attorney/client and work-product privileges)
b..
ABA Standards for contents of audit letter.
Page 32 of 267
c.
VI.
“Unasserted claims”
Contracts and Cooperative Agreements
A.
B.
Difference –
1.
“Contract” as used in this document means and agreement between a city
and a private person or firm.
2.
“Cooperative Agreement” is an agreement between two units of
government. A cooperative agreement is, of course, a type of contract.
But there are several unique points of law about an inter-governmental
contract and for that reason they are discussed separately.
Authority to Enter into Contract
1.
Contract must be in writing – §432.070 (Public Contract Statute of Frauds)
All contracts by a city, town, or village must be:
•
Within the scope of its powers or be expressly
authorized by law.
•
Made upon a Iconsideration wholly to be performed
or executed subsequent to the marking of the contract.
•
In writing including the consideration
•
Dated when made
•
Subscribed by the parties thereto, or their agents
authorized by law and duly appointed.
•
Authority to sign agreement must also be in writing.
Although it ought to be self-evident from the forgoing, to say this another
way AN ORAL CONTRACTS WITH A LOCAL GOVERNMENT IS
WORTHLESS AND UNENFORCEABLE. THERE IS NO SUCH
THING AS A “QUASI-CONTRACT” OR “IMPLIED CONTRACT”
CAUSE OF ACTION AGAINST A LOCAL GOVERNMENT
a.
The provisions of §432.070 “are mandatory, not merely
directory...and...a contract made in violation of them is void rather
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than voidable.” City of Fenton v. Executive Intern. Inn, Inc., 740
S.W.2d 388, (Mo. App. E.D. 1987).
b.
Written authorization to sign contract cannot be: “vague and
uncertain...[and]...broad in scope,” and must “specifically
authorize certain terms..., be specific and definite, and must
include an outline of the terms of the proposed contract.”
Moynihan v. City of Manchester, 265 S.W.3d 350 (Mo. App. E.D.
2008).
c.
The contract must be approved by the governing body as a
governing body. Gathering piecemeal approvals of majority of
members of governing body does not constitute valid approval of
contract. See Moynihan v. City of Manchester.
d.
The minutes of a governing body may be part of the “writing”
showing express authorization of the governing body to execute.
United Cooperatives, Inc. v. City of Smithville, 630 S.W.2d 255
(Mo. App. W.D. 1982)
1)
However, minutes must show that requirements of the
statute were met. City of Gainesville v. Gilliland, 718
S,W,2d 553 (Mo. App. S,D, 1986)
Contract was
unenforceable where minutes did not adequately state
consideration supporting city’s execution of contract.
e.
NOTE: Contracts are unenforceable where contract is not executed
by public official and there is no ordinance authorizing execution
of contract. Sorkin v. Cit of St. Clair, 800 S.W.2d 817 (Mo. App.
E.D. 1990) We believe the court was wrong when it said an
“ordinance” was required – statute only requires a writing, and a
resolution or even in limited circumstances the minutes can be that
writing. However, even we recognize that it might be safer to use
an ordinance.
f.
Contracts that are outside the scope of authority of a political
subdivision cannot be ratified by partial performance. St. Charles
County v. A Joint Bd. Or Com’n, 184 S.W.3d 161 (Mo. App. E.D.
Page 34 of 267
2006), County was 12th county signatory to cooperative agreement
where statute only authorized 10 county signatories.
g.
1)
“It is ultra vires for a Missouri municipality to incur a
liability not within the scope of its corporate powers or one
not expressly authorized by law.”
2)
“The contract cannot be ratified by either party, because it
could not have been authorized by either. No performance
on either side can give the unlawful contract any validity,
or be the foundation of any right of action upon it.”
Contracts made in violation of local requirements are also void.
Riney v. City of Hannibal, 712 S.W.2d 49 (Mo. App. E.D. 1986) In
purchasing materials for road project, City exceeded limit
contained in City Charter for purchases without bidding; supplier
could not be paid for materials supplied in excess of Charter limit.
1)
“As to the contention equity demands payment, concrete
supplier is presumed to have knowledge of the restrictions
contained in the city charter. Thus, it is not inequitable to
deny concrete supplier any recovery in excess of the charter
restrictions.”
RECOMMENDATIONS –
In your resolution or ordinance, have provisions that
1.
Approves the contract (attach the contract to your
approval
document
to
ensure
that
all
terms/consideration is incorporated into your
document.
2.
Identify a specific public official (usually the
Mayor) to execute the contract.
3.
Give that official the authority to sign the contract.
(Use the phrase that mayor is “authorized and
Page 35 of 267
directed” very sparingly – maybe after the meeting
someone will realize a mistake is about to be made,
and if mayor is “directed” to sign that might be
enough for mandamus to compel signature.)
4.
You might also want to give the mayor authority to
take “such other actions as necessary and proper to
effect the contract.”
The city cannot afford to have you draft each contract as a separate
document, nor can the city afford to have you review every
contract some vendor insists has to be used. To reduce costs and to
ensure that the proper provisions are in the agreement, you should
have a standard form contract that the CITY uses for everything.
See Appendix 6, at the end of this document, for a sample form
contract.
2.
C.
No extra compensation can be paid for work that is already performed, or
for which there is already a contract.
a.
Mo. Const., Art. III, §39(3) says that “The general assembly shall
not have power:
...to grant or to authorize any county or
municipal authority to grant any extra compensation, fee or
allowance to a public officer, agent, servant or contractor after
service has been rendered or [after] a contract has been entered
into and performed in whole or in part;”
b.
Kizior v. City of St. Joseph, 329 S.W.2d. 605 (Mo. 1959) Where
city had entered into an exclusive contract with private corporation
for the collection and disposal of city garbage for a ten year period
at a specified annual sum, amendatory contract providing for
increased compensation to corporation which agreed to do nothing
but to continue to collect and dispose of garbage in accordance
with original contract was violative of constitution.
Bidding – In general, not required, but probably a good idea. If you desire to
establish a bidding or purchasing policy, suggest you consider permitting informal
bidding (by consulting catalogues, the internet, or telephoning suppliers) for
Page 36 of 267
purchases less than $10,000 (or some other threshold).
1.
Bidding is not required by statute, except for cities over 500,000
population. §8.250 RSMo
a.
2.
Consider complications caused by “once saved, always saved”
statute. Does this provision still mean that the City of St. Louis is
still required to bid in manner provided by statute? Yes
State Auditor, if they ever do a petition audit of your city, will suggest you
should have a formal written purchasing policy, perhaps an ordinance.
a.
They will also argue that position of city attorney and of city
accounting firm should be rebid every 3 years or so.
b.
There is no legal basis for these suggestions, except for the general
belief that a prudent custodian of taxpayer money would do these
things to avoid wasting tax money.
3.
Missouri’s Prevailing Wage law implies (but does not explicitly require)
that bids be taken on contracts for “public works.” §105.xxx. See
discussion of this law below at item D.7
4.
State and Federal grant programs generally include a requirement that a
city take bids when spending the grant money. Usually the requirements
are quite detailed, and the city is expected to follow the grant’s
requirements even if doing so conflicts with an existing city purchasing
ordinance.
5.
The following specific statutes require bidding:
a.
Purchase of any insurance policy – bid every 6 years. §
b.
All employee health/life insurance – 3 years §67.150
1)
If an independent agent who takes bids annually for a city,
is this enough to comply with statute? Cronan thinks
“yes.”
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D.
c.
Engineering services – w/o regard to price §§8.285 – 8.291 Also
see Hellman v. St. Louis County, 302 SW2d 911 (Mo. 1957)
d.
Construction management – §8.679
e.
Industrial Development Projects must be bid. §100.170
f.
Fourth class cities street improvement with special assessments
§88.700
g.
Constitutional Charter Cities, pop. between 75,000 and 80,000
must bid “all city improvements of whatever kind or character.”
§88.940
h.
Roads – bidding required. §229.050 This provision, by its terms,
applies only to county, township, and district officials, although it
is included in a chapter of RSMo entitled “Provisions Applying to
All Roads.” Perhaps in this context, a road is something different
from a street and not a synonym.
i.
Waterworks improvements, cities of 3,000 to 150,000 pop. — but
only when “there are no waterworks in operation in any such city.”
§91.170
Specific provisions that may be required in contracts. This subpart of the outline is
heavily influenced by the excellent article “Statutory Requirements for Public Works
Contracts” by Rost and Moehlman, Missouri Municipal Review, September 2009 which
you are invited to review.
1.
“Buy American” – §34.350-34.359
a.
“Each contract made by a public ageency for construction,
alteration repair, or maintenace of any public works shall contain a
provision that any manufacured goods or commodities used or
supplied in the performance of that contract on any subcontract
thereto shall be manufactured or produced in the United States.”
§34.353.
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2.
b.
Law provides exceptions for contracts for less than $25,000 or
various situations where certain American products are of limited
available or would impose specified increases in cost.
c..
Ten percent preference §34.350.3(2)
d.
It is possible that the GATT and NAFTA treaties forbid this type
of preference. Such treaties are – with the US Constitution – the
“Supreme Law of the Land.” So you might be able to argue that
you don’t have to follow this statute.
e.
However there is an easier way to avoid the statute. A
municipality my opt out of the requirements of this law if the
“executive head of the public agency certifies in writing that.... the
political subdivision has adopted a formal written policy to
encourage the purchase of products manufactured or produced in
the United States.” Such a policy might be included in any local
purchasing policy or ordinance. For example, see Harrisonville
City Code §130.020.E.13, Holister City Code §145.100; Warson
Woods City Code §130.150.
f.
Although Rost and Moehlman don’t say so in their article, this
statute doesn’t only apply to public works contracts, but to every
purchase or contracting decision made by your city, if the price
exceeds $25,000.
g.
State purchasing department requires vendors to certify their
product is made in the US or that an existing treaty excuses
compliance. This avoids a burdensome bureaucracy overseeing
the vendor’s manufacturing process. Your city might want to do
the same.
Missouri Preference
a.
Not much of a preference: “everything being equal...” §34.073
1)
Can you have a local preference? Cronan argues that one
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cannot grant a preference to “every” Missouri firm, as the
statute requires, if you in fact prefer only local firms.
However, there is no city in Missouri that is known to
follow this opinion.
2)
This provision also probably violates the GATT and
NAFTA treaties, which requires that there be no
discrimination against any businesses of a signatory power
by any other power.
3.
Coal from Missouri or adjoining states required to be purchased,
“everything being equal...” §34.080
4,
Proof that contractor (not his employees) is lawfully present in Missouri.
§208.009. Hidden away in chapter on public health and welfare benefits,
requires proof at the time of application. A public contract qualifies as a
public health and welfare benefit, because legislature says so.
5.
Prompt Payment Act – §34.057
a.
Perhaps not necessary to recite in contract, but city needs to be
aware of this requirement.
b.
Requires public owner to make at least monthly progress payments
(unless contract provides for one lump sum),
c.
Contract retention set at a maximum of 10% although in most
cases a 5% maximum is specified, unless the public owner and
architect jointly determine that a higher rate is “needed to ensure
performance of the contract.”
d.
Bills must be paid within a 30-day time limit, and final payment on
completion of the project.
1)
Failure to pay within time limit subject to a 1.5% per month
interest charge, and perhaps payment of contractors
attorney fees.
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6.
Reciprocity – out-of-state contractors for public works subject to same
penalty as Missouri bidders in their state. §34.076
7.
When unemployment > 5%, use only Missouri labor, or labor from a
“nonrestrictive state” – §290.360 - .580. According to Rost and
Mehlman, the restrictive states as of July 29, 2009 were Alaska, Arizona,
California, Colorado, Connecticut, Delaware, District of Columbia,
Florida, Idaho, Illinois, Iowa, Maine, Massachusetts, Mississippi,
Montana, Nevada, New Jersey, North Dakota, Oklahoma, South Dakota,
U.S. Virgin Islands, West Virginia and Wyoming. Op. cit, fn 16. For a
more
current
list
see
www.dolir.mo.gov.ls/faq/faq_PublicWorksEmplyment.asp.
8.
When contract > $5K, immigration check §282.530. Affidavits need to
be received before contract is awarded. See “Statutory Requirements for
Public Works Contracts” by Rost and Moehlman, Missouri Municipal
Review, September 2009
a.
Note that by regulation, attempt is made to limit this provision only
to service contracts. 15 CSR §16-15.020(4). However a
regulation cannot conflict with a statute and if it does, the
regulation must fail. State ex rel. Doe Run Co v. Brown, 918
SW2d 303, 306, overruled on other grounds by Farmer v. Barlow
Truck Lines, Inc. 979 SW2d 160 (Mo 1998)
9.
OSHA Training – §292.675. Effective August 28, 2009 requires that “onsite employees” of contractors and subcontractors working on a public
works projects to have taken a ten-hour, OSHA-approved construction
safety course. This course is a one-time requirement for each employee.
See “Statutory Requirements for Public Works Contracts” by Rost and
Moehlman, Missouri Municipal Review, September 2009
10.
“Public work” requires prevailing wage be made part of the specifications
for the project. – §290.210.et seq. While the responsibility to pay the
prevailing wage to laborers work on public works projects ultimately falls
on a contractor, the Missouri Prevailing Wage Law imposes several
requirements on municipalities and other public bodies who let contracts
for such projects.
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a.
A municipality’s duties start before a contract is even let. “Before
advertising for bids or undertaking such construction,“ a public
body must request MoDOLIR to “determine the prevailing rates of
wages for workmen for the class or type of work called for by the
public works, in the locality where the work is to be
performed.Ӥ290.580.
1)
b.
11.
The method by which MoDOLIR makes these
determinations is flawed, in a way which discourages nonunion firms from submitting information about their wage
rates.
In theory a city could submit information to
MoDOLIR to result in a lower prevailing wage
determination, but getting cooperation from non-union
contractors is almost impossible, because participation in
the process almost guarantees a union organizing effort.
The wage rate determination must be “attached to and made a part
of the specifications for the work” and the public body must
specify the prevailing wages (including the rate for holiday and
overtime work) in the resolution or ordinance and in the call for
bids for the contract. §292.050.1
Payment surety bonds – when required – §107.170
a.
Mechanic’s liens cannot be filed on public projects Collins &
Herman, Inc. v. TM2 Cost. Co., Inc., 263 S.W.3d 793 (2008)
b.
To address this inequity, all public owners must require a payment
bond on every project with estimated costs in excess of $25,000.
The bond must be conditioned “for the payment of any and all
materials, incorporated, consumed or used in connection with the
construction of such work, and all insurance premiums, both for
compensation and all other kinds of insurance, said work, and for
all labor performed in such work whether by subcontractor or
otherwise.”
c.
Penalty: personal liability for the public officials who fail to
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require the bond. Union Pacific R. Co. v. St. Louis Marketplace,
Ltd. Partnership, 212 F.3d 386 (8th Cir., 2000).
d.
12.
The statute provides express authority for public entities to
indemnify public officials charged with enforcing this law, so
theoretically a public body could use tax money to pay for their
officer’s error.
1)
However, Missouri Constitution forbids the expenditure of
any public funds for which there is no corresponding public
benefit. Presumably the Constitution trumps a statute.
2)
If your city is going to indemnify its officials for failing to
do their duty, suggest it would be better for there to be a
before-the-fact indemnification ordinance when it would be
possible to argue that the city is in fact receiving something
of value in return for the indemnification (i.e., employees
and officials willing to serve). See discussion below in
Chapter VII.
3)
There is a serious problem of counterfeit payment bonds, as
bidders can photocopy an old bond and edit out the old
project and type in the new. This counterfeiting will not be
disclosed (and the contractor will save the expense of a
premium) if the project goes as planned. Considering the
penalty if a counterfeit bond is used (personal liability for
the people who hired you) Cronan suggests you should be
extremely hesitant to “approve” a contract with a payment
bond unless you have satisfied yourself that the bond is not
a counterfeit. This is more difficult to do than you might
think.
Performance bond. No statute requires a public owner to obtain a
performance bond. However, you should keep in mind that the winning
bidder on a construction contract is often the firm that is most desperate
for work, and most willing to shave its profit margin. The worst thing that
can happen in a construction project is for the general contractor to go
broke, and leave the job half finished. A performance bond protects
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against that happening, and provides money to finish the job if that proves
necessary. Obviously the cost of the bond adds to the cost of the project.
Also, those firms which are the least solvent have to pay the highest
premium for such a bond. It is suggested that a performance bond is
beneficial to a local government in most circumstances.
E.
Specific problem to avoid in contracts
1.
Venue
2.
Arbitration
3.
Indemnification – violates constitution? Missouri Attorney General
opinion says Yes. AGO # 138-87 (Dec. 18, 1987) Fowler v. Bd. of
Regents for Central Missouri State Univ., 637 S.W.2d 352 (Mo. App.
1982).
Also note that the Missouri legislature has said that all
indemnification agreements are against public policy, with only 8
exceptions. §434.100
a.
If the deal is about to go south, because they claim an
indemnification agreement is critical, consider modifying the
agreement to say “to the extent permitted by law” we will
indemnify you. That will leave the argument for a later day.
5.
Completion doctrine
6.
Warranty
7.
VII
Torts
A.
Indemnification – How firmly, and for how long do you stand behind your
employees? Often no one thinks about this until things have already gone to hell.
This is a bad way to figure things out.
Page 44 of 267
1.
Usually your insurance policy has partially answered the question, because
the named insured is usually the city, its officers, its employees and
(maybe) its agents. So, you have provided insurance to your employees at
least when they are acting in the course and scope of their employment,
and haven’t been grossly or criminally negligent.
2.
Often a tort claim will be made against both the city (i.e., employer) and
the employee. In this respect, tort claims against government differ from
claims against private corporations.
Recognize that the city and its
employee do not always enjoy common defenses (i.e., the employee does
not have the defense of sovereign immunity, while the city does not have
the defense of official immunity). Recognize, too, that the city and its
employee may not always have a common goal (i.e., the city may have
charged the city employee with a traffic offense for running a stop sign.)
a.
Almost always, however, a common defense is cheaper than a fight
among the defendants as to which one has responsibility. And, of
course, the insurance company is going to be in no hurry to pay for
two lawyers.
b.
When the city (or its insurance company) provides a defense to an
employee, the employee should understand that the defense
continues only so long as the employee and the city do not become
adversaries, and that if the potential becomes an actual conflict you
(or the insurance provided attorney) will continue by representing
the city only. (It would be best if this understanding were in
writing.)
1)
3.
Even where there is a clear conflict (e.g., the state
prosecutor has charged your employee with manslaughter
and she is clearly guilty), it is sometimes in the best interest
of the city [i.e., cheaper] for the city to pay for two civil
attorneys and maybe even pay for the criminal defense at
least for a while.
Employee defenses:
a.
Official immunity
Page 45 of 267
B.
b.
Public duty rule.
c.
Comparative fault.
d.
Lack of causation
Common Law Torts
1.
City may be the victim of a tort, and so you shouldn’t forget that your
client might end up a plaintiff. Many times cities interested in pursuing a
tort claim will abandon the claim because of the cost of litigation.
However, don’t forget the possibility of class actions. For example, there
may be a class action lawsuit involving defective ambulances, or a class
action over failure to pay a tax, or a class action over a continual trespass
(i.e., phone companies putting lines in your street right-of-way without
having obtained permission to do so.) which you can join. Or you might
initiate your own class action.
a.
2.
City should make claims against persons who damage city
property due to negligence or through intention! This would
include persons who hit bridge abutments, damage traffic control
signs, pull down utility poles and lines, etc. This policy, of course,
is an easier thing to establish if the first couple of claims are made
against nonresident nonvoters (i.e., out-of-state corporations).
City as defendant – this is the most common way in which a city finds
itself involved in tort litigation, and will be the focus of the remainder of
this subchapter.
a.
By statute, city enjoys the defense of “sovereign immunity.”
§537.600.1 says that “such sovereign or governmental tort
immunity as existed at common law in this state prior to
September 12, 1977, except to the extent waived, abrogated or
modified by statutes in effect prior to that date, shall remain in full
force and effect....” But it is a defense and the city must raise it.
However, once the city has raised the issue, plaintiff must plead
sufficient facts to overcome the defense. Sovereign immunity is a
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legal question and does not go to the jury. Thus, it is possible to get
out of a tort claim on a motion for summary judgment, even in
state court.
There are 4 exceptions to sovereign immunity (3 created by statute,
and 1 part of the common law as of September 12, 1977) as
discussed below:
1)
EXCEPTION: Operation of motor vehicle. §537.600.1(1)
a)
b)
2)
Motor or motorized vehicle. Examples:
i.
Motor boat
ii,
Garbage truck’s trash compactor
iii.
Tow bar attached to towing vehicle.
iv.
Bicycle police officers? I think not, as no
motor
Operation
i.
Actual use of vehicle or any of its parts
ii.
Not – injury by bus driver trying to break up
fight on the bus
EXCEPTION: Dangerous Condition of Public Property
§537.600.1(2)
a)
Property of public entity. May own or rent, but
must occupy. Example: election authority leases
polling place space from a church, county may be
sued.
b)
Property in “dangerous condition”
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3)
i.
Condition includes physical defect or the
layout of the property.
ii.
Not reasonably safe = physical threat
iii.
Plaintiffs prove the existence of a dangerous
condition by referring to design standards:
MUTCD, AASHTO, etc. NOTE: beware of
park equipment CPSC regulations regarding
safe placement of park equipment. Almost
every park in Missouri violates these CFRs.
c)
Injury directly resulted
condition
from
the
dangerous
d)
Injury was reasonably foreseeable given the
dangerous condition
e)
Injury was either:
i.
Caused by negligence of public entity
employee, or
ii.
Public entity had actual or constructive
knowledge of condition it time to protect
against it.
EXCEPTION: Proprietary Function
a)
The determination of whether a particular function
of a municipality is governmental or proprietary
depends upon whether the function is “performed
for the common good of all.” Parish v. Novus
Equities Co., 231 S.W.3d 236, 242 (Mo. App. E.D.
2007) “Acts performed by the municipality as aqn
agent of the state, including the establishment and
operation of schools and hospitals, the creation of
municipal fire departments and the exercise of
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legislative or judicial powers, have been found to be
governmental functions.” Id.
4)
b)
Proprietary functions, on the other hand, are those
performed by the municipality for profit or for the
special benefit of the municipality. Aiello v. St.
Louis Cmty. Coll. Dist, 830 S.W.2d 556, 558 (Mo.
App. E.D. 1992).
These functions often involve
the provision of services or conveniences to a
municipality’s own citizens. Id.
.
c)
The distinction between governmental functions
and proprietary ones if often obscure, however, and
many municipal actions have a dual function.
Gregg v. City of Kansas City, 272 S.W.3d 353, 361
(Mo. App, W.D. 2008) A city’s operation of a water
plant is a perfect example of an activity with such a
dual function. To the extent that a municipality
sells water to its citizens for profit, it is performing
a proprietary function. Junior Coll. Dist. of St.
Louis v. City of St. Louis, 149 S.W.3d 442, 448
(Mo. Banc 2004) But when a municipality provides
water for preventing or fighting firest, or for
keeping the city sanitary and healthful, it performs a
governmental function. Lober v. Kansas City, 74
S.W. 815, 823 (Mo. 1934). The Supreme Court has
expressly found that a city mmay have “dual
purpose[s]” in owning and operating a waterworks
system. Id. at 821
EXCEPTION: Procuring Insurance. If the municipality
was engaged in a governmental function, the defense of
sovereign immunity applies unless the municipality has by
implication waved immunity by purchasing insurance.
§71.185 or §537.610.
a)
Most insurance companies that sell to cities are
smart enough to write their policies so they do not
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provide coverage where sovereign immunity would
be a defense. However, occasionally an insurance
company will screw up.
Counsel for local
government may wish to check the policy to make
certain you haven’t inadvertently enlarged your risk
exposure.
b.
2..
C.
Sections 71.185 and 637.610 both permit a public
entity to purchase tort liability insurance. Brennan
by and through Brennan v. Curators of the Univ. Of
Mo., 942 S.W.2d 432, 436 (Mo. App. 1997)
Despite differences in language and the fact that
section 71.185 applies to municipalities only and
section 537.610 applies to all political subdivisions
of the State, the courts have reasoned that the
purchase of liability insurance may function as a
waiver of sovereign immunity under either statute.
Ib.
A city may also have a defense, if it did not promptly receive notice of the
claim. Notice of claim statutes §77.060
Constitutional Torts – Often called a “Civil Rights” lawsuit
1.
“...under color of law...” 42 USC §1983
2.
Prevailing party may be awarded attorney fees 42 USC §1988
3.
State (by statute or reg) or City (by ordinance) may create additional “civil
rights”
4.
City is liable if it has a “policy” to violate civil rights, even if that policy is
created by someone other than the city council.
a.
Inadequate training can in some instances be so pervasive and
willful that is rises to a status of a “policy” of the city
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5.
D.
Very expensive, even if you win. Seldom is there adequate insurance
coverage. Best coverage for civil rights for a small city probably available
from MoPERM.
Inverse Condemnation. When a local government creates a common-law
nuisance, the exclusive remedy for the property owner when private property is
damaged is to bring an inverse condemnation lawsuit. Theory is that local
government, by creating the nuisance, has worked a “taking” of private property
without paying compensation. Typical example: sewer back-up claim.
1.
According to jury instruction, elements of a claim are:
a.
City had notice of the problem.
b.
City was unreasonable in the way it operated its facility after the
notice.
c.
This unreasonable operation caused injury to plaintiff, and
d.
This injury resulted in plaintiff’s damages.
2.
According to the theory behind inverse condemnation, damages should be
limited to difference in value of the property before and after. However,
this doesn’t appear to be discussed in the cases, and doesn’t appear to be
the way the cases are litigated.
3.
When you settle one of these cases, you should record an easement or
other document that conveys to city whatever it is you have purchased.
4.
Court of Appeals recently rejected argument that the failure to maintain
and inspect the sewer system creates exposure to liability for inverse
condemnation. Christ v. Metro. Sewer Dist., 287 S.W.3d at 713.
“Essentially plaintiffs’ argument is based upon the alleged ‘inaction’ of
MSD in failing to have an inspection program in place. However,
Missouri courts have indicated that absent an affirmative act, plaintiffs
cannot sustain an action for inverse condemnation.” 287 S.W.3d at 713.
Page 51 of 267
VIII.
Planning and Zoning – See Mike White’s books published by the UMKC Law School,
Planning and Zoning in Missouri. For information about obtaining a copy contact Jim
Hohensee, Director of Continuing Legal Education, School of Law, University of
Missouri at Kansas City, 500 E. 52nd St., Kansas City, Mo. 64110, phone (816) 2351617 or e-mail hohenseej@umkc.edu
A.
Part of Lyndon Johnson’s plan for the “Great Society”
1.
Zoning in Missouri actually pre-dates the 1960s, and even pre-dates 1946,
when the legislature authorized it. Zoning in St. Louis city goes back to at
least 1919.
2.
In 1932 the US Supreme Court said that zoning was OK, as long as it was
logical (“in accordance with a comprehensive plan”) and didn’t go too far.
Euclid Realty v. Village of Ambler
3.
However, Lyndon paid 90% of the cost of drafting zoning and subdivision
ordinances and also the preparation of a master plan, and made the
presence of P&Z a condition for federal grants. Naturally, many P&Z
ordinances began during that era.
a.
4.
B.
Over time, outstate communities have begun to appreciate these
ordinances, and suburban communities have begun to actually use
them for the common good.
In Missouri, churches are exempt from zoning, but are not exempt from
the “health and safety” regulations that may be incorporated into the
zoning ordinance.
Divided into three parts: legislative, executive, and judicial.
1.
Legislative part is called the “Planning and Zoning Commission.” When
acting in a legislative capacity, the commission has a great deal of
discretion.
2.
Executive part is the “building inspector.” The executive branch has no
discretion, and must carry out the law.
Page 52 of 267
3.
C.
IX.
Judicial part is “Board of Adjustment” or (in western part of Missouri) the
BZA, or “Board of Zoning Appeals.”
Complications – often creates legal problems because P&Z is not acting
legislatively, but in an administrative (executive) fashion.
1.
Subdivision Approval
2.
Planned unit development
3.
Conditional use permit
4.
Floating zones
5.
Historical preservation ordinances
Taxation and Revenue
A.
Ad valorem property taxes
B.
Sales taxes
C.
Franchise and PILOTs
D.
Licenses and Fees
E.
Cigarette Taxes
F.
Taxes on Alcoholic Beverages
G.
Gasoline Taxes – Both state and local
Page 53 of 267
X.
Basic Election Laws
A.
“Comprehensive Elections Act of 1977" – Chapters 110 to 115 RSMo
B.
Not really comprehensive
a.
Excludes local elections from many important provisions §115.305
b.
Better to pretend it is really comprehensive.
1.
Example: visit hospital to get candidate to sign up?
2.
Example: allow favored candidates favored access?
a)
3.
Might also create constitutional problems
Example: first day filing procedures
C.
Primary election?
D.
Partisan elections?
E.
Qualifications for Office
1.
No filing fee
2.
File with city clerk
3.
City to prepare “notice of election” and publish in newspaper prior
to opening of filing.
a.
4.
Suggest more “voter friendly” notice than minimum statute
requires. See Appendix 10.
Filing opening date and time, and closing date and time are set by
statute.
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4.
5.
a.
City hall usually closes at 4:30 p.m.? Suggest should stay
open until 5:00 p.m. on last day only.
b.
No office hours for city clerk? Suggest allow candidates to
file at clerks home (even if outside city limits) and to open
city hall for 2 hours or so on last day.
Candidate qualifications
a.
Listed in statutes, charter
b.
Additionally, cannot be a felon Not so, says O’Keefe
c.
Additionally, cannot be a federal misdemeanant Not so,
says O’Keefe.
d.
Cannot be delinquent on any debt to city. Even O’Keefe
agrees.
Who checks on qualifications?
a.
First line of defense: candidate swears he/she is qualified.
b.
Second line of defense: city clerk checks.
c.
1)
Some city attorneys discourage or forbid city clerks
from disqualifying a candidate.
2)
Cronan is willing to disregard Southern District and
take people off ballot.
3)
However, when we have disqualified someone, I
have had entire council to vote in open session
before reporters, so clerk doesn’t have to take the
heat alone.
Third line of defense: county clerk or election board checks
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(almost always defers to city clerk)
d.
Fourth line of defense: opposing candidate can sue to block
other candidate from ballot.
e.
Fifth line of defense: voters can throw out the unqualified
candidate
f.
Sixth line of defense: if unqualified candidate wins,
opposing candidate can file election contest, providing
he/she does so within 30 days of election resulting being
“final.”
g.
Seventh line of defense: Can city council refuse to seat an
unqualified candidate?
F.
There is (and should be) a bias in the published cases in favor of
democracy. If you are going to opine that someone is to be disqualified
from running for office, you should be sure of your facts.
G.
Issue Elections (tax increases, bond issues, etc.)
1.
The Court of Appeals decision in Levinson v. City of Kansas City,
43 SW3d 312 (W.D., 2001) suggests that the city can’t even pass
an ordinance to hold an election until after the effective date of the
authorizing statute. It has been suggested that this case is
inconsistent with the Missouri Supreme Court decision in Vrooman
v. City of St. Louis, 88 SW2d 189 (Mo, 1935).
2.
Spending City Money to Influence Issue Elections
3.
Most statutes authorizing issue election says city must use
Language of the statute, or something “substantially similar” in
form. The “substantially similar” language gives a fairly broad
amount of discretion
Page 56 of 267
XI.
Employee discharge rights
A.
Almost all public employees in Missouri are employed “at will” meaning their
employment may be ended at any time, for almost any reason or for no reason at
all. Amann v. City of Eureka.
B.
However, a public employee may not be discharged for an “improper” reason. In
general these improper reasons can be divided into 5 different categories [4 of
which are recognized for Missouri public employees – and one (the Handbook
exception) which is often asserted but not recognized in our state]. Remainder of
this chapter discusses, in some detail, these categories.
1.
Contract exception. Sometimes a city will grant an employee greater
protection than the law requires, by entering into a written contract with
that employee. If a city enters into such a contract, it is required to follow
it. Such written contracts may exist for a city manager, city administrator,
chief of police, city attorney or any other city employee who has the
ability to convince the city that a contract is a good idea.
a.
2.
However, an employee may attempt to assert an oral contract,
claiming that the mayor (for example) promised he would only be
dismissed “for cause.” There are two basic problems with such an
assertion:
1)
§432.070 requires that any contract must be in writing, and
2)
For the city to be bound by any promise made by the mayor
(even if that promise is in writing) §432.080 requires that
the mayors authority to make such a promise must also be
in writing. In other words there is no “apparent agency” or
“implied authority” of the mayor -- or any other city
official -- to make employment promises.
Public Policy Exception. Although this exception has been around since
a court of appeals decision in 1985, it was only recently that the Missouri
Supreme Court agreed. Fieshner v. Pepose, 404 SW3d 81 (Mo., 2010).
The public policy of Missouri is that no at-will employee may be
terminated for:
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•
Refusing to violate the law or any well-recognized and
clear mandate of public policy as expressed in the
constitution, statutes, regulations promulgated pursuant to
statute, or rules by of governmental body, or
•
Reporting wrongdoing or violations of law to superiors or
public authorities.
A suit for a firing because of a public policy exception lies in tort.
Punitive damages are available (at least from a private employer).
“Contributing factors” is the test for causation. (Older cases use a “sole
cause” test.)
3.
a.
This exception also applies to the termination of an independent
contractor. Keveney v. Missouri Military Academy, 304 SW3d 98
(Mo¸ 2010).
b.
It may be more useful to understand the limits of this exception to
examine cases where the exception was held not to apply. See
Margiotta v. Christian Hospital Northeast, ___ SW3d ___, (Mo,
2010).
U. S. Constitutional Protections. Public employees have several
protections not available to other employees because the US Constitution
provides protections that restrict government action. These will be
discussed according to the various “rights” involved
a.
1st Amendment – Free speech.
1)
A public employee nay not be fired for speaking out on a
matter of “Public Concern” See “Balancing Act: Public
Employees and Free Speech” by David L. Hudson Jr., a 41
page booklet available on the website of the First
Amendment Center.
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b.
c.
1st Amendment -- Religious freedom.
1)
A public employee may be disciplined for expressing
his/her religious opinions in the workplace, where those
opinions becomes disruptive.
2)
A public employee may be disciplined for expressing
his/her religious opinions to member of the public, where
that opinion is likely to be assumed to be that of the
governmental unit. Example: ending all conversations with
“have a blessed day”
3)
A public employee may be disciplined who fails to follow a
published grooming or dress code for religious reasons.
Example: a woman refuses to wear a bus driver’s uniform
because her religious belief forbid a woman wearing pants;
or man refuses to be clean shaved, because his religion
requires beard
2nd Amendment – Right to Bear Arms
1)
d.
Unknown if public employee can be disciplined for
carrying concealed, or for wearing a pistol and holster
while working.
4th Amendment – Unreasonable searches
1)
For the employer to search, employer must make absolutely
clear that employee does not have a reasonable expectation
of privacy in “his” cell phone, “his” computer, “his” desk,
“his” locker, “his” vehicle, or “his” office. That is, items
owned by the local government but issued to an individual
employee may not be searched if somehow they employee
has received a reasonable expectation of privacy.
a)
Employer may even be able to search things that are
owned by the employee (purse, backpack, etc.) if
the employer has asserted that right it advance, and
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given adequate notice. This right to search the
employee-owned stuff is more easily recognized if
the employee-owned stuff is routinely used to store
government-owned stuff (i.e., a cell phone or
pager).
e.
2)
Low level managers must not deviate from this policy by
saying things such as “we never have” checked e-mails, or
“once you put your lock on your locker, we won’t get in it.”
3)
To defeat an employee’s assertion of reasonable
expectation of privacy courts looks to these factors:
a)
Prior Notice: computer banners; written inspection
poliies; employee manuals.
b)
Consent – it doesn’t hurt to ask, and ask often. The
problem, of course, is that consent can be
withdrawn.
c)
You can always get a search warrant, if you have
probable cause. [You can secure the scene while
waiting for the warrant – Illinois v. McArthur, 531
U.S. 326 (2001)].
d)
For a purely “work-related” enquiry (as opposed to
a criminal search) it is recognized that employers
have an interest in an efficient workplace, that can
outweight the 4th Amendment concerns. See, for
example, O’Connor v. Ortega (US, 1987)
4th Amendment – Drug testing
1)
A PUBLIC EMPLOYEE MAY BE REQUIRED TO
PARTICIPATE IN A RANDOM DRUG TESTING
PROGRAM
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e.
2)
A public employee may be required to participate in a drug
test when they is an articulatable suspension that the
employee has been using drugs
3)
A public employee engaged in certain high risk
occupations (police, transportation) may be subject to drug
testing even where no suspicion following certain extreme
events.
5th Amendment – Incrimination
1)
f.
6th Amendment – Right to Counsel
1)
g.
A public employee may be disciplined for failure to answer
questions about a workplace incident, even if those
answers might incriminate him//her, providing certain
procedures are followed. Garrity v. New Jersey;
LaChance v. Erickson
A public employee doesn’t have a right to have an attorney
present at any meeting simply because he wants one.
14th Amendment – Due Process (property)
1)
A public employee who has a reasonable expectation of
continued employment, has a “property” right in that job,
and that job cannot be taken away without a pretermination “hearing” at which the employee has a right to
hear the evidence against him and offer whatever
explanation he might have. Cleveland Board of Education
v. Laudermill,
a)
This “hearing” is an informal process, closed to the
public and/or the press, and is not a “hearing” for
administrative procedures act purposes.
b)
Because the employee is always going to claim that
a reasonable expectation of continued employment
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existed, and because the hearing process is
relatively simple, it is always advisable to provide
the pre-termination hearing to every discharged
employee.
f.
14th Amendment – Due Process (liberty)
1)
j.
XII.
Every public employee has the “liberty” of seeking
employment elsewhere. This liberty can be impacted by a
press release, a public statement made by a city official, or
by discussion at a council meeting which creates a negative
public perception of the former public employer, which
impacts his/her ability to get a job elsewhere. If that
happens, the former public employee has the right to a
“name clearing hearing” in a public forum (usually that
means before the governing body). See Perry v. Sinderman
(US); Owens v. City of Independence (US).
a)
For this reason, everyone connected with the city
should be quiet about why a former employee was
discharged. This can be a very difficult instruction
for a politician to follow. I suggest you tell them to
say “I would love to tell you why, but the damn
city attorney won’t let me.”
b.
If you do get a demand for a “name clearing
hearing” remember that this hearing is an
opportunity for the former employee to clear his
name—that is, there is no obligation for anyone on
the city’s side to speak. The purpose of the hearing
is to assist the former employee in his search for
new work – not to rehash why he/she was
discharged.
“Penumbra” – Political affiliation Elrod v. Burns (US), but see
Branti v. Finkel (US)
Employee rights to wages
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A.
XIII.
Fair Labor Standards Act
First Amendment Problems (most of the items in this chapter come from the First
Amendment Center’s website – see address in Chapter 1)
A.
Fliers & leafleting. Leafleting is a time-honored and inexpensive way to spread
political, religious and commercial messages. In its traditional form, in which
leaflets, fliers or pamphlets are handed to people face-to-face on the street,
leafleting is a method of speech protected by the First Amendment.
Another form of leafleting has come into fashion — placing information on car
windshields. No federal statute prohibits placement of leaflets on windshields, but
the activity is not specifically protected, either — the federal government has left
any regulation up to the states. One state — New York — does prohibit the
practice, as do ordinances in many cities and towns.
If the constitutionality of such an ordinance is challenged, a court must determine
whether the ordinance is content-based or content-neutral; that is, if it restricts
speech on the basis of its content or message or if its restrictions apply to all
speech regardless of the content or message. If the ordinance is deemed contentbased, it will be subject to strict scrutiny, which means it must serve a compelling
government interest and employ the least-restrictive means to achieve that
interest. Content-based ordinances are least likely to withstand a First
Amendment challenge.
Content-neutral restrictions, on the other hand, are subject to a lesser, intermediate
level of scrutiny. Intermediate scrutiny means any restriction must be
substantially related to an important government purpose. Content-neutral
ordinances are also subject to time, place and manner restrictions. Such
restrictions merely limit when and where speech can take place in order to reduce
or prevent annoyance or inconvenience to the public. Restrictions on written
forms of expression must be 1) content-neutral, 2) narrowly tailored to serve a
significant government interest, and 3) leave open ample alternative channels of
communication. This three-part test was adapted from several court rulings.
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One more principle needs to be considered regarding restrictions on speech:
public-forum doctrine. There are three types of forums under this doctrine: the
traditional public forum, the designated public forum (one created by the
government) and the non-public forum. The traditional public forum consists of
“government property that has traditionally been available for public expression,”
such as public streets and parks. The designated public forum consists of public
property “that the State has opened for expressive activity by part or all of the
public,” as defined in a 6th U.S. Circuit Court of Appeals decision, Jobe v. City of
Catlettsburg (2005). The non-public forum is all remaining public property.
Various courts have heard cases concerning distribution and/or posting of leaflets.
The 1984 U.S. Supreme Court decision City Council of Los Angeles v. Taxpayers
for Vincent involved political signs on telephone poles rather than leaflets on cars,
but it does indicate the Supreme Court’s view concerning the public forum and a
government’s interest in aesthetic values.
Aesthetic concerns are often brought up as a government interest when antileafleting ordinances are passed. In Taxpayers for Vincent, the Supreme Court
cited its precedents in ruling that municipalities have a legitimate interest in
prohibiting “intrusive and unpleasant formats of expression” for aesthetic reasons.
The high court wrote, “The problem addressed by this ordinance — the visual
assault on the citizens of Los Angeles presented by an accumulation of signs
posted on public property — constitutes a significant substantive evil within the
City’s power to prohibit.”
The Court also tackled the question of public forum. The group Taxpayers for
Vincent argued that the public property covered by the ordinance, such as
telephone poles, should be considered a traditional public forum or at least be
treated as such. The Court disagreed, saying:
“Appellees’ reliance on the public forum doctrine is misplaced. They fail
to demonstrate the existence of a traditional right of access respecting such
items as utility poles for purposes of their communication comparable to
that recognized for public streets and parks, and it is clear that ‘the First
Amendment does not guarantee access to government property simply
because it is owned or controlled by the government.’ United States Postal
Service v. Greenburgh Civic Assns., 453 U.S. 114, 129 (1981).
“Lampposts can of course be used as signposts, but the mere fact that
government property can be used as a vehicle for communication does not
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mean that the Constitution requires such uses to be permitted. Cf. United
States Postal Service v. Greenburgh Civic Assns., 453 U.S., at 131. Public
property which is not by tradition or designation a forum for public
communication may be reserved by the State ‘for its intended purposes,
communicative or otherwise, as long as the regulation on speech is
reasonable and not an effort to suppress expression merely because public
officials oppose the speaker’s view.’ Perry Education Assn. v. Perry Local
Educators’ Assn., 460 U.S., at 46.”
Although Taxpayers for Vincent did not address windshield leaflets, two U.S.
circuit courts and one district court did. In 1998, the 8th Circuit struck down four
Arkansas town ordinances prohibiting vehicle leafleting as unconstitutional in
Krantz v. City of Fort Smith. Members of the Twentieth Century Holiness
Tabernacle Church, including Albert Krantz, were arrested for distributing
religious leaflets under the windshield wipers of parked cars. Analyzing the
ordinances using the three-part test for written forms of expression, the 8th Circuit
found the ordinances content-neutral. However, it also found they were not
narrowly tailored to serve a significant government interest and therefore declared
them unconstitutional.
The 8th Circuit ruled that “the ordinances suppress considerably more speech than
is necessary to serve the stated governmental purpose of preventing litter.” First,
the court seemed to question whether the prevention of litter was indeed a
legitimate governmental interest. The court cited Schneider v. New Jersey, a 1939
U.S. Supreme Court decision that said preventing litter was insufficient
justification for an ordinance prohibiting individuals from handing out literature
to those willing to receive it. Oddly, the 8th Circuit did not mention the more
recent case, Taxpayers for Vincent.
Next the 8th Circuit noted that “the narrowly tailored analysis, where appropriate,
takes into consideration the opportunity for the would-be recipient to provide
effective notice that the communications are not wanted.” This “effective notice”
was the final consideration for the 8th Circuit, which wrote, “When that factor is
considered in the present case, the balance tips in favor of striking the ordinances
as overbroad because those individuals who do not want handbills placed on their
vehicles can quite easily and effectively provide notice, for example, by placing a
sign on the dashboard.” The opinion added: “As the Supreme Court reasoned in
Martin [v. City of Struthers (319 U.S. 141 (1943))] and Schneider, defendants’
goal of preventing litter can be accomplished by punishing the handbill
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distributors who defy such notices, as well as the ‘litterbugs’ who choose to throw
papers on the ground.”
The 8th Circuit did not consider the public-forum doctrine in its decision, as all
parties in the case conceded that public streets and parking lots were public
forums. Still, the city of Fort Smith, speaking for the other municipalities,
maintained “that they have both the duty and the power to regulate activities
affecting the safety and aesthetics of such public areas through direct or indirect
regulation,” according to the opinion. Despite this contention, no discussion of the
public forum took place.
However, in 2005, the 6th Circuit came to a different conclusion in Jobe v. City of
Catlettsburg, ruling against a Kentucky windshield leafleter. In this case, Leonard
Jobe placed leaflets for the American Legion under the windshield wipers of cars
parked on public property. Jobe was cited and fined for violating a city ordinance.
The court analyzed the ordinance using the three-part test for written forms of
expression. Both parties agreed that the ordinance was content-neutral, thus
satisfying the first part of the test. The court then decided that the ordinance was
narrowly tailored, left open other channels of communication and advanced the
government’s interests in “prohibiting litter and visual blight” and in allowing
individuals to have “their private property left alone by those who do not have
permission to use it.” The 6th Circuit also looked at the Taxpayers for Vincent
case and cited the Supreme Court’s discussion of aesthetic interests and of the
public forum.
Concerning the public forum, the 6th Circuit said (all emphasis added by the
court):
“If the public-forum doctrine does not apply to public items (e.g., utility
poles) permanently located on public streets and sidewalks, it assuredly
does not apply to private cars temporarily parked on public streets. And if
Taxpayers for Vincent was wary about permitting citizens to co-opt utility
poles to serve as bulletin boards and signposts, one would expect the
Court to be equally wary, if not more wary, of permitting citizens to coopt privately owned cars to serve as receptacles for the distribution or
display of literature and other information. See [Taxpayers for Vincent] at
815 n.31 (noting that ‘appellees could not seriously claim the right to
attach “Taxpayer for Vincent” bumper stickers to city-owned automobiles’
and reiterating that ‘the State, “no less than a private owner of property,
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has power to preserve the property under its control for the use to which it
is lawfully dedicated”’). In neither of these settings, whether the utility
pole or the car, does the ostensible public forum deal with a method of
communication for which one can say there has been a ‘traditional right of
access’ and in neither instance does it offer an apt analogy to the forms of
communication that have long taken place on our ‘public streets and
parks.’”
Defendant Jobe urged the 6th Circuit to follow the precedent set by the 8th Circuit
in Krantz. The 6th Circuit refused, saying it disagreed with three facets of the 8th
Circuit’s opinion.
First, in Krantz the 8th Circuit did not consider putting leaflets on cars to be
littering. In contrast, the 6th Circuit’s view was that “Placing unrequested fliers on
a car windshield (or some other part of the car) shares as many qualities with
littering as placing the fliers on the front lawn of a residence, on the top of a boat
or for that matter on top of any piece of private property that is not otherwise
designed by intent or usage to receive and hold literature distributed by others.”
Second, the 8th Circuit did not address, or distinguish, the case Taxpayers for
Vincent in its Krantz opinion. The 6th Circuit pointed out: “Taxpayers established
that not all items that appear on public streets are transformed into public fora. If
public utility poles and private mailboxes located on public streets and sidewalks
are not public fora, neither is a car windshield.”
Third, the 6th Circuit took issue with the 8th Circuit’s failure to “account for the
fundamental difference between traditional leafleting,” hand-to-hand on the street
or door-to-door, “and the activities of Jobe and Krantz,” which “unlike traditional
leafleting … do not readily allow the recipient to opt out of receiving the flier and
to opt out of the responsibility for disposing of it.”
The 6th Circuit thus concluded that the Catlettsburg ordinance was constitutional.
In 2001 a U.S. District Court in Wisconsin found unconstitutional a Milwaukee ordinance
that prohibited placing pamphlets or leaflets on cars in Deida v. City of Milwaukee (176
F. Supp. 2d 859, (E.D. Wis. 2001)).
Under the ordinance, all pamphlets or leaflets were prohibited except for those containing
“educational material … approved by the council on physical disabilities…related to the
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parking privileges of physically disabled persons.” The district court ruled that this
exception made it a content-based ordinance and therefore subject to strict scrutiny. The
court wrote: “Under strict scrutiny, laws regulating the content of speech will be upheld
only when they are justified by compelling governmental interests and employ the least
restrictive means to effectuate those interests.”
The opinion quoted the U.S. Supreme Court in Swanner v. Anchorage Equal
Rights Commission (1994): “A compelling interest is a ‘paramount [interest,] …
[an] interest of the highest order.’” The district court ruled that the interests
claimed by the city were substantial but not compelling and that the ordinance
was unconstitutional.
Unless and until the U.S. Supreme Court hands down a definitive ruling on the
subject, placing leaflets on cars will be subject to local laws and lower courts,
although cities in Missouri will have to face convincing the 8th Circuit not to
follow its own precedent.
B.
Speaking at public meetings. A citizen feels strongly about an issue in the
community. He or she attends a city council meeting to voice those concerns.
Unfortunately, the powers that be prohibit the citizen from addressing the
controversial topic. Have the citizen’s First Amendment rights been violated?
Sometimes government officials need to silence disruptive citizens or to prohibit
endless repetition. However, other times the officials may be squelching citizen
speech because they want to suppress the message. This article seeks to explain
the legal parameters surrounding the regulation of citizen speech.
Many government meetings are open to the public and reserve a “public
comment” time for citizen commentary on issues. The 9th U.S. Circuit Court of
Appeals explained in its 1990 decision White v. City of Norwalk: “Citizens have
an enormous First Amendment interest in directing speech about public issues to
those who govern their city.” These meetings, particularly the “public comment”
period, are at the very least a limited public forum during which free-speech rights
receive heightened protection.
In First Amendment jurisprudence, government property that has by tradition or
by government operation served as a place for public expression is called a
traditional public forum or a limited public forum. In a traditional public forum,
such as a public street, speech receives the most protection and the government
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generally must allow nearly all types of speech. Restrictions on speech based on
content (called content-based restrictions) are presumptively unconstitutional in a
traditional public forum. This means that the government can justify them only by
showing that it has a compelling state interest in imposing them, and that it has
done so in a very narrowly tailored way.
At limited or designated public forums, however, the government designates
certain types of subject matter. One court explained as follows: “After the
government has created a designated public forum, setting boundaries on classes
of speakers or topics, designated public fora are treated like traditional public
fora.” This again means that content-based exclusions face a high constitutional
hurdle. Even in nonpublic forums, restrictions on speech must be reasonable and
viewpoint-neutral.
One must be careful in discussing the public-forum doctrine, because courts do
not apply the doctrine with consistency. For example, some courts equate a
limited public forum with a designated public forum. Other courts distinguish
between the two, as a 2001 federal district court in Pennsylvania did in Zapach v.
Dismuke. That court noted that “there is some uncertainty whether limited public
fora are a subset of designated public fora or a type of nonpublic fora.”
Just because something is called a public forum doesn’t guarantee a person
unfettered freedom to utter whatever is on his mind. Public bodies can limit their
meetings to specified subject matters. Also, the government may impose
reasonable time, place and manner restrictions on speech as long as those
restrictions are content-neutral and are narrowly tailored to serve a significant
government interest.
In other words, the government could impose a 15-minute time limit on all
participants as long as it did not selectively apply the rule to certain speakers.
Council members would violate the First Amendment if they allowed speakers
with whom they agreed to speak a full 15 minutes, but allowed speakers they did
not agree with to speak for only five minutes.
It bears stressing that First Amendment rights are not absolute during publiccomment periods of open meetings. Speakers can be silenced if they are
disruptive. Disruption has been defined to include far more than noisiness and
interference. For example, a federal district court in Ohio wrote in Luckett v. City
of Grand Prairie (2001) that “being disruptive is not confined to physical
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violence or conduct, but also encompasses any type of conduct that seriously
violates rules of procedure that the council has established to government conduct
at its meetings.”
“A speaker may disrupt a Council meeting by speaking too long, by being unduly
repetitious, or by extending discussion of irrelevancies,” the 9th Circuit wrote in
White v. City of Norwalk. “The meeting is disrupted because the Council is
prevented from accomplishing its business in a reasonably efficient manner.
Indeed, such conduct may interfere with the rights of other speakers.”
Unfortunately, many situations arise in which citizens are silenced because of the
content of their speech or because they have disagreed previously with a
government official. This raises the specter of censorship. Government officials
may not silence speech because it criticizes them. They may not open a “public
comment” period up to other topics and then carefully pick and choose which
topics they want to hear. They may not even silence someone because they
consider him a gadfly or a troublemaker.
In City of Madison Joint School District No. 8 v. Wisconsin Employment
Relations Commission, (1976) the U.S. Supreme Court said in a collectivebargaining dispute case arising out of teachers’ speaking at a board of education
meeting:
“Regardless of the extent to which the true contract negotiations between a
public body and its employees may be regulated — an issue we need not
consider at this time — the participation in public discussion of public
business cannot be confined to one category of interested individuals. To
permit one side of a debatable public question to have a monopoly in
expressing its views to the government is the antithesis of constitutional
guarantees. Whatever its duties as an employer, when the board sits in
public meetings to conduct public business and hear the views of citizens,
it may not be required to discriminate between speakers on the basis of
their employment, or the content of their speech.”
A federal district court in Pennsylvania explained in the 1993 decision Wilkinson
v. Bensalem Township: “Allowing the state to restrict a person’s right to speak
based on their identity could quickly lead to the censorship of particular points of
view.”
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An Ohio appeals court refused to dismiss the lawsuit of an individual who sued
city officials after being thrown out of a city commission meeting for wearing a
ninja mask. In City of Dayton v. Esrati (1997), the Ohio appeals court reasoned
that the individual wore the mask to convey his dissatisfaction with the
commission. “The public nature of the legislative process and the right of citizens
to participate in and voice their opinions about that process are at the heart of
democratic government,” the court wrote. “The government may not impose
viewpoint-based restrictions on expression in a limited public forum unless those
restrictions serve a compelling state interest and are narrowly drawn to achieve
that end.”
Courts have also been wary of laws, rules or regulations that prohibit criticism or
personal attacks against government officials. A federal district court in California
invalidated a school district bylaw that prohibited people at school board meetings
from criticizing school district employees. In Leventhal v. Vista Unified School
District (1997), the court wrote: “It seems clear that the Bylaw’s prohibition on
criticism of District employees is a content-based regulation. … It is equally clear
that the District’s concerns and interests in proscribing public commentary cannot
outweigh the public’s fundamental right to engage in robust public discourse on
school issues.”
Similarly, a federal district court in Virginia struck down a school board bylaw
that prohibited personal attacks during public comments at meetings. (See Bach v.
School Board of the City of Virginia Beach, 2001.)
Another kind of restriction on citizen speech at public meetings involves
residency. One federal appeals court determined that a city council rule
prohibiting nonresidents from addressing the city council was constitutional. In
Rowe v. City of Cocoa (2004), a three-judge panel of the 4th U.S. Circuit Court of
Appeals determined that a resident rule was reasonable and viewpoint neutral. “A
bona fide residency requirement … does not restrict speech based on a speaker’s
viewpoint but instead restricts speech at meetings on the basis of residency.”
C.
Political yard signs. Many people like to express their support for a political
candidate with a yard sign. Sometimes this form of freedom of expression
conflicts with a city law banning or limiting the time in which political signs may
be displayed. The question becomes whether such city laws infringe upon
citizens’ and perhaps the candidates’ First Amendment rights.
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Some city officials claim that putting limits on yard signs furthers a variety of
state interests, including aesthetics and traffic safety. However, opponents of such
regulations counter that yard signs, unlike perhaps large billboards too close to
public streets, do not in any way reduce traffic safety. They also contend that
aesthetic interests pale in comparison to the importance of political speech
expressed in campaign signs.
In 1994, the U.S. Supreme Court struck down a Missouri city law prohibiting
signs at private residences. Margaret Gilleo ran afoul of the law when she placed
a 24-by-36-inch sign in her front lawn with the words, “Say No to War in the
Persian Gulf, Call Congress Now” and an 8 ½-by-11-inch sign in the second-story
window of her home that read, “For Peace in the Gulf.”
A unanimous U.S. Supreme Court rejected the ordinance in City of Ladue v.
Gilleo, writing that residential yard signs were “a venerable means of
communication that is both unique and important.” The Court explained:
“Displaying a sign from one’s own residence often carries a message quite
distinct from placing the sign someplace else, or conveying the same text
or picture by other means. … Residential signs are an unusually cheap and
convenient form of communication. Especially for persons of modest
means or limited mobility, a yard or window sign may have no practical
substitute. … Even for the affluent, the added costs in money or time of
taking out a newspaper advertisement, handing out leaflets on the street, or
standing in front of one’s house with a handheld sign may make the
difference between participating and not participating in some public
debate.”
Lower courts have cited the Gilleo precedent with great success in challenging
city bans on political yard signs. In Curry v. Prince George’s County (1999), a
federal district court in Maryland invalidated a sign ordinance that limited the
posting of political campaign signs in private residences to 45 days before and up
to 10 days after an election. “There is no distinction to be made between the
political campaign signs in the present case and the ‘cause’ sign in City of
Ladue,” the court wrote. “When political campaign signs are posted on private
residences, they merit the same special solicitude and protection established for
cause signs in City of Ladue.”
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In Arlington County Republican Committee v. Arlington County (1993), a threejudge panel of the 4th U.S. Circuit Court of Appeals invalidated a county law that
imposed a two-sign limit on temporary signs for each residence. The court noted
that “the two-sign limit infringes on this speech by preventing homeowners from
expressing support for more than two candidates when there are numerous
contested elections.”
Taking another example, the Supreme Court of Ohio ruled in City of Painesville
Building Department v. Dworken & Bernstein Co. (2000) that a city law requiring
the removal of political signs within 48 hours after an election is unconstitutional
as applied to the posting of such signs on private property. “Although the
Supreme Court has not considered the issue, the overwhelming majority of courts
that have reviewed sign ordinances imposing durational limits for temporary
political signs tied to a specific election date have found them to be
unconstitutional,” the court wrote.
This does not mean that cities can never legislate in the area of political signs. A
city may regulate the size, shape and location of yard signs. Such regulations may
very well qualify as content-neutral and reasonable “time, place and manner”
restrictions on speech. Similarly, a city may be able to establish a 10-sign limit
per residence on yard signs. At some point, the sheer number of signs might
realistically impair the aesthetics of a neighborhood.
1.
Homeowner, condo associations: different situation Although cities and
other government entities are constrained by the First Amendment in
regulating political yard signs, there is no similar restraint imposed on
private homeowner and condominium associations.
Cities are considered state actors subject to the provisions of the U.S.
Constitution. Homeowner associations are private parties that do not
qualify as state actors. The First Amendment generally protects people
only from government interference with speech.
For example, a Pennsylvania state court ruled in Midlake on Big Boulder
Lake, Condominium Association v. Cappuccio (1996) that a condominium
association did not violate the First Amendment by removing political
yard signs in accordance with a section of the association’s declaration of
rules prohibiting the posting of signs at individual units. The court
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reasoned that there was no state action, because the association was a
private party. The court wrote:
“The courts of this Commonwealth have vigorously defended the
rights which are guaranteed to our citizens by both the federal and
our Commonwealth’s constitutions. One of the fundamental
precepts which we recognize, however, is the individual’s freedom
to contractually restrict, or even give up, those rights. The
Cappuccios contractually agreed to abide by the provisions in the
Declaration at the time of purchase, thereby relinquishing their
freedom of speech concerns regarding placing signs on this
property.”
Some litigants have sought to satisfy the state-action doctrine by invoking
the plight of homeowners in the landmark U.S. Supreme Court case
Shelley v. Kraemer (1948). In that case, the U.S. Supreme Court found
state action in the enforcement of racially discriminatory restrictive
covenants that limited the sale of residential property to a specific race.
The Court found that such odious provisions smacked of flagrant racial
discrimination, and that judicial enforcement of such restrictive covenants
violated the 14th Amendment and its principle of equal protection. The
11th Circuit wrote in a case involving an association’s prohibition on “for
sale” signs that “Shelley has not been extended beyond race
discrimination” (see Loren v. Sasser (2002)). [NOTE: since 2002 decision
cited here, the Shelley rule has been extended to strike down homeowner
association prohibitions on group homes for disabled persons.]
This means that government restrictions on political campaign signs are
problematical under the First Amendment. However, homeowner/condoassociation restrictions on yard or window signs may very well not raise a
valid constitutional-law issue unless there is a very close nexus, or
connection, to a government entity.
Meanwhile, in 2004 President George W. Bush signed a bill preventing
condominium and homeowner associations from restricting display of the
United States flag by individual unit owners. Rep. Roscoe Bartlett, R-Md.,
sponsored H.R. 42, which was passed unanimously by both the House and
the Senate. In a statement about the bill, Bush said, “Americans have long
flown our flag as an expression of their appreciation for our freedoms and
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their pride in our nation. As our brave men and women continue to fight to
protect our country overseas, Congress has passed an important measure
to protect our citizens’ right to express their patriotism here at home
without burdensome restrictions.”
Some state legislatures [but not Missouri] have passed provisions that
protect the display of flags and signs on condominium-association
property.
D.
Public funding of controversial art. Throughout history artists have produced
works which tested society’s standards of decency. Society, or parts of it, may
respond to these controversial works with harsh criticism and scorn. In free
societies, artists may produce any type of work that their talent, imagination and
means can support, whether it is controversial or not. However, the question
arises: Do artists have the same freedom when their art is publicly funded by
taxpayer dollars?
The U.S. Supreme Court has made clear that the government is not required to
subsidize artistic expression with public funds.1 But the Court has also found that
once it does decide to provide funds for arts programs, the government cannot
withdraw that funding, thus censoring certain works, because it disagrees with the
viewpoint expressed in the work. In other words, while the government has great
flexibility in determining which artists and programs to fund, it must do so in a
manner consistent with the First Amendment and cannot do so in a vague or
viewpoint-based way. As stated by the National Coalition Against Censorship,
public funding for the arts does not allow the government to play the role of
censor.
That being said, in 1989 Congress amended the law that created the National
Endowment of the Arts to bar the use of NEA funds “to promote, disseminate, or
produce materials which in the judgment of [the NEA] may be considered
obscene,
including but not limited to, depictions of sadomasochism, homoeroticism, the
sexual exploitation of children, or individuals engaged in sex acts and which,
when taken as a whole, do not have serious literary, artistic, political, or
scientific value.” The NEA required all grant recipients to certify in advance
that none of the funds would be used “to promote, disseminate, or produce
materials which in the judgment of the NEA … may be considered obscene.” In
addition, Congress eliminated $45,000 from the NEA’s budget.
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The changes to the law came about as a reaction to two controversial works
that were being shown in various U.S. cities in 1989. The first was the infamous
“Piss Christ,” a photograph of a crucifix immersed in urine, by Andres Serrano,
who had received a $15,000 grant from the Southeast Center for Contemporary
Art which in turn received funding from the NEA. The second was a retrospective
exhibit of photographs by Robert Mapplethorpe titled “The Perfect Moment.”
This exhibit was arranged by the Institute of Contemporary Art at the University
of Pennsylvania using $30,000 of an NEA grant. The exhibit included homoerotic
photographs, images of sadomasochism and, according to critics, child
pornography.
The uproar over the Mapplethorpe exhibit led to its cancellation at the
Corcoran Gallery of Art in Washington, D.C., and to the arrest and trial of the
director of Cincinnati’s Contemporary Art Center on charges of pandering and
obscenity after he allowed the exhibit to open at the center. The director,
Dennis Barrie, was acquitted after a much-publicized six-month trial.
The 1989 NEA rules were challenged and found to be unconstitutionally vague
by a U.S. District Court in California because the determination of what was
obscene was left in the hands of the NEA. Even before the 1991 ruling — Bella
Lewitzky Dance Foundation v. National Endowment for the Arts, 754 F. Supp.
774 (C.D. Cal. 1991) — members of Congress were debating ways to reform the
NEA’s grant process. In 1990, Congress adopted an amendment which directed
the NEA to take into consideration “general standards of decency and respect for
the diverse beliefs and values of the American public.” This amendment led to a
1998 U.S. Supreme Court decision upholding the decency standard enacted by
Congress. The ruling in National Endowment for the Arts v. Finley initially
seemed a heavy blow to the First Amendment as a bulwark protecting artistic
expression. In NEA v. Finley, the Court held that the NEA may consider public
standards of decency in deciding which artists should receive federal grants.
However, Justice Sandra Day O’Connor, writing for the majority, took the
sting out of the law. She explained that the decency standard was merely
advisory and simply added one more consideration to a variety of pre-existing
subjective criteria.
Though some might argue that the decency standard infringes upon free speech
because it allows the NEA to favor certain viewpoints over others, the consensus
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is that the law poses no real threat given that the high court has characterized
it as a mere piece of advice rather than a law that must be enforced.
Art controversies didn’t end with the Finley case. In 1999, the
city-funded Brooklyn Museum of Art came under fire when it exhibited a Chris
Ofili painting of the Virgin Mary that featured sexually explicit cutouts
covered with elephant dung. The Catholic Church, as well as New York City
Mayor Rudolph Giuliani, were outraged. Giuliani denounced the exhibit as
morally offensive and threatened to cut off funding to the museum and terminate
its lease if it did not cancel the exhibit that included Ofili’s painting. The city
followed through and withheld the museum’s rent payment for October and filed
a state lawsuit to get the lease revoked.
The museum filed a suit in federal court against Giuliani claiming First
Amendment violations and seeking a permanent injunction against the city to
keep it from withholding funds. U.S. District Judge Nina Gershon, finding that
Giuliani’s actions violated the First Amendment, granted the museum a
preliminary injunction. Gershon also ordered the city to restore the museum’s
funding and stop eviction proceedings.
In February 2001, Giuliani again was offended by a piece of controversial
art. “Yo Mama’s Last Supper” is a 15-foot-tall photograph of a nude
African-American woman portraying Jesus surrounded by 12 black men
portraying the disciples. In his weekly radio address Giuliani stated, “If you want
to desecrate religion in a disgusting way, if you want to promote racism, if you
want to promote anti-Semitism, if you want to promote anti-Catholicism, if you
want to promote anti-Islamism, then do it on your own money. Do not use the
taxpayers’ money to do that.”
Giuliani then appointed a 20-member “decency commission” to review publicly
funded art and determine the works’ moral content. If the commission deemed an
artwork offensive to any religious, racial or ethnic group, the city could
withdraw funding. Giuliani based his authority to form the commission on an
obscure section of the City Charter that allowed him to appoint members of a
cultural-affairs committee to review art subsidized by the public. The
commission, which held some meetings but failed to do anything noteworthy, was
abolished in early 2002 by Giuliani’s successor, Michael Bloomberg.
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Another work that inspired art-rage in some critics was Alma Lopez’s collage
of the Virgin of Guadalupe in a floral bikini. The work was displayed in 2001 at
a state-run museum in Santa, Fe, N.M. Santa Fe Archbishop Michael Sheehan,
finding the portrayal insulting, expressed frustration that Catholic images were
being singled out by artists. “No one would dream of putting Martin Luther King
in Speedos and desecrating his memory by putting him in some outlandish outfit
… But somehow it seems open season on Catholic symbols.” Although efforts
were made to banish “Our Lady” from the museum, a state judge refused to order
its removal.
More recent controversies haven’t been confined to art with religious themes.
In 2001, the 9th U.S. Circuit Court of Appeals ruled that the city of Pasco,
Wash., had violated the rights of two artists when their works were censored by
the city. Even though the city had made an agreement with the artists to display
their work City Hall, the city prevented artist Janette Hopper from displaying
her work and ordered the work of artist Sharon Rupp to be taken down. The
pieces, which included nudity, were censored because of their “sexual” nature.
ACLU attorney Paul Lawrence summed up the case by saying, “The city of Pasco
had decided to open City Hall as a public forum for art. The courts have said
clearly that once government officials make such a decision, they cannot make
choices based on the content of the art — whether it’s controversial or offends
someone’s political sensibilities.”
Also in 2001, California State Fair officials determined that a work, which
had won “best sculpture,” was unfit for exhibition and was banned. Peter
Langenbach’s satirical sculpture depicts former President Clinton and Monica
Lewinsky in a bathtub. One fair official remarked that the work was “offensive
to some people and inappropriate for children.”
During the last few years, battles over censorship involving taxpayer funding
have mostly faded away, giving way to fights involving people offended by
certain works who have sought to have the pieces removed from public display.
Museums and galleries are still targets of would be censors, but increasingly,
any public space which displays art has become a target.
For instance, an anti-Bush painting included in an exhibit at the California
Department of Justice cafeteria in August 2005 generated controversy, leading to
complaints and the eventual removal of the painting. The painting shows the
continental United States, decorated with the American flag, sticking out of a
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toilet with the words “T’anks to Mr. Bush” next to it. The painting was removed,
California’s attorney general said, out of sensitivity to the situation in the
Middle East, not because of public complaints.
In May 2006, the 44th annual Young People’s Art Exhibition in Colorado
Springs, Colo., considered by many in the area as the premier student art
exhibit in the region, was the scene of controversy. A 5-foot-by-4-foot painting
titled “Dismantled Stereotype” by Fountain Valley School senior Addie Green
was considered too controversial because it included an image associated with
gay pride and was banned from the show. The painting depicts a high school
football player standing near the back of a pickup. On the bumper is a small
football-shaped rainbow bumper sticker.
Also in May 2006, Brooklyn Borough Parks Commissioner Julius Spiegel ordered
an exhibition of art from graduate students of the Brooklyn College closed
because some of the works were “not appropriate for families.” Spiegel said the
exhibit violated a verbal agreement reached six years ago by the Parks
Department and Brooklyn College over use of the city-owned Brooklyn War
Memorial building. The student exhibit was relocated to another venue and reopened a few days later.
E.
Public Employee Speech. Please see this same topic, discussed in Chapter XI,
Employee Discharge Rights. See “Balancing Act: Public Employees and Free
Speech” by David L. Hudson Jr., a 41 page booklet available on the website of the
First Amendment Center.
F.
Curfews, loitering & freedom of association. The freedom of assembly is one of
the few constitutional liberties that the Framers graced with an adverb, securing
the right of the people “peaceably to assemble.” Were the freedom of assembly
limited to orderly gatherings in public parks, however, exercise of this right would
implicate only clean streets and crowd control. But ideas, and the rights that
protect them, are far more important.
The civil rights era in this country prompted the Supreme Court to consider the
collective beliefs that animate crowds and the voice — be it roar or oration —
with which the group speaks. This emphasis on a conceptual in addition to a
corporeal right to meet and discuss ideas led to the recognition of a right of
association. As the Supreme Court observed in 1958, “It is beyond debate that
freedom to engage in association for the advancement of beliefs and ideas is an
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inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the
Fourteenth Amendment, which embraces freedom of speech.”
Though the Constitution does not expressly set forth a freedom of association, at
least three strands of law intersect at the junction of group speech: the right of
assembly, the privacy of intimate bonds, and freedom of expression.
Appropriately, the association doctrine reflects its subject: Constitutional
protection for the group involves diverse principles speaking in chorus.
Because assembly involves free expression, the congregational aspects of this
First Amendment guarantee fit neatly in the “time, place, and manner” doctrine
set forth in United States v. O’Brien (1968). As long as people “peaceably”
convene to picket, protest, or distribute handbills, the state may not penalize the
assembly. (See, e.g., De Jonge v. Oregon, a 1937 case that reversed a conviction
under Oregon’s criminal syndicalism statute because it was based on mere
attendance at an orderly meeting of the Communist Party.) However, this
protection does not immunize the gathering from generally applicable health,
safety and welfare laws designed to protect private property, eliminate litter, curb
visual blight, facilitate traffic, control noise or minimize congestion.
Though the time-place-manner concept may be easily articulated, associational
interests still present challenges when the doctrine is applied. Courts must
examine the government’s justification to ensure that the challenged regulation is
indeed indifferent to the content of the speech. The scope of that inquiry depends
on where the assembly takes place. Courts will strictly scrutinize regulations that
attempt to limit assembly in places traditionally open to the public such as parks
or sidewalks. Strict scrutiny is the highest level of review and requires the
government to show that the ordinance is narrowly tailored to achieve a
compelling government interest. License or permit requirements that favor or
discourage certain groups, or that vest total discretion in officials to grant such
permits, are usually struck down.
Shuttlesworth v. Birmingham (1969), for instance, struck down a parade
ordinance that “conferred upon the City Commission virtually unbridled and
absolute power to prohibit any ‘parade,’ ‘procession,’ or ‘demonstration’ on the
city’s streets or public ways.”
Procedural safeguards must protect the rights of all speakers or none — even
members of the Nazi party who intend to march through a predominantly Jewish
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section of an Illinois city, as the 1977 U.S. Supreme Court ruled in National
Socialist Party v. Skokie. The fact-sensitive balancing between regulators and
those who assemble requires careful line-drawing — sometimes literally. In cases
concerning anti-abortion protests, for example, restrictions have been allowed to
keep protesters a certain distance away from women approaching abortion clinics
(see the section on buffer zones).
1.
Juvenile curfews. Particularly suspect are blanket regulations that upset
the balance O’Brien strikes between the government interest asserted and
the incidental burden on First Amendment rights. In City of Chicago v.
Morales, for example, the Supreme Court in 1999 struck down a
municipal code that criminalized loitering, which was defined as “to
remain in any one place with no apparent purpose.” Though the law was
enacted to fight gang activity, it improperly penalized much harmless
activity and granted officers immense discretion in assessing which kinds
of behavior violated the ordinance. Similarly, juvenile curfew laws have
been challenged for trampling on the rights of minors to meet and gather.
Such ordinances have survived only because they exempt activities
protected under the First Amendment. (See Schleifer v. City of
Charlottesville, a 4th U.S. Circuit Court of Appeals case from 1998.)
In 1993, the 5th U.S. Circuit Court of Appeals ruled in favor of a Dallas
curfew ordinance in Qutb v. Strauss. The 5th Circuit examined the
ordinance under strict-scrutiny review and upheld it. The court concluded
that the city, by including exceptions to the ordinance, most notably
exceptions for minors exercising their First Amendment rights, had
enacted a narrowly drawn ordinance that respected the rights of juveniles
and allowed the city to meet its goal of increasing juvenile safety and
decreasing juvenile crime.
The Dallas ordinance became the model for cities around the country
wishing to enact curfew ordinances. The 9th Circuit underscored the
importance of the exceptions when, in its 1997 ruling Nunez v. San Diego,
it declared a San Diego curfew ordinance unconstitutional. The 9th Circuit
ruled, in part, that the ordinance was not narrowly tailored to minimize
burdens on fundamental rights. The court, in particular, noted that “San
Diego rejected a proposal to tailor the ordinance more narrowly by
adopting the broader exceptions used in the ordinance upheld in Qutb.”
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However, there is quite a difference of opinion among various courts as to
what standard applies when analyzing curfew statutes. Some, including
the 5th and 9th Circuits and the Florida Supreme Court, use strict scrutiny
because fundamental rights such as speech and assembly are implicated,
as well as the right to freedom of movement. Although other courts may
agree that fundamental rights are implicated, they have a different opinion
as to the status of minors.
The U.S. Supreme Court has recognized that the rights of minors are not
as wide-ranging as those of adults. (For example, see the 1944 ruling
Prince v. Massachusetts and the 1979 ruling Bellotti v. Baird.) Minors
enjoy the same constitutional protections as adults, but due to “their
unique vulnerability, immaturity, and need for parental guidance,” the
state is within its bounds to exercise greater control over their activities.
Following this rationale, many courts, including the 2nd, 4th, 7th and D.C.
Circuits, have used intermediate scrutiny to review curfew laws.
Intermediate scrutiny requires the government to show that a law is
substantially related to an important government interest.
Due to the inconsistencies and disagreements within the courts, the
standards for what is an acceptable curfew law and what is unacceptable
are not clear.
While some of the ordinances modeled after the Dallas law survived
constitutional challenges (see Schleifer v. City of Charlottesville, a 1998
4th Circuit ruling; Hutchins v. District of Columbia, a 1999 D.C. Circuit
ruling; and Treacy v. Municipality of Anchorage, a 2004 Alaska Supreme
Court ruling), not all did.
In June 2003, the 2nd Circuit declared a curfew ordinance in Vernon,
Conn., unconstitutional because it infringed on the rights of minors under
the 14th Amendment’s equal-protection clause. (The clause is essentially a
directive that all persons similarly situated should be treated alike. See the
Supreme Court’s 1985 ruling in Cleburne v. Cleburne Living Center.) In
this particular case, the writing of the ordinance and the exceptions it
contained were not the issue, rather it was the necessity of the ordinance.
The town of Vernon passed the ordinance to reduce juvenile crime and
victimization at night but, according to the court, failed to provide the
requisite proof that the ordinance was needed. Since the curfew restricted
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constitutional rights of juveniles, the town had to show that the ordinance
was substantially related to an important government interest. While all
parties agreed with the aims of the ordinance, the town failed to show that
juvenile crime was a problem during the curfew hours, thus the 2nd
Circuit found in Ramos v. Town of Vernon that the ordinance was not
substantially related to the town’s interest in preventing juvenile crime.
In January 2004 another curfew ordinance fell when the 7th Circuit
declared an Indianapolis law unconstitutional. Indianapolis amended its
curfew ordinance in 2001 to include exceptions for the exercise of First
Amendment rights. The 7th Circuit, however, found that the First
Amendment defense provided in the statute was inadequate since it did not
require a law enforcement official to look into whether any exceptions
included in the statute applied before making an arrest. So, if an officer
came across a juvenile walking down the street returning from a late night
protest, the officer could arrest him without even inquiring into why he
was out. The court ruled in Hodgkins v. Peterson that the possibility of
arrest was intimidating enough to chill a juvenile’s exercise of his First
Amendment rights.
Two curfew ordinances were thrown out by the Florida Supreme Court in
November 2004. This case consolidated challenges to ordinances in
Tampa and Pinellas Park. In Florida v. J.P., the court used strict-scrutiny
analysis when looking at the laws and found that neither were “narrowly
tailored” and the criminal penalties both ordinances called for were
contrary to the stated purpose of protecting minors from victimization.
Many cities enact curfews with the hope that they will prevent minors
from committing, or being the victim of, late night crime. Opponents
challenge curfew ordinances citing the restriction of minors’ First
Amendment rights. Although curfews do affect these rights, such as the
right to associate with friends, courts have found these restrictions can be
justified if the city proves the need for such a law.
2.
Expressive association. The right to free association extends beyond
intimate relationships. Groups peaceably joined to engage in First
Amendment activities also enjoy protection from government interference.
To constitute “expressive association,” such interaction must be defined
by common political, cultural or economic activism. Social gatherings that
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are intended for leisure and diversion do not qualify and may be regulated
by the government for any rational purpose. For instance, in the 1989 case
City of Dallas v. Stanglin, the Supreme Court upheld a local ordinance
limiting use of dance halls to teens between ages 14 and 18.
When people in an expressive association object to government action on
First Amendment grounds, courts consider the extent to which the
challenged regulation or statute interferes with the advocacy of the group.
In NAACP v. Alabama (1958), the Court concluded that the state could not
compel disclosure of the group’s membership list under a statute that
required such information from out-of-state corporations. In the
tumultuous civil rights era, the Court recognized that divulging the names
of NAACP members would expose them to attack and so undermine the
ability of the group to advocate its message.
For some expressive groups, the membership is the message. Generally
applicable public-accommodation laws designed to foster inclusiveness
can have the effect of forced speech in derogation of an organization’s
principles. In Boy Scouts of America v. Dale, the Court in 2000 agreed
with the scouting organization that inclusion of an openly gay scoutmaster
— otherwise required under New Jersey’s public-accommodation law —
would unconstitutionally undermine the organization’s promotion of
“morally straight and clean values” in youth.
Likewise, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group,
the 1995 Court held that a state public-accommodation law could not
require the South Boston Allied War Veterans’ Council to include gay
marchers in its St. Patrick’s Day parade. According to the Court,
application of this law would interfere with the group’s social and
religious agenda and violate its First Amendment rights as parade sponsor.
In such cases, the Court examines the tradition, practices and selection
criteria of the group to determine if these cohere into shared speech. If so,
the Court will then assess whether state regulation of the internal
organization and affairs of the group would impair the group’s common
expression. In Roberts v. United States Jaycees, the Supreme Court
determined in 1984 that Minnesota’s interest in outlawing gender
discrimination would not significantly undermine the educational and
charitable mission of the historically all-male organization. Thus, the state
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could constitutionally require the group to admit women as full members.
The Court reached the same result in applying the California Unruh Act
against the Rotary Club, concluding that inclusion of women would not
require the all-male members to “abandon their basic goals of
humanitarian service, high ethical standards in all vocations, good will,
and peace” ( 1987).
3.
Political association. A different problem arises when the government
seeks to punish or reward public employees based on their group
affiliations. To condition a benefit — the employment contract — on a
state employee’s participation in or disavowal of a certain political party
violates the First Amendment. In Rutan v. Republican Party of Illinois
(1990) the Court extended this prohibition to promotions, transfers and
recalls of government employees on the basis of patronage. The only
exception is for government workers who hold policy-level or confidential
positions.
The state may, however, require public employees to declare an oath
affirming allegiance to the constitutional processes of government.
Negative oaths that disavow past conduct or belief are constitutional only
to the extent that the activity disclaimed could have resulted in the denial
of public employment, such as knowing advocacy of the violent overthrow
of the United States. Public employees and others subject to state
regulation also have a right not to associate. Thus, lawyers subject to
mandatory bar fees and workers who pay required union dues may not be
compelled to finance political and ideological causes they oppose. Though
the conduct described here involves speech, it could be termed
associational speech — in that conditioning public benefits (a job) on an
oath concerning whether a person does or does not belong or harbor
loyalty to certain groups implicates the right to join or not join these
causes.
Citizens who wish to oppose Democrats and Republicans alike have a
right, under their freedom of association, “to create and develop new
political parties,” the Supreme Court said in the 1992 case Norman v.
Reed. However, this freedom is checked by the state’s interest in
preventing voter confusion, promoting legitimate competition in light of
limited ballot space, preventing ballot manipulation, and discouraging
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party splintering. In balancing the need for an orderly election process
against the citizens’ right to associate in political parties of their choosing,
the Court weighs the “character and magnitude” of the burden on
associational interests against the state interest in imposing that burden. In
Timmons v. Twin Cities Area New Party (1997), that balance tilted in
favor of the state. Upholding Minnesota’s “antifusion” laws that
prohibited candidates from representing multiple parties on the ballot, the
Court held that the need for ballot integrity and stability outweighed the
burden on candidates aspiring to multiparty nomination.
4.
When extremists assemble. Extremism has a voice, too. Advanced
technology allows like-minded believers to share ideas, distribute
messages cheaply and pervasively, and coordinate public campaigns. This
trend promises an upcoming test between gatherings of fringe groups and
the need for a secure, democratic society. The impulse to suppress
unpopular and unsavory messages confirms the importance of the First
Amendment to organizations with views to which many people object.
The Boy Scouts are perhaps the most benign example of such a group.
Certainly, the state may intervene if alarming messages would incite
violent or lawless action. But as to the functioning of groups — their
membership and internal affairs — Boy Scouts of America v. Dale
suggests that the state may not impose even generally applicable,
otherwise neutral laws that could impair the group’s freedom of
expression. Doing so not only might frustrate state regulators and law
enforcement officials, turning radical groups into impenetrable “black
boxes,” but would also appear inconsistent with the Supreme Court’s freeexercise jurisprudence, which does not exempt religious groups from the
effect of neutral, generally applicable laws. The Court will be faced with a
difficult decision when, for example, a condominium association claims
that its common purpose and continuing mission are to keep the races
apart and that, under Dale, the state may not force it to accept minority
residents.
Should discrimination be any more tolerated simply because it is
genuinely believed and consistently shared within a group?
When messages of opposition turn to acts of violence and lawlessness, the
Court has required “precision of regulation” before individual members
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may be held liable by the fact of their belonging. (See the 1982 decision
NAACP v. Claiborne Hardware Co.) On Oct. 31, 1969, the NAACP
coordinated an economic boycott against white businesses in Port Gibson,
Miss., after negotiations for racial equality broke down. Though the
marches were generally peaceful and orderly, some individuals enforced
the boycott through violence and threats of violence. When suit was
brought, the Mississippi Supreme Court imposed liability against the
entire organization for the lawless acts of certain members. Reversing this
ruling, the U.S. Supreme Court said uncontrolled violence by a few
members could not be imputed to the group as a whole, which retained
constitutional protection for its peaceful demonstration.
As the Court noted:
“Civil liability may not be imposed merely because an individual
belonged to a group, some members of which committed acts of
violence. For liability to be imposed by reason of association
alone, it is necessary to establish that the group itself possessed
unlawful goals and that the individual held a specific intent to
further those illegal goals.”
Fast-forward more than 30 years to when pro-life protesters coordinate
national demonstrations at abortion clinics. Some members engage in
violence, trespass and destruction of private property. The National
Organization for Women wins a unanimous jury verdict against prominent
pro-life groups under RICO — the Racketeering-Influenced and Corrupt
Organization statute, a federal law designed to prosecute organized crime.
However, the U.S. Supreme Court dealt a setback to abortion clinics in
2006 in its 8-0 decision in Scheidler v. National Organization for Women,
Inc., ending the two-decade-old legal fight over anti-abortion protests by
ruling that federal extortion and racketeering laws cannot be used to ban
demonstrations. (A 2003 ruling in the case had lifted a nationwide
injunction on anti-abortion groups led by Joseph Scheidler and others; the
2006 decision came after the 7th Circuit had kept the case alive.)
G.
News racks, The regulation of news racks presents an intriguing clash between
newspaper publishers’ First Amendment rights and cities’ interests in aesthetics
and safety. Publishers argue that news racks are an essential method of conveying
important information to the public. Many people buy their newspapers through
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news racks.Cities counter that the regulation of news racks combats visual clutter.
They add that news racks can reduce pedestrian safety. Some cities have sought to
prohibit individual, free-standing news racks and replace them with multi-rack
units. Many times the disputes end up in federal court.
Newspaper publishers contend that news-rack regulations affect both
noncommercial and commercial speech. Because noncommercial speech, such as
political speech, receives greater protection under the First Amendment than
commercial speech, publishers often argue that city regulations should be treated
as restricting noncommercial speech. But some courts have determined that the
regulation of news racks more directly involves commercial speech.
Suffice it to say, news-rack disputes implicate many strands of First Amendment
jurisprudence. Many times it becomes important to determine on what type of
property a disputed news rack is located. For instance, publishers and city
officials will often clash over news racks not only on sidewalks or along public
streets but also on various other kinds of city-owned property that are not public
forums.
In First Amendment law, the public-forum doctrine provides different levels of
protection against restrictions of expression on public property, depending on the
nature of the property. If someone engages in free expression — say, by erecting a
sign, giving a speech or installing a news rack — at a location considered to be a
traditional or limited public forum, a judge or court will closely scrutinize any
effort to restrict that expression. If the location is a non-public forum, then the
judicial review is less stringent. For non-public forums, the restrictions on speech
must be reasonable and not discriminate on the basis of viewpoint.
Whatever standard of review is applied, the courts must balance competing
concerns. The U.S. Supreme Court has twice decided cases involving news racks.
In its 1988 decision City of Lakewood v. Plain Dealer Publishing Co., the high
court invalidated a city ordinance that gave the mayor unbridled discretion to
determine whether publishers could place news racks in various locations.
The city ordinance provided that the mayor could deny a news-rack permit and
require publishers to abide by “such other terms and conditions deemed necessary
and reasonable by the Mayor.”
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This provision, the Court said, gave the mayor “unfettered discretion” to issue
permits to certain newspapers and to deny permits to others. To the Court, this
was unacceptable under the First Amendment.
The Court next addressed the subject of news racks in its 1993 decision City of
Cincinnati v. Discovery Network, Inc. The city revoked the news-rack permits of
those publications that it called “commercial handbills.” Thus, the city allowed
traditional newspapers to remain in news racks but required the removal of other
publications that were devoted primarily to advertising.
The city justified its ordinance on its legitimate interests in safety and aesthetics.
The city argued that it was only revoking the permits for papers of lesser value.
The Supreme Court responded: “In our view, the city’s argument attaches more
importance to the distinction between commercial and noncommercial speech
than our cases warrant and seriously underestimates the value of commercial
speech.”
The Court also noted the difficulty in defining commercial speech: “This very
case illustrates the difficulty of drawing bright lines that will clearly cabin
commercial speech in a distinct category.”
The city may have an interest in aesthetics, the Court noted, but the news racks of
the challenging parties “are no greater an eyesore than the news racks permitted to
remain on Cincinnati’s sidewalks. Each news rack, whether containing
‘newspapers’ or ‘commercial handbills,’ is equally unattractive.”
The city also argued that if it had the power to ban news racks, then it surely
could limit the number of news racks. The Court disagreed, asserting that “even if
we assume … that the city might entirely prohibit the use of news racks on public
property, as long as this avenue of communication remains open, these devices
continue to play a significant role in the dissemination of protected speech.”
Lower courts appear divided in how they resolve news-rack controversies. Some
have struck down regulations, while others have upheld them. For example, the
1st U.S. Circuit Court of Appeals upheld a ban on all “street furniture,” including
news racks in Boston’s historic Beacon Hill District.
The newspaper publishers involved in that case argued that the total ban on street
furniture violated their First Amendment rights. The 1st Circuit disagreed in
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Globe Newspaper Company v. Beacon Hill Architectural Commission, writing:
“That the Street Furniture Guideline results in a total ban on news racks is nothing
more than an incidental effect of its stated aesthetic goal of enhancing the historic
architecture of the District by reducing visual clutter.” The appeals court also
reasoned that there were still ample alternative means for publishers to distribute
their newspapers in the district, including “home delivery, sales by stores, street
vendors, and mail.”
The 11th U.S. Circuit Court of Appeals upheld many news-rack regulations in
Gold Coast Publications, Inc. v. Corrigan. Several publishers challenged a variety
of restrictions imposed by the city of Coral Gables, Fla., including the required
use of a particular model of news rack, uniform color requirement for all racks,
and a uniform size of lettering on the racks.
The city, whose motto is “the City Beautiful,” sought to regulate the growing
number of news racks, which to many city leaders were becoming eyesores. The
city argued that the regulations were important for both safety and aesthetic
reasons.
“It is well-settled that the right to distribute its newspapers through news racks is
protected under the First Amendment,” the appeals court acknowledged.
However, it also noted that “a newspaper publisher does not have complete
freedom in setting up a news rack distribution scheme.” The court concluded that
the city’s rules were valid restrictions on the time, place and manner of speech
that did not affect the content of the speech.
Sometimes news-rack ordinances are challenged by a particular type of
newspaper, which alleges that its First Amendment and equal-protection rights
have been violated because it is treated differently than other publications. This
resembles the types of claims advanced in Discovery Network.
For example, the Honolulu Weekly, a free publication, challenged the city’s
permitting scheme for the special district of Waikiki, which provided for separate
news racks (coin-operated and non-coin-operated) for publications that charged
readers and those that did not. The Honolulu Weekly bid for coin-operated space
because it wanted to be displayed closer to its competitors (paid daily
newspapers) and because the display windows for the coin-operated machines
were larger. The free weekly publication feared it would not be taken seriously as
a “credible media outlet” if it were lumped together with a host of other free
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publications such as tourist promotional papers and advertising leaflets. The
Honolulu Weekly planned to obtain the right to distribute in coin-operated
machines and then disable the coin mechanism so its readers could access the
publication without charge.
After the city denied its permit for coin-operated racks, the weekly sued in federal
court, advancing a First Amendment claim in its complaint. A federal district
court granted partial summary judgment to the newspaper, reasoning that the
city’s ordinance was content-neutral but that it was not narrowly tailored to the
city’s substantial interests in safety and aesthetics. The court wrote that “there is
no relation between the act of dropping a coin into a box and aesthetics.” The
court reasoned that a better-designed ordinance would distinguish between
publications based on size, not whether it was free or not.
However, the 9th U.S. Circuit Court of Appeals reversed in Honolulu Weekly, Inc.
v. Harris (2002), ruling that the news-rack ordinance was both content-neutral
and narrowly tailored.
The 9th Circuit agreed with the lower court that the ordinance was contentneutral. “This content-neutral scheme balances various needs and goals:
maximizing the uniformity in the appearance of newsracks, accommodating the
coin-collecting apparatus that the charging publications must use, and minimizing
the space newsracks require on city streets by requiring free publications that do
not need a coin-collecting apparatus to use the smaller, space-saving newsracks,”
the appeals court wrote.
The appeals court disagreed with the lower court on the question of whether the
ordinance was narrowly tailored. “The district court tried a little too hard to
imagine an ordinance that would best balance the goals of the city with the desires
of the publisher,” the 9th Circuit wrote. It emphasized that it would not “inquire
into whether the city’s method of addressing the problem was the best possible
solution.” According to the 9th Circuit, free publications still had “ample,
alternative channels of communication” to distribute their publications — through
noncoin-operated newsracks.”
Other courts have rejected cities’ plans to regulate news racks. An example is the
litigation between the Atlanta Journal-Constitution and Atlanta’s Department of
Aviation. The litigation began after the city’s Department of Aviation
implemented a plan in preparation for the 1996 Summer Olympic Games (held in
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Atlanta) that would regulate the design, placement, location and fees for news
racks in the airport.
In this case, the city determined that it wanted to replace privately owned news
racks in the city airport with city-owned news racks. The city also arranged a deal
with Coca-Cola that provided that the city-owned news racks would carry Coke
ads.
Newspapers, led by the Atlanta Journal-Constitution, challenged the removal of
their news racks and the forced advertising scheme on First Amendment grounds.
In January 2002 a three-judge panel of the 11th Circuit agreed the city’s plan was
unconstitutional for several reasons in Atlanta Journal and Constitution v. City of
Atlanta Department of Aviation.
The appeals court noted that the city could not force newspapers to accept certain
ads. “Even if it is constitutional for government to ban advertisements on its news
racks completely, once it permits some commercial speech to be exhibited there,
its prohibition of commercial speech ‘raises the danger of content and viewpoint
discrimination,’” the court wrote.
The appeals court also struck down an Atlanta license-fee plan for news racks as
imposing too high a price to pay for the exercise of First Amendment freedoms.
Citing an earlier decision, the appeals court reasoned that cities can charge
licensing fees as long as the fees do not cover more than what is needed to offset
administrative costs.
Finally, the appeals court determined that the city’s news-rack plan gave the city’s
Department of Aviation too much power over news racks, including unlimited
power to cancel licenses.
The appeals court concluded: “The Department’s plan impermissibly compels
some speech, prohibits other speech based upon its viewpoint, imposes a revenueraising fee on protected speech, and vests in government an unfettered discretion
to discriminate among speech based upon viewpoint and content.”
However, the full 11th Circuit set aside this decision and decided to review this
case on a full-panel basis (called en banc review). The full 11th Circuit disagreed
with part of the panel decision in its February 2003 opinion in Atlanta Journal
and Constitution v. City of Atlanta Department of Aviation. The 11th Circuit
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determined that the city could charge fees that cover more than administrative
costs.
“In a proprietary capacity, the City has a substantial interest in the ‘bottom line,’
and, when the City acts as a proprietor, reasonable regulations may include profitconscious fees for access for expressive conduct, in a manner similar to fees that
would be charged if the forum was owned by a private party,” the court wrote.
The appeals court concluded that the fee was reasonable, constitutional and not a
special tax on the press. The panel did reinstate the part of the panel decision
concerning the broad discretion of the city’s department of aviation to determine
which publications are placed in news racks.
The court concluded: “[W]e find that the Department can impose a profitconscious fee on the use of newsracks in the Airport, but that the discretion
surrounding such fee must be restrained through procedures or instructions
designed to reduce or eliminate the possibility of viewpoint discrimination.”
The court sent the case back down to the district court with instructions to give
the city “an opportunity to formulate ascertainable non-discriminatory standards
for the exercise of discretion by the appropriate Department official.”
On remand, the district court accepted the city aviation department’s modified
plan, awarded the city some restitution for fees that it was not able to collect
during the suit proceedings and awarded the publishers 80% of their attorney fees,
as they were the prevailing party in the litigation. The city once again appealed to
the 11th Circuit, contending the federal district court did not award them enough
money in restitution and should not have awarded the publishers 80% of their
attorney fees.
In March 2006, the 11th Circuit upheld the district court’s ruling on both issues.
On the attorney-fee issue, the appeals court wrote: “As the district court
recognized, we consider vindication of a constitutional right against a municipal
defendant an important measure of success. Thus, we agree with the district court
that the publishers’ success was significant.”
Larger newspaper companies and city governments often have the economic
resources to fund legal actions in these First Amendment disputes. Publishing
companies have a tremendous economic incentive to fight these battles, because
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many consumers purchase their newspapers through free-standing news racks. On
the other hand, cities want to prevent a proliferation of news racks with multiple
colors that hurt the eyes and clog the sidewalks. In other locations, the cities want
to eliminate privately owned news racks and replace them with city-owned racks
for economic reasons.
In spring 2007, a group of newspaper publishers in Nashville, Tenn., objected to
Metro government’s proposed news-rack ordinance that would require $50 per
rack for initial permits and $10 per year after that. The publishers then countered
with a proposal to have a third party oversee the process.
As the Nashville example shows, it appears safe to say that publishers and
municipalities will continue to battle over news-rack regulations.
H.
Abortion protests & buffer zones. Freedom of speech often confronts, challenges,
provokes and revolts. Speech often serves as a catalyst for social change and
sometimes as a weapon to attack one’s enemies. Sometimes government officials
respond to speech by attempting to mitigate its effects on listeners and targets. A
common method is to pass buffer zones separating protesters from their targets or
from designated areas. Buffer zones have been used repeatedly to attempt to
control anti-abortion demonstrators outside abortion clinics.
The abortion issue has been one of the most publicly and politically volatile issues
in American society, especially since the Supreme Court in 1973 found a
constitutional right to an abortion in Roe v. Wade. Violence has occurred at
abortion clinics and several physicians who perform abortions have been killed.
To protect women and abortion-clinic doctors and staff, Congress in 1994 passed
a law called F.A.C.E. — the Freedom of Access to Clinic Entrances Act (18
U.S.C., Sect. 248). The law prohibits injuring, intimidating or interfering with any
person who obtains or provides reproductive health services. It provides for civil
and criminal penalties against violators. The law has survived several First
Amendment challenges.
Sometimes courts will pass a special injunction providing for even greater control
over anti-abortion demonstrators. Many times these injunctions take the form of
buffer zones. The issue of buffer zones for anti-abortion demonstrators has
reached the Supreme Court several times in recent years beginning in 1994 with
Madsen v. Women’s Health Center.
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A Florida state court ordered that anti-abortion demonstrators could not protest
within 36 feet of an abortion clinic, make loud noises within earshot of the clinic,
display images observable from the clinic, approach patients within 300 feet of
the clinic, or demonstrate within 300 feet of the residence of any clinic employee.
The Florida Supreme Court upheld the injunction in its entirety.
The U.S. Supreme Court upheld the restrictions against demonstrating within 36
feet of the clinic (to the extent that the 36-foot buffer did not include private
property), making loud noises within earshot of the clinic, and making loud noises
within 300 feet of an employee’s residence. The Court rejected the prohibitions
against displaying images, approaching patients within 300 feet of the clinic, and
peacefully picketing within 300 feet of an employee’s residence. In reaching its
decision, the Court announced a new test for cases in which speech is prohibited
by an injunction: The injunction will be upheld unless it burdens more speech
than is necessary to serve a significant government interest.
The Supreme Court examined the issue of buffer zones outside abortion clinics
again its 1997 decision Schenck v. Pro-Choice Network of Western New York.
In Schenck, three doctors and four medical clinics near Rochester and Buffalo
filed a federal lawsuit against 50 individuals and three organizations — Operation
Rescue, Project Rescue Western New York and Project Life of Rochester — who
often engaged in heated anti-abortion demonstrations. The lawsuit alleged that the
protesters would block access to abortion clinics by kneeling or lying in
driveways and similar conduct.
Eventually, the federal district court issued an injunction against the protesters,
prohibiting them, with the exception of two sidewalk counselors, from
demonstrating within 15 feet of abortion-clinic entrances and driveways and
within 15 feet of vehicles and patients entering or leaving a clinic. The provision
prohibiting protesters within 15 feet of fixed physical locations (abortion clinics)
was called a fixed buffer zone, while the provision prohibiting them within 15 feet
of moving objects (cars or people) was called a floating buffer zone.
The Court applied the test it had developed in Madsen to determine whether the
fixed and floating buffer zones were constitutional. The Court held that the fixed
buffer zone did not burden any more speech than necessary to serve the
government interests of ensuring public safety and order, promoting the free flow
of traffic on streets and sidewalks, and protecting women’s freedom to seek
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abortions or other health-related services. The Court struck down the floating
buffer zone, however, because it found the floating zone to be overbroad and
difficult to enforce. The Court reasoned in part that “the 15-foot floating buffer
zones would restrict the speech of those who simply line the sidewalk or curb in
an effort to chant, shout or hold signs peacefully.”
In 1993, the Colorado Legislature enacted a law requiring protesters to stay eight
feet from anyone entering or leaving an abortion clinic, as long as the clinic
visitor is within 100 feet of the entrance. In 1995, three anti-abortion activists
challenged the law, claiming it violated their free-speech rights. Both a trial court
and state appeals court upheld the statute.
When the Supreme Court of Colorado refused to hear their case, the petitioners
appealed to the U.S. Supreme Court. In light of its ruling against floating buffer
zones in Schenck, the U.S. Supreme Court in February 1997 ordered the Court of
Appeals of Colorado to re-examine the case. The state appeals court again upheld
the law.
In February 1999, the Colorado Supreme Court affirmed the lower court’s ruling,
stating that the law places reasonable restrictions on the time, place and manner of
speech by anti-abortion demonstrators.
The case was appealed again to the U.S. Supreme Court. The issue before the
Court was whether the law prohibiting demonstrators from approaching within
eight feet of anyone coming to and from medical clinics violated the First
Amendment.
The Court upheld the law by a 6-3 vote in its 2000 decision Hill v. Colorado. The
majority reasoned that the law was not a speech regulation, but simply a
“regulation of the places where some speech may occur.” The Court also
emphasized that the law applied to all demonstrators regardless of viewpoint. The
majority determined that the state’s interests in protecting access and privacy
were unrelated to the suppression of certain types of speech. States and
municipalities have special government interests in certain areas, including
schools, courthouses, polling places, private homes and medical clinics, the Court
said.
Justice Antonin Scalia wrote a scathing dissent in which he accused the majority
of manipulating constitutional doctrine in order to provide further protection for
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abortions: “What is before us, after all, is a speech regulation directed against the
opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc
nullification machine’ that the Court has set in motion to push aside whatever
doctrines of constitutional law that stand in the way of that highly favored
practice.”
Justice Anthony Kennedy also dissented, writing that the decision “contradicts
more than a half century of well-established First Amendment principles.”
Kennedy said the Colorado statute was a content-based law that restricted a
specific type of speech, anti-abortion speech.
In 2006 the U.S. Supreme Court dealt a setback to abortion clinics in its 8-0
decision in Scheidler v. National Organization for Women, Inc., ending a twodecade-old legal fight over anti-abortion protests by ruling that federal extortion
and racketeering laws cannot be used to ban demonstrations. (A 2003 ruling in the
case had lifted a nationwide injunction on anti-abortion groups led by Joseph
Scheidler and others; the 2006 decision came after the 7th Circuit had kept the
case alive.)
Amid the continuing abortion debate, First Amendment constitutional arguments
will play a significant role.
H.
Adult Entertainment and the Secondary-Effects Doctrine. The regulation of adult
entertainment establishments is a rapidly changing area of the law. One should
not rely upon the ordinance of a nearby city as a model for your city’s ordinance,
without careful research. Research should start with “Adult Entertainment and
the Secondary-Effects Doctrine” by David L. Hudson, Jr., a 37 paage booklet
available from the website of the First Amendment Center.
I.
Peddlers, Solicitors, and Canvassers. For the purposes of this subsection, people
going door-to-door to sell stuff are called peddlers, people seeking donations or
future sales (example: distributing a flyer inviting orders for pizza) are solicitors,
people seeking political support are canvassers. All of these things involve
speaking, and implicate the First Amendment. Cities seek, from time-to-time, to
regulate this activity. It is very difficult to do so, although recent attempts have
shifted from flat prohibitions to ordinance empowering residents to decide for
themselves what types of door-to-door activities they wish to allow. The
following are two articles written by Patrick Cronan for the Missouri Municipal
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Review discussing these activities. They are about 30 years old, so you might
want to look for more recent cases.
1.
Peddlers.
Harold Hill
The Music Man and
Other Itinerant Salesmen
By Patrick Cronan
Mayor Oscar Bailey usually enjoyed attending Chamber of Commerce meetings.
For one thing, he didn’t have to preside, which was a nice change. For another,
the members of the Chamber seemed to enjoy his reports about city business and
often made positive suggestions. The mayor had gotten into the habit of asking
the Chamber’s advice on city questions, such as when the Board of Aldermen
were divided on the question of spending almost $5,000 to put lights along the
airport’s one grass runway.
But this was not one of the more pleasant meetings. The topic of discussion had
somehow gotten around to the subject of peddlers. These merchants wanted
something done now.
David Strodtman, owner of the local IGA store, was incensed about a door-todoor salesman selling Texas grapefruit. “They were nice grapefruit,” reported
the grocer, “but those guys don’t have to make a payroll and pay taxes and
utilities. Besides, they were selling them for twice what I was charging.” (Mayor
Bailey smiled to himself at the thought of the supermarket owner being upset that
a competitor charged more than he.)
A local insurance and real estate agent, Vernon Meyer, joined in to denounce
itinerant insurance salesmen. “Usually they are selling burial or cancer
insurance or accident insurance – things with a great commission. But they don’t
have to pay for an office. Those guys don’t have any expenses at all. And I’m
losing business to them, even though the premiums I charge are no more than
theirs. They aren’t around when someone wants to make a claim. It’s terrible!”
Mayor Bailey was in the appliance business. He secretly wished he could do
something about the door-to-door vacuum cleaner salesmen. They sold a good
product, no doubt about it, but it sure was expensive. And Mayor Bailey
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reminded himself about how he had to stock bags for those machines, and people
got upset when de didn’t have them. They would spend $500 for a vacuum
cleaner, and then get mad if he didn’t have the $5 bags to fit.
The minister at a local church, who had been invited to the Chamber meeting to
give the invocation, mentioned that these peddlers often were about at night and
that they scared many senior citizens. “I have learned,” intoned the minister,
“not to go calling on people after dark, especially retired people, because they
can be so fearful of burglars.” The Reverend recounted the time that old Mr.
Hardy had held him at bay with a shotgun, because his eyesight and hearing were
so bad that he couldn’t tell who was at the door.
Even the Superintendent of Schools joined in. The junior class at the high school
had a project selling magazines to raise money for the senior trip, so he had an
interest. “Those magazine salesmen are the worst,” he noted. “By the time they
are finished talking, you’ve order 13 or 14 magazines that you never read when
they get there.” Everyone agreed with the Superintendent, although one of the
lawyers present (all the lawyers came to Chamber meetings; it was a great way to
get business) thought that maybe the Constitution made it hard for the city to do
something about magazine salesmen.
By the time the meeting was over, Mayor Bailey decided he had had enough. He
vowed to never again go to the Chamber of Commerce meetings. He told his wife
of his decision. She smiled. “We’ll see,” she said sweetly. “You’ll think of
something,” she announced loyally.
Sure enough, Mayor Bailey did. He called the Municipal League.
COMMENTS
a.
Cities and towns can regulate the activities of peddlers. (We need to
distinguish between peddlers and solicitors – the latter ask for donations or
sell an item for a charitable purpose. The February issue of this magazine
had an article about solicitors.) However the regulation of peddlers must
be for a proper motive. Cities cannot accede to pressure from merchants
to limit peddlers for an anti-competitive purpose. Municipalities are
subject to the federal antitrust laws and can be required to pay damages,
perhaps even triple damages, for unreasonably restraining competition.
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Illustrative of this problem was a suit brought against a city when used its
ordinances to limit competition in the liquor business. City of Impact v.
Whitworth, 557 F2d 378, vacated 435 US 992, reinstated 576 F2d 696,
cert. denied 440 US 911. This case involved the incorporation of a “wet”
city in a “dry” county. The people who started the city owned a liquor
store. The zoning regulations adopted by the city restricted the activities
of competing liquor stores by prohibiting the sale of alcoholic beverages
in certain areas of the city. It was ruled that the fact that the city had
adopted the ordinance did not insulate the city from liability, since it was
claimed that the city had entered into a conspiracy to restrain trade.
Note that at the Chamber of Commerce meeting discussed above, Mayor
Bailey was requested to act by people who had an obvious interest in
restraining competition. The city must not allow itself to be drawn into
this trap. It is the policy of this country to encourage free enterprise, not
to restrain it. Any city that goes against that policy does so at its peril.
b.
While recognizing the warning above, it is nevertheless possible for a city
to regulate and restrict peddlers. However, the city’s motive must be pure.
Possible motives are: (1) to collect city taxes, and (2) to protect the public.
c.
In Missouri, there are certain types of peddlers who cannot be regulated.
According to RSMo Seciton 71.620 certain professions cannot be licensed
or taxed. The law says that no “veterinarian, architect, professional
engineer, land surveyor, auctioneer, or real estate broker or salesman” can
be required to have a city license except in the city where he maintains an
office. Also, that same statute says that no “minister of the gospel, duly
accredited Christian Science practitioner, teacher, professor in a college,
priest, lawyer, certified public accountant, dentist, chiropractor,
optometrist, chiropodist, or physician or surgeon” can be required to pay a
license or tax for the privilege of carrying on his profession even in the
city where he has an office.
Also Section 71.630 says that no municipality may “levy or collect any
tax, license or fees from any farmer, or producer or producers, for the sale
of produce raised by him? When this produce is sold from his wagon, cart
or vehicles by a person employed by the farmer or producer. An old case
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indicates that the farmer may not be prohibited from selling from city
streets. St. Louis v. Meyer, 84 S.W. 914. Another old case says that a city
cannot prohibit a farmer from selling meat raised and butchered by him,
this meat being “produce” within the meaning of the law. City of Higbee
v. Burgin, 201 S.W. 558. (Does this mean that the city cannot stop the
farmer from selling tainted meat? Surely, if a city tried, a court would find
a way to allow the city to stop the practice.)
d.
In the Chamber of Commerce meeting, the supermarket owner wanted to
prohibit the sale of Texas grapefruit. If the grapefruit is being sold by the
producer of that fruit, the city may not regulate or tax it. Usually, that is
not how it works, however. Usually, the peddler has purchased the fruit at
wholesale and is now selling at retail. If so, the city may regulate the
salesman.
e.
Because of a quirk in the law, it is necessary for the city to find specific
authorization to regulate peddlers. (See RSMo Section 71.610.) For third
class cities the power to regulate peddlers is found at RSMo Section
94.110, which allows a city to impose a license tax on “canvassers,
drummers, hawkers, peddlers, hucksters.” Fourth class cities will find
similar authority at RSMo Section 94.270. A special charter city must
look to RSMo Section 94.360 for authority in its charter. See General
Installation Co. v. University City, 379 SW2d 601. Authorization for
towns and villages is found in RSMo Section 80.090. We have prepared
and will send you upon request a comparison of Section 94.110, 94.270,
and 94.360. Just write the League and request the packet of material on
merchants licenses.
f.
In 1951, the United States Supreme Court said in the case of Breard v.
Alexandria, 341 US 622:
“The Constitution’s protection of property rights does not
make a state or city impotent to guard its citizens against
the annoyances of life because the regulation may restrict
the manners of doing a legitimate business . . . We cannot
say that this ordinance so burdens interstate commerce as to
exceed the regulatory powers of the city . . . We think those
communities that have found [door-to-door peddling of
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merchandise] obnoxious may control them by ordinance. It
would be, it seems to us, a would be, it seems to us, a
misuse of the great guarantees of free speech and free press
to use these guarantees to force a community to admit
[peddlers] into the home premises of its residents. We see
no abridgement of the First Amendment in this ordinance.”
This case involved the famous “Green River” ordinance, which prohibited
commercial peddlers from the premises of private residences, unless they
had a specific request or invitation of the occupants.
This case appears to still be good law as it applies to commercial peddlers,
although clearly the city cannot prohibit charitable solicitation in this
fashion. Comment: Since this article was written, the US Supreme Court
has extended much greater protection to commercial speech. I am not as
confident as when this was written that a “Green River” type ordinance
would be approved by the courts.
2.
Solicitors and Canvassers
THOUGHTS ON THE 1ST AMENDMENT
By Patrick Cronan
Mayor James Mather reminded himself that he had a good story to tell the fellows
at Tilly’s Coffee Shop. The Mayor liked to have coffee with the boys about 9:30
every morning, but they were always trying to talk about city business. Mayor
Mather was not opposed to the “people’s right to know,” but it seemed to him
that often the people seemed to know more about what was going on than he did.
Just last week the fellows had been reminiscing about the old City Marshal,
Dillon Jackson, who had single handedly preserved law and order in Smallville, a
town of 1,423 people, for almost three decades. “Marshal Dillon” as he was
known to the townspeople, used a very direct method to enforce the law. If there
was a dog bothering the neighborhood, the Marshal always seemed to know how
to get rid of it. Secretly, Mayor Mather was glad that no one had ever checked
Marshal Dillon’s ammunition supply after such a foray.
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Remembering Marshall Dillon, the fellows at Tilly’s had all agreed that things
had not been the same since “The Law West of St. Louis” keeled over from a
heart attack while chasing a suspected burglar (15-year-old David Johnson, who
had grown up to become an engineer with Boeing out in Seattle). The boys knew
that Marshal Dillon would have known what to do about “the Consciousness
freaks.”
For the past several weeks Smallville had been plagued by young men and
women, dressed in fluorescent orange saris and little else, going about the town
soliciting donations for the work of their church. Although unfailingly polite,
these solicitors seemed to be able to encourage donations at a phenomenal rate.
The Chief of Police had been instructed to be vigilant in enforcing the city
ordinances against disturbing the peace and trespassing, but, as the Chief had
said, “If they invite them freaks into their houses, that ain’t trespassin’.”
People were getting tired of the “Consciousness creeps,” named after their
“Church of Universal Harmony and Consciousness.”
Mayor Mather was overjoyed at being able to inform the boys at Tilly’s that he
had finally gotten tough. Just this morning he had instructed the Chief of Police
that from now on he was to arrest every one of those freaks, put them in jail, and
run each out of town for not having a permit. And, of course, the Mayor had
instructed the City Collector that under no circumstances was “one of those
freaks” to be given a permit.
“Smart,” thought the Mayor. Everyone at the coffee Shop agreed.
Two weeks later, the City found itself on the wrong end of a $2 million civil rights
lawsuit. Also, the Mayor, the Chief of Police, and the City Collector were each
sued as individuals.
COMMENTS
The League receives many calls each year from city officials who want ideas
about controlling religious and charitable solicitors. (We need to distinguish
between “solicitors,” who are acting without a profit motive, and “peddlers” who
Page 103 of 267
sell something. Those who sell merchandise will be the subject of a future article
in this magazine. For now we are talking about charitable and/or religious
solicitation only.)
The problem often confronting the city is not so much control as it is overreaction
to the uproar of its citizenry. This overreaction is illustrated by the large number
of Federal court decisions overruling local attempts to rid the municipality of the
problem.
Before we get too far into this subject, we must first consider one very basic
point: The First Amendment to the Constitution of the United States. We are
dealing with ideas. The U.S. Constitution says that the city can “make no law
abridging” the right to express one’s ideas. This freedom of expression
guaranteed to us is not something to be tolerated, but something to be cherished.
Even if 99% of the people do not like the “Consciousness creeps,” the right to
expression must not be eliminated or reduced.
Prior to drafting an ordinance to regulate religious and charitable solicitors,
various Federal court decisions should be considered. We will attempt to briefly
discuss them, but you might want to ask your City attorney to research the matter
in greater depth.
The earliest case that we must consider is Lovell v. Griffen, 303 U.S. 444 (1938),
in which the U.S. Supreme Court invalidated an ordinance making it an offense to
distribute a handbill without a permit. In other words, Smallville cannot restrict
the distribution of handbills only to people who get prior permission through a
permit. After the Lovell decision, it was thought that maybe the city could simply
prohibit all handbills. “No”, said the Court.
In Schneider v. Irvington, 308 U.S. 147(1939), a canvasser for Jehovah’s
Witnesses was going from door-to-door passing out booklets and asking for
contributions. He was arrested and convicted for doing this without a permit.
The issuance of the permit was discretionary with city officials; that is, a permit
might or might not be issued, based upon the official’s bias or humor. The
Supreme Court reversed the conviction.
Cantwell v. Connecticut, 310 U.S. 296 (1940), involved a state statute forbidding
the solicitation of contributions by religious, charitable or philanthropic
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organizations without a license. Again, the law was held invalid, although the
Court did comment that “a general regulation, in the public interest of solicitation,
which does not involve any religious test and does not unreasonably obstruct or
delay the collection of funds is not open to any constitutional objection.” In other
words, the city may not limit solicitation to those who are members of a
“recognized charity” or upon some definition as to what is a “religion.” Where
the city grants a license or permit based upon the city’s decision as to what is a
religious or charitable cause, it is not permitted. The city cannot decide who is
involved in a religion – that is for the individual to decide.
In Valentine v. Chrestensen, 316 U.S. 52 (1942), the Court said it was permissible
to prohibit handbills where the advertising was purely commercial. However, that
same year in Jamison v. Texas, 318 U.S. 413 (1942), the Court said that a state or
city could not “prohibit the distribution of handbills in the pursuit of a clearly
religious activity merely because the handbills invite the purchase of books for the
improved understanding of the religion or because the handbills seek in a lawful
fashion to promote the raising funds for religious purposes.” In these two cases,
the Court seems to have said that a city can prohibit purely commercial
handbilling, but handbills that have a religious purpose must be allowed even if
these handbills advertise something for sale. And if these two cases don’t make
the line between commercial and non-commercial solicitation fuzzy enough, later
cases have made it even harder to distinguish between the two.
When it was found that prohibiting non-commercial handbills wouldn’t work, the
State of Pennsylvania tried to impose a tax on the sale of religious literature. In
Murdock v. Pennsylvania, 319 U.S. 105 (1943), this tax was declared
unconstitutional. The Court recognized that it is hard to draw the line between
commercial ventures and protected distributions of religious materials, but the
Court nonetheless held that the sale of religious literature by itinerant evangelists
in the course of spreading their doctrine was not a commercial enterprise free
from protection. The tax was determined to be against the law.
A further limit on the city’s power to restrict handbills was the result of Martin v.
Struthers, 319 U.S. 141 (1943). An ordinance which forbade the door-to-door
distribution of handbills, circulars or other advertisements was held invalid. The
prohibition of Valentine v. Chrestensen (discussed above) did not apply where the
handbills were taken door-to-door and were not distributed in such a way as to
end up thrown on the street.
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Next comes the so-called “Green River” ordinances. In 1951, in the case of
Breard v. Alexandria, 341 U.S. 622, the Supreme Court upheld an ordinance
which made it a crime to enter a person’s property without an invitation to sell
goods, wares and merchandise. The ordinance was upheld against a door-to-door
salesman of magazine subscriptions. The “Green River” ordinance said that first
you must have an invitation (perhaps over the phone, or by postcard) before you
can enter the property. Note, however, that his involved a commercial door-todoor solicitation and not a religious or charitable effort. A “Green River” type of
ordinance will not work on these types of non-commercial efforts.
An ordinance adopted by a New Jersey municipality that required those who
canvass or solicit house-to-house to register with the Police Department, for
identification purposes only, came before the Supreme Court in Hynes v. Mayor
of Oradell, 425 U.S. 610 (1976). This ordinance applied to those who were
working for a “recognized charitable cause” or “political campaign or cause.”
The ordinance was held unconstitutional, because it was vague: it did not define
what was “recognized” and what was not. (Note that if there had been a definition
which excluded as “unrecognized” certain religious, political, or charitable ideas,
the ordinance still would have been unconstitutional. The Court recognized that a
city may lawfully enforce reasonable door-to-door soliciting and canvassing
regulations to protect its citizens from crime and undue annoyance; however, in
this case, the city did not do it right.
The Supreme Court in Village of Schawmburg v. Citizens for a Better
Environment, 444 U.S. 620 (1980), ruled that a village ordinance that prohibits
door-to-door or on-street solicitation of contributions by charitable organizations
that do not use at least 75% of their receipts for “charitable purposes” exclusive of
solicitation expenses, salaries, overhead and other administrative expenses,
violates the First Amendment. The Village ordinance had no provisions
permitting an organization unable to comply with the 75% requirement to obtain
permission to solicit by demonstrating that its costs are nevertheless reasonable.
The Court seems to be saying that the Village’s desire to prevent fraud could be
served as well by measures less restrictive. Efforts by the government to promote
disclosure of the finances of charitable organizations would apparently be all
right, but not efforts to prohibit solicitation of certain organizations. The Court
further indicated that provisions making it unlawful for charitable organizations to
use convicted felons as solicitors might be upheld as bearing some relation to
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public safety. Provisions permitting homeowners to bar solicitors from their
property by posting signs reading “No Solicitors or Peddlers Invited” may,
according to the Court, also withstand a legal challenge.
Two 1981 decisions of the U.S. Supreme Court have some effect upon attempts to
regulate charitable solicitation. In Schad v. Borough of Mount Ephraim, 452 U.S.
62, the operator of an adult book store brought suit against the Borough. He had a
coin-operated mechanism permitting a customer to watch a ‘usually nude” live
dancer. The Borough said that having live dancing (nude or otherwise) violated
the zoning ordinance. The zoning ordinance allowed three types of zones: R-1
residential, R-2 residential, and C commercial. Nude dancing was allowed in
none of the zones. The Court said that it was the City’s responsibility to prove its
ordinance was reasonable and not the store owner’s burden. In other words, if
your city wants to regulate an activity protected by the First Amendment, as is
dancing as a form of expression, it must have evidence to back up its restrictions.
Heffron v. International Society for Krishna Consciousness, 452 U.S. 640,
involved the Minnesota state fair. The fair board had a rule that anyone who
wanted to sell, exhibit or distribute materials during the fair must do so only from
a booth rented from the fair board. The rule did not prevent people from walking
about the fair grounds and talking to folks in face-to-face discussions. ISKCON
claims that this rule was in conflict with their established ritual of “Sankirtan”, a
requirement that its members go into public places to distribute or sell religious
literature and to solicit donations. The U.S. Supreme Court ruled in favor of the
fair board. While ISKCON might have some special religious ritual, that did not
entitle it to special treatment at the state fair.
The significance of this case is not that you can restrict solicitors to booths,
because you cannot. These restrictions would only be upheld where there is a lot
of congestion such as at airports, fairs, and similar activities. However, the case is
important because it says that groups with unusual or strange rituals, are not
entitled to special treatment from the government.
A more recent decision was the August, 1983, case of Association of Community
Organizations for Reform Now (ACORN) v. City of Frontenac, Mo. This case is
important for Missouri cities because it was decided by the Eighth Circuit of the
U.S. Court of Appeals. (The Court of Appeals is immediately below the U.S.
Page 107 of 267
Supreme Court in jurisdiction. The Eighth Circuit is important to us because it is
the one that includes Missouri within its jurisdiction).
The City of Frontenac had an ordinance that required peddlers and solicitors to
register at city hall for an identification card, and restricted solicitation from 9
a.m. to 6 p.m. Monday through Saturday. ACORN challenged the ordinance
because of the restriction on hours. The Court held that these restrictions were
unreasonable. Said the Court. “The City may achieve its goal of preventing
undue annoyance of its residents through means less restrictive of constitutional
freedoms than the means embodied in this regulation. The City’s trespassing laws
may be enforced against those who enter or remain on private property after its
owner has indicated the intruder is not welcome . . . The solicitor or canvasser has
no right to make an uninvited entry into a resident’s home . . . If the resident is not
interested in receiving the particular solicitor’s message, he may . . . close the
door. If the resident cares not to receive messages from any solicitors or
canvassers, he may post a sign to that effect at his door or at the entrance of his
property. But Fontenac may not . . . broadly prohibit the plaintiffs’ activities
when less restrictive alternatives will satisfactorily accomplish the same
objectives.”
In the Frontenac case, ACORN indicated that the best times for canvassing are
from 5:30 p.m. until 9:00 p.m. on weekday evenings, since the greatest number of
people are home during those hours. The court did not indicate whether it would
approve an ordinance which required solicitors to stop their activities at 9:00 or
10:00 p.m.
From these cases it appears that a city’s options are limited. Perhaps a city can
prohibit solicitation after 10:00 p.m. and require registration for identification
purposes. Beyond that, who knows? See Appendix 13I, the Bridgeton ordinance
on solicitors.
XIV. Administrative Procedure Act and the Cities See Appendix 14 attached.
Page 108 of 267
XV.
Economic Development Techniques
A.
Tax Increment Financing
B.
Community Improvement District
C.
Neighborhood Improvement District
D.
Transportation Development District
E.
Direct Subsidies
F.
XVI. Annexation
A.
Voluntary Annexation
B.
Involuntary Annexation
XVII. Regulation of Businesses
XVIII. Water, Sewer, Electricity and other city-owned Utilities
A.
Water
B.
Sewer
1.
Unpaid sewer bill can become a lien against the real estate. §250.234.
Although this statute is located in a Chapter of the statutes called “Sewerage Systems and
Waterworks – City or District” most city attorneys do not think statute authorizes lien for
water service.
Page 109 of 267
C.
Electricity
D.
Natural Gas
1.
E.
Unlike other municipal utilities, this one is subject to regulation by the
Missouri Public Service Commission.
Cable Television
XIX. Police and Traffic Regulations
A.
Police department
B.
Quasi-criminal type ordinances
C.
Juvenile Justice and Curfew Regulations
D.
Model Traffic Ordinance
E.
Animal Regulations
F.
Municipal Court
1.
Municipal Court is a division of the circuit court, subject to supervision by
presiding judge of the circuit. Degree of supervision depends upon
personality and skills of the presiding judge.
a.
2.
State auditor conducts regular audits of municipal courts when
they do audit of the circuit court.
City decides if it wants to run its own municipal court, or if wants state to
provide municipal court. Decision can be changed but only every 2 years.
a.
If city provides a “suitable courtroom” state judge supposed to
hold court at city’s location
Page 110 of 267
G.
XX.
3.
If city wants to have its own judge, City selects and pays municipal judge
for 2 year term; cannot remove.
4.
In theory the municipal judge appoints the court clerk, and supervises the
traffic violatioon bureau. In practice, City city usually does this.
5.
What happens if judge arrested for DWI or other politically unpopular
offense? Can be suspended by presiding judge (not city) pending plea.
6.
Jury trial allowed everywhere except Kansas City.
Civil Defense
Streets and Sidewalks – Privately owned utilities
A.
Streets
1.
Acquisition of Streets by Dedication
a.
Property is frequently dedicated to public use by plat. Chapter 445,
RSMo. This process of “statutory dedication” serves to vest title in
the public upon approval and recording of a plat that indicates an
intent by the owner to allocate property to public use. Bates v.
Mueller, 413 S.W.2d 853 (Mo. App. E.D. 1967). Dedication within
a municipality vests title in the municipality, while dedication
outside city limits vests title in the county for public purposes.
1)
For a dedication to be effective, the signer or signers of the
plat must have fee simple title. Granite Bituminous Paving
Co. v. McManus, 129 S.W. 448, 453 (Mo. App. S.D. 1910).
Neither the owner of an easement nor the owner of property
burdened by an easement can make a valid dedication
without the other. City of Sarcoxie v. Wild, 64 Mo. App.
403 (W.D. 1896), rule recognized (but distinguished) in
Bateman v. Owens, WD71053 (Mo App. WD 5-31-11). A
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dedicator cannot attach conditions or limitations
inconsistent with the character of the dedication or
conditions or limitations that would exclude public control
of the property. City of St. Louis v. Meier, 77 Mo. 13
(1882); City of Camdenton v. Sho-Me Power Corp., 237
S.W.2d 94 (Mo. 1951). In Camdenton the Supreme Court
held that an attempt by the property owner to reserve the
power to grant utility easements across and under dedicated
streets was ineffective. Conditions that are not inconsistent
with public use and control are valid and binding on the
municipality. Sch. Dist. of Kansas City v. Kansas City, 382
S.W.2d 688 (Mo. banc 1964).
Page 112 of 267
2.
b.
Property may also be dedicated to public use by common-law
dedication (i.e., no written document) when the owner manifests an
intent to devote land to public use and the public accepts the
dedication by actual use of the property. Ackerman v. Roufa, 584
S.W.2d 100 (Mo. App. E.D. 1979). Frequently, a common law
dedication happens because of some defect in an attempted
dedication by plat.
c.
The quantum of title that a municipality receives by dedication is
variously described. Section 445.070, RSMo, says that a dedication
by plat vests a fee in trust for the purposes indicated, but numerous
cases have described the interest as an easement. E.g., State ex rel.
State Highway Comm’n v. Johns, 507 S.W.2d 75 (Mo. App. W.D.
1974). However described, the municipality does not receive a
conveyable interest or the power to devote the land to some other
public use. Village. of Climax Springs v. Camp, 681 S.W.2d 529
(Mo. App. S.D. 1984); Cummings v. City of St. Louis, 2 S.W. 130
(Mo. 1886).
A street may be acquired by purchase.
a.
The city may buy the streets. Leading to and from municipality
and within five miles of city limits, including power of eminent
domain, § 71.340, RSMo; State ex rel. Norton v. Rush, 637 S.W.2d
7, 9 (Mo. banc 1982).
e.
The city may acquire the streets by eminent domain
 Third class cities, including power of eminent domain,
§ 88.497.
 Fourth class cities, including power of eminent domain,
§ 88.667.
 Special charter cities between 10,000 and 30,000 population,
within or without city limits, including eminent domain,
§ 81.190.
 The Attorney General has opined that towns and villages have
the power to condemn property for street purposes. Op. Att’y
Gen. 21 (1960).
3.
Streets can be acquired by prescription (i.e., use by the public for 10 years,
and acceptance by the municipality implied for maintenance.)
4.
What can you do with them and what are your responsibilities?
113
a.
You can improve them. Once established, streets may be
improved or repaired either out of the city’s funds or by special
assessment against abutting property, see Section 88.680ff. RSMo.
(fourth class cities); 88.640ff RSMo (third class cities). Villages
are also mentioned in various sections scattered through Chapter
88.
Improvement of streets is a “public work,” which means it is
subject to numerous statutes, both state and federal: For more
information, review Part VI, Contracts and Cooperative
Agreements
b.
You can allow others to make limited use of them. Part of
municipal authority over streets includes the power to allow use of
the streets for public utilities and other purposes by granting
franchises for that purpose. Sections 71.520, 393.010 RSMo.
(Note, AT&T claims, and has successfully defended, a corporate
charter right to use public roads and streets granted previously to
statutory grants to cities and counties.) Since 2001, municipalities
must consent to public utility use of the ROW, see Sections
67.1830ff RSMo. For discussion of the fee implications of these
sections, see XO Missouri v. City of Maryland Heights, 256 F.
Supp. 976 (ED Mo 2003), aff’d 362 F.2d 1023 (8th Cir. 2004).
Even after granting a franchise to allow utilities to use the streets,
the municipality retains substantial control: for instance, the city
may require the utility to relocate its facilities at its own expense
when necessary to accommodate a street improvement, Bridgeton
v. Missouri-American Water Co., 219 SW3d 226 (Mo. banc.
2007).
c.
You can regulate their use. The basic authority of municipalities to
manage their streets is statutory. General authority to manage the
city’s property is found in § 77.260, RSMo (third class cities), and
§ 79.110, RSMo (fourth class cities). (These are important general
police power statutes, which you need to remind judges of every
chance you get.) Fourth class cities are also expressly vested with
exclusive authority to control and regulate city streets and other
public ways, § 88.670, RSMo, and the same authority is implicit in
third class cities, City of Caruthersville v. Cantrell, 230 S.W.2d
160 (Mo. App. E.D. 1950).
1)
Regulation of traffic is fundamental to street management.
Many cities adopt the model traffic ordinance, Chapter 300
RSMo. as authorized by Section 300.600, but adoption of
114
the MTO is not mandatory, see, e.g., Southers v. City of
Farmington, 263 SW3d 603, 617(n.20) (Mo. banc 2008).
The MTO applies to “streets,” which is defined in section
300.010(36) as "way publicly maintained,” but city also has
right to regulate traffic on privately owned ways open to
the public, City of Clayton v. Nemours, 353 Mo. 61, 182
S.W.2d 57 (1944). Section 304.120 RSMo grants cities
traffic regulation authority which is not limited to public
streets.
d.
5.
You have to take care of them! Cities can be liable for what
happens on their streets and sidewalks. See Part VII, Torts, and
Section 537.600 RSMo. But before you start worrying about the
merits of a case alleging that the city’s street was in a “dangerous
condition,” remember to check all the records you can find to make
sure it’s really the city’s street or (especially) sidewalk. Old
records can be your friends. Keep in mind that city streets may
have been taken over by the state or the county. Keep in mind that
the city or public may never have “accepted” what everybody
assumes is a city street. (However, also keep in mind that an
“acceptance” can be implied from the city’s conduct in
maintaining the street or even plowing snow from the street.)
How do you get rid of them?
a.
Deed. Most of the time, the city will have no conveyable interest
in a street. Neil v. Indep. Realty Co., 298 S.W. 363 (Mo. 1927).
Even if the city received a general warranty deed that looks like it
conveyed fee simple title, the particular facts might lead a court to
hold that only an easement was conveyed, Schuermann Enterprises
v. St. Louis County, 436 SW2d 666 (Mo. 1969). Instead of being
deeded to an interested person, a street will normally be “vacated”
by ordinance and the ordinance can be recorded, which “transfers”
the property to whomever is entitled to it. No matter how much
interested property owners or the title company pleads, “no
conveyable interest” means the city should not execute a deed, not
even a quit claim deed.
b.
Vacation. “Vacation” is the term of legal art describing the act of
relinquishment or abandonment of public property (usually streets)
not owned in fee simple title by the municipality. The power to
vacate streets must be granted in express terms or by necessary
implication. Bingham v. Kollman, 165 S.W. 1097 (Mo. 1914).
Specific statutory provisions authorize vacation by:
115
third class cities (§ 88.637, RSMo);
fourth class cities (§ 88.673, RSMo); and
constitutional charter cities (§ 82.190, RSMo).
There is no comparable statute for towns and villages, but the
county commission (county court) can vacate streets and roads
even if they are located within a city or town. Sections 71.240, et
seq., RSMo; see also §§ 228.110 and 228.160, RSMo.
The authority of a city to vacate streets applies only to city streets;
it does not include county or state roads that run through the city.
Kroeger v. St. Louis County, 218 S.W.2d 118 (Mo. 1949). A
vacation ordinance may be made contingent on the dedication by
an affected property owner of a substitute street or alley, Knapp,
Stout & Co. v. City of St. Louis, 55 S.W. 104 (Mo. 1900), or on the
payment of money, cf. Heman Constr. Co. v. Loevy, 64 Mo. App.
430 (E.D. 1896). But a purported vacation of a street conditioned
on rededication of the surface rights was held to be a grant of
public property to a private person in violation of MO. CONST.
art. VI, § 25. St. Louis Children’s Hosp. v. Conway, 582 S.W.2d
687 (Mo. banc 1979).
Vacation must be by ordinance; a resolution adopted by a board
majority is not sufficient. Rice v. Huff, 22 S.W.3d 774 (Mo. App.
W.D. 2000). No deed by the municipality is necessary to carry out
the transfer of title incident to a street vacation; usually, instead,
the vacation ordinance is recorded by an abutting landowner.
When a street is vacated, title usually reverts to the abutting
property owners in equal shares, but it will revert to the successor
in title to the original dedicator or grantor if the property was
owned by the owner on only one side of the street. Neil v. Indep.
Realty Co., 298 S.W. 363 (Mo. 1927).
c.
Abandonment. Abandonment is similar to vacation. A dedicated
street is not abandoned by nonuse. Winschel v. County of St. Louis,
352 S.W.2d 652 (Mo. 1961), but query whether this rule survives
McCullough v. Doss, 318 SW3d 676 (Mo. banc 2010). If streets
cannot be abandoned by non-use, abandonment must be by clear
and unambiguous enactment of the city’s governing body. Mitchell
v. City of Everton, 655 S.W.2d 864 (Mo. App. S.D. 1983).
A conveyance of a public road to private owners in an attempt to
delegate maintenance responsibilities is void as a breach of the
trust in which title to public roads is held. Miller County v. Groves,
801 S.W.2d 777 (Mo. App. W.D. 1991).
116
d.
Adverse Possession. A municipality’s rights in real estate,
including its streets cannot be extinguished by adverse possession
because the statute of limitations does not run against lands
devoted to public use. Section 516.090, RSMo; City of Gaine sville
v. Gilliland, 718 S.W.2d 553 (Mo. App. S.D. 1986); City of Poplar
Bluff v. Knox, 410 S.W.2d 100 (Mo. App. S.D. 1966). Comment:
homeowner builds a garage within the right-of-way of a city street.
The garage has occupied the property for 50 years. Street
pavement is only 20 feet wide on a 50 foot right-of-way. City can
require homeowner to remove the garage.
However, a municipality may acquire title to real estate by adverse
possession. Horvath v. City of Richmond Heights, 674 S.W.2d 146
(Mo. App. E.D. 1984). When you’re talking about streets, it’s hard
to tell the difference between this and common law dedication.
e.
Execution Against Municipal Property. In general, property of a
municipality used for a public purpose is not subject to seizure and
execution, § 513.455, RSMo, or to mechanic’s liens. Union ReddiMix Co. v. Specialty Concrete Contractor, 476 S.W.2d 160 (Mo.
App. E.D. 1972); Burgess v. Kansas City, 259 S.W.2d 702 (Mo.
App. W.D. 1953).
B.
Sidewalks
C.
“Parking” – the unpaved portion of the right of way.
a.
City may, by ordinance, require adjoining land owner to mow
grass [Overland v. Wade, 85 SW3d 70 (E.D., 2002)] or shovel
snow off sidewalks [Robinson v. Arnold, 985 SW2d 801 (E.D.,
1998)]. However, city remains liable in tort for injuries caused by
snow/ice on sidewalks, even with such an ordinance – because
sidewalks is a proprietary function.
XXI. Public Nuisances and Public Health Regulations
117
NOTE: Fourth class city may collect attorney fee for nuisance abatement. §79.383 May a third
class city or constitutional charter city charge for attorney fee? No statute authorizes it. Cronan:
I have a third-class city that does so; will a court agree it is permitted? Maybe, but I might fold
if challenged.
A.
Statutory Authority. Missouri law requires a city’s authority to exercise police
power to derive from a specific delegation by the state or from the express or fairly implied grant
of powers of a city’s charter. Miller v. City of Town & Country, 62 S.W.3d 431, 437. A
municipal ordinance will be deemed a legitimate exercise of police power if the expressed
requirements of the ordinance bears a substantial and rational relationship to the health, safety,
peace, comfort and general welfare of the citizenry. Miller, at 437.
B.
There is a large variety of statutes relating to nuisances. Here are a few: §67.410
(substandard buildings), §71.780 (general nuisances); 67.308 (debris); 71.285 (weeds, trash);
67.386 (debris); 67.398 (appliances, tires, broken glass); 71.700, 71.710, 71.140, 79.390, 80.090
(general), and 236. 220 (old well or cistern); Chapter 267 (diseased animals); 269.020 (dead
animals); 701.010 (improper sewer disposal); 700.525 et seq. and Model Traffic Ordinance
(towing and storage of unclaimed vehicles or mobile home); 260.350 (removal of hazardous
material)
C.
It is sometimes argued that the procedure for abating a nuisance is limited to the
procedure described in 67.410 et seq. (i.e., an administrative hearing, and order to abate).
Cronan prefers to use the circuit court for abatement purposes, because (1) it is harder to argue
that the circuit court doesn’t provide all the due process that is due the property owner, and (2) I
believe that federal courts show greater respect to circuit courts than they do to city
administrative procedures (which they seem to regard as “kangaroo courts”).
XXII. Creating a New Village or City
A.
Establishing a Village
B.
Establishing a City
C.
Consolidation
D.
Dissolution
E.
XXIII. Ethics – We attorneys tend to think of the “Code of Professional Responsibility” as
containing everything we need to know about ethics. In fact, we as city attorneys, are
118
subject to numerous ethical requirements (some of which have criminal penalties) and the
public officials who serve our client, although freed of complying with CPR, may face
significant requirements that restrict their choices.
A.
B.
C.
Code of Professional Responsibility – Although this requirement only applies to
lawyers, we will begin here, because the Code has different, less restrictive rules
for government lawyers. What you were taught in law school, or what you have
dealt with in your private practice is not quite the same as you now are subjected
to.
1.
Conflict of interest requirements are lessened.
2.
Restrictions on taking positions adverse to the city are less.
3.
US Constitution may lessen the prohibition against an attorney “going
behild the back” of the city attorney and directly contacting your client
and its officers. First Amendment right to “petition for redress of
grievances” and Sixth Amendment “right to counsel” may trump CPR
prohibition on attorneys contacting your client. See appendix 25a.
Legislator Disqualification. The Missouri Constitution contains a disqualification
for any legislator from receiving an appointment to
1.
Although this rule applies to all legislators, it clearly falls most heavily
upon attorney/legislators, who are prohibited from serving as guardian ad
litem, appraisers in probate court, part-time public defenders or on any
committee or board of city government.
2.
The Missouri Attorney General has extended this prohibition to all
members of the attorney/legislator’s law firm.
Special Rule for Some Mayors.
1.
D.
Mayor can’t vote if “interested in the result.”
Bribery, etc.
1.
Bribery
a.
E.
Report of bribes to Missouri Ethics Commission (a/k/a “Missouri
Paperwork Commission”) if budget >$1,000,000.
Conflict of Interest (Chapter 105 RSMo.)
119
a.
“Interest” is receipt of $6,000 per year from a business, or
ownership of 10% of business
F.
Financial Disclosure Rules.
G.
Nepotism
F.
Incompatible Offices – This is an article, about 20 years old, written by Patrick
Cronan while employed at the University of Missouri Governmental Affairs
Program.
Municipal offices are subject to three moral guides: their personal Code of Ethics,
a statutory prohibition (that is, created by the legislature) against conflicts of
interest, and a common law doctrine (that is, judge made law) prohibiting an
individual from holding incompatible municipal offices. 3 McQuilllin of
Municipal Corporations, Section 12.67. When this doctrine is invoked, an officer
may be prohibited from holding two offices in the same municipal corporation,
two different corporations, or in rare instances, a municipal corporation and a
private corporation.
1.
What Is A Public Office? In determining whether two offices are
incompatible, it is necessary to first determine whether both are public
offices. The doctrine of incompatibility does not apply where one position
is “employment” and the other is a “public office.” The Washington
Supreme Court defined the elements of a public office in State ex rel.
Brown v. Blew,145 P.2d 554, 20 Wash. 47 (1944) quoting from the earlier
decision in State ex rel. McIntosh v. Hutchinson, 50 P.2d 1117, 187 Wash.
61 (1936) as follows:
“…(1) It must be created by the Constitution or by the
legislature or created by a municipality or other body
through authority conferred by the legislature; (2) it must
possess a delegation of a portion of the sovereign power of
government, to be exercised for the benefit of the public;
(3) the powers conferred and the duties to be discharged
must be defined, directly or impliedly, by the legislature or
through legislative authority; (4) the duties must be
performed independently and without control of a superior
power, other than the law, unless they be those of an
inferior or subordinate office created or authorized by the
legislature and by it placed under the general control of a
superior office or body; (5) it must have some permanency
and continuity and not be only temporary or occasional. In
120
addition, in this state an officer must take an official oath,
hold a commission or other written authority, and give an
official bond, if the latter be required by proper authority.”
2.
What Is Incompatibility? The public policy rationale for the
incompatibility doctrine is set forth in McQuillan on Municipal
Corporations as follows:
“…Public policy demands that an office holder discharge
his duties with undivided loyalty. The doctrine of
incompatibility is intended to assure performance of that
quality. Its applicability does not turn upon the integrity of
the person concerned or his individual capacity to achieve
impartiability, for inquiring of that kind would be too subtle
to be rewarding. The doctrine applies inexorably, if the
offices come within it, no matter how worthy the officer’s
purpose or extraordinary his talent….” 3 McQuillin,
§12.67
Under the common law, holding one office does not, in and of itself,
disqualify the officer from holding another public office, provided that the
offices are not incompatible. Certain rules and tests have been laid down
by the courts for determining incompatibility. It does not matter whether
the officer’s services in one or both offices are not compensated. The
doctrine does not apply to prohibit a husband and wife from holding
separate public offices but only to one person holding two public offices.
The primary test of incompatibility is whether one office is subordinate to
the other in some aspect of performing its functions and duties. State ex
rel. Langford v. Kansas City, 261 S.W. 115 (Mo. 1924). This would exist
where one has the power of supervision over the other, or the power of
appointment or removal over the other, or the power to audit the accounts
of the other office. Incompatibility might be identified in the statutory
duties of the offices or might be found in overlapping policy-making
powers of the offices. Mere physical inability to perform the duties of
both offices does not constitute incompatibility; rather, it is found in the
character and functions of the offices and in considerations of public
policy. State ex rel. Walker v. Bus, 36 S.W. 636, 135 Mo 325 (1896).
There is no one test that can be applied in all situations. The courts are
inclined to base their decision on the particular facts rather than to develop
generalized tests to determine incompatibility.
121
3,
Analysis of Incompatibility. The question of incompatibility generally
arises in two contexts:
a.
Between two public offices in the same municipal corporation, or
b.
Between two public offices in two different corporations.
c.
(An alternative is suggested by Kennett v. Levine, 310 P.2d 244, 50
Wash. 2d 212 (1957) in which the court sustained the removal of
an attorney/member from the city transit authority on the theory
that he might use his public office to gain an advantage in a
damage suit his law firm had pending against the authority. The
court felt the same principles that make it necessary for a public
office to surrender one of two incompatible offices extends to a
privat e business. I have some doubt that Missouri would stretch
things so far.)
The critical determination is whether it is against the public interest to
allow one person to hold two public offices. The courts have examined
the subordination of one office to the other, or a conflict between statutory
duties with overlapping policy making functions. Also, an express
statutory prohibition against holding two offices makes the offices
incompatible. State ex rel. Walker v. Bus, supra, note 32.
The following municipal offices are thought to be incompatible when held
by the same individual in the same municipality:
City alderman and city collector, Attorney Gen.Op. No.
167, 1963. City councilman and city assessor, AGO # 188,
1963. City clerk and city collector, AGO # 24, 1955. City
clerk and city treasurer, Ibid. [NOTE: Several Missouri
cities have ignored the advice of AGO #24, 1955, and
combined the offices of city clerk, city collector and city
treasurer in various ways, on the theory that the city could
only afford to have one employee in a finance position.
Doing so, of course, also makes it easier to steal money.
The purpose of these officers is to have three different sets
of eyes watching the money. It is suggested that it is not a
good idea to combine these offices.] Alderman and special
policyman, AGO 404, 1967. County deputy collector and
county treasurer, State ex rel. McAllister v. Dunn, 209 S.W.
110, 277 Mo. 38 (1919).
122
The following municipal offices are thought to be compatible when held
by the same person in the same municipality:
City counselor and city judge, AGO # 85, 1977. City
assessor and city clerk, AGO # 38, 1960. Marshal and
deputy constable, AGO # 349, 1967. City collector and
city assessor, AGO # 323, 1970. City marshal and
commissioner of water and sewer department, AGO # 241,
1973.
The following offices are thought to be incompatible when held by one
person, even though the offices are in two different corporations:
County court judge [now called “county commissioner”]
and mayor, AGO # 65, 1973. Police judge and deputy
sheriff. AGO # 46, 1955.
The following offices in different municipal corporations have been
thought to be compatible:
Member of board of education and deputy sheriff, State ex
rel. Walker v. Bus, supra, note 32. Circuit clerk and county
clerk, State ex rel Moore v. Lusk, 48 Mo. 242 (1871).
Clerk of board of public works and deputy sheriff, State ex
rel. Langord v. Kansas City, 261 S.W. 115 (Mo. 1924),
note 31. Township and city collector, AGO # 53, 1957.
Mayor of third class city and county collector, AGO # 33,
1958. Mayor and trustee of county hospital, AGO #2,
1961. City clerk and trustee of county hospital, AGO #2,
1961. County clerk and director of school district, AGO #
87, 1954, withdrawn 9/19/72. City assessor and township
clerk, AGO # 188, 1963.
The reader may wish to examine McQuillan on Municipal Corporations
for an exhaustive catalog of decisions from other states. 3 McQuillan §§
12.67a, 12.67b.
123
Appendicies
1.
List of City Attorneys (Members of MMAA)
2.
3.
4a.
Cuba, MO ordinance closing utility records to public inspection
4b.
Sample Sunshine Law Policy (Village of Windsor Place)
4c.
Public Disclosure Police Investigative Reports
4d.
Closed Records: Confidential, But Not Privileged From Discovery (Cronan disagrees)
5.
6.
Sample Purchase Contract (MAFPD)
6A.
Special Warranty Deed
7.
8.
9.
10a. Motion for Election (Late Notice)
10b. Petition for Election (Late Notice)
10c. Ordinance Calling Election with Notice of Election
11.
12.
13I. Bridgeton Ordinance on Solicitors
14.
15.
16.
17.
18C-1. Article about Inflow and Infiltration Problems
18C-2. Ordinance Dealing with Inflow and Infiltration Problems
19E-1. Decision Tree Regarding Animal Ordinance
19E-2. Sample Animal Control Ordinance
19F-1. Advantages and Disadvantages – Municipal Court
19F-2. Ordinance Selecting Associate Circuit Court as Municipal Court.
19F-3. Suggested Municipal Court Operating Order
20a. Ordinance closing street
21a. Petition to Enforce Nuisance Ordinance in Circuit Court
22b. Release of Nuisance Lien
22c. Thank you certificate
22d, Various Sample Nuisance Ordinances
23.
124
FULL NAME
Marcus G Abbott
CITY/ORGANIZATION
Franklin H Albrecht
Donald Kenneth
Anderson Jr
Kevin K Anderson
ADDRESS
2405 Grand Blvd, Ste 1100
CIT
Kan
Brentwood
2311 S Big Bend Blvd
St L
Ellisville
8011 Clayton Rd, 3rd Fl
St L
2502 West Wall St, PO Box A
Har
1903 Southdale Ave
Mar
Pleasant Hill,
Harrisonville, Raymore,
Belton, Archie, Cass
County cities
FIRM
Gilmore & Bell PC
Anderson & Milholland
PC
David A Baird
Jennifer M Baird
Williams & Campo PC
Lee
255 NW Blue Pkwy, Ste 202
227 Madison St, PO Box 1748
Jeff
840 Boonville, PO Box 8368
Spr
1117 S Broadway, PO Box 110
Oak
Merritt M Beck III
North Kansas City
Centralia
2010 Howell
116 N Allen St, PO Box 127
Nor
City
Cen
Alan Beussink
R Timothy Bickhaus
Marble Hill
Macon
PO Box 924
109 N Missouri St, PO Box 451
Sike
Mac
190 Carondelet Plaza, Ste 600
St L
111 E Maple Ave (64050), PO Box
1019
Inde
PO Box 547
255 NW Blue Pkwy, Ste 202
Tren
Lee
701 E Broadway, 2nd Fl, PO Box
6015
618 Stargrass Rd, PO Box 1909
Colu
108 W Walnut, PO Box J
610 Collins Ave, PO Box 99
Nev
Fes
203 N Holden St
War
111 W Broadway, PO Box 117
Boli
610 Collins Ave, PO Box 99
Fes
613 S Byers Ave (64804), PO Box
939
Jop
David G Bandre
Marianne L Banks
Ashland, Wardsville
Springfield
L Clay Barton
Odessa
Bandre Hunt & Snider
LLC
Barton Hall & Schnieders
PC
Thomas E Barzee Jr
Craig S Biesterfeld
Dayla Bishop
Schwartz
Maplewood
Independence
Tara L Blackburn
Betsy Blake
Trenton
Fred Boeckmann
Columbia
James L Bowles
Sparta, Highlandville
BryanC Breckenridge
Kurt D Breeze
Husch Blackwell Sanders
LLP
Williams & Campo PC
El Dorado Springs
Festus
Leonard K Breon
Russell Brown &
Breckenridge LLC
Breeze Roberts PonderBates & Zimmer LLC
Breon & Leffler
Oza
Knob Noster
Reggie Breshears
Bolivar
Kelly Bridges
Chuck D Brown
Festus
Sarcoxie, Oronogo,
Carterville
Douglas Haun &
Heidemann PC
Breeze Roberts PonderBates & Zimmer LLC
Warten Fisher Lee &
Brown LLC
125
Donald M Brown
Bolivar, Hermitage
C Robert Buckley
Jeffrey Bullins
James D Burlison
Sugar Creek
Peculiar
Bowling Green,
Wellsvill, Farber,
Martinsburg,
Middletown
David W Bushek
Christine Bushyhead
John R Cady
Dennis L Callahan
Belton
Northmoor, Lake
Waukomis, Trimble
Norwood Court
Amanda Callaway
Springfield
Joseph A Cambiano
Harrisonville, Cleveland
Jack L Campbell
Douglas Haun &
Heidemann PC
White Allinder Graham
Buckley & Carr LLC
Holbrook & Osborn PA
111 W Broadway, PO Box 117
Boli
19049 E Valley View Pkwy #C
7400 W 110th St, Ste 600
Inde
Ove
McIlroy & Millan
220 W Church St
Bow
Gilmore & Bell PC
2405 Grand Blvd, Ste 1100
Kan
Mitchell, Kristl, Lieber, PC
Cady & Campbell LLC
1220 Washington, 3rd Fl
PO Box 258
Kan
Plat
275 N Lindbergh Blvd, Ste C
St L
840 Boonville, PO Box 8368
Spr
9237 Ward Pkwy, Ste 330
Kan
120 W Twelveth St, Ste 1600
Kan
109 S Franklin, PO Box 7511
Kirk
255 NW Blue Pkwy, Ste 202
Lee
4
Mou
11 Southside Court Square, PO Box
278
11 Southside Court Square, PO Box
278
1201 Walnut St, Ste 2900 (641062150), PO Box 419251
Alto
1010 Industrial Dr, PO Box 475
205 N First St, PO Box 295
Plea
Oza
Colson & Mackay LLC
101 W Liberty St, PO Box 192
Farm
Conway & Blanck LC
213 Main St, PO Box 412
Boo
Berkowitz Cook &
Gondring
Cover Law Office LLC
4420 Madison Ave, Ste 100
Kan
137 W Franklin, PO Box 506
Clin
Chapman Cowherd
903 Jackson, PO Box 228
Chil
Rubins Kase Hager
Cambiano & Bryant PC
Polsinelli Shughart PC
Parkville
Kadie Campbell
Johnson
Paul A Campo
Unionville, Lancaster
Williams & Campo PC
Lake Tapawingo
Charles C Cantrell
Jeri Leigh Caskey
Ray Lee Caskey
Stephen P Chinn
Cantrell & Oberzalek
Mountain View & West
Plains
Thayer
Alton
Fairway, KS
Hugh Clemmons
David V Collignon
10 E
Fifth
St,
PO
Box
1030
Stinson Morrison Hecker
LLP
Kingsville
Ozark
David L Colson
Alto
Kan
Bonne Terre
J Mike Conway
Boonville, Fayette
James T Cook
Grain Valley
Gary V Cover
Robert Cowherd
Warsaw, Cole Camp
Hamilton, Gallatin,
126
Susan Crigler
William Patrick
Cronan
Albert Crump Jr
Thomas A
Cunningham
W Eric Cunningham
Chillicothe, Carrollton
Columbia
Turner & Tschannen PC
701 E Broadway, 2nd floor, PO Box
6015
13750 Hwy BB
Colu
Crump Law Office
206 S Main, PO Box 397
Vien
Cunningham Vogel &
Rost PC
75 W Lockwood Ave, Ste 1
St L
401 Independence St, PO Box 617
Cap
Ellis Cupps & Cole PC
702 West St, PO Box 276
Cas
Daily Law Office PC
613 First St, PO Box 215
Gla
Law Office of Nathaniel
Dally
Flynn & Davenport LLC
341 S Main, PO Box 763
Car
104 Professional Parkway, PO Box
336
111 E Maple Ave (64050), PO Box
1019
213 N Main St
Troy
9322 Manchester Road
St L
Slater
Vienna, Freeburg,
Argyle
Cape Girardeau
Donald L Cupps
Roc
Cassville
William J Daily
Glasgow, Salisbury
Nate Dally
Collin Dietiker
Carthage
Moscow Mills, Troy,
Hawk Point
Independence
Ron Dirickson
Republic
Lilian H Doan
Crystal Lake Park
Greg H Dohrman
St Charles County
100 N Third St, Ste 216
St C
Lawrence G Dorroh
Caruthersville, Hayti,
Steele, Wardell, Cooter
2501 Hwy 84
Hay
Douglas Haun &
Heidemann PC
Gilmore & Bell PC
111 W Broadway, PO Box 117
Boli
2405 Grand Blvd, Ste 1100
Kan
Crotzer & Ormsby
130 S Bemiston, Ste 300
Clay
Witt Hicklin & Snider PC
2300 Higgins Road, PO Box 1517
Plat
1900 Northwood Dr
Pop
601 E Walnut, Ste 207
Colu
130 S Bemiston, Ste 303
Clay
1334 Indian Parkway, PO Box 310
Jac
Cynthia M Davenport
Kerry D Douglas
Bolivar
Sid Douglas
Jeffrey P Duke
Jennifer M Duncan
Wallace L Duncan
Flordell Hills
Platte City, Houston
Lake
Poplar Bluff
Charles J Dykhouse
Lloyd E Eaker
Sylvia Edgar
Mary Eftink Boner
Paul Martin PC
Cline & Dykhouse LLC
Boone County
Jennings
Fredericktown,
Perryville, Jackson
Ludwig & Boner LC
W Mitchell Elliott
Inde
Rep
93 N Third St, PO Box 378
Gow
Harold A Ellis
Cameron
St Charles County
100 N Third St, Ste 216
St C
Bradford E Ellsworth
Theodore S Elo
Cabool, Licking
St Joseph
PO Box 160
1100 Frederick Ave, Rm 307
Cab
St J
127
Frank J Elpers
Jeff Elson
Curtis G Eylar
Ste. Genevieve, St
Mary, Bloomsdale
Brookfield, Muni Court
Elpers & Inman PC
Platte Woods,
Smithville, Lathrop
Matthew J Fairless
Daniel P Fall
Flint Hill, St Peters
Ironton, Pilot Knob,
Bismarck, Annapolis
Tim Fischesser,
Executive Director
Cory C Fitzgerald
Steven S Fluhr
Matthews
Hanley Hills, Olivette,
Maryland Heights
Patrick S Flynn
Richard J Fredrick
Joseph P Fuchs
Grandview
Sedalia
R Scott Gardner
Janet S Garms
Green Ridge
B Allen Garner
Independence
Vincent J Garozzo
St Louis
Town & Country,
Normandy,
Northwoods, Velda
City, St Ann
H Ralph Gaw
John C Giorza
Bro
Gunn Shank & Stover,
PC
Hazelwood & Weber LLC
9800 NW Polo Av, Ste 100
Kan
200 N Third St
St C
Schnapp Fall Silvey Reid
LLC
St Louis County Munipal
League
135 E Main St, PO Box 151
Fred
121 S Meramec Ave, Ste 400
Clay
Fluhr & Moore LLC
305 Tanner St, PO Box 768
225 S Meramec, Ste 532T
Sike
Clay
Flynn & Davenport LLC
104 Professional Pkwy, PO Box 336
Troy
PO Box 208
Par
1100 N Main St, PO Box 1276
Sike
504 Center St, Ste E, PO Box 208
221 W Lexington, Ste 400, PO Box
900
200 S Osage
Lath
Inde
416 S Ohio
1010 Grand Blvd, Ste 500
Sed
Kan
111 E Maple Ave (64050), PO Box
1019
10 S Broadway, Ste 2000
Inde
130 S Bemiston, Ste 200
Clay
PO Box 240
Tipt
414 E 12th St, 28th Fl
Kan
Robert R Parrish,
Attorney
Gilbert Law Office
702 S Pearl Ave
Jop
507 S Ash, Ste 102, PO Box 648
Buff
Aull Sherman
9 S Eleventh St, PO Box 280
Lex
Gagnon Law Firm LLC
Humphrey Farrington &
McClain PC
Gardner Gardner &
Gardner LLP
Gardner Gardner &
Gardner LLP
Kutak Rock LLP
Greensfelder Hemker &
Gale PC
Curtis Heinz Garrett &
O'Keefe PC
Gaw Teeple & Gray PC
Versailles, Tipton
Kansas City
Charles S Genisio
Mel L Gilbert
114 E Brooks St
Morehouse, Miner,
Canalou
Lathrop
Anne C Gardner
William D Geary
Ste
Winfield, Hawk Point
Paris
Joseph A Gagnon
Joseph S Gall
Steven W Garrett
601 Market St, PO Box 404
Diamond
Cross Timbers,
Niangua, Pleasant
Hope, Halfway, Fair
Play, Humansville,
Collins, Wheatland,
Preston, Urbana
Waverly
128
Sed
St L
Worthington Giorza &
Hamilton LLC
Lewis Rice & Fingersh LC
Robert J Golterman
600 Washington Ave, Ste 2500
St L
219 W College St, PO Box 250
41 S Central, 9th Fl
Troy
Clay
Crestwood, Wildwood
Jesse A Granneman
Robert H Grant
Christopher B Graville
Troy
St Louis County
Government
Reiverview, Warrenton,
Innsbrook, Marthasville
Mike Greenwell
Edward J Grewach,
Attorney At Law
Graville Law Firm
Che
618 Spirit Drive #110
308 E Walnut St, PO Box 408
She
Edward Grewach Law
Office
Gilmore & Bell PC
219 W College St, PO Box 250
Troy
2405 Grand Blvd, Ste 1100
Kan
Guinness Buehler LLC
2850 W Clay St, Ste 210
St C
Gunn & Gunn PC
11901 Olive Blvd, Ste 312, PO Box
419002
1401 N Main St, Ste 200
St L
1200 Market St, Rm 314
St L
4131 N Mulberry Dr, Ste 200
Kan
Hazelwood & Weber LLC
200 N Third St
St C
Williams & Campo PC
255 NW Blue Pkwy, Ste 202
Lee
Williams Robinson Rigler
& Buschjost PC
Harris & Harris LLC
901 N Pine St, 4th floor, PO Box 47
Roll
206 N Holden St
War
Eric C Harris PC
214 W Main St, PO Box 246
Par
Dearing & Hartzog
211 S Central Ave, Ste 200
Clay
Mark F Haywood LLC
7777 Bonhomme, Ste 1501
Clay
602 S Main St, 2nd Fl
Jop
4510 Belleview Ave, Ste 300
222 S Clayton, Ste 900
Kan
St L
PO Box 1141
621 N Skinker Blvd
Buff
St L
Greenwell & Wilcox LLC
Shelbina
Edward J Grewach
Troy
Mark D Grimm
Robert J Guinness
Elsberry, Clarksville,
Foley
Patrick R Gunn
Manchester
Michael J Hackworth
Patricia A Hageman
R Brian Hall
David T Hamilton
Ellington
St Louis
Kearney, Lexington,
Wood Heights
Cottleville, Darenne
Prairie
Robert H Handley
Cary L Hansen
Douglas B Harris
Eric C Harris
Richland
Blairstown, Centerview,
Chilhowee, Higginsville,
Kingsville, LaMonte,
Leeton, Odessa,
Warrensburg
Leadwood, Mineral
Point
Robert L Hartzog
Hackworth Hackworth &
Ferguson LLC
Pied
Twin Oaks
Mark F Haywood
Pasadena Park
Brian W Head
Joplin
Neal R Hefferren
Robert M Heggie
Lisa C Henderson
Robert Herman
Chesterfield
White Goss Bowers
March Schulte &
Weisenfels PC
Stewart Mittleman Heggie
& Henry LLC
Buffalo
Overland
Schwartz Herman &
Belton
129
Davidson
Lewis Rice & Fingersh LC
John M Hessel
600 Washington Ave, Ste 2500
St L
Charles Hickman
Kirkwood, Florissant
Palmyra
1000 Center, PO Box 710
Han
Darryl L Hicks
Pendelton
107 W Main
War
714 Locust St
St L
Carl B Hillemann
Lashly & Baer PC
Kevin Hillman
St Robert
194 Eastlawn Ave, Ste A
St R
Drew W Hilpert
Jefferson City
320 E McCarty St
Jeff
Cynthia L Hoemann
41 S Central, 9th Fl
Clay
Edward D Hoertel
St Louis County
Government
St James, Newburg
1406-1408 Hwy 72 E
Roll
Robert E Hoeynck
St Charles County
100 N Third St, Ste 216
St C
Holbrook & Osborn PA
7400 W 110th St, Ste 600
Ove
Gilmore & Bell PC
211 N Broadway, Ste 2350
St L
Lowthen Johnson LLC
Hubbard & Rehard PC
901 St Louis St, 20th Fl
500 Third St
Spr
Plat
White Goss Bowers
March Schulte &
Weisenfels PC
Ensz & Jester PC
4510 Belleview Ave, Ste 300
Kan
1100 Main St, Ste 2121
Kan
Curtis Heinz Garrett &
O'Keefe PC
130 S Bemiston, Ste 200
Clay
130 S Bemiston, Ste 200
Clay
1100 Frederick Ave, Rm 307
St J
114 W 10th St
130 S Bemiston, Ste 200
Lam
St L
729 Maple St, PO Box 100
Hills
75 W Lockwood Ave, Ste 1
St L
Reid F Holbrock
Peculiar
Reagan M Holliday
John Housley
Mark Hubbard
Fair Grove
Gower, Plattsburg
Patricia R Jensen
Belton
Robert O Jester
MPR, MOPERM
Robert C Jones
Sunset Hills
Robert E Jones
Graham C Jura
Steven H Kaderly
Stephanie E Karr
Dennis J Kehm Jr
Ballwin
St Joseph
Lamar, Garden City,
Mindenmines
Edmundson,
Edmundson, Pasadena
Hills, Bellerive Acres
Jefferson County
Emily Rushing Kelly
Kaderly & Kaderly
Curtis Heinz Garrett &
O'Keefe PC
Cunningham Vogel &
Rost PC
R Brook Kenagy
Steelville
107 S 3rd St, PO Box 920
Stee
Sarah Kerner
Springfield/Branson
National Airport
2300 N Airport Blvd, Ste 100
Spr
222 S Central Ave, Ste 804
St L
David M Korum
Peveley
Shepherd Taylor Korum
& FitzRoy
130
Marc S Kramer
Jason M Krebs
Vinita Park, Vinta
Terrace
Rogersville
Jamis Kresyman
Jennings
Adam Kruse
Joseph G Lauber
Columbia
Lawson
Michael F Lause
Krebs Law Firm LLC
Lauber Municipal Laaw
LLC
Thompson Coburn LLP
1015 Locust St, Ste 415
St L
1360 E Bradford Parkway
Spr
130 S Bemiston, Ste 303
Clay
PO Box 6015
1300 SW Hook Road
Colu
Lee
One US Bank Plaza, Ste 2600
St L
Yewell G Lawrence Jr
Dexter
1420 W Business 60, PO Box 709
Dex
Charles Leible
Sikeston
371 N Kingshighway, PO Box 905
Sike
119 S 10th St
Han
123 E Jackson St, PO Box 758
Mex
100 N Third St, Ste 216
St C
Husch Blackwell Sanders
LLP
Rabbit Pitzer &
Snodgrass PC
Lovekamp & Johnson
LLC
Ludwig & Boner LC
190 Carondelet Plaza, Ste 600
St L
100 S 4th St, Ste 400
St L
109 S Franklin, PO Box 7511
Kirk
1334 Indian Parkway, PO Box 310
Jac
Curtis Heinz Garrett &
O'Keefe PC
130 S Bemiston, Ste 200
Clay
305 Park Central W
Spr
Maneke Law Group, LC
4435 Main, Ste 910
Kan
White Goss Bowers
March Schulte &
Weisenfels PC
White Goss Bowers
March Schulte &
Weisenfels PC
Paul Martin PC
4510 Belleview, Ste 300
Kan
4510 Bellevjew, Ste 300
Kan
9322 Manchester Road
St L
330 Jefferson St
St C
1200 Main St, Ste 3500
Kan
James F Lemon
Hannibal
Louis J Leonatti
Joann Leykam
Mexico, Boonville
St Charles County
Government
David A Linenbroker
Bridgeton
Jessica Liss
Bella Villa
Kelly L Lovekamp
Thomas A Ludwig
Lemon Law Firm LLC
Leonatti & Baker PC
Lancaster
Jackson, Perryville,
Fredericktown, Delta
Carl J Lumley
Creve Coeur
Deborah A Malkmus
Ash Grove
Jean Maneke
Craig, Big Lake
Shannon M Marcano
Belton
Aaron G March
Paul E Martin
Belton
Ellisville, Olivette, Rock
Hill, Crystal Lake Park
Stephen A Martin
Steven E Mauer
Buckner, Harrisonville,
Greenwood
Bryan Cave LLP
John W Maupin
John L Mautino
Ladue
Lee's Summit
8000 Maryland Ave #1300
220 SE Green St
St. L
Lee
Valoree Maycock
Lexington, Alma,
PO Box 124
Lex
131
Charissa L Mayes
Camden
St Charles County
Government
William G McCaffree
100 N Third St. Ste 216
St C
McCaffree & Landoll
128 1/2 W Walnut, PO Box 244
Nev
Behr McCarter & Potter
PC
7777 Bonhomme Ave, Ste 1400
Clay
41 S Central, 9th Fl
Clay
127 E Walnut St, PO Box 137
She
2405 Grand Blvd, Ste 1100
Kan
840 N Boonville Ave
Spr
McDonald Law LLC
903 W Main St
Blue
McDorman & Dunklee
LLC
119 S Monroe, PO Box 70
Ver
Nevada
W Dudley McCarter
Christopher J
McCarthy
James McConnell
St Louis County
Government
Clarence
Rick McConnell
Duke A McDonald
Gilmore & Bell PC
Springfield
Robert McDonald
Blue Springs
Michael L McDorman
Lake Ozark, Versailles
Joseph D McGaugh
2 N Main St, Ste 1
Car
Thomas C McGiffin
Carrollton
Liberty, Mosby
100 N Main , Ste 200
Libe
Megan McGuire
Boonville
525 E Spring St
Boo
308 1st St, PO Box 189
Ken
100 Courthouse Square, Ste 8
Don
840 N Boonville, PO Box 8368
Spr
Johns Lilleston & Mitchell
LLC
Cunningham Vogel &
Rost PC
Thurman Howald Weber
Senkel & Norricl LLC
Paul Martin PC
102 W Jefferson St, PO Box 309
Clin
75 W Lockwood Ave, Ste 1
St L
301 Main St, PO Box 800
Hills
9322 Manchester Road
St L
Law Office of Kim Moore
LLC
112 W Ste Maries St, Ste 6
Per
37 Niangua Dr, PO Box 597
Cam
203 College Ave, PO Box 529
Ken
Terry M McVey
Christopher J Miller
Kennett
Doniphan
Jan Y Millington
Springfield
J Eric Mitchell
Clinton
Ryan A Moehlman
Brandon T Moonier
Crystal City
Katherin Moore
Crow Reynolds Shetley
McVey & Scherer LLP
St Geroge
Kim R Moore
Philip J Morgan
Fredericktown
Camdenton
J Michael Mowrer
Campbell, Malden
John F Mulligan, Jr
University City
1600 S Hanley Rd, Ste 101
St L
George Scott Murray
III
Nathan M Nickolaus
Amazonia, Easton
507 Francis St, Ste 222
St J
Jefferson City
320 E McCarty St
Jeff
Cavanaugh Noce
Columbia
701 E Broadway, 2nd floor, PO Box
6015
Colu
Dalton & Mowrer LLP
132
Robert Z Oberzalek
Cantrell & Oberzalek
Rotue 1, Box 53
Birc
Curtis Heinz Garrett &
O'Keefe PC
130 South Bemiston, Ste 200
Clay
O'Neil O'Neil & York Law
Office
301 N Adams Ave
Leb
107 E Commercial St, PO Box 363
Cha
301 E Santa Fe Ave
Mar
9322 Manchester Road
St L
108 S Smith, PO Box 187
Alba
Darlene Parrigon
Maryland Heights,
Winchester
Albany, King City, New
Hampton, Stanberry
Purdy, Pierce City
PO Box A
Pier
Robert W Paster
Wilbur Park
7733 Forsyth, Ste 2000
St L
Meghan Kelley Pauly
St Charles
200 N 2nd St, Rm 401B
St C
75 W Lockwood Ave, Ste 1
St L
323 Grand Ave, PO Box 114
Mem
Cali
Kutak Rock LLP
NW Corner Courthouse Square, PO
Box 211
1010 Grand Blvd, Ste 500
Petrus Law Office LLC
219 S Hickory, PO Box 148
Mou
Dex
Sean P Pilliard LLC
907 N Harrison Dr, Ste A, PO Box
646
112 W 4th St
Lewis Rice & Fingersh LC
1200 Jefferson St, PO Box 1040
Was
Pointer Law Office PC
28 Court Square, PO Box 400
Gai
Zick Voss & Politte PC
438 W Front St, PO Box 2114
Was
2005 N Missouri, PO Box 502
Mac
Preyer Law Offices
209 Slicer St, PO Box 722
Ken
Edward M Pultz LLC
103 E Main, PO Box 117
400 N Washington, Ste 112, PO Box
992
Will
Farm
Kevin M O'Keefe
Mountain View & West
Plains
Clayton, Bellefontaine
Neighbors, Bel-Ridge,
Bel-Nor, Cool Valley,
Des Peres, Hazelwood,
Frontenac, Ferguson,
O'Fallon
Thomas J O'Neil
Michael F O'Rourke
Scot T Othic
Howard Paperner
David B Parman
(Fire & Water Districts)
Charleston, East
Prairie, Bertrand, Wyatt
Marceline
Joshua L Payton
A David Peppard
Ann M Perry
Memphis, Queen City,
Novinger, Downing,
Rutledge, Gorin
California
Kathryn P Peters
William Petrus Jr
Robin Phelan
Northern
Sean P Pilliard
Cunningham Vogel &
Rost PC
Peppard Law Office PC
Mount Vernon
Bernie, Bloomfield
Kan
Sed
Smithton, Lincoln
Mark C Piontek
David Pointer
Washington, Augusta
Mountain Grove,
Gainesville, Ava
David P Politte
Philip E Prewitt
Hermann
Bevier, Atlanta
H Mark Preyer
Malden, Clarkton,
Campbell
Steven A Privette
Edward M Pultz
Willow Springs, Winona
Park Hills
133
David A Ramsay
Robert M Ramshur
1704 NE 70th St
2020 Business HH
Gla
Pied
1201 W College
Libe
41 S Central, 9th Fl
Clay
Reeves & Goff PC
550 Maple Valley Dr, PO Box 189
Farm
Hubbard & Rehard PC
500 Third St
Plat
Schnapp Fall Silvey Reid
LLC
Replogle & Berkstresser
LLC
135 E Main St, PO Box 151
Fred
PO Box 15
Mar
Patrick E Richardson PC
Kutak Rock LLP
620 Rosewood, PO Box 987
1010 Grand Blvd, Ste 500
Kirk
Kan
1100 Frederick Ave, Ste 307
St J
120 E Morrison St
Fay
200 E Park St
Van
75 W Lockwood Ave, Ste 1
St L
1000 City Parkway
Osa
840 Boonville, PO Box 8368
Spr
308 E High St, Ste 301
Jeff
31 S Main St
Web
Barton Hall & Schnieders
PC
1117 S Broadway, PO Box 110
Oak
Lowenbaum Partnership
LLC
Hanson Stierberger
Downard Melenbrink &
Schroeder LLC
222 S Central Ave, Ste 901
Clay
80 N Oak St
Unio
439 Hwy M
Stee
Cunningham Vogel &
Rost PC
Shafer & Welch LC
75 W Lockwood Ave, Ste 1
St L
1099 Welt St, PO Box 38
Wes
McGinness & Shaw LLC
303 Marshall Rd, Ste 1, PO Box 168
Plat
Shepherd Taylor Korum
222 S Central Ave, Ste 804
Clay
Ramshur Law Office PC
Piedmont
John B Reddoch
Patricia Redington
Weatherby Lake
St Louis County
Government
William G Reeves
Kuhlman Reddoch
Sullivan PC
Desloge, Leadington
Lisa Rehard
Tracy
R Scott Reid
Dave C "Chuck"
Replogle
Farmington, Marquand
Marshfield
Patrick E Richardson
Dorothea K Riley
Green City
Lisa Robertson
St Joseph
Gregory P Robinson
New Franklin, Slater
Cronan & Robinson
Amy H Rost
Edward B Rucker
Vandalia
Wentzville, Green Park,
Marlborough, Warson
Woods
Osage Beach
Thomas E Rykowski
Springfield
Paul V Rost
Tom Rynard
Cunnignham Vogel &
Rost PC
Blitz Bardgett & Deutsch
LC
Troy M Salchow
Webb City
Robert H Schnieders
Concordia,Henrietta,
Hardin, Blackburn,
Wellington, Corder
Ivan L Schraeder
Matthew A Schroeder
Sullivan
Um Camm Seay
Salem
Erin Paige Seele
Abe Quint Shafer
Weston
Robert H Shaw
Camden Point
Charles M M
134
Shepherd
Paul F Sherman
Springfield
Randall D Sherman
& Curtis LLP
Mann Walter Bishop
Sherman PC
Wegmann Stewart
Tesreau Sherman Eden
& Mikale PC
1108 E Walnut St, PO Box 1072
Spr
455 Maple St, PO Box 740
Hills
Styron Law Firm
127 E Church St
41 S Central, 9th Fl
Oza
Clay
Siebert Law Firm
912 Main St, PO Box 4265
Sco
230 S Bemiston Ave, Ste 1100B
St L
119 S Washington, PO Box 276
Neo
Patricia Shilling
Mike Shuman
Clever
St Louis County
Government
Francis J Siebert
Scott City
Shulamith Simon
David Sims
Anderson, Lanagan
Carl E Smith
Ava
110 W Washington Ave, PO Box 869
Ava
Dennis W Smith
Canton, Lewistown,
LaBelle, Ewing,
Monticello, Alexandria
Berkeley, Velda Village
Hills, Pine Lawn, Moline
Acres
Platte City, Houston
Lake
307 Lewis St, PO Box 308
Can
Donnell Smith
Jennifer M Snider
Stephen R Southard
Rebecca Spencer
Sims Johnson Wood &
Sims
Smith Law Practice
Witt Hicklin & Snider PC
Layton & Southard LLC
4625 Lindell Blvd Ste 500
2300 Higgins Rd, PO Box 1517
Plat
24 S Silver Springs Road, PO Box
1238
411 Jules St, Rm B23
Cap
Spradling Law Firm LLC
320 Grant St, PO Box 731
Car
Wegmann Stewart
Tesreau Sherman Eden
& Mikale PC
455 Maple St, PO Box 740
Hills
200 SE Green St
10 S Broadway, Ste 2000
Lee
St L
267 S Jefferson Ave, PO Box 749
Mar
301 W Pacific, Ste A (65616), PO Box
7297
10438 Hwy 21, PO Box 888
Bra
1201 W College
Libe
160 S Broadview, 4th Fl, PO Box
1568
115 E 4th, Ste 8
Cap
PO Box 190
Ava
Gordonville
St Joseph
James R Spradling
St L
St J
Jasper
Jack C Stewart
Hillsboro, De Soto
Trevor L Stiles
Sheldon K Stock
Donald G Stouffer
Lee's Summit
Black Jack
Marshall
Harry Styron
Greensfelder Hemker &
Gale PC
Styron Law Firm PC
Branson West
Deron L Sugg
Festus
Scott J Sullivan
David B Summers
Weatherby Lake
Chaffee, Oran, Morley,
Kelso, Benton
Robert E Sundrell
Breeze Roberts PonderBates & Zimmer LLC
Kuhlman Reddoch
Sullivan PC
Rice Spaeth Summers
Heisserer LC
Anderson & Sundrell PC
Hills
Mar
Tarkio, Skidmore
Chris Swatosh
Seymour
135
D Patrick Sweeney
Robert K Sweeney
Michael D Talley
Diana Dee Thomas
Nixa
Iberia, Arnold
Nancy Thompson
Garden City, Archie,
Drexel, Freeman,
Creighton, Strasburg
Riverside
Randall D Thompson
W Douglas Thomson
Gladstone
Maitland, Fairfax,
Oregon, Maryville,
Watson, Parnell
Lance B Thurman
Michael J Valenti
Doolittle, Edgar Springs
St Charles
Frank J Vatterott
Daniel G Vogel
Kurt A Voss
503 Main, PO Box 20
Hills
211 S Main St, Ste 412, PO Box 161
Jop
11 N Main St
Butl
Thompson Coburn LLP
55 E Monroe St, Ste 3700
Chic
Crouch Spangler &
Douglas
117 S Lexington, PO Box 280
Har
2950 NW Vivion Rd
Rive
7010 N Holmes
408 N Market St, PO Box 370
Gla
Mar
901 N Pine St, 4th Fl, PO Box 47
200 N 2nd St, Rm 401B
Roll
St C
2458 Old Dorsett Rd, Ste 230
75 W Lockwood Ave, Ste 1
Mar
Heig
St L
438 W Front St, PO Box 2114
Was
3 City Place Dr, Ste 1070
St L
2000 Anaconda Rd, PO Box 1088
715 Washington St
Har
Chil
200 N Third St
St C
953 Alanson Dr
St L
4510 Belleview, Ste 300
Kan
701 E Broadway 2nd Fl, PO Box 6015
Colu
840 Boonville, PO Box 8368
Spr
1001 Highlands Plaza Dr W, Ste 500
St L
308 E Walnut St, PO Box 408
She
21 Court Square, PO Box 910
Wes
Ross & Thomson LLP
Williams Robinson Rigler
& Buschjost PC
Cunnignham Vogel &
Rost PC
Zick Voss & Politte PC
St Clair
Branson West
Fenton
Cynthia R Warner
Adam L Warren
Adrian
Chillicothe
William Randolph
Weber
James H White
St Peters, Weldon
Spring Heights
Michael T White
Rose M
Wibbenmeyer
Daniel R Wichmer
Spr
Woodson Terrace,
Overland
Pacific
Kari Walden
Stanley Wallach
3275 E Ridgeview, PO Box 4609
Carl Junction,
Duquesne
Rockville, Butler
Rhonda C Thomas
James E Thompson
Jr
Hall Ansley Rodgers &
Sweeney PC
Belton
Columbia
Jerome Wallach &
Associates PC
Hazelwood & Weber LLC
White Goss Bowers
March Schulte &
Weisenfels PC
Springfield
Steve Wicker
The Daniel & Henry Co.
John M Wilcox
Stephens & Associates
Inc
Greenwell & Wilcox LLC
Monroe City
John N Wiles
136
David E Wilhite
Office of David E Wilhite
120 E Commercial St, PO Box 327
Leb
Gilmore & Bell PC
2405 Grand Blvd, Ste 1100
Kan
3304 NW Ralph Powell Rd
16100 Chesterfield Pkwy W, Ste 125
Lee
Che
255 NW Blue Pkwy, Ste 202
Lee
220 SE Green St
Lee
200 N Third St
St C
107 W Fourth St, PO Box 983
312 E Capitol Ave, PO Box 456
Sale
Jeff
Lebanon
Alvin D Wilken
Joe F Willerth
Raymore, Holden,
Raytown
Michael D Williams
T Chris Williams
Kapke & Willerth
Hochschild Bloom &
Company LLP CPA's
Williams & Campo PC
Teresa S Williams
Oak Grove, Richmond,
Unity Village
Lee's Summit
V Scott Williams
St Peters
Nanci R Wisdom
Erin L Wiseman
Viburnum, Salem
Robert M Wohler
Weldon Spring
225 S Main, Ste 100
O'F
Steve D Wolcott
Holt, Glenaire
104 W Kansas St
Libe
119 S Washington, PO Box 276
Neo
2405 Grand Blvd, Ste 1100
Kan
Hazelwood & Weber LLC
Brydon Swearengen &
England PC
Andrew Wood
Seneca, Loma Linda
Richard W Wood
Sims Johnson Wood &
Sims
Gilmore & Bell PC
John A Woodard
1001 E Broadway, Ste D
Mon
Lana R Woolsey
Aurora
Springfield
840 Boonville, PO Box 8368
Spr
Howard C Wright Jr
David A Yarger
Stover
2113 E Rosebrier Pl
104 S Fisher St
Spr
Ver
Carl S Yendes
Springfield
840 Boonville, PO Box 8368
Spr
Nancy K Yendes
Springfield
840 Boonville, PO Box 8368
Spr
Gregory S Young
Cape Girardeau
PO Box 617
Cap
John A Young
Cottleville, Darenne
Prairie
200 N Third St
St C
Hazelwood & Weber LLC
137
138
Appendix 4a – Ordinance Closing Some Utility Records – Cuba
BILL NO. _____________
ORDINANCE NO. ___________
AN ORDINANCE OPENING RECORDS OF THE CITY’S MUNICIPAL UTILITIES
DEPARTMENT TO PUBLIC INSPECTION EXCEPT AS TO CREDIT CARD
NUMBERS, PERSONAL IDENTIFICATION NUMBERS, BANK ACCOUNT NUMBERS
AND OTHER SIMILAR INFORMATION TO THE EXTENT NECESSARY TO
PROTECT THE SECURITY OF TRANSACTIONS BETWEEN THE CITY AND ITS
UTILITIES CUSTOMERS AND ANY OTHER PERSON OR ENTITY DOING
BUSINESS WITH THE CITY’S MUNICIPAL UTILITIES DEPARTMENT.
RECITALS:
A. It is the public policy of this State that meetings, records, votes, actions, and
deliberations of public governmental bodies be open to the public unless otherwise
provided by law.
B. Except as otherwise provided by law, all public records of public governmental
bodies shall be open to the public for inspection and copying as set forth in sections
610.023 to 610.026 of the Revised Statutes of Missouri (RSMo).
C. APublic record" is defined by law as any record, whether written or electronically
stored,retained by or of any public governmental body including any report, survey,
memorandum, or other document or study prepared and presented to the public
governmental body by a consultant or other professional service paid for in whole or in
part by public funds, (but excluding any internal memorandum or letter received or
prepared by or on behalf of a member of a public governmental
body consisting of advice, opinions and recommendations in connection with the
deliberative decision-making process of said body, unless such records are retained by
the public governmental body or presented at a public meeting).
D. Sections 610.021(14) and (21), RSMo, allows a public governmental body to close
from public inspection records which are protected from disclosure by law and certain
personal identifying information to the extent necessary to protect the security of
transactions between a public governmental body and a person or entity doing business
with a public governmental body.
E. The records of the City’s Municipal Utilities Department are public records, but
contain certain information which may be protected from further disclosure.
139
ACCORDINGLY, be it ordained, by the Board of Aldermen of the City of Cuba,
Missouri, as follows:
Section 1: Except as provided below, all records of the City’s Municipal Utilities
Department shall be open to and available for inspection and copying by members of
the general public in accordance with the provisions of Chapter 610, RSMo, and any
City Ordinance regulating disclosure of public records, including the name and address
of the account holder, service location, payment history and payment status.
Section 2: Closed from public disclosure, inspection and copying shall be credit card
numbers, personal identification numbers (such as social security and driver’s license
numbers), bank account numbers and all other similarly private information necessary
to protect the security of transactions between the City and its utilities customers (and
any other person or entity doing business with the City’s Municipal Utilities Department).
Section 3: The application for services used by the City’s Municipal Utilities Department
shallinclude the following language in bold type immediately above the signature line of
the applicant:
Information regarding your service account with the City of Cuba Municipal
Utilities Department, including the name and address of the account
holder, the service location, your payment history and payment status, is
public information subject to public disclosure. Closed from public
disclosure shall be credit card numbers, personal identification numbers
(such as social security and driver’s license numbers), bank account
numbers and all other similarly private information necessary to protect the
security of transactions between the City and its utilities customers (and
any other person or entity doing business with the City’s Municipal Utilities
Department).
Section 4. The Municipal Utilities Department shall notify all existing utilities customers
in writing of the passage of this Ordinance and of its effect.
Section 5. This Ordinance shall go into effect immediately after its passage and
approval. All prior Ordinances of the City to the extent inconsistent with the above are
hereby repealed.
READ TWO TIMES AND PASSED BY THE BOARD OF ALDERMEN OF THE CITY
OF
CUBA, MISSOURI, THIS ____ DAY OF _______, 2004.
___________________________________________
JOHN KOCH, MAYOR
Attest:
140
__________________________________
CHRISTINE NASH, CITY CLERK
(City Seal)
Approved this _______ day of ____________________, 2004.
_____________________________________________
JOHN KOCH, MAYOR
Attest:
__________________________________
CHRISTINE NASH, CITY CLERK
(City Seal)
141
Appendix 4b – Sample Sunshine Law Policy
CHAPTER 25: SUNSHINE LAW POLICY
Subchapter A – Policy of Openness
Section 25.100
Policy.
The Village of Windsor Place desires to conduct its business in a public fashion, and to
advise all citizens of the community of meetings of the Board of Trustees and all committees or
boards established by the Village. We recognize that records of the Village are records that
belong to the citizens, and as a general matter should be available to the public as a matter of
course. However, there are some times when the Constitutional or privacy rights of individuals
would be adversely affected by public disclosure, and times when disclosure of information
would adversely affect the Village’s finances or the conduct of law enforcement efforts. Thus
some records need to be closed to the public. This policy is designed to explain to Village
officials, staff, and to our citizens and to the public at large the ways that we plan to implement
the Missouri Open Meetings and Records Act (Chapter 610 of the state statutes.)
Section 25.110 Committees, Boards, CID District Board, Planning Commission, etc. to
Obey Sunshine Law.
All committees, boards, and constituent parts of the village government are expected to
comply with the Missouri Open Meetings and Records Act. In particular, these groups are
expected to post a notice of each meeting together with a tentative agenda at least 24 hours in
advance of the meeting. If any of these groups desires to have a closed meeting, notice of that
proposed meeting and the authority for closing it must also be given at least 24 hours in advance
of the meeting.
1. The TIF commission and the CID district board of directors, because they were
established by the Village, are required to follow the procedures established in this Chapter.
2. All notices shall be placed on the Public Notice Board (Section 25.120 below).
3. The Custodian of Records shall note on each public notice the date and time when it
was posted on the Public Notice Board, and shall retain a file of these notices for future
reference.
Section 25.120
Public Notice Board
142
The Custodian of Records shall establish a fixed place where all public notices and
agenda will be posted. This notice board should be in a place that is accessible to members of
the public at times when the Village Hall is open and (if possible) should be lighted and available
for public inspection even at times when the Village Hall is closed. This notice board should
have the notion “PUBLIC NOTICES” printed in letters at least four inches in height at the top of
said board. A window or glass door at the entrance to the Village Hall may be used as the notice
board, provided such notices are placed in such a fashion that they can be read by persons on the
outside of the Village Hall.
Section 25.130
Minutes to be Kept; Semiannual Report
1. The village clerk is directed to keep a “journal” of the “proceedings” of the Board of
Trustees, and “at the desire of any member, shall cause the yeas and nays to be taken and entered
on the journal, on any question, resolution or ordinance.” RSMo§ 80.080. The village clerk will
have the journal prepared within 48 hours of the end of the meeting of the Board of Trustees.
a.
The statute does not appear to provide any procedure for the journal to be
corrected or approved by the Board of Trustees, although that procedure is provided in Roberts
Rules of Order. The village clerk will submit his journal entry for the previous meeting (i.e.,
“minutes”) to the Board of Trustees, and the Board may approve or correct the entry. Both the
preliminary journal entry and the approved journal entry shall be available to the public
immediately after preparation, unless the Custodian of Records determines that there is a reason
that such record should be closed.
b.
A separate journal shall be kept for all closed meetings. This journal shall be
considered a closed record.
c.
All ordinances must be in writing before approval. The vote on the
ordinances must be recorded as yeas and nays are entered in the journal (i.e., recording by name
how each person voted). The ordinance must be read two times prior to passage, but both
readings may occur at the same meeting. The ordinance may be read by title only, but only if
copies of the proposed ordinance have been made available for public inspection prior to the
time the bill is under consideration by the board. Each ordinance must be duly signed by the
chairman of the board of trustees, and that signature must be attested by the village clerk.
(RSMo § 80.110)
d.
The Chairman of the Board of Trustees shall, on the first days of March and
September in each year, make out a correct statement of all moneys received during the six
months next proceeding, and cause the same to be published in the manner provided in RSMo §
80.210. One of the places where the semiannual report is posted shall be the Public Notice
Board provided for above in Section 25.120 of this Chapter.
143
2. Each committee, board, or constituent part of the village government shall designate
one of its members as secretary, and that person shall keep reasonably detailed minutes of each
meeting. Minutes will be prepared within 48 hours after the meeting ends. These shall be
considered “provisional minutes” until they are approved by the body for which they were
prepared. The body may correct errors (if any) in the “provisional minutes,” and then approve
the same. The secretary shall provide a copy of the “provisional minutes” to the Village Clerk
(by e-mail or otherwise) within 1 hour of preparation, and a copy of the “approved minutes” to
the Village Clerk within 1 hour of approval. Both documents will be retained by the Village, and
each will be available to the public as soon as received at the Village Hall, unless the Custodian
of Records determines that there is a reason that such record should be closed.
a.
Reasonably detailed Minutes of closed meetings shall also be kept, but in a
separate book or computer file. Minutes of a closed meeting shall be considered a closed record.
Subchapter B – When Meetings and Records May be Closed
Section 25.200.
Closed Meetings Authorized For What Topics.
The Board of Trustees, and any committee or board of the village, is authorized to close
to the public any meeting and/or any vote, to the extent authorized by state law. However, where
state law requires disclosure of what happened during a closed meeting within a specific time, it
is understood that the village will make that information available as required. The most
commonly used reasons for a closed meeting or vote are:
1. Legal actions, causes of action or litigation involving the Village or any confidential
or privileged communications between the Board of Trustees or its representatives and its
Attorneys.
2. Leasing, purchase or sale of real estate by the Village where public knowledge of the
transaction might adversely affect the legal consideration thereof.
3. Hiring, firing, disciplining or promoting an employee of the Village.
Section 25.210.
Procedure for Closing Meetings.
1. No meeting or vote may be closed without an affirmative public vote of a majority of
a quorum of the Board of Trustees or of the committee or board of the Village. The vote of each
member of the Board of Trustees, committee, or board on the question of closing a public
meeting or vote and the specific reason for closing that public meeting shall be announced
publicly at an open meeting and entered into the minutes of the body .
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2. The Board of Trustees, committee or board proposing to hold a closed meeting or vote
shall give notice of the time, date and place of such closed meeting or vote and the reason for
holding it. Such notice shall comply with the procedures set forth herein for notice of a public
meeting.
3. Any closed meeting shall be closed only to the extent necessary for the specific reason
announced to justify the closing of the meeting or vote. The members of the Board of Trustees,
committee or board holding the closed meeting shall not discuss any business in a closed
meeting which does not directly relate to the specific reason announced to justify the closing of
the meeting.
Section 25.215.
Who May Attend Closed Meeting.
The body holding a closed meeting may decide who can attend that meeting. As a
general rule, the Chairman of the Village Board of Trustees, any village trustee, the village
attorney, or the village auditor may attend such closed meeting. The body may request others
attend as well.
Section 25.220.
Closed Records.
All records maintained by the village shall be open to public inspection, and copies made
at the request of the public, except those records permitted or required to be closed by state or
federal law. In addition, records in which a citizen or employee may have a “reasonable
expectation of privacy” but which otherwise would be open records may be closed to the public
until proper procedures are followed. (See Section 25.430 below.) The initial determination as
to which records are closed shall be made by the Custodian of Records. Any citizen of Windsor
Place, or any aggrieved party, may appeal the Custodian of Records’ decision (once revealed) to
the next regularly scheduled public meeting of the Windsor Place Board of Trustees. The
decision of the Board of Trustees will be final, except that further appeal of that decision to the
Circuit Court of Cooper County, Missouri (on the basis of a non-contested case under the state
Administrative Procedures Act) may be initiated within 30 days of the decision of the Board of
Trustees. (It is recognized that the state Administrative Procedures Act says that non-contested
case appeals are to be initiated within a “reasonable time.” The Village determines that 30 days
is a “reasonable time” for this particular purpose.)
Section 25.230.
Access to Closed Records.
1. The Custodian of Records may permit access to any closed record to any city official
or employee, to the extent necessary for that official or employee to perform his/her duties.
Officials or employees of other governmental units may not have access to closed records of the
Village.
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2. No subpoena for access to closed records will be honored. If any subpoena is
received, it will be referred to the village attorney for response.
Section 25.240
Penalty for Disclosure of Closed Records
Any person employed or working for the Village, or who has been entrusted with a
record that is marked to indicate that it is “confidential” or a “closed record,” or who knows or
should have known that a record is closed, or who has been invited to participate in a closed
meeting who nonetheless discloses any closed record, or any information about the contents of
any closed meeting to any person shall be guilty of an offense under the codes of the Village, and
upon conviction therefor may be punished as provided by law. Any such person who is
employed or working for the Village may also be subject to the termination of their employment
as a result of such disclosure. Any such person who is an elected official may also be subject to
expulsion from a meeting and a public reprimand as a result of such disclosure.
Subchater C – Custodian; Request for Records
Section 25.300.
Custodian of Records Designated
The Village Clerk is hereby designated as the “Custodian of Records” for the Village of
Windsor Place. Such designation does not mean that the Village Clerk will necessarily have all
the records in his or her possession, but simply is an indication to whom requests for copies of
records and information regarding the Village government shall be directed. Certain records that
may be protected by federal law (HIPAA, for example) and there may be some dispute as to the
Custodian’s right to review such records. Any dispute shall be brought to the attention of the
village legal counsel, who shall decide if the Custodian needs to have access to the record.
Requests for records made to persons other than the Village Clerk shall not be considered
to be requests that are made pursuant to the Missouri Sunshine Law, Chapter 610 of the state
statutes. Nonetheless, any official or employee of the Village who receives a request is directed
to inform the Village Clerk of the request in a timely fashion, so that a response may be made to
the request. If the other official or employee forget to inform the Village Clerk, then the failure
of the Custodian of Records to respond shall be excused.
Section 25.310.
How Records are Requested
All requests for records, notices, or information shall be in writing, and shall be
accompanied by a deposit of the estimated cost of reproducing the requested information.
(Requests not accompanied by a deposit may be honored by the Custodian at his/her discretion,
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subject to the limits of Section 25.400 below.) Oral requests, if received by the Village Clerk,
shall be immediately recorded in written form to document the same. Any request received by
the Village Clerk shall be initialed by the clerk, with the date and time of receipt noted. (It is
from this notation of receipt that the time for a response is calculated.) For the convenience of
the public, the Custodian is authorized to prepare a “Disclosure Request Form” upon which a
request may be made. Nothing herein, however, shall limit a requesting party to that form or
prevent him/her from making a request in a different fashion.
Section 25.320.
Response Desired to be Noted on Request
The requesting party shall indicate on the request the manner in which a response is desired. In
absence of instructions to the contrary, it will be assumed that the requesting party wants to
receive a response in the same form as the original request. (Examples: if someone stops by
Village Hall and requests copies of documents, it will be assumed that the requesting party will
stop by Village Hall later to pick up the documents. But if someone mails a request to the
Village Hall, it will be assumed that a mailed response is desired. If the request comes by email, the Village’s response will also be via e-mail – although the Village will maintain a paper
copy of both the request and the response in its files).
Section 25.330
Response Within 3 Business Days
The custodian of records shall respond to the request within 3 business days of its receipt.
A “business day” is a day when the Village Hall is open for the conduct of Village business
during its normal business hours. While it is desirable that the entire transaction be completed
within 3 business days, there may be circumstances where clarification or explanation of the
request is necessary, or where it may be necessary to provide only part of the requested
information while searches are made to find copies of other documents requested.
Section 25.340
When Custodian Not Available
Any request directed to anyone other than the Custodian will be forwarded to the
Custodian (as provided in Section 25.310 above). If the Custodian is absent due to illness,
temporary duty elsewhere, or vacation, the request shall not be deemed to have been delivered
until the Custodian returns to work at Village Hall. It will be assumed that the person making a
records request consents to any delay caused because the Custodian is not available, unless the
requesting party makes clear that an immediate response is required. In the temporary absence
of the Custodian, the Chairman of the Board of Trustees shall assume temporarily the
responsibilities of the Custodian, when the requesting party so demands.
Section 25.350
Documentation of Response
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The custodian of records shall document the response provided either by:
1. Making an extra copy of the response and attaching it to the original request,
2. Noting on the request what documents were provided, or
3. Keeping a copy of any letter or note requesting additional information in order to
process the request.
Section 25.360
Request for Searches
Some court decisions seems to say that the Missouri Sunshine Law does NOT require
local governments to engage for searches, to participate in what are described as “fishing
expeditions.” On the other hand, the policy behind the law seems to encourage public
examination of village records and the village needs to bend-over-backward to attempt to assist
the public. A request for copies of “all documents” or “every document” of a particular sort
involves a request to search through every record of the Village in order for the Village to certify
that it has provided “all” or “every” document. Such searches are expensive. Similarly, a
request for records compiled in a format differing from the format in which the records are
customarily retained is a request for a search and compilation, and can be expensive. As a
general rule, the Custodian of Records is not expected to engage in extensive searches or
compilations. Any search request that will require more than 15 minutes of the Custodian’s time
will be refused without a substantial advance deposit for the estimated time required to search for
and/or compile the records.
Section 25.370
Fees for Retrieval and Copies
1. Fees for search, retrieval, guarding, accompanying, and returning to their proper
storage of any and all documents shall be:
a. For a search of 15 minutes or less….no retrieval fee.
b. For a search, retrieval, guarding, accompanying, and return of documents
requiring more than 15 minutes (cumulative)…..$4.00 for each period of 15 minutes
or less, including the first 15 minute period.
c. For expert assistance retrieving or formatting electronic information….actual costs
incurred.
2. Fees for copies of documents shall be:
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a. For copies that can be made on any machine available to the Village or its
officials…. 10¢ per side of a page (black and white) or $1.00 per side of a page for
color copies
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b. For copies that must be made elsewhere….the actual charges imposed for making
the copies (including any sales taxes) as well as the fee provided above for search,
retrieval, accompanying and returning to proper storage.
3. For delivery of copies:
a. Actual costs incurred for postage, messenger service, etc.
Section 25.380
Inspection of Records
To reduce the cost to both the requesting party and the Village, the Custodian of Records
may permit a physical inspection of the records by the requesting party to help specify what
documents are needed. The Custodian may impose such security as is deemed appropriate to
guarantee that no record is removed from the Village files. The requesting party shall pay the
cost of that security at the rate provided in Section 2.370 (1).
Section 25.390
Waiver of Fees
The Custodian of Records is empowered to waive the collection of any of the fees
totaling less than $5 provided in Section 25.370 above to any citizen of the Village requesting
documents from the Village, or to any representative of news media that routinely sends a
reporter to cover meetings of the Village Board of Trustees. No person or organization shall
receive more than 3 such waivers in any 12 month period.
Section 25.400
Unpaid Fees for Sunshine Law Requests
The Village will not comply with any request for records from any individual who has an
outstanding bill for documents that have previously been provided. The only response from the
Village will be to indicate that:
1. The new request has been received,
2. There is an outstanding balance,
3. Before the new request can be processed the outstanding balance must be paid as well
as a deposit for the estimated costs of the newest request be paid in advance.
Section 25.410
Requests to Turn Closed Records into Open Ones.
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The Missouri Sunshine Law, unlike the Federal Freedom of Information Act and most
state laws on the subject, has no procedure for closed records to become open to public
inspection. It is obvious that the passage of time can lessen the need for records to be kept
Closed. The Custodian of Records is authorized to recommend to the Board of Trustees that
certain records be opened to public inspection. Similarly, any citizen of Windsor Place or any
news media organization that regularly sends a reporter to cover meeting of the Board of
Trustees may ask that specified closed records be opened. Requests that closed records be
opened to public inspection will be considered on a case-by-case basis by the Village’s Board of
Trustees. (The Decision of the Board of Trustees is subject to review in the courts in the same
manner as specified in Section 25.220 above.)
Section 25.420
Retention and Destruction of Records.
The Missouri General Assembly has established “The State and Local Records Law”
(RSMo §§ 109.200- 109.310) regulating the retention and destruction of local records retained
by the Village of Windsor Place. The Custodian of Records is charged with implementing the
retention schedules established by the Local Records Board.
When records are destroyed, a note regarding the destruction shall be included within the
Journal of the proceedings of the Board of Trustees.
Section 25.430
Expectations of Privacy
The Missouri Supreme Court (in the case of Hyde v. City of Columbia) has made clear
that some records which are classified as “Open” for Sunshine Law purposes are nonetheless not
to be disclosed because the individual to whom the record refers may have a “reasonable
expectation of privacy” concerning that information which must be protected because of the US
Constitution. Thus an individual may request disclosure of information which another person
might think should be kept closed. When the Village or its Attorney becomes aware of a request
for records that might be subject to a “reasonable expectation of privacy” the following
procedures will be followed:
1. Instead of simply releasing the presumed “open records,” the Village will notify all
parties of the request for disclosure. Anyone who believes that his Constitutional rights might be
infringed by disclosure shall be given 10 days to register an objection and/or to sue the Village.
2. At the end of the 10 day period, if no objections have been registered and if the
Village Attorney believes that risk of disclosure is minimal, the request for disclosure shall be
honored. If at the end of the 10 day period an objection has been made to the proposed
disclosure or if the Village and its Attorney are uncomfortable with such disclosure, the Village
will seek guidance from a court (naming all possible persons having a possible claim of privacy
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and the requesting party as defendants) and shall comply with a final decision of a court (after all
periods for appeal or rehearing having expired) within 3 business days of the decision becoming
final.
3. The Village of Windsor Place does not believe that the status of an individual’s sewer
treatment account is a record that may be kept as a closed record. Thus you neighbor can ask if
you have been paying your sewer bill every month and on time. However, if such a request is
received we will follow the procedure described above. But, because the village has the power
to impose a lien for unpaid sewer charges, your mortgage company or a real estate broker trying
to buy or sell your property may ask if all sewer charges have been paid. We would answer that
question without reference to the procedure above.
4. The Village of Windsor Place does not believe that letters (either signed or unsigned)
sent to village officials may ordinarily be kept as a closed record, even if the person who wrote
the letter requests that it be kept secret. However, if a request to see such a letter is received we
will follow the procedure described above before releasing it, assuming we have a reasonable
basis for thinking we know who sent it.
Section 25.450
Standing Request for Meeting Notices/Packets
Although the Missouri Statute does not require the Village to do so, we will maintain a
list of all persons who request notice of “all meeting” of the Board and its committees. Such
requests may include simply a request for the notice and tentative agenda, or may include a
request for the preparatory packet also. A deposit shall be posted in advance when such a
request is made, and such request shall be honored as long as the deposit continues to cover the
costs.
Section 25.460
Abusive Records Request
A second request for the same record by the same person or organization, or a request for
voluminous records where the requesting party isn’t willing to discuss what records are desired
(such as a request for “all checks written” since the village was organized, and the requesting
party refuses what information should be provided first or to discuss a deposit of fees) shall be
considered an abusive request and will not be honored.
Subchapter D – Electronic Communication Devices
Section 25.500
Meetings via Electronic Devices
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Any meeting initiated by the Village or its Board members (except those having a purely
social purpose) is presumptively public. If any Village Board member must attend such meeting
via electronic means (speaker phone, web camera, internet instant messaging, etc. – or even via a
method not yet invented) the members of the public who desire to attend such meeting will be
allowed to do so at the Village Offices, where the electronic communication will be shared with
members of the public at the same time they are shared with members of the Board.
Village officials, employees and volunteers are reminded that court decisions in other
states have held that serial e-mail messages, or instant messaging, or other electronic
communications directed at all or a majority of the members of a Board or committee have been
held to constitute a “meeting” with accompanying notice, agenda, and public participation
requirements. Village officials, employees and volunteers should avoid using these
communication tools for decision making exchanges. (And, of course, all officials should
remember to copy the Custodian of Records with all messages.)
Section 25.510
E-mails and Electronic Records
The Village recognizes that all electronic records that belong to the Village are public
records and available to the public, unless closed for a specific reason. As a general rule, all emails are retained in the Village’s computers until overwritten by that computer, including all
“deleted” e-mails. The retrieval of those e-mails, however, is not something that is routinely
done by the Village. Any retrieval of e-mails or other electronic records may require the services
of a computer expert. Request for the retrieval of stored e-mails or other electronic records may
require the requesting party to provide an advance deposit for the services of such an expert.
1. Employees and Officers of the Village and volunteers serving on Village boards or
committees are, however, allowed to use Village Internet facilities for personal purposes,
provided they do not access pornographic, obscene, racist, or extremist web sites using Village
equipment. Records of Internet site visits are not public records, but may be used by the Village
for disciplinary purposes.
2. E-mails which are directed (either addressed to, or by copy sent to) a majority of the
members of the Village’s Board of Trustees are presumptively public records and will be
disclosed, unless a specific reason for nondisclosure exists. All parties sending such e-mails are
directed to include a copy of such e-mail to the Custodian of Records so it may be maintained as
part of the Village’s files.
3. E-mails or other communications which are directed (either addressed to, or by copy
sent to) a Village employee are presumptively public records and will be disclosed, unless a
specific reason for nondisclosure exists. However E-mails which are initiated by a Village
employee which are directed (either addressed to, or by copy sent to) persons not employed by
the Village may be either public records or private records depending upon their content.
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4. E-mails that discuss in any way the finances of the Village are presumptively public
records and will be disclosed, unless a specific reason for nondisclosure exists.
5. All other e-mails are presumptively private property and do not belong to the Village
but to the person who created the same. These e-mails will not be released to the public without
permission of the owner thereof.
Section 25.520
Records Discussing Village Operations, on Private Equipment
It is recognized that many employees, volunteers, and officers of this Village have their
own privately owned cell phones, computers, and other electronic equipment that is available for
the preparation and sending of, and for the receipt of, communications relating to Village
operations. The use of such private equipment for Village operations is discouraged. THE
VILLAGE WILL NOT PROVIDE A LEGAL DEFENSE, NOR WILL IT INDEMNIFY ANY
EMPLOYEE, VOLUNTEER, OR OFFICER who chooses to utilize private equipment for the
conduct of public business. Any Village employee, volunteer, or officer who receives an
electronic communication on private equipment is directed to:
1. Forward a copy of the communication to the Custodian of Records so it may be kept
in the official records of the Village, and
2. Respond to the communication either using Village equipment if doing so is
convenient, or respond using the private equipment and send a copy of the response to the
Custodian of Records for retention by the Village. Any employee, volunteer, or officer who
initiates an electronic communication on private equipment is directed to send a copy of all
communications (including all responses) to the Custodian of Records for document retention
purposes.
Subchapter E – Meeting Times
Section 25.600 Normal Meeting Place, Time, and Date
Regular meetings of the Village’s Board of Trustees are held on the second Tuesday of
each month at the Village Hall located at 17008-B Highway 87, Windsor Place, MO 65233.
Meetings normally begin at 7:00 o’clock p.m.
Section 25.610
Meetings Initiated by Others
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From time to time, members of the Board of Trustees and other Village employees may
be invited to attend meetings held by others (Chamber of Commerce, County government,
employee or citizen groups, etc.) At such meetings government business may be discussed. The
Village will try to give notice of all these invitations, and we believe these meetings are
generally open to the public. However, we have no control over the facilities at which the
meetings are held. If we know in advance that the meeting is to be private, our Board members
will not participate in the meeting (unless there is a valid reason for a closed meeting). However,
if we attend the meeting and it turns out that a member of the public is excluded, we are unable
to solve that problem, and suggest that the public look to the group that initiated the meeting for
any redress.
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Appendix 4c – Police Investigative Files
PUBLIC DISCLOSURE OF POLICE INVESTIGATIVE REPORTS
By Patrick Cronan
One of the most troubling problems confronting the law enforcement branch of our local
governments, and one for which no clear answer exists, is the extent to which police
investigative files are “public records” under the Missouri Open Meetings and Records Law,
Chapter 610 of our state statutes. Under what circumstances are the investigative files to be
released? To whom should they be given? Can records which are otherwise “closed” be routinely
made available to persons who have a demonstrable interest in them?
Our state “sunshine law” doesn’t really say. The statute lists 15 circumstances where
records are permitted to be “closed” but doesn’t clearly include police investigative reports
within these exclusions. The law says that if one of the 15 exceptions is not present, then the
record must be open. “It is the public policy of this state,” says the law, “that … records … of
public governmental bodies be open to the public unless otherwise provided by law.” The law is
to be “liberally construed” and exceptions “strictly construed” to promote this policy. Attorneys
andcourts seeking to divine the intent of the state General Assembly have attempted to stretch
some of these exceptions to fit police investigative records – but sometimes the stretching goes
past thebreaking point.
Police investigative reports may consist of several different kinds of documents. Because
of the lack of consistency within our “Sunshine Law,” and because of different policies, it may
be that a local law enforcement agency will have different practices for each type. For example,
the police department may have “accident reports” where no criminal charge was filed and which
one of the drivers initiated. There may be a “crime report” filed several days late by the victim
simply for purposes of obtaining insurance payment, with no expectation on anyone’s part that
the police will follow up. Sometimes a “crime report” is filed expecting police response, but the
crime is so frequent or minor that the only police response is to put the paper in a file cabinet.
Other times a matter may be under investigation for weeks, months or years before criminal
charges are filed. Sometimes the investigation regards complaints lodged against an individual
police officer for a violation of a policy of the department.
But most often the crime is investigated, the offender arrested, and the matter prosecuted.
The exceptions in the Missouri law which might permit police investigative files to be kept
from public disclosure are:
1) Legal actions, causes or action or litigation involving a public governmental body and
any confidential or privileged communications between a governmental body or its
representatives and its attorneys … Legal work product shall be considered a closed
record;
8) Welfare cases of identifiable individuals;
13) Individually identifiable personnel records … or records pertaining to employees or
applicants for employment …
14) Records which are protected from disclosure by law;
As can be seen from examining this list, none directly deals with police investigations. It is
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only by some creative stretching of the language that many of these documents are kept closed to
public scrutiny.
In addition to these general provisions, the Missouri statute includes a requirement that
“if any person is arrested and not charged with an offense against the law within thirty days of
his arrest, official records of the arrest … shall thereafter be closed records. Similarly if the
charge is dismissed, or the accused found not guilty or no sentence is imposed, records are closed
to the public. A rather strange opinion of the Missouri Attorney General has stated that these
records are to be considered open until one of these events happens. This opinion is based upon a
literal reading of the statute, without consideration of the purpose of the statute. What good does
it do, after all the details have been displayed in the press or photocopies by interested persons,
to then close them?
Hyde v. City of Columbia
Any discussion of the nature of police investigative files, must begin with a 1982 case of
Hyde v. City of Columbia, decided by the Missouri Court of Appeals. After midnight on August
20, 1980 Sandra Hyde walked along Broadway, when a white male in his late twenties, with red
hair and red beard, opened the door to his red Mustang automobile, leveled a sawed-off shotgun
at her and ordered her into the car. Once inside, he kept the weapon trained on her and ordered:
“You will do what I want you to do or I will blow your brains out.” When the car started up and
the assailant started to turn, his attention was distracted, so the plaintiff opened the door and
jumped out. The assailant clung to her dress so that the garment tore, but she escaped. She ran
down the street to a nearby disco to report the incident to the police and saw the assailant drive
by twice while she waited their arrival.
Later that morning the police released her name and address to reporters of the Columbia
Daily Tribune and the Columbia Missouri, and each newspaper published the information even
though the assailant had not been arrested.
That night plaintiff reported to the police that the assailant drove up to her duplex in the
Mustang and read the house number. That incident occurred after the Columbia Daily Tribune
published her name and address. Then, another supplemental report shows, on August 22, [after
both newspapers had published the information] in the early morning the plaintiff aw lights in
her driveway and observed a red Mustang there. On that occasion, the saw the man place his
shotgun on top of the Mustang, look at the residence for a moment and then drive away.
The very next day the plaintiff reported that as she was in the kitchen, she saw the
redbearded assailant at her back door; she fainted, and when revived, told her male companion,
but by then he could detect no one outside. While he searched, the plaintiff received a telephone
call and was told, “I’m glad you’re not dead yet, I have plans for you before you die.”
Police investigative reports show numerous other incidents, including an encounter with the
assailant at a tavern where she was with friends; at least another confrontation outside her home;
a chase of the red-bearded male in the red Mustang by the male companion of the plaintiff.
Then again, at her place of employment, Sandra Hyde reported that as she attended a
customer, she received a telephone call by a person who asked her by name and then said, “I
wanted to refresh your memory of who I am before I kill you tonight.” Ten minutes later a
woman came in, asked for her by name and then told her, “Well, someone outside wants to talk
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to you, back on the lot.” The plaintiff finished with a customer and went outside and saw the red
Mustang in the car lot and the assailant in the car. He pointed a shotgun at her and conveyed to
her the threat to kill her that night.
Sandra Hyde filed a lawsuit against the City of Columbia, and against the two
newspapers and their respective reporters, for causing her to suffer these instances of terrorism.
The city attempted to defend itself by saying that is was required by the Missouri Sunshine
Law to disclose the report. The court of Appeals didn’t buy that argument and most of us would
have been outraged if it had.
But which exception, described above, justified non-disclosure?
What Was Decided
One difficulty is evident to anyone seriously attempting to understand the Court’s Hyde
decision. The result was clear: no investigative report should be released to the public (at least in
a violent, sexual assault) when publication might allow the assailant to harass the victim. But the
reasoning is widely debated. Some seek to limit the decision to the facts; other interpret the case
more broadly. Before deciding what the Court meant, perhaps it would be best to let the court
speak for itself:
An arrest records is made a public record – not by the omnibus definition of §610.010(4)
[any record retained by or of any public governmental body] – but by implication of
separate§610.100. The information disclosed by the municipal police department to the
reporter and published by the newspaper was not from a record of arrest, but from a
criminal investigation record. The enumerations of §610.025 do not exempt from
disclosure the investigation records of a law enforcement agency. (In that respect, our
conduct of Public Business (Sunshine) Law stands alone and singular from all other such
enactments.) Thus, absent an intention otherwise discemible from the statutory purpose
as aided by construction of the text, the records of thecriminal investigation process up to
the event of arrest are public records and altogether unprotected from disclosure on
demand.
Up to this point in the Court’s opinion, it sounds as if the court were about to rule in the
City’s favor. But the Court goes on:
Our duty is to give the Sunshine Law the effect the legislature intended. To that end our
guides, among others, are: the evil the enactment means to remedy the assumption that
the legislative purpose was a reasonable one, the presumption that the law was passed
for the welfare of the community, that an effective law was intended … To that end also,
we look to the integral text and purpose which inform the act as a whole…
Now it sounds as if the City is in for trouble. The Court can’t find any words to back up its
decision, so it starts talking about “intention.”
To construe the Sunshine Law to open all criminal investigation information to anyone
with a request subserves neither the public safety policy of our state nor the personal security of
a victim – but rather, courts constitutional violations of the right of privacy of a witness or other
citizen unwittingly drawn into the criminal investigation process as well as the right of an
accused to a fair trial. Such a construction leads to the absurdity [adroitly drawn by the
defendants] that an assailant unknown as such to the authorities, from whom the victim has
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escaped, need simply walk into the police station, demand name and address or other personal
information – without possibility of lawful refusal, so as to intimidate the victim as a witness or
commit other injury.
Now it begins to sound like the Court is going to make a new “court-made” exception to
the Sunshine Law. (Indeed, some argue that is what the court in fact did). But the Court says:
We are not free to fashion another formal exception to the Sunshine Law to exclude, even
if only presumptively, every official entry of the pre-arrest investigative process from
disclosure to the public on request, however egregious we consider the legislative lapse
… The contours of any such public policy, balanced and counterpoised between the
disparate interests in open government and a secure citizenry, is for the legislature …
Suddenly it sounds as if the court is going to rule for the City after all. But after dancing
around the question for several pages the Court announces:
To avoid an absurd – even unlawful – application of the statute as written, we determine
that the name and address of victim of crime who can identify an assailant not yet in
custody is not a public record under the Sunshine Law.
This decision by the court, that the record is not a public record, flies in the face of the clear
definition in the statute that “any record retained by … any public governmental body” is a
public record.
This court decision is limited by its facts: and some would say it should not be stretched
further. But this decision is very expansive in its reasoning. By the reasoning, every investigative
report which might cause severe emotional injury or possible physical injury ought to be kept
closed. Which is correct?
A Prosecutor’s Responsibility
Before discussing the meaning of Hyde further, another court action needs to be
discussed. On August 7, 1985 the Missouri Supreme court adopted a new rule for the regulation
of lawyers. This rule has the force of law. But our Constitution limits the rule making power of
the Supreme Court, saying such rules “shall not change substantive rights.” The state legislature
has the power to annul or amend any rule adopted by the Supreme Court.
The new Rule 4 was called the “Rules of Professional Conduct” and included two
provisions relating to trial publicity. The general rule relating to all lawyers says:
(a) A lawyer shall not make an extrajudicial statement that a reasonable person would
expect to be disseminated by means of public communication if the lawyer knows or
reasonably should know that it will have a substantial likelihood of materially prejudicing
an adjudicative proceeding.
(b) A statement referred to in paragraph (a) ordinarily is likely to have such an affect
when itrefers to … a criminal matter … and the statement relates to:
(1) the character, credibility, reputation or criminal record of a … suspect … or
witness … or the expected testimony of a party or witness;
(2) … the existence or contents of any confession, admission, or statement give
by a …suspect or that person’s refusal or failure to make a statement;
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(3) the performance or results of any examination or test or the refusal or failure
of a person to submit to an examination or test, or the identity or nature of
physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a … suspect …
(5) information the lawyer knows … is likely to be inadmissible … in a trial …
In addition, the rule also provides in a section called “special responsibilities of a prosecutor”
that the prosecutor in a criminal case shall “exercise reasonable care to prevent investigators, law
enforcement personnel, employees or other persons assisting or associated with the prosecutor
would be prohibited from making ….”
In the commentary of these rules, the Court notes that “it is difficult to strike a balance
between protecting the right to a fair trial and safeguarding the right of free expression.
Preserving the right to a fair trail necessarily entails some curtailment of the information that
may be disseminated about a party prior to trial, particularly where trail by jury is involved. If
there were no such limits, the result would be the practical nullification of the protective effect of
the rules of forensic decorum and the exclusionary rules of evidence …”
As indicated both by this comment, and in the Hyde decision, the state and federal
constitutions require a fair trial for the defendant. Without prior restraints on the dissemination of
information, the remedy available to the Court (to pull the prosecutor’s license to practice law, or
to turn loose a guilty defendant are hardly adequate. Should this Rule (together with the
reasoning in the Hyde decision) stand for the proposition
that most police reports ought not be made public?
Internal Investigations
Another interesting case regarding police investigative files arose from the city of Lee’s
Summit. About July 5, 1988 Jerry Wolfskill filed a “citizen’s complaint” with the city alleging
serious misconduct by some police officers. (The officers had apparently watched too much TV.)
The city discovered the allegation was at least substantially true and notified Mr. Wolfskill that
the officers had acted contrary to city and departmental policy, and advised that disciplinary
action had been taken with respect to those officers.
Mrs. Wolskill then asked to see a copy of the investigation reports. The city denied that
request, saying that under the law the investigation was a closed personnel record. Suit was filed.
The trial court ruled for the City; an appeal is pending.
In an earlier case, Wilson v. McNeal, the Court of Appeals has ruled that internal
investigation files of the St. Louis Police Department are closed files as personnel records, not
even available to the widow of the individual who died in police custody, because if was “a
report … relating to the ‘firing’ of personnel.” A casenote in the Missouri Law Review strongly
criticizes the decision, but notes that it “illustrates some of the [Sunshine Law’s] defects,” most
strongly criticizing the fact that there is no durational requirement for a closed record. A closed
record is apparently always and forever closed, never to see the light of day. Perhaps it would be
better, if after 12 months or so these documents would be available to the public. The student
author suggests that one possible solution would be for Missouri courts to “simpley declare that
they were going to read a weighing requirement into the statute, and balance the interest involved
in each case to determine whether the record should be opened. This sort of judicially imposed
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balancing test has arisen elsewhere under public disclosure laws, but not under a law as complete
as Missouri’s.”
The Missouri Law Review casenote also pointed out that the New Hampshire Supreme
Court had simply engrafted onto their state statute the standards of the federal Freedom of
Information Act to the state law. (New Hampshire is supposed to be a conservative place, not
known for judicial activism.) In defense of itself, the New Hampshire court said that “in the
absence of legislative standards for such files we adopt [the federal standards] for the guidance
of our judges who may be faced with such cases … The trial court should also in this case, and in
future cases, require in camera review to decide whether there will be total or partial
nondisclosure. This decision should be made in accordance with the guidelines discussed in this
opinion and with our previous state ‘intention to resolve questions with a view to providing the
utmost information.’” The federal standards which were adopted in New Hampshire (and which
would perhaps be appropriate for Missouri) exempts from disclosure
(7) investigatory records compiled for law enforcement purposes, but only to the extent
that the production of such records would (A) interfere with enforcement proceedings,
(B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute
and unwarranted invasion of privacy, (D) disclose the identity of a confidential sources,
and in the case of a record compiled by a law enforcement authority in the course of a
criminal investigation, or by any agency conducting a lawful national security
intelligence investigation, confidential information furnished only by a confidential
source, (E) disclose investigative techniques and procedures, of (F) endanger the life or
physical safety of law enforcement personnel.
As can be seen, this standard establishes a “balancing test” of the sort favored by the law
review article, with the possibility that after a period of time otherwise confidential material
would be released to public scrutiny.
Other Laws
Any discussion of release of documents is incomplete without a discussion of other state
(and perhaps local) laws that may restrict disclosure. These laws may be scattered throughout the
statutes. A diligent search has revealed the one described here. There may be more:
The most broad “other law” is §610.150 which says that “information and police records
obtained by way of ‘911’ emergency calls is restricted to law enforcement agencies, the Division
of Workers’ Compensation, and persons authorized by a valid court order.” An interesting
question is how information that was not received over the telephone, but which otherwise would
not have been obtained, is to be treated. For example, a call comes to the 911 operator indicating
that suspicious characters are outside a neighbor’s house. Upon investigation, police discover a
burglary in process and arrest the burglars. Did the investigation (and the information it revealed)
come “by way of” a 911 call? Or does protection from disclosure only apply to the information
transmitted over the phone?
Section 210.150 says that all reports of child abuse shall be kept confidential, although
seemingly it applies only to reports made over the “child abuse hotline.” One assumes that any
police investigation of these complaints (if things go that far) would likewise be confidential.
Juvenile court records are closed records. One assumes (although the statutes do not
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specifically say) that police investigative reports, copies of which remain with the police
department, would not be disclosed.
The Model Traffic Ordinance (in force in many cities) provides at that “all records and
reports of the police department or traffic division concerning violation of traffic ordinances of
the city or of the state vehicle laws shall be public record.” (Does this mean they are open public
records, or closed public records?)
Another rather strange provision of the Model Traffic Ordinance is found at §300.125.
The law requires the driver of a vehicle involved in an accident causing $100 or more damages
to make an accident report. This report “shall be for the confidential use of the police department
… No written reports forwarded under the provisions of this section shall be used as evidence in
any trial, civil or criminal, arising out of an accident …” This law is widely ignored. Many
drivers make these reports to obtain insurance payments. All insurers expect to receive copies.
Generally law enforcement agencies routinely provide them to anyone inquiring. Perhaps the law
is only intended to apply to a “confession” or something similar – but even so, it isn’t obeyed.
Missouri law provides that “adult abuse” investigative reports are not public records. But
there is no similar provision for “spouse abuse.” Is there any logical reason for the distinction? If
one abuses a parent, is that to be kept secret, while reports of abuse of one’s spouse is to be
printed in the newspapers? Or is it more logical to assume that investigative reports of both types
of abuse should be kept confidential?
The City of Columbia obtained a written opinion from its legal counsel that by ordinance
it could adopt “other law” declaring certain types of records to be closed. One doesn’t know if a
court would adopt such an argument – it doesn’t seem likely. The Sunshine Law was intended to
restrict such freedom of city councils and other local governmental bodies.
Conclusions and Recommendations
There comes a time n every article to reach a conclusion. That time has arrived in this
one. But reaching a conclusion is difficult. A literal reading of the Sunshine Law would have
one release everything. But, when the City of Columbia attempted to follow the literal reading of
the law, the Court of Appeals made up (out of thin air) a conclusion that certain records
maintained by a public body aren’t public records at all – even though a statute said to the
contrary. Courts have shown a tendency to think that “the legislature surely didn’t mean it” when
confronted with the literal wording of the statute.
It seems safer to local officials to err on the side of keeping records closed to the public –
to require a lawsuit before disclosing anything. That is, however, typical of advise from the
lawyer, and doesn’t take into account the cost in time and money required to endure litigation.
What really needs to happen is for the state legislature to correct this mess. Finding the best
way to fix it will be difficult, because of the competing interests involved. Perhaps some sort of
“balancing test” will be necessary, although local government officials and the media will each
not like that solution – because it would not provide clear guidance.
All we can say for sure is that, right now, it needs clarification
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Appendix 6 – Sample Purchase Contract (MAFPD)
MISSOURI ASSOCIATION OF FIRE PROTECTION DISTRICTS
SAMPLE PURCHASE CONTRACT
1. PARTIES: This agreement is between
________________ Fire Protection District
(hereinafter called “Buyer” or “District”)
And
(“Seller”)
2. ITEM(S) PURCHASED: Seller sells to district, and District buys the following item(s):
This description of the item(s) purchased is simply a summary. The details about the
item(s) are contained in the “Specifications” or “Request for Proposals” attached to this
document and marked as Exhibit A, and the Seller’s “Bid” or “Proposal” attached to this
document and marked as Exhibit B. [If there is a variance in language between Exhibits
A and B, the language in Exhibit A will control, unless
a.
b.
the first page of Exhibit B is the location of the differing language, or
the first page of Exhibit B contains a reference to the differing language in a way
that reasonably identifies for the district that the product being offered differs from
the product specified, or
c.
the language in Exhibit A has been marked through, and the change initialed by
the same representative of the District as identified on the last page of this
agreement, and dated and timed prior to the date and time of this agreement,
in which case Exhibit B will control.
3. DELIVERY: (only the language identified by a check mark is part of this agreement)
□ The items shall be ready for delivery F.O.B. seller’s facility in ______________
within _______ days from the date of this agreement.
□ The item(s) will be delivered to the District at ___________________________ within
_________ days of this agreement.
4. PRICE: The total contract price is $__________________________.
5. PAYMENT (TERMS): (only the language identified by a check mark is part of this agreement)
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□ Payment of the full amount is due the date the items are picked-up at the seller’s
location identified above.
□ Payment of the full amount is due the date the items are delivered to the
district’s location identified above.
□ Seller will send an invoice to the District’s business office at
_____________________ and Buyer will pay the same within 30 days following receipt
of the invoice.
□
Other:
________________________________________________________________
6. IMPOSSIBILITY OF PERFORMANCE (FORCE MAJEURE)
If performance of this contract is prevented, restricted, or interfered with by causes
beyond either party’s reasonable control, and if the party who is unable to carry out its
obligations gives the other party prompt notice of such an event, then the obligation of
the party invoking this provision shall be suspended to the extent necessary by such
event. The term “Force Majeure” shall include, without limitation, acts of God, fire,
explosion, vandalism, storm or other similar occurrence, orders or acts of civil or military
authority or by national or state emergencies, insurrections, riots, wars, strikes, lock-outs,
work stoppages, or other labor disputes, and unusual and unexpected supplier failures,
shortages, breaches, or delays The excused party shall use reasonable effort under
circumstances to avoid or remove such causes of non-performance and shall proceed with
reasonable dispatch whenever such causes are removed or cease. An act or omission
shall be deemed within the reasonable control of a party if committed, omitted or caused
by such party or its employees, officers, agents or affiliates.
7.
BUYER’S ASSURANCES:
Buyer assures the Seller that (1) these purchases are within the Districts printed budget,
and that funds have been budgeted to pay for these items, (2) that the District’s board of
directors has authorized it to execute this contract, (3) that the District exists as a political
subdivision of the State of Missouri and (4) that the District is exempt from taxation, and
this transaction is not subject to any direct Missouri tax.
8. SELLER’S ASSURANCES:
Seller assures the District that (1) the state within the United States or nation where Seller
has the office that has submitted the bid that preceded this contract DOES NOT impose a
penalty or prohibition against any MISSOURI company from selling goods or services to
governmental units within that state or nation (It being understood that if it should
develop that there is a penalty or prohibition, the same shall likewise apply to Seller as a
reduction or elimination of the price paid), and (2) that the item(s) described in this
contract were produced in the United States as required by the MISSOURI BUY
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AMERICAN ACT [RSMo §34.350-359] or if of non-United States origin are authorized
by the MISSOURI BUY AMERICAN ACT to be purchased by a Missouri political
subdivision because of the non-availability of U.S. sourced items within 10% of the
purchase price specified, or because compliance is excused by a treaty (insert name of
treaty: __________________________) to which the United States is a party.
9. WARRANTY:
The warranty for the item(s) purchased is described in the attached Exhibits A and B. If there is
a variance between those two exhibits, the same resolution of the difference provided in
Section 2 above shall apply to the Warranty. The so-called “acceptance doctrine” shall not apply
to relieve Seller of any warranty made in this agreement.
10. CONTROLLING LAW:
This agreement, including its exhibits, shall be interpreted according to the law of the state of
Missouri. The venue for enforcing this contract shall be in the Circuit Court of that county in
which the District (or the largest portion of its territory) is located.
11. MEDIATION:
In the event the parties have a dispute regarding this transaction, the parties shall attempt to
mediate their dispute prior to resorting to a lawsuit. The cost of mediation shall be divided
equally between the parties. The Mediator shall be selected from those that have minimum
training and are recognized by the Missouri Supreme Court as approved mediators.
12. ATTORNEY FEES:
If either party must sue the other to enforce this agreement, or for damages for breach of this
agreement, the successful party shall receive its attorney fees and other costs from the other
party.
13. ENTIRE AGREEMENT; AMENDMENTS:
This agreement, together with the two Exhibits, embodies the entire agreement
between the parties relating to the subject matter contained herein, and merges all
prior discussions and agreements between them. No agent or representative of either
party has any authority to make any representations, statements, warranties or
agreements not herein expressed. All modifications or amendments to this agreement
must be in writing and signed by an authorized representative of each of the parties
hereto. (No alleged course of conduct by the parties at variance from the requirement
of a written amendment shall be used to excuse the requirement of writing for any
amendment.) If there is any ambiguity discovered in this agreement, there shall be no
presumption against either party used to resolve said ambiguity.
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14. DATE AND TIME OF AGREEMENT
This agreement is effective as of its signing on the _____ day of _____________, 20___ at
______________________ o’clock Missouri time.
FOR DISTRICT:
By _________________________________________
FOR SELLER:
By _________________________________________
Comments Regarding Sample Contract
1.
2.
3.
4.
5.
This contract is based upon one which was submitted to a fire district for the purchase
of a new tanker. However, it has been changed to reflect some Missouri statutes, and to
make certain it can be enforced in Missouri. I believe this is an even-handed agreement,
reasonable for both sides. If you have questions that are not answered in these comments,
you may call Patrick Cronan at 573-698-3074 for answers.
You will need to fill in the blanks in the first section with the name of the fire district,
and with the correct legal name of the seller. Don’t use the name of the salesman, for
example. Use the name that is included on the bid, including any letters or abbreviations.
(If you get the name wrong, the seller can claim that the contract “doesn’t apply to us,
because that isn’t our name.”)
This contract is intended to be an integral part of a district purchasing department, to be
used together with a sample bidding document and a sample purchasing policy. Some
assumptions in the contract are based upon what is expected to be included in your bid
documents.
Section 2 of the contract needs to be filled out with a brief description of the items
purchased. The bid specifications need to be marked as “Exhibit A” and attached to this
contract, and the bid received need to be marked as “Exhibit B” and included as part of the
contract. (They do not have to be stapled or otherwise physically attached to this piece of
paper, but it does need to be understood they are a part of the contract documents.)
Section 3 – check the appropriate box, or if you retype the contract, leave out the part
that doesn’t apply.
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6.
7.
8.
9.
10.
Section 4 – Insert the total price. If the price includes various options or other matters
not yet decided, insert “price determined per Exhibit B” instead of a definite dollar amount.
Section 5 – When to pay is almost as important as how much you pay. Sometimes you
can get a discount if you pay early, and often times that discount may be more than you can
earn on your money while you wait. With a vendor you trust, it may be reasonable to prepay and get the discount. A vendor who is new, whom you don’t know, might not be
offered the same prepayment option. This is a judgment call, and your Board of Directors
should make the final decision on this one.
Section 6 – This is a fairly standard part of most contracts, although it obviously favors
the sellers. Most sellers have to rely upon suppliers and normal business conditions to
produce the goods you need. This particular provision also excuses the seller from
complying with his contract if there is a work stoppage or a strike, but only if that strike does
not involve its own workers. Some sellers, who may be anticipating a upcoming contract
negotiation, will want to expand this clause to include a strike by its own workers. You
would have to decide if such a modification was OK with you.
Sections 7 and 8 – These assurances are things that each party might not know about
the other, and can reasonably expect the other to guarantee. If one of these assurances
proves to be false, you might expect to party who gave the false assurance to have to pay
for it.
a.
The requirement that all from outside Missouri who sell to Missouri local
governments be penalized equal to what a Missouri company would suffer in the
other state is found at RSMo §34.076. The statute doesn’t say which party of the
agreement should be responsible for proving compliance. I arbitrarily decided it
should be the job of the seller. If you wish you can delete this requirement, but
then you would be expected to assume the responsibility for making certain
yourself. Usually you can determine this by examining a chart found on the internet
at both the Oregon and the North Carolina purchasing departments. If you find out
that a Missouri company would be penalized, then you must reevaluate the bids, a
reject this seller if the second-lowest bidder is within the specified range of this
bidder. See
b.
In this contract we require the seller to promise that the goods it is selling
comply with the state’s “Buy American Act.” This law is found at RSMo §34.350 thru
§34.359. You are not permitted to waive this requirements (§34.355).
Sections 11 and 12 – These are added because I think they would be useful to help
resolve disputes, and are helpful to our fire district. “Mediation” is not the same as
arbitration, because you cannot be forced to accept a result you don’t like. But it may be
cheaper than a lawsuit, and certainly if one side says they wish to submit the matter to
mediation you have an early hint that litigation might follow. The provision about attorney
fees obviously will only help the party that wins the lawsuit, but it also may help encourage
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the mediation to bring about a resolution of your dispute without litigation. You could, if
you wish, delete these two sections.
11.
Section 13 – This section is fairly standard in contracts, and it is also what the law
usually imposes on any contract. But it is contrary to what many people expect. If the
salesman makes some statement like “we guarantee you will have this stuff by Tuesday” but
it isn’t in the written documents, then it didn’t happen. Often copy machine salesmen will
promise “our service man will respond to any call within 4 hours.” Then, often the service
department takes 24 or 48 hours to respond. If the salesman has said anything which is
important to you, make certain it is included in the written documents.
12.
Section 14 – The reason to include the time you sign the agreement, is because earlier
in this document (Section 2) there is a requirement that any changes to the specifications or
bid have to occur earlier in time than when the agreement is signed. If you only put a date
on the agreement, you would have to date any changes to the specifications or bid at least
the day before. It is easier to put a date and time on everything, and make certain all
changes that must be made to account for differences in the document have a time earlier
than the time for the final signature.
13.
Signature – Missouri law requires that the person who signs a contract for a
government must have written authority to do so. See RSMo §432.070. This means (at a
minimum) that the minutes of the Board of Directors must reflect an agreement by the
board to allow the Board President (or whomever) to sign. It is also possible for written
authority to be contained in an ordinance, resolution, or motion with vote. Our sample
purchasing ordinance, for example, specifies who has authority to sign contracts for the
District. (NOTE: there is no similar requirement for written authority on behalf of people
who sign for a private business. In other words “apparent authority” of the agent is good
enough to hold the business to the contract.)
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Appendix 6A – Special Warranty Deed
Special Warranty Deed
This Special Warranty Deed, made and entered this ___ day of __________, 1998, by
and between [GRANTOR], a body corporate and politic and a political subdivision of the State
of Missouri, duly organized under [LAW] (hereafter "Grantor"), of _________ County,
Missouri, and [GRANTEE], (hereafter "Grantee"), whose mailing address is: _______
;
Witnesseth, for and in consideration of the sum of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt of which is hereby acknowledged, and by virtue of and
pursuant to [GRANTOR] Ordinance Number
;
Grantor does hereby Sell and convey to Grantee, and Grantee's successors and assigns,
the following described real property in
County, Missouri, to wit:
[DESCRIPTION].
To have and to hold the same, together with all rights, immunities, privileges and
appurtenances, unto Grantee and Grantee's successors and assigns, forever;
And the Grantor hereby covenants that Grantor will warrant and defend the title to these
premises unto the Grantee, and Grantee's successors and assigns, forever, against the lawful
claims of all persons claiming through the Grantor but none other, excepting, however, the
general taxes for the calendar year whensoever levied, and thereafter, and the special taxes
becoming a lien after the date of this Deed.
In Witness Whereof, the said Grantor has caused this Deed to be executed by its [CHIEF
EXECUTIVE], and its Seal, attested to by its [CLERK], to be hereto affixed, the day and year
first above written.
GRANTOR:
By:________________________________
_______________________________
[CLERK]
APPROVED AS TO LEGAL FORM:
_______________________________
[ATTORNEY]
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STATE OF MISSOURI )
) SS
COUNTY OF
)
I, [NAME OF CLERK, CLERK] of [GRANTOR], Missouri, do hereby certify that
[CHIEF EXECUTIVE, who executed the above instrument, is the [CHIEF EXECUTIVE
TITLE] OF [GRANTOR], Missouri, and that he is duly authorized to make such execution by
Ordinance Number
, adopted by the [GRANTOR LEGISLATIVE BODY] on
[DATE], and that the subscription to the same is his genuine signature.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the official seal
of [GRANTOR], Missouri, this __________ day of _______________, .
_______________________________
[CLERK] (seal)
STATE OF MISSOURI )
) SS
COUNTY OF
)
On this __________ day of _______________, , before me appeared [CHIEF
EXECUTIVE], to me personally known, who by me duly sworn did say that he is the [TITLE]of
[GRANTOR], Missouri, a body corporate and politic and a political subdivision of the State of
Missouri, and that the seal affixed to the foregoing instrument is the corporate seal of said
[GRANTOR], Missouri, and that the said instrument was signed and sealed on behalf of said
[GRANTOR] by authority of its [LEGISLATIVE BODY]; and the said [CHIEF EXECUTIVE]
acknowledged said instrument to be the free act and deed of said [GRANTOR], Missouri.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in the County and State aforesaid, this __________ day of _______________, .
_______________________________
Notary Public
My Commission expires:______________________________
(seal)
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Appendix 10 a – Motion for Election
IN THE CIRCUIT COURT OF TANEY COUNTY,
AT FORSYTH, MISSOURI
______ DIVISION
In the Matter of:
THE HISTORIC DOWNTOWN
BRANSON COMMUNITY
IMPROVEMENT DISTRICT
DISTRICT SALES TAX ELECTION
THE HISTORIC DOWNTOWN BRANSON
COMMUNITY IMPROVEMENT DISTRICT
119 West Pacific Street,
Branson, Missouri 65616,
Movant.
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. _____________
MOTION
FOR AN ORDER PERMITTING LATE NOTIFICATION OF AN ELECTION
AND SUGGESTIONS IN SUPPORT THEREOF
COMES NOW Movant, The Historic Downtown Branson Community Improvement
District (the “District”), and pursuant to Section 115.125.2, RSMo, respectfully moves the Court
for an order permitting the District to make late notification to the election authority of Taney
County, Missouri, of an election of the qualified voters of the District to consider the approval of
a district-wide sales and use tax at the June 6, 2006 public election.
In support of this Motion, Petitioners state as follows:
1.
The Historic Downtown Branson Community Improvement District (the
“District”) was declared established by Ordinance No. 2006-056 of the Board of Aldermen of the
City of Branson, Missouri, on April 19, 2006, which approved the Petition for Establishment of
The Historic Downtown Branson Community Improvement District (the “Petition”).
2.
As so established, the District is a political subdivision of the State of Missouri.
3.
The District desires to fund, or assist in the funding of, certain services (the
“District Services”), and public improvements (the “District Projects”), as allowed by Sections
67.1401 to 67.1571, RSMo (the “CID Act”), which may include, are not limited to, providing a
mode of transportation within the boundaries of the District.
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4.
The District’s Board of Directors did, on April 19, 2006, adopt Resolution No.
2006-05 (the “Resolution”) which imposed, upon approval of the qualified voters of the District,
a one percent (1.00%) sales tax (the “District Sales Tax”) on retail sales in the District to the
extent, but only to the extent, authorized by Section 67.1545, RSMo, for a period of twenty (20)
years from the date on which such tax is first imposed for the purpose of funding District
administration, District Services and District Projects.
5.
The Resolution, Section 67.1545, RSMo, and the Petition authorize the Board of
Directors of the District to submit a sales and use tax proposal to an election of the qualified
voters of the District.
6.
According to the registration records of the Taney County Clerk, registered voters
reside within the boundaries of the District, which requires the election to be held on a date
specified in Section 115.123, RSMo; the next available date being June 6, 2006.
7.
Pursuant to Section 115.125, RSMo, notice of an election must be given to the
election authority not later than the tenth (10th) Tuesday prior to the election, except where an
order of the circuit court permits late notification to the election authority of the election not less
than the sixth (6th) Tuesday prior to the election.
8.
The District will pay any costs for the printing of ballots, reasonably required by
the election authority of Taney County, Missouri, and has entered into an agreement with the
Downtown Branson Main Street Association (the “Association”) for the Association to advance
the costs of the election to the District.
9.
Donna Neeley, the County Clerk and election authority of Taney County,
Missouri, does not have good cause to, and does not, oppose late notification of the subject
election, pursuant to Section 115.125.2, RSMo. Neeley Affidavit at ¶ 5.
WHEREFORE, Movant prays that this Court issue its Order, in the form accompanying
this Motion, taking the above-requested action permitting the District to make late notification to
the election authority of Taney County, Missouri, of an election of the qualified voters of the
District to consider the approval of a district-wide sales and use tax at the June 6, 2006 public
election.
Respectfully submitted,
GILMORE & BELL, P.C.
By:
Joseph G. Lauber MO #52809
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
Telephone: (816) 221-1000
174
Facsimile: (816) 221-1018
Email address: jlauber@gilmorebell.com
Attorney for Movant, the Historic Downtown
Branson Community Improvement District.
175
Appendix 10 b -- Petition for Election
IN THE CIRCUIT COURT OF RANDOLPH COUNTY, MISSOURI
AT HUNTSVILLE
THE CITY OF CLARK
)
A Missouri Municipal Corporation
)
Plaintiff
)
)
Vs.
)
Case #
)
THE HONORABLE WILL ELLIS
)
Randolph County Clerk
)
Defendant
)
Petition for Court Order for Municipal Election
1.
The plaintiff is a Missouri 4th Class City (generally subject to Chapter 79 RSMo) located
in Randolph County, Missouri.
2.
Defendant is sued in his official capacity only, because under the election laws of the
State of Missouri (generally Chapters 115-117 RSMo) he is the election authority of the county.
3.
The City is required to have an election every April, and it is the responsibility of the City
and its clerk to (a) publish an official notice in the newspaper inviting persons to file any elective
offices that will be vacant in the city, (b) accept the filing of candidates who wish to run for any
vacant elective office, and (c) notify the county election authority the 14th Tuesday before the
election date (this year that would have been January 25, 2011) of those candidates who have
filed, and the election that will be held in the city.
4.
The City did accomplish (a) and (b) in the proper fashion, but delivered its notice to the
election authority the day after it was due.
5.
The election authority refused to accept the late filing and has indicated that he requires a
court order before he can do so. The City does not believe that anything that Will Ellis has done
has been in any fashion improper, and in fact states that he has behaved in a professional manner
throughout this election cycle.
6.
Attached to this petition are various documents relating to this election (Marked Exhibits
A through I). Exhibit C is the proposed official ballot for the city election.
WHEREFOR, the City prays for the Court to issue its order directing Defendant to accept the
late filing of the city’s election information, and to conduct the municipal election for the City of
Clark so that the voters of the city will not be disenfranchised because of the error of the City.
Respectfully submitted
176
William Patrick Cronan
City Attorney, Mo Bar # 22068
13750 Highway BB
Rocheport, MO 65279
Phone: 573/698-3074
e-mail: wpcronan@aol.com
177
Appendix 10c – Ordinance Calling Election
Bill No. _______
Ordinance No. _______
AN ORDINANCE CALLING FOR A GENERAL MUNICIPAL ELECTION TO BE
HELD IN APRIL 2010 FOR THE CITY OF CLARK, MISSOURI
WHEREAS, each April the City has a Municipal Election and the City desires to
have adequate time for people to discuss the possibility of a candidate running for office
and ample opportunity for citizens to choose to assist in the operation of the City’s
government, and
WHEREAS, the time for the election is rapidly approaching, and
WHEREAS, the Missouri Statute does not provide sufficient specific guidance as
to filing procedures to be followed in city elections,
NOW, THEREFORE BE IT ORDAINED BY THE BOARD OF ALDERMEN OF
THE CITY OF CLARK, MISSOURI, AS FOLLOWS:
Section 1. Election Ordered. The Board of Aldermen hereby orders that a
Municipal Election be held on April 6, 2010 at which time the voters will elect:
1.
Two Aldermen for a two year term,
2.
A Mayor for a two year term, and
3.
A City Collector for a two year term.
Section 2. Qualifications for Office Those persons who desire to be candidate
for any of these offices may file for office any time between 8:00 am on December 15,
2009 and 5:00 pm on January 19, 2010. Persons file for office with the City Clerk at
City Hall. There is no filing fee or other monetary requirement in order to file for office.
According to the Revised Statutes of Missouri (§79.070) the qualifications for a
person who desires to run for the position of Alderman must have the following
qualifications:
1.
Be at least twenty-one years of age prior to taking office for the positions
of Alderman & City Collector and twenty-five years of age for the position
of Mayor,
2.
Be a citizen of the United States,
3.
Be an inhabitant of the city for one year next preceding his/her election,
and
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4.
Be a resident at the time he/she files and during the time he/she serves, of
the ward from which he/she is elected..
179
In addition to these qualifications the candidate must not have been convicted of
a felony in the State of Missouri, or an offense in another state which would be a felony
if it occurred in the State of Missouri (RSMo Section 115.___ ). Furthermore a person
filing for this office can not be delinquent in failing to pay any taxes or other charges
imposed by the City of Clark, Missouri (RSMo Section 115.___ ).
Section 3. Duties of the City Clerk. The City Clerk shall perform the following
duties with respect to this election:
1.
Accept the filing of candidates for the offices as stated above between the
hours of 8:00 am on December 15, 2009 through 5:00 pm on January 19,
2010.
2.
(Option A) Candidates shall be listed on the ballot in the order that they
filed for office, or
2.
(Option B) Candidates will be listed on the ballot in the order in which they
filed for office, except that those candidates who filed on the first day shall
be asked to draw a number from a basket and the candidate filing on the
first day who has drawn the lowest number will be listed first and the
remaining candidates who filed on that day will be listed in order from
lowest to highest based upon the number drawn.
3.
(Option A) The City Clerk is not permitted to travel from City Hall to accept
filings of persons at other locations, and filings will only be permitted
during the hours that the City Hall is open to the public, or
3.
(Option B) The City Clerk is authorized to accept filings between 8:00 am
on December 15, 2009 through 5:00 pm on January 19, 2010 at City Hall,
or at his/her home, or if agreed with any perspective candidate at a
location inside or outside the city limits of Clark, Missouri.
4.
(Option A) A candidate who is in the hospital or who is unable to appear in
person because of a physical disability may file as provided in RSMo
115.355.2 (1), or
4.
(Option B) A candidate who is in the hospital or who is unable to appear in
person because of a physical disability may file as provided in RSMo
115.355.2 (1) except that a sworn statement of a licensed physician is not
required and the filing can be by facsimile, internet transmission or
certified mail.
5.
(Option A) A member of the armed forces on active duty may file for office
in the manner provided for in RSMo115.355.2 (2), or
5.
(Option B) A member of the armed forces on active duty may file for office
in the manner provided for in RSMo115.355.2 (2) except that a sworn
statement of the commanding officer is not required and the filing may be
done by facsimile, internet transmission or certified mail.
6.
Assist candidates in filing proper financial disclosure forms and campaign
finance reports as the law requires, although the City Clerk’s assistance
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7.
8.
shall not relieve any candidate of the responsibility of insuring that he/she
complies with Missouri election statutes.
To cause to be published in a newspaper circulated within the City a
notice of elections as required by RSMo Section 115.127.5 inviting
persons to file for office. That notice of election should be in the form of
the attached Exhibit A. In addition the City Clerk shall:
a.
Cause a copy of this notice to be published on the web page
for the City in a prominent location where it can be viewed by
persons visiting our web site on the internet, and
b.
Post the notice of election in ___ locations about the City
where citizens of the City are likely to see it.
Between the close of filing at 5:00 pm on January 19, 2010 and January
26, 2010 the City Clerk shall provide notice to the Election Authority for
Randolph County (the Honorable Jim Sears, County Clerk of Randolph
County Missouri) of those candidates who have filed for office and if there
is any office for which no candidate has filed indicate that a write-in
election will be held to fill that office.
Section 4. Conduct of the Election. The election shall be conducted by the
Randolph County Election Authority, that is by our County Clerk. The Election will be
conducted in accordance with the comprehensive election law of 1977, and in those
cases where the election law does not provide a procedure for how local elections are
conducted the City will endeavor to follow the same procedure that is prescribed for
candidates for office to the Missouri General Assembly, except as provided specifically
by Section 3 of this ordinance.
Section 5. Election to Office It has been the City’s practice in the past and will
continue to be our practice to swear in officers that are elected at this election at the
Board of Aldermen meeting held next after the municipal election. This may mean that
persons are sworn into office as based upon the unofficial election results prior to the
meeting of the Board of Election Canvassers to certify the official results which occurs
on the third Tuesday after the election. This means that a person may be sworn into
office who is not the individual who receives the highest vote total as determined by the
Board of Election Canvassers. If that happens the person who was originally seated in
the office will be removed from his/her position and the winner as determined by the
Board of Election Canvassers will be sworn in to take that position. Similarly, for thirty
days after an election it is possible that one of the losing candidates will file an election
contest contesting some irregularity in the election process. Again the apparent winner
from the unofficial election results announced the night of the election will be sworn in.
If an election contest is filed the person sworn into office will be permitted to exercise
his/her right to participate in the decisions of the Board of Aldermen and to vote on
matters that come before the Board of Aldermen, unless either the judge hearing the
election contest should order differently, and until the election contest lawsuit is finally
181
decided. Once the election contest is finally decided, the order of the court regarding
the election will be followed and it may be that a different candidate is declared the
winner, the first apparent winner will be removed from his/her position and the order of
the court enforced with the new winner sworn into office.
Section 6. Effective Date. This Ordinance shall be in full force and effect from
and after its passage by the Board of Aldermen and approval by the Mayor.
PASSED THIS ____ DAY OF ____________________, 2009.
________________________________
Mayor Homer Colley
Attest:
___________________________________
City Clerk Mark Hibbs
182
NOTICE OF ELECTION
An election will be held in the City of Clark, Missouri, on April 6, 2010, to elect the
following city officers:
1.
Two Aldermen for a two year term,
2.
A Mayor for a two year term, and
3.
A City Collector for a two year term.
You are invited to become a candidate for one of these offices. This is a nonpartisan election.
Persons wishing to file for election must file in person at the City Hall, 401 Main
Street, Clark, Missouri. Filing will open on Tuesday, December 15, 2009 at 8:00 am.
Filing will close on Tuesday, January 19, 2010 at 5:00 pm. Within this period of time you
can contact the City Clerk, Mark Hibbs at 660-269-9175 and make arrangements to file
for office. Also the City Hall will be open especially for persons wishing to file for office
between 3:00 pm and 5:00 pm on January 19, 2010 and the City Hall will be open for
the purpose of conducting a Board of Aldermen meeting on December 16, 2009. Also
one may contact City Collector, Betty Colley at 573-641-5561 and make arrangements
to file for office.
Potential candidates who are in active military service may file for office by mail,
provided that a sworn declaration of candidacy is received by 5:00 pm on January 19,
2010.
Candidates for the office of Alderman, Mayor or City Collector are required to:
1.
Be at least twenty-one years of age prior to taking office for the positions
of Alderman & City Collector and twenty-five years of age prior to taking
office for the position of Mayor,
2.
Be a citizen of the United States,
3.
Be an inhabitant of the city for one year next preceding his/her election,
and
4.
Be a resident at the time he/she files and during the time he/she serves, of
the ward from which he/she is elected..
Further, candidates may not be a convicted felon nor delinquent in any financial
obligation to the City.
A successful candidate will be required to swear or affirm allegiance to the
Constitution of the United States and to the Constitution of the State of Missouri before
he or she can take office.
The Board of Aldermen meets in regular session on the Third Wednesday of
each month beginning at 7:00 pm, and other meetings as required.
183
An Alderman is paid $10.00 per meeting.
________________________________
City Clerk Mark Hibbs
184
Appendix 13I-1 – Bridgeton Ordinance on Solicitors
ARTICLE XII. PEDDLERS, SOLICITORS, HAWKERS AND HUCKSTERS
Sec. 18-235. Definitions.
For the purpose of this article, the following words as used herein shall be considered to have the
meanings herein ascribed thereto:
1) Charitable soliciting shall mean and include any one (1) or more of the following activities:
a. Seeking to obtain gifts or contributions of money, clothing or any other valuable thing
for the support or benefit of any individual, firm, corporation, organization, association or group
which is registered as a nonprofit organization under the laws of any state of the United States or
the federal government or under the election laws of any state of the United States or of the
federal government.
b. Seeking to obtain money, clothing or any other valuable thing in return for literature,
artifacts or goods of any individual, firm, corporation, organization, association or group which
is registered as a nonprofit organization under the laws of any state of the United States or of the
federal government or under the election laws of any state of the United States or of the federal
government or is subject to the election laws of any state or of the United States.
2) Commercial soliciting shall mean and include any one (1) or more of the following activities:
a. Seeking to sell or to obtain orders for the purchase of goods, wares, merchandise,
foodstuffs or other services, goods or contracts of any kind, character or description whatever,
for any kind of consideration whatever, or dissemination thereof without consideration;
b. Requesting information on the background, occupation, economic status, social status,
religious status, political status, attitudes, viewpoints, occupants of the residence, telephone
number, address, furnishings or the like of any person for the actual or alleged purpose of
compiling such information as raw data or refined data into a document, record, book or
directory to be sold, or to be used wholly or in part for commercial purposes;
c. Seeking to obtain subscriptions to books, magazines, periodicals, newspapers or any
other type or kind of publication; or,
d. Seeking to obtain gifts or contributions of money, clothing or any other valuable thing
for the support or benefit of any individual, firm, corporation, organization, association or group
not falling within the definition of “charitable soliciting” as set forth in subparagraph (1) above.
185
3) Canvass soliciting shall mean and include any one (1) or more of the following activities:
a. Disseminating written materials or oral views; or,
b. Requesting information on the background, occupation, economic status, social status,
religious status, political status, attitudes or viewpoints of another person.
4) Solicitor, peddler, hawker and huckster shall mean and include any person or organization
conducting activities falling within the scope of definitions (1) through (3) set forth above. Each
individual in a firm, corporation, organization, association or group shall be considered a
solicitor.
5) Residence shall mean and include every separate living unit occupied for residential purposes
by one (1) or more persons, contained within any type of building or structure.
6) Registered solicitor or registrant shall mean and include any person who has complied with
the requirements for registration as hereinafter provided.
Sec. 18-236. Exemptions and exceptions.
The provisions of Sections 18-237 through 18-241 of this article shall not apply to:
1) Officers or employees or a city, county, state or federal government, or any subdivision
thereof, when on official business;
2) Any solicitation conducted entirely by mail or by telephone;
3) Any news-gathering activity for any new medium; or,
4) Any solicitor who is invited to a residency by an occupant of that residence.
Sec. 18-237. Requirement for registration.
Except as otherwise provided by this article, every individual desiring to engage in soliciting, as
herein defined, from persons and residences within this municipality is hereby required to make
written application for a certificate of registration as hereinafter provided. No person shall be
permitted to engage in soliciting unless that person has been issued a certificate of registration.
Such certificate shall be carried by the solicitor. Any person soliciting within this city shall,
upon demand, exhibit his certificate of registration to any police officer, other city official or
private resident upon whose premise he is soliciting.
Sec. 18-238. Procedure for registration – Commercial soliciting.
186
a) Application for a certificate of registration. Any person desiring to engage in commercial
solicitation in this city shall file, on a form to be supplied by the city clerk, an application with
the city clerk stating;
1. Name of the applicant;
2. Permanent home address of the applicant;
3. Name and address of the individual, firm, corporation, organization, association or
group represented;
4. Nature of merchandise to be sold or offered for sale, the nature of the services to be
furnished, or purpose for solicitation;
5. Date on which he desires to commence soliciting;
6. Period of time for which a certificate is requested;
7. The make, model, year, color and license number and state of licensing of the
applicant’s motor vehicle;
8. Place or places or residence of the applicant for the preceding three (3) years.
9. Names of other communities in Missouri in which the applicant has worked as a
solicitor or canvasser in the past two (2) years;
10. Names of other communities in Missouri in which the individual, firm, corporation,
organization, association or group for which applicant is soliciting has engaged in
soliciting in the past two (2) years;
11. Whether or not the applicant has ever been convicted of a violation of a felony under
the laws of the State of Missouri, or any other state or federal law of the United
States;
12. Said application shall also be accompanied by a letter or other written statement from
the individual, firm, corporation, organization, association or group for which the
applicant will be soliciting, certifying that the applicant is authorized to act as a
representative of that individual, firm, corporation, organization, association of group;
13. The applicant shall upon request submit to fingerprinting and photographing by the
police department in connection with the application for the certificate;
14. All statements made by the applicant upon the application or in connection therewith
shall be under oath.
At the time of filing of the application, a fee of five dollars ($5.00) shall be paid to the city clerk
to cover the cost of processing the application.
b) Processing of application. The city clerk shall cause to be kept in his office an accurate
record of every application received, together with all other information and data pertaining
thereto and all certificates of registration or exemption issued under the provisions of this article,
and the denial of applications. Applications for certificates of registration shall be numbered in
consecutive order as filed; and every certificate issued, and any renewal thereof, shall be
identified with a duplicate number of the application upon which it was issued. Within two (2)
working days of receipt of the application by the city clerk, the original of said application shall
be referred to the chief of police for investigation.
187
c) Investigation and approval. The chief of police shall cause such investigation to be made of
the applicant’s business and moral character and the business and moral character of the
individual, firm, corporation, organization, association or group for which the applicant will be
soliciting as he deems necessary for the protection of the public good. The chief of police shall
endorse on such application his approval and return the application to the city clerk within ten
(10) working days from the date of receipt of the application by the chief of police, unless:
1. The individual requesting the certificate of registration has, within two (2) years of the
date of the application:
a. Been convicted of the commission of a felony under the laws of Missouri or any other
state or federal law of the United States;
b. Been convicted of a violation of any of the provisions of this article;
c. Lost his certificate of registration by revocation as herein provided;
d. Been convicted of a crime, misdemeanor or violation of any ordinance concerning
canvassing or soliciting; or,
e. Falsified any information required by this article as part of the application process; or,
2. The individual, firm, corporation, association, organization or group for which the
applicant will be soliciting has, within two (2) years of the date of the application:
a. Been convicted of a violation of any provisions of this article;
b. Lost its certificate of registration by revocation as herein provided;
c. Been convicted of a crime, misdemeanor or violation of any ordinance concerning
canvassing or soliciting; or,
d. Been convicted of a felony or misdemeanor involving or found civilly liable for fraud
or misrepresentation in solicitation, or misuse of funds solicited.
d) Refusal of application. If, as a result of such investigation, the applicant is not entitled to
receive a certificate of registration under this article for any of the reasons set forth in paragraph
(c) above, the chief of police shall endorse on such application his disapproval and his reasons
for the same, and return the application to the city clerk, who shall notify the applicant that his
application is disapproved and that no certificate will be issued.
e) Issuance of certificate of registration:
1. By clerk. If, after such investigation, the applicant is found to be entitled to receive a
certificate of registration under this article, the chief of police shall endorse on the application his
approval and return the application to the city clerk, who shall, upon payment of all fees, if any,
required by this article or any other ordinance, deliver to the applicant his certificate of
registration.
188
2. Contents of certificate. Such certificate shall contain the signature and seal of the
clerk and shall show the name, address and photograph of the solicitor, the kind of solicitation to
be made thereunder, the amount of the fee paid, the date of issuance of the certificate and the
length of time the same shall be operative, as well as the license number and other identifying
description of any vehicle to be used in such soliciting or canvassing. The clerk shall keep a
permanent record of all certificates issued.
3. Fee. The fee which shall be charged by the city clerk for issuance or renewal of such
certificate or registration shall be twenty-five dollars ($25.00) per year or prorated at five dollars
($5.00) for up to thirty (30) days; provided, however, when more than one (1) individual plans to
solicit for the same group, organization, corporation or cause, no more than one (1) fee shall be
required with respect to the total number of all such solicitors for the period of validity of the
certificate issued on payment of that fee. A certificate of registration shall be good for one (1)
year unless a shorter period of time is specified in the application.
Sec. 18-239. Same-Charitable soliciting.
a) Application for certificate of registration. Any individual, firm, corporation, organization,
association or group desiring to engage in charitable solicitation in this city shall file on a form,
to be supplied by the city clerk, an application with the city clerk stating:
1. Name of the applicant;
2. Permanent home address of the applicant;
3. Name and address of the individual, firm, corporation, organization,
association or group represented.
4. Nature of merchandise to be sold or offered for sale, the nature of the services
to be furnished or purpose for solicitation;
5. Date on which he desires to commence soliciting;
6. Period of time for which a certificate is requested;
7. Names of other communities in Missouri in which the individual, firm,
corporation, organization, association or group for which applicant is
soliciting has engaged in soliciting in the past two (2) years;
8. Said application shall also be accompanied by written evidence of the
nonprofit status or registration under election laws of the individual, firm,
corporate, organization, association or group for which the applicant will be
soliciting;
9. All statements made by the applicant upon the application or in connection
therewith shall be under oath.
When more than one (1) individual plans to solicit for the same firm, corporation, organization,
association or group, only one (1) application shall be required for all persons associated with
said firm, corporation, organization, association or group; and said application shall not need to
list each individual who will solicit, and no more than one (1) five dollar ($5.00) application fee
189
shall be required with respect to the total number of all applicants associated with such firm,
corporation, organization, association or group.
b) Processing of application. The city clerk shall cause to be kept in his office an accurate
record of every application received, together with all other information and data pertaining
thereto, and all certificates of registration or exemption issued under the provisions of this article,
and of the denial of applications. Application for certificates or registration shall be numbered in
consecutive order as filed; and every certificate issued, and any renewal thereof, shall be
identified with a duplicate number of the application upon which it was issued. Within two (2)
working days of the receipt of the application by the city clerk, the original of the application
shall be referred to the chief of police for investigation.
c) Investigation and approval. The chief of police shall cause such investigation to be made of
the business and moral character of the individual, firm, corporation, organization, association or
group for which the applicant shall be soliciting as he deems necessary for the protection of the
public good. The chief of police shall endorse on such application his approval and return the
application to the city clerk within ten (10) working days from the date of receipt of the
application by the chief of police, unless the investigation of the chief of police reveals that the
individual, firm, corporation, organization, association or group is not entitled to a certificate of
registration for any of the reasons set forth in Section 18-238(c)(2).
d) Refusal of application. If, as a result of such investigation, the individual, firm, corporation,
organization, association or group is not entitled to receive a certificate of registration under this
article for any of the reasons set forth in Section 18-238(c)(2), the chief of police shall endorse
on such application his disapproval and his reasons for the same, and return the application to the
city clerk, who shall notify the applicant that the application is disapproved and that no
certificate will be issued.
e) Issuance of certificate of registration:
1. By clerk. If after such investigation, the individual, firm, corporation, organization,
association or group is found to be entitled to receive a certificate of registration under this
article, the chief of police shall endorse on the application his approval and return the application
to the city clerk, who shall, upon payment of all fees, if any, required by this article or any other
ordinance, deliver to the applicant the certificate of registration.
2. Contents of certificate. Such certificate shall contain the signature and seal of the
clerk and shall show the name and address of the individual, firm, corporation, organization,
association or group registered, the kind of solicitation to be made thereunder the amount of fee
paid, the date of issuance of the certificate and the length of time the same shall be operative. A
certificate of registration shall be good for one (1) year unless a shorter period of time is
specified in the application. The clerk shall keep a permanent record of all certificates issued.
190
Sec. 18-240. Registration of canvass solicitors.
No person desiring to engage in canvass solicitation in the city shall be required to register;
provided, however, that an individual, group, organization, corporation or cause engaged in
canvass soliciting, as defined in Section 18-235(2) herein, who engages in any activity which
comes within the definition of commercial soliciting or charitable soliciting, as defined in
Section 18-235(1) and (3) herein, shall be subject to the provisions of this article applicable to
commercial or charitable solicitors; provided further, that canvass solicitors shall be subject to all
provisions of this article except the requirement to register.
Sec. 18-241. Regulation of soliciting.
a) It is hereby declared to be unlawful and shall constitute a nuisance for any person, whether
registered under this article or not, to go uninvited upon any premises and ring the door bell upon
or near any door of a residence located thereon, or rap or knock upon any door or create any
sound in any other manner calculated to attract the attention of the occupant of such residence for
the purpose of securing an audience with the occupant thereof and engage in soliciting, as herein
defined, prior to 9:00 a.m. or after 9:00 p.m. o any day including Saturdays, Sundays and
holidays, or for any solicitor to solicit from the paved portion of any public street. Entering
inside a private residence of the city by a solicitor, not having been invited or requested to do so
by the occupant or owner of such residence, is declared to be a nuisance.
b) Any solicitor who has gained entrance to any residence, whether invited or not, shall
immediately and peacefully depart from the premises when requested to do so by the occupant.
c) When any solicitor takes a partial payment for goods, wares, merchandise, foodstuffs, service
or subscription form a person who has been solicited, he shall execute and give to the person
solicited a written receipt for the order, which receipt shall be signed by the solicitor and shall set
forth a brief description of the item or items ordered, the total purchase price thereof, including
the principal and, separately, any interest or service charge, and the amount of the partial
payment received by the solicitor from the person being solicited.
Sec. 18-242. Duty of police to enforce.
a) It shall be the duty of the city police, as well as the city clerk, to see that the provisions of this
article are enforced and obeyed. The police shall at all times keep vigilant watch for any
violation and shall issue summons in case of any violation detected, whether or not any
complaint has been made.
b) The police department shall report to the city clerk all convictions for violation of this article,
and the city clerk shall maintain a record for each license issued and record the reports of
violation therein.
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Sec. 18-243. Denial, revocation or expiration of certificate; appeal from decision of denial
or revocation.
a) Any certificate or registration issued pursuant to this article may be revoked by written order
of the chief of police because of any violation by the registrant of this article or any other
ordinance of the city, or of state or federal law, or upon proof that the registrant has been
participating in disorderly conduct, fraud or misrepresentation in connection with his solicitation,
or whenever the registrant shall cease to possess the qualifications and character required in this
article for the original registration. The registrant shall promptly be mailed written notice of
such decision.
b) Any person aggrieved by the decision of the chief of police to deny or revoke a certificate of
registration shall have the right to appeal to the city council. Such appeal shall be taken by filing
with the council, within fourteen (14) days after notice of the action complained of has been
mailed to the registrant’s last-known address, at least five (5) days prior to the date set for
hearing. The decision and order of the council on such appeal shall be final and conclusive.
c) Each certificate or registration shall expire at the end of the period stated on the certificate.
Sec. 18-244. Penalty for violation.
Any person violating the provisions of this article shall, upon conviction, be punished by a fine
not exceeding five hundred dollars ($500.00) or by imprisonment not exceeding three (3)
months, or by both such fine and imprisonment.
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Appendix 18C-1 – Article about Inflow and Infiltration
Problems
Getting Serious About
Inflow and Infiltration
Suddenly the Missouri DNR has gotten serious about dealing with a sewer problem that
results in frequent pollution of Missouri’s streams and waterways. That problem is called “I &
I”, or “Inflow and Infiltration.” DNR regulations have directed cities and sewer districts to
eliminate I & I for decades, but those regulations were only loosely enforced and local attention
to the problem was often fleeting at best.
“I & I” occurs when water seeps or pours into a sewer system when it is raining. The
extra water “surcharges” the sewer system, sometimes to such an extent that sewage pops the
cover off manholes and spills into the street. Sometimes the extra water fills the sewage
treatment lagoon or treatment plant beyond capacity, resulting in untreated sewage heading
downstream. And, of course, sometimes the extra water causes the sewer to back up into the
basements of homes in your community (which seldom makes for happy voters.) The effect of
these “surcharges” may be to remove oxygen from the downstream waterway (killing aquatic
animals that require oxygen to live) or to create health hazards for people in downstream
communities.
This article is going to discuss how “I & I” happens, and it will offer some suggestions
for dealing with parts of the problem. It may not be possible to eliminate all of the surcharge,
but you should be able to significantly reduce it without facing threats to your reelection.
Inflow
It is often said that the real problem with “I & I” is from inflow -- downspouts and sump
pumps that drain into the sanitary sewers. This is untrue: focusing all your attention on your
customers without thinking about other ways water gets into the sewer causes you to decide that
the problem is one that can’t be solved. Inflow can come from downspouts or sump pumps – but
it can also come from broken sewer pipe, from sewer clean-outs that were installed midway from
the customer’s home to the street and left uncovered, from poor taps into the sewer line, and
from homes that have been demolished but the sewer drains were left uncapped.
One of my cities discovered to its chagrin that a ditch beside a street that been
constructed so that the water drained into the sanitary sewer.
Another city discovered that a subdivision in town (one with 28 unsold lots) had 4 inch
sewer pipe sticking into the air on each lot, uncapped, directing at least some rainwater into the
sewer. And many of the sewer pipes had been damaged by mowing equipment, which had
sheared off these plastic pipes at ground level or even created cracks that extended below ground
level, permitting groundwater to enter the sewer.
One smoke test doesn’t prove or fix anything; nor does one TV inspection. You will
need repeated inspections, and repeated fixes. If you are going to be serious about I&I, you
probably should buy the testing equipment. Smoke test equipment costs about $3,500. TV
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inspection also can be purchased at relatively modest cost. This equipment must then be used
regularly.
Infiltration
The other half of the “I & I” problem is from infiltration – the water that seeps in through
improperly sealed joints in pipes, from imperfect joins when a service line empties into the sewer
main, from manhole covers that let rainwater seep in (especially manhole covers located below
grade, with a puddle of water on top), from entry points created by tree roots seeking moisture.
Infiltration problems are more common in the older parts of the sewer system (especially where
there is clay or iron pipe – or where the sewer pipe is a hollowed out log) but can occur
anywhere. Infiltration is more difficult to detect, and is frequently more expensive to fix. It is so
common, however, that most experts think that it is a significant contributor to the problem.
(Obviously multiple small seeps can let in as much water as a sump pump drain or a downspout.)
Sometimes you can get an idea of how much of the problem is inflow, and how much is
infiltration by examining when the surcharge takes place. If you get a rainfall, and 15 or 20
minutes after the rain starts you have a big surcharge above normal volume of liquid – this is
most likely the result of inflow. Infiltration takes time – to seep down to the sewer pipe, and to
seep through cracks. So a surcharge that occurs 4 hours after the rain has stopped can be thought
to be from infiltration. Your treatment plant or lagoon should have sufficient monitoring
equipment that you could prepare a graph of when the rain fell, and when it entered your sanitary
sewer system. This graph might help you understand the problem – although it won’t do
anything to help you fix the problem.
The most common ways to detect “I & I” is either through the use of a TV camera
inserted into your sewer lines, or by injecting smoke into the sewer and seeing where the smoke
escapes. Both methods are useful. Both help with detection. Neither, however, actually fixes
the problem. Fixing the problem takes some backbone. Many cities over the years have paid for
TV inspections or for smoke tests, and then done nothing with the results. Knowing that the
local Methodist church has its downspouts tied into the sanitary sewer does nothing to prevent
the inflow. You have to force the church to spend money to fix the problem. Knowing that the
large hardwood tree growing directly above the sewer line has managed to insert hundreds of
roots into the sewer below it won’t get rid of the tree, or prevent the infiltration.
Start with the Simple Stuff
As mentioned earlier, some inflow is simply because someone failed to put a cap onto an
opening into the sewer. Those problems can be fixed for $25 or less. Maybe you should fix
these problems before you worry about the Methodist church’s downspouts.
In fact, it might be cheaper for everyone concerned if the city spent the $25 or less to glue
on a plastic cap, rather than spending $100 trying to force the property owner to cap the cleanout in his front yard or to cap the sewer lateral that used to serve a mobile home that was junked
25 years ago. The City of Clark taught me this lesson: when they did their smoke test, smoke
poured out of several openings up and down the block being tested. They fixed the easy stuff as
they were going down the street documenting the more serious problems. A bottle of glue and
several different sizes of capping material can get rid of a lot of inflow.
There are some Constitutional problems with fixing problems that exist on private
property. Some attorneys will tell you that it is necessary to spend thousands of dollars in city
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funds to force the property owner to fix his uncapped clean-out, on the theory that no public
benefit comes from fixing the customer’s problem. However, I regard the customer’s problem as
also being the city’s problem. And I think it is cheaper to fix the problem than to force someone
else to do so. So I am willing to take the risk that some auditor, or some curmudgeon will object.
“Encouraging” Customers to Fix Stuff
Eventually, there will come a time when it is necessary to turn your attention to your
customers. Negative encouragement (lawyers, municipal court prosecutions, lawsuits) might be
required at some point – but before you go there, why not try less negative methods?
Could your city offer low-interest loans, to assist in the repair of a faulty sewer main
connection? Maybe you could purchase large rolls of flexible pipe, for gutter drains to redirect
water to a ditch or storm drain, and provide that pipe at a reduced price or even for free?
One city I know has adopted a fee of $25/month as an “I&I charge” to allow certain
customers to help pay for the problem they are creating and to give them some incentive to
correct the problem. The customer is sent a copy of a photograph showing the smoke (for
example) pouring from downspouts, and told it must be fixed within 60 days, or else a “I&I
charge” will be added each month to sewer bills after that deadline. (Is $25/month a large
enough fee to get people to spend $600 fixing a plumbing problem? Maybe not, but you have to
start somewhere. )
Considering the large number of faulty sewer connections revealed by TV inspections, it
should be apparent that you need to have someone inspecting sewer connections before the
connection is covered by dirt. If you don’t have an inspection program, you need to start one. If
you have an inspection program, but the inspectors aren’t notified before closing the hole: you
need to require some plumbers to open the hole again, or face municipal court prosecution.
A real problem exists to inspect inside a home or business, where you suspect a sump
pump draining into the sanitary sewer. Sure, it’s against the law, but how do you prove a
violation? The only way is to inspect. But the US Constitution says you cannot get inside a
person’s house without either (1) permission, or (2) a warrant. And in Missouri, there is no state
law authorizing a warrant. Thus it is possible that you will face a customer who has “lawyered
up” and who refuses to allow you to get inside to discover evidence to support the suspected
violation.
If you ask DNR about this problem, they will pretend it doesn’t exist. And, it is true that
if you are tactful you can get permission from about 99% of your customers, at least until word
gets around about the 1% who get away with violating the law.
I know of only two possible ways around this problem. Neither is without litigation risk.
You will have to decide how you will force your way into the house.
One possibility is for your city to adopt an ordinance, and authorize the municipal judge
to issue a search warrant to determine if there are connections of storm water discharges into the
sanitary sewer system. This possibility carries the risk that your city will rely upon this method
too much, and will be forced to seek enforcement of the search warrant through the courts.
Lawyers have a saying: “bad facts make bad law.” This means that if a judge thinks you are
overreaching, badgering a poor little old lady for no apparent reason, you are likely to get a result
that you won’t like. Although many municipal attorneys think this “fix” to the home entry
problem will stand up in court, I have chosen not to use this approach for the cities I represent.
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The other possibility is for your city to condition utility service on a right to inspect the
plumbing inside a house. (This is the way private utility companies get inside the house – saying
if you don’t let us inspect, we will turn off your utility service.) Many attorneys doubt that a
government (such as your city) can require people to give up a constitutional right as a condition
of receiving utility service. I share those doubts. But, if a city ordinance conditioning service on
a right to inspect has been on the books for 25 years, a judge is less likely to toss out the
ordinance than he would toss out a search warrant. So, this is the method I have chosen to
employ for the cities I represent to get inside the door of the obstreperous utility customer.
The reason for my choice: I think the second alternative is less confrontational, and that
the City is likely to involve a lawyer in the dispute earlier than the search warrant fix. Who
knows if I am right?
Conclusion.
Fixing I&I problems is not easy. It requires the city to be firm with its citizens
(something no city likes to do). There are also a few legal problems to add to the mix. But
fixing I&I problems is necessary, if only to get DNR off your back.
Patrick Cronan is city attorney for 1 third class city, 1 fourth class city, and 1 village. He has
been a city attorney for several decades (he won’t say how many). This article contains his
opinions, and does not necessarily reflect the views of the Missouri Municipal League. He has
provided an ordinance which he drafted for Slater, MO attempting to deal with I&I problems.
We will provide you with a copy on request.
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Appendix 18C-2 – Ordinance Dealing with Inflow and
Infiltration Problems
AN ORDINANCE INCREASING SEWER AVAILAILITY AND USE FEES,
AND PROVIDING PROCEDURES FOR DEALING
WITH INFLOW AND INFILTRATION PROBLEMS
WHEREAS, Sewer rates have not increased since 1992, although in the 19 years since
then the cost of operating the Sewer system have gradually increased, to the point that the sewer
system is now operating at a loss.
WHEREAS, Bond covenants and modern generally accepted accounting procedures
require that the city charge the Sewer system for “depreciation” in order for the city to have
money to replace and improve the sewer system as needed. The city has not been able to fully
pay the depreciation charges because of inadequate income.
WHEREAS, in periods of rainfall the sewer system is burdened with inflow and/or
infiltration (sometimes called “I & I”) of storm water into the system. Inflow means water that is
directed improperly into the sanitary sewer system – examples might be gutter downspouts or
sump pumps that illegally drain into the sanitary sewer system, or sewer clean-outs that are not
properly capped, or old sewer connections or old basement drains that were not properly capped
when a house was torn down. Infiltration means water that comes into the sanitary sewer system
through cracks, crevices, or inadequately sealed coverings in the sewer system collection pipes.
Infiltration problems are sometimes created by tree roots, and sometimes by poor workmanship
when a sewer main was tapped. Fixing these I & I problems will be expensive, and cannot be
done with the existing rate structure.
WHEREAS, the Missouri Department of Natural Resources (prompted by the
Environmental Protection Agency) has increasingly pressured the city to reduce (and ultimately
eliminate) all inflow and infiltration into the system.
WHEREAS, the City has recently begun smoke testing the sewer system, which reveals
sources of inflow and infiltration.
AND WHEREAS, the expense of removing inflow and infiltration falls on both the City
(for infiltration problems at the sewer mains and manholes or storm water mains or ditches that
empty into the sanitary sewer) and the customer (for misdirected water sent into the sanitary
sewer system, and for infiltration into the customer’s sewer connection). Recently the City spent
$22,000 fixing one short sewer main with numerous I & I problems, by lining the pipe with an
inner liner that eliminated unintended entry of water. The City of Slater is sensitive to the
unexpected costs that may fall on customers. Unfortunately neither the Missouri Department of
Natural Resources nor the federal Environmental Protection Agency accepts customer hardship
as an excuse,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SLATER, MISSOURI, AS FOLLOWS:
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Section One. Access to Residence or Business. Title VII (Public Utilities) of the
Ordinance Code for the City of Slater is amended by adding two new sections, to be known as
Sections 700.054 and 700.057, to read as follows:
SECTIONS 700.054. ACCESS TO CUSTOMERS PROPERTY.
1.
As a condition for receiving utility service from the City, the customer
agrees to allow the city public works department to inspect the wiring and plumbing
within the customer’s residence, business, storage areas and sheds, and garages. The
purpose of this inspection may be (1) to ensure that the required cross-connection control
devices are in place to prevent contamination of the city’s water supply, (2) to determine
if the customer’s plumbing might be a source of lead contamination into the customer’s
drinking water supply, (3) to search for possible water leaks, (4) to be certain the wiring
is safe to be connected to the city electrical system, (5) to look for possible sources of
inflow into the city’s sanitary sewer system, and (6) for any other reason related to the
safe and efficient operation of all municipal utilities.
2.
The City Collector shall modify the application form to indicate to future
utility customers that access to their property is necessary to the safe and efficient
operation of municipal utility services, and that service is provided conditioned on access
to the customer’s property. However, service to present customers is provided subject to
the same condition. A lack of a signature to an application including an agreement of
access shall not be grounds for a customer denying access to the public works
department. Failure to provide access will be a sufficient reason to deny all municipal
utility service.
3.
The City will attempt to inspect properties as ownership is transferred, so
that any problems that are discovered may be addressed by both the old and the new
owners. However, it is the responsibility of the customers to notify the city of such
transfer of ownership with sufficient lead time for an inspection.
4.
Any customer may request an inspection at any time, but the city will not
inspect more frequently than once every 24 months.
5.
Whenever possible, the City will provide 24 hour advance notice prior to
any inspection.
(NOTE: See also Section 700.190, “Access to Private Premises” which seemingly
relates to access to the curtilage, and not to the interior of the property. This section
specifically relates to access to the inside of a residential or commercial property, and to
the inside of any auxiliary buildings.)
SECTION 700.057. DISCONNECT UTILITY SERVICE.
Utility service may be discontinued for the reasons stated in Section 700.100 of this Title.
In addition, utility service may be discontinued upon the refusal of a customer to allow
access to his property for the purpose of inspection as described in Section 700.054
above. However, before the utility service is discontinued for lack of access, the
customer will be notified by first class mail of the planned discontinuation of service and
given a total of 5 days to reconsider his decision and allow the city to inspect the wiring
and plumbing.
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Section Two. Sewer Rates. Title VII, Chapter 705, Section 705.040 paragraph D of the
Ordinance Code for the City of Slater is amended to read as follows. The other provisions of
Section 705.040 (that is, paragraphs A, B, C, E, F, G, H, I, J, K, and L) remain in effect.
D. Rates and Charges Specified. The montly rates required and which shall be charged
and collected by the City of Slater, Missouri, for sewerage service furnished or available
from the City’s sanitary sewer system shall be based upon the quantity of water used and
shall be measured by the water meter or meters installed on the premises service, or for
which service is available, unless suitable waste water measuring and recording
equipment in furnished and maintained by the person receiving the service.
There may also be applicable, for certain industrial and/or commercial users, an
additional charge for monthly water usage, or for excess grease, suspended solids, and
Biological Oxygen Demand (BOD) factors. See paragraph 3 below.
The said rates shall be as follows:
1.
For all users or persons for whom service is available, except for those charged
under item (2) or (3) of this Subsection, per month.
Minimum (availability charge due even if no
usage)…………….…………………….$6.65
Plus, per 1,000
gallons…………………………….………………………………………………
….$4.00
2.
City of Gilliam Service
$1,025 per month, or if the city chooses to install and maintain suitable
waste water measuring and recording equipment, $2.45 per 1,000 gallons
of sewage.
3.
For any industrial, commercial or other customer who discharges waste water into
the sanitary sewer system who contains more than one and seven-tenths (1.7) of
BOD per thousand (1,000) gallons and/or more than two (2.0) pounds of
suspended solids per thousand, in addition to the charges specified in
subparagraph (1) above shall pay:
$1.00 per pound/1,000 gallons for each pound of BOD in excess of one
and seven-tenths (1.7) pounds
$0.50 per pound/1,000 gallons for each pound of suspended solids in
excess of two (2.0) pounds.
4.
Funds collected pursuant to this Section:
a.
May, depending upon regulations of the Missouri Department of Revenue,
be subject to state and/or local sales taxes.
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b.
c.
Fifteen Thousand Dollars ($15,000) minimum will be deposited annually,
in monthly increments as revenues develop, into a sanitary sewerage
reserve account for the sole and restricted purpose of making capital
improvements to the sanitary sewerage system. It is hoped that additional
amounts can be added to that account from any surplus that may develop.
Ten per cent (10%) of funds received shall be paid to the city general fund
in lieu of taxes.
Section Three. Inflow and Infiltration Abatement. Title VII, Chapter 720 of the
Ordinance Code for the City of Slater is amended, by the addition of a new Article III, to be
entitled “Inflow and Infiltration Abatement” which shall read as follows:
Article III. Inflow and Infiltration Abatement
SECTION 720.150. INSPECTION OF SEWER COLLECTION SYSTEM.
The City may, from time to time, cause the sewer collection system to be
inspected, perhaps by remote video camera, or through a smoke test, or by other means to
determine where inflow and infiltration (“I & I”) is occurring. A still photograph
demonstrating the problem will be preserved to show to the city’s customer, if the city
doesn’t fix the problem.
SECTION 720.160. EASY FIXES.
The City of Slater is authorized to glue a suitable cap over a source of inflow if it
can easily do so. While the City is prohibited by the state Constitution from spending
public money to produce a completely private benefit, the City Council believes that the
cost to the taxpayers of forcing someone to spend their own money probably will exceed
the cost of the fix, at least where the fix is an easy one.
SECTION 720.170. NOTICE TO CUSTOMER.
When the city’s inspection reveals a source of inflow or infiltration that exists on
private property, or that exists to the city’s sewer collection main due to apparent poor
workmanship at the tap into the sewer main, and if the city does not fix the problem, a
letter will be sent to the customer (with a copy of the still photograph) informing the
customer of the problem. Where the city is aware that the customer is a tenant, a
duplicate letter will be sent to the property owner. The customer (or property owner) is
required to fix the problem within 30 days of the date of the letter, and to permit the city
to inspect the property and/or to retest to determine that the problem has indeed been
fixed.
SECTION 720.180. I & I SURCHARGE.
If the city has not inspected the property or otherwise determine that the I & I
problem has been solved, the customer will be subject to a surcharge of $25 per month
for each month following the 30 day period to fix the problem. This surcharge will be
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effective with the next billing cycle (even though that billing cycle may be for services
received during the 30 day period allotted to fix the problem). When the inflow and/or
infiltration problem has been eliminated, and the city has inspected the problem and is
reasonably satisfied that the problem has been eliminated, the surcharge will end. The
purpose of this surcharge is not to penalize a customer, but to recover a portion of the
enormous cost that the city sanitary sewer system must pay to treat the large volume of
water that enters the system during times of rainfall. The surcharge is part of the cost of
sewer service, and if it is not paid with the other portions of the utility bill, utility service
will be subject to termination for nonpayment.
SECTION 720.190. CITY TO INSPECT ALL FUTURE SEWER MAIN
TAPS/REPAIRS.
All excavations at the sewer main (for a new sewer tap for new building
construction, or for repair or replacement of an existing tap) must be inspected by the city
before the excavation is filled. If there is any potential for an inflow or infiltration
problem, that potential must be eliminated before the city approves the work. Once the
city has approved the work, the excavation may be filled in a way that provides
reasonable assurance that the customer’s lateral line will not move during settlement of
the soil and crack or break the connection from the home to the main.
It is the responsibility of the customer, the plumbing contractor (if any), and the
excavation contractor (if any) to notify the city of the need for an inspection, at least 4
hours before the time for the inspection. Failure of any of these responsible parties to
notify the city of the need for an inspection is an offense, for which any (or all) of the
responsible parties may be cited into municipal court.
No inspection will be scheduled for times when the city hall is not open for
normal business (i.e., when the city hall is open for a city council meeting, or a
board/committee meeting only, that is not “normal business.”)
If the excavation is filled without an inspection, the City may cause the
excavation to be re-opened, with soil around the lateral and sewer main removed by hand,
so that an inspection may be made, and then the excavation filled again. The City may
choose to either use its own employees for this work, or it may choose to use a private
contractor (except under no circumstance will the private contractor who failed to ask for
an inspection be hired by the City to expose his own work). The customer will be
charged, at the city’s normal rates, for the work performed. (It is anticipated that the
city’s normal billing rates are higher than a private contractor may charge the city. The
city’s customer, however, is not entitled to the benefit of the City’s bargain, and will be
expected to pay at the city’s billing rate.) The cost of the re-excavation be billed with
the utility bill, and will be considered part of that bill. If the bill for the re-excavation is
not paid when the utility bill is due, utility service may be disconnected.
SECTION 240.200. CITY TO INSPECT SEWER AFTER DEMOLITION,
BEFORE BASEMENT IS FILLED.
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Any demolition of all or part of a structure must include capping all sewer
connections, at or below the surface of the land. This cap must be water-tight. If the
demolition exposes a basement, the basement drains must be capped and water-tight
before the basement is filled. The capping of the sewer lines must be inspected by the
city before the project is finished, and before any fill is placed in any basement or before
the sewer caps are covered. If there is any potential for an inflow or infiltration problem,
that potential must be eliminated before the city approves the work. Once the city has
approved the work, the excavation must be filled to the natural grade of the lot, and all
foundation stones removed.
It is the responsibility of the customer, the demolition contractor (if any), and the
excavation contractor (if any) to notify the city of the need for an inspection, at least 4
hours before the time for the inspection. Failure of any of these responsible parties to
notify the city of the need for an inspection is an offense, for which any (or all) of the
responsible parties may be cited into municipal court.
No inspection will be scheduled for times when the city hall is not open for
normal business (i.e., when the city hall is open for a city council meeting, or a
board/committee meeting only, that is not “normal business.”)
If demolition is completed without an inspection, the City may cause all plumbing
and drains to be exposed, so that an inspection may be made, and then the area leveled
again. The City may choose to either use its own employees for this work, or it may
choose to use a private contractor (except under no circumstance will the private
contractor who failed to ask for an inspection be hired by the City to expose his own
work).
The property owner and all contractors will be charged, at the city’s normal rates,
for the work performed. (It is anticipated that the city’s normal billing rates are higher
than a private contractor may charge the city. The property owner and contractors,
however, are not entitled to the benefit of the City’s bargain, and will pay at the city’s
billing rate.) If any of these parties is a City utility customer, the cost of the work to
inspect will be billed with the utility bill, and will be considered part of that bill. If the
bill for the re-excavation is not paid when the utility bill is due, utility service may be
disconnected. If none of the parties is a City utility customer, the city may sue them all
for the amount due (for which they are liable jointly and severally), and for its attorney
fees and cost for expert testimony in pursuing payment.
Section Four. Effective date. This ordinance will be effective January 1, 2012. Until
that date, the City will attempt to educate its customers, and all plumbing, excavation, and
demolition contractors of the contents of this ordinance.
Section Five. Severability. The provisions of this ordinance are severable, as provided in
Section 100.200 of the City’s Ordinance Code
Section Six. Penalty. Violation of this ordinance are subject to the general penalty
provisions of the City’s Ordinance Code, Section 100.160.
READ TWO TIMES AND PASSED THIS _____ DAY OF ____________, 2011.
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__________________________________________
Presiding officer
APPROVED BY THE MAYOR, THIS ______ DAY OF ____________, 2011
_________________________________________
Mayor
ATTEST:
______________________________
City Clerk
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Appendix 19E-1 – Decision Tree Regarding Animal Ordinance
Decision Tree – Animal Control Ordinance
1.
2.
3.
4.
5.
6.
What do you want to do about “intact” dogs and cats?
□
Prohibit them. (Recommended by §210.010.1)
□
Discourage them, by a high registration fee. (Recommended by §210.080)
□
Permit their ownership without restriction.
Do you otherwise want to change any of the present rules about dogs?
□
Dogs in the back of pick-up trucks or in vehicles need to be restrained by a
seat belt or safety harness. (Implied by definition of “Control”)
What do you want to do about cats
□
Require to be under control of owner at all times?
□
Physical presence of owner required
□
Leash required. (Implied by definition of “Control”)
□
May run at large, if registered, vaccinated and tagged
□
Microchip may be used in place of tag.
How are cats to be apprehended?
□
Manually, with noose.
□
Manually, with tranquilizer gun.
□
Through use of live traps
□
Live traps to be used only by animal control officer
□
Live traps to be used by ACO, but also loaned to
complaining citizens with understanding traps checked
every 4 hours.
Cats apprehended, but having a microchip
□
Are to be held, pending retrieval by owner.
□
Are to be released, near the place of apprehension
□
Owner is to be contacted, and owner’s request regarding cat to be honored
when reasonable.
Tethered dogs are
□
To be permitted
□
Only if fenced
□
Female dogs in heat not allowed to be tethered, except
behind fence.
□
For a maximum of _____ hours
Food/water for tethered dog to be treated how?
□
To be removed when tethered dog is removed from yard.
□
To be permitted, provided only enough for tethered animal
(i.e., no food for stray animals)
□
To be permitted, but only if enclosed so as to exclude stray
animals (including skunks, squirrels, possums, etc.)
204
7.
8.
9.
□
To be prohibited
Outdoor feeding of animals (strays, feral cats, other wildlife)
□
No outdoor exposure of food permitted.
□
Outdoor feeding of pets permitted within 48” of residence foundation, and within
48” of dog house. Volume of food only sufficient for pets registered to that
location.
□
Unless enclosed by a varmint-proof fence, food not to remain
available for longer than 30 minutes.
□
Unless enclosed by a varmint-proof fence, or within the reach of a
tethered canine, food not to remain available for longer than 30
minutes.
□
Prohibit only outdoor feeding of strays (requires ACO or police to actually
observe unlicensed animal to eat the food.)
Prohibited animals. Slater citizens are prohibited from owning the following:
□
Primates or aquatic mammals (i.e., species that have developed language or use of
tools)
□
Primates, and “exotic animals” (i.e., those subject to federal or state restrictions as
to cages, or special licenses for ownership). (Examples: bear, tiger, wolf, etc.)
□
Primates, exotic animals, and ferrets.
□
Primates, exotic animals, ferrets and rodents (Examples: gerbils, hampsters, mice)
□
Primates, exotic animals, ferrets, rodents, and reptiles. (Examples: turtles, frogs)
□
Primates, exotic animals, ferrets, rodents, reptiles, and snakes.
□
ADD: pit bull canine.
Problem dogs…..
Are to be called:
□
“Vicious (dangerous) dog”
□
“Vicious dog”
□
“Potentially dangerous dog”
□
“Potentially problem dog”
□
Other: ____________________________________
Are to be classified as a problem dog:
□
By animal control officer, or any police officer
□
By city administrator or mayor
Appeal of classification to be heard:
□
By city council
□
By city administrative hearing officer
A dog may be so classified, if:
□
One display of aggression toward a human being, or to a pet that does not
reside in the same place as the dog.
□
One display of aggression toward a human being, or to a pet that does not
reside in the same place as the dog, and which causes apprehension in an
observer as to the safety of the human or pet.
□
Multiple (how many?_________) displays of aggression.
205
□
One bite of a human or pet
□
One bite of a human or pet that leaves a bruise or mark.
□
One bite of a human or pet that breaks the skin.
□
One bite of a human or pet that breaks a bone.
□
ADD: Any canine described as a “pit bull.”
□
ADD: Any canine that weighs more than 100 pounds.
If a dog is so classified, owner must:
□
Get rid of dog within 7 days. (i.e., owner may be given citation after 7
□
Get rid of dog within 30 days.
□
Keep dog in an escape proof kennel, except may be within the residence
when also occupied by a human.
□
Keep dog in an escape proof kennel, and get liability insurance to cover
dog in amount of at least $300,000.00.
□
Keep dog in an escape proof kennel, and get liability insurance to cover
dog in amount of at least $1,000,000.00.
days)
Can a dog so classified later be removed from the list?
10.
□
Perhaps if the owner/keeper and the dog graduate from a dog handling
class of a minimum of 10 hours of instruction?
□
ADD: also the owner/keeper and the dog demonstrate the ability to heel,
come upon command, to stay for at least 5 minutes upon command, drop
red meat upon command.
Other prohibitions:
□
No butchering of animals outside of enclosure. (Recommended by
□
No gift of animal as prize in a contest, nor as an inducement to enter into a
transaction.
§210.020.)
□
“Animal” does not include fish
206
□
□
No artificial color on baby animals
□
No more than 4 companion animals permitted at any residence.
□
11.
“Animal” does not include fish, reptile, or rodent.
□
For purpose of this prohibition, a companion animal means
dog and/or cat.
□
For purpose of this prohibition, a companion animal means
any uncaged pet (rabbit, parrot, pig, dog, cat, etc.)
Add provision relating to people living outside of city, but their animals
find their way into the city. (Recommended two times in proposed
ordinance.)
Livestock/Fowl
□
ACO authorized to impound
□
Extend to 400 feet the exclusion zone for livestock. (Recommended by
§210.015.)
□
ACO must endorse complaints about livestock (Recommended by
§210.015B.)
12.
Impoundment/Retention Period/Adoption or Euthanasia.
Animal control officer may impound:
□
Dog or cat running at large.
□
Dog, cat, or fowl running at large.
□
Dog, cat, fowl or livestock running at large.
Animal control officer must hold for redemption an impounded animal:
□
A minimum of 7 calendar days
□
A minimum of 5 calendar days
□
A minimum of 5 calendar days for dog or cat; a minimum of 24 hours for
fowl or livestock.
Disposition of impounded animals: (Can choose multiple options)
207
13.
□
Dogs or cats will be returned to owner, once animal is licensed, and all
boarding fees paid.
□
Fowl or livestock will be returned to owner, one an impounding fee of
$100, plus all boarding fees paid.
□
Dog or cat may be adopted by anyone not residing at same address as
owner,
□
Upon licensing animal and paying all boarding fees.
□
Upon licensing animal, all other fees waived.
□
Impounded fowl or livestock may be disposed of through an established
sale barn, with proceeds being used to first pay impound fee and boarding
fees, and any excess going to owner (if claimed within 30 days) or (if
unclaimed) to city.
□
Any animal not disposed of otherwise may be humanely euthanized, by
licensed vet.
Seizure/destruction of animal.
Municipal court may issue warrant to seize any animal that is (multiple choices possible)
□
No seizure warrants authorized
□
Any animal that is suspected of being rabid
□
Any canine that has bitten a human in a manner that reasonably raises
fears of rabies contamination.
□
Any animal that is being kept in the city in violation of this ordinance,
after the owner has refused to surrender the animal to the police or to the
ACO.
A seizure warrant may be issued
□
Without notice to the owner, if rabies is suspected, and with 24 hour prior
notice of application to owner in any other circumstance.
□
With 24 hour prior notice of application to owner, if rabies is suspected,
and 72 hour prior notice of application to owner in any other
circumstance.
An order for destruction of a seized animal may be issued
208
□
After the seized animal has been held a minimum of ____ days, and the
ACO has been unable within that time to arrange for a suitable adoption or
placement of the animal with any animal shelter; provided that ____ hour
prior notice of application for destruction shall first be given to the owner.
An order of transfer of a seized animal may be issued
□
If a suitable placement for the seized animal has been found, the court may
issue an order transferring custody and all decisions regarding the seized
animal; provided that _____ hour prior notice of application for transfer
shall first be given to the owner. Any transfer will be conditioned on an
agreement from the proposed transferee that the animal will not be
permitted within the city limit.
An order returning the seized animal to the owner may be issued at any time that the
court concludes such an order would be reasonable.
14.
Records to be kept by ACO (multiple choices possible)
□
Written report to be prepared about any animal seized.
□
Written report to be prepared only when animal owner is given a citation to
municipal court.
□
Digital photograph to be taken of animal, when impounded.
□
Digital photograph to be taken of animal, when released from impoundment.
□
All witness and owner statements to be recorded, and retained with digital audio
recorder.
□
Written records required of feedings within pound.
□
Written report required of all animal deaths or serious injury that occurs within
pound.
209
Appendix 19E-2 – Sample Animal Control Ordinance
Bill No. _________
_______
Ordinance No.
AN ORDINANCE ADOPTING A NEW
ANIMAL CONTROL POLICY
WHEREAS, the City of Slater has used the same animal control ordinance for the last 30
years and during this time has seen the need for improvements, and
WHEREAS, the Citizens of Slater have increasingly complained of feral cats within and
around the community, and the City Council has seen that greater attention needs to be paid to
the presence of cats in our community, and
WHEREAS, during the last 30 years the State of Missouri has greatly increased the
number of statutes relating to animal breading and confinement, particularly regarding
commercial dog kennels,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF SLATER,
MISSOURI, AS FOLLOWS:
Section One. Existing Provisions Repealed. The current Chapter 210 of the Ordinance
Code of the City of Slater is repealed, as of May 1, 2013, except the requirements for animal
registration, identification, and license (Article II) are effective immediately and replace the
license provisions of the existing ordinance from this date.
Section Two. New Provisions Enacted. A new Chapter 210 of the Ordinance Code of
the City of Slater is hereby enacted. That new chapter is attached hereto, and is incorporated by
reference herein. The new chapter consists of Nine Articles, sections 210.010 through 210.820.
Section Three. Effective Date. This ordinance is fully effective as of May 1, 2013,
except that the requirements for animal registration, identification, and license (Article II) are
effective (but not mandatory for owners of cats) from passage and approval. Licenses issued as
this ordinance is going into effect shall not expire until May 1, 2014. The late-payment license
fees (section 210.140) shall not apply until after May 1, 2014. (The intent of this provision is to
allow the early registration of animals, especially cats, and avoid excessive penalties when the
full ordinance is effective).
Section Four. Penalty. Any violation of the new Chapter 210, as well as any violation
of the old Chapter 210 before the new version is phased into full force, shall be an offense, and
Section 100.160 of the Slater Ordinance Code shall provide the punishment that may be imposed
for such violation (i.e., a fine of up to $500, a sentence of up to 90 days, or both) as the Court
may direct. Each calendar day that a violation occurs is a separate offense.
READ TWO TIMES AND PASSED THIS _____ DAY OF ____________, 2012.
210
_______________________________________
Mayor
Attest:
____________________________________
City Clerk
211
Appendix 19F-1 – Advantages and Disadvantages
– Municipal Court
Advantanges and Disadvantages to
Asking the State Court System to Handle Municipal Court
(in the opinion of Patrick Cronan)
Advantages
Disadvantages
____________
1. Lower Cost
1. Only if you don’t count the extra cost in
personnel time for police, city prosecutor.
(However, city gets to keep $20 court costs,
which may offset cost of paying municipal
judge & clerk.)
2. Perceived as more fair, evenhanded.
Perception may even be a Fact.
2. Less opportunity for police to interact
with judge, which may be a disadvantage in
that police don’t learn from mistakes as
easily. (Could be avoided, if desire to do so
exists.)
3. Warrants only provided to sheriff, not
forwarded to city police, and not actively
worked. (Could be avoided, if desire to do
so exists.)
4. More inconvenient to citizens, as
unlikely to include night court. (Could be
avoided, if desire to do so exists.)
5. Lower fines; lower court costs; less
opportunity for input on fines. (Could be
avoided, if desire to do so exists.)
6. Greater opportunities for creative sentencing.
6. Or maybe not. (It depends on the judge)
7. Listed on Case.Net at no cost to city.
7. Eventually all municipal courts will be
required to use Case.Net
212
8. Greater restrictions on plea bargains (if
judge gets picky about factual basis for
reduced charge).
9. May create jealousy from Sheriff’s
department, if appears city cops more
aggressive than sheriff’s deputies.
213
Appendix 19F-2 – Ordinance Selecting
Associate Circuit Court as Municipal Court
BILL NO. _________
ORDINANCE NO.________
An Ordinance
Establishing the Associate Circuit Court of Randolph County as the
Municipal Court for the City of Clark, Missouri
Whereas, the City of Clark does not at the present time have a Police Department or a
Municipal Court, and
Whereas, residence of the City have requested that a more vigorous approach to the
enforcement of ordinances be undertaken, and
Whereas, the Associate Circuit Court of Randolph County has indicated that it would be
agreeable to serving as the Municipal Court for the City of Clark,
NOW THEREFOR, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY
OF CLARK, MISSOURI AS FOLLOWS:
Section One. Court Established. The Associate Circuit Court of Randolph County is
hereby established as the Municipal Court of Clark, Missouri. The court shall be held at the
usual place of business for the Associate Circuit Court of Randolph County. The Associate
Circuit Court of Randolph County shall continue to serve as the Municipal Court for Clark
Missouri until such time as the City of Clark shall give six months advance notice of its intention
to terminate that arrangement.
Section Two. Effective Date. This ordinance shall be in full force and effect from and
after July 1, 2006.
READ TWO TIMES AND PASSED THIS ______ DAY OF _______________, 2006.
214
_____________________________________
Mayor
ATTEST:
_______________________________
City Clerk
215
Appendix 19F-3 – Suggested Municipal Court Operating Order
NOTE: This Order is intended as a template for courts to use in implementing a local municipal
court rule. It contains informational notes within the body of the order which should be deleted
befgore signing the final order. Other sections may contain several optionswhere those that do
not apply should be deleted, and/or blanks which must be filled in before signing the final order.
Persuant to §577.006 RSMo, municipal divisiions shall adopt a written policy outlining the
requirements and procedures to report disposition information on all intoxication related traffic
offenses to the Office of State Courts Administrator’s Office and Missouri State Highway Patrol.
To comply with this requirement a copy of the policy shall be on file with the Office of State
Courts Administrator’s Office and the Missouri State Highway Patrol and if any revisions are
made in the order they shall also be forwarded to OSCA and MSHP.
IN THE CIRCUIT COURT OF _______ COUNTY, MISSOURI
_________ JUDICIAL CIRCUIT
MUNICIPAL DIVISION – THE CITY OF ___________
MUNICIPAL COURT OPERATING ORDER #1
Effective Date -__________
The Court, on its own motion, makes the following General Orders with respect to the
administration of the Court:
I.
Court Administrator. The Court Administrator, and all deputy court administrators, shall
be responsible for the orders contained in Paragraphs II through X. The Court Administrator
shall when applicable request the City Finance Department (“City”) to assist the Court
Administrator to effectuate applicable provisions of Sections II, III, IV, V, VII, VIII, and IX
herein. Comment: Municipal courts come in all different sizes, and the administrative function
may be assigned to someone who is called the “Court Clerk” rather than “Court
Administrator.” Also, the Judge of the municipal court appoints the court clerk and/or
administrator – not the mayor, city manager, or police chief. Cronan suggests that this order
might be modified to indicate by name who is going to be the clerk/administrator, to make clear
who is the appointing authority.
II.
General Administrative Procedures.
A.
Case Numering. All cases filed by the prosecutor shall be assigned a unique
number and indexed. All forms used by the Court shall be numbered sequentially and accounted
for, including receipts slips, bond forms, tickets, summons, complaint forms, and payment
agreements. Source: Supreme Court Operating Rule (COR) 4.04; payment agreement
numbering source, State Auditor recommendation.
216
B.
Violations Bureau Schedule. The Court Administrator is appointed Violations
Bureau Clerk. The Violations Bureau Schedule (which has been established a separate court
order) shall be prominently displayed at the payment window so that defendants wishing to pay
tickets out of court may view the Schedule. Source: Supreme Court Rule (SCR) 37.49.
C.
Budget. The Court Administrator shall communicate regularly with the Judge and
the City regarding any budget issues involving the Court. Any budget disputes shall be resolved
through a settlement conference with the Presiding Judge, if necessary. Soures: Mo.
Constitution, Article II, COR 13.
III.
Reporting Requirements.
A.
Reporting to the City. Within the first ten (10) days of each month, the Court
Administrator shall submit to the City Clerk the dockets of all cases heard during the preceding
month by the Court and those cases in which there was an application for a trial de novo. The
City Clerk shall make a copy of the previous month’s docket showing all cases dispositions. If a
record is closed under Chapter 610 , RSMo., the Court Administrator shall not include the name
of the defendant in the monthly report. For all cases that are nolle prossed, dismissed, or those in
which the defendant is found not guilty, the Court Administrator shall supply all the required
information, but black out the defendant’s name. Supreme Court Operating Rule 4.29 allows the
Court Administrator to substitute submission of the dockets to the City Clerk with a report for
the previous month’s activities, detailed income of the Court and the number of caases handed by
the Court (the “Municipal Division Summary Reporting” form). The Court Administrator shall
provide the Judge a copy of the report provided to the City. Source, §479.080.3 RSMo., COR
4.29.
B.
Reporting to the Department of Revenue.
1.
Case Dispositions. The Court Administrator shall report case disposition
information on all moving traffic violations, alcohol and drug-related traffic offenses, including
suspended imposition of sentence, all convictions while driving a commercial motor vehicle,
including commercial driver’s license holders driving a personal vehicle, to the Missouri
Department of Revenue (“DOR”). The Court Administrator shall abide by the “Traffic Case
Processing Procedures” found in Chapter 3 of the then current Missouri Municipal Clerk Manual
(“Clerk Manual”) published by the Office of State Court Administrator (“OSCA”). The Court
Administrator shall assure that the disposition is received by the DOR within seven days of the
disposition. Source, §302.225.1 and 577.051 RSMo.
NOTE: for the judge authorizing the order, three options for reporting are listed below. Retain
only the appropriate section [minus text in brackets’ that applies to the type of case management
system operating in the Court. The other options, as well as this note, should be deleted.
[Courts Using Automated Case Management System Approved for Statewide Use] The Court
217
Administrator shall insure the accuracy of date entered into the automated case management
system approved for statewide use by the State Judicial Records Committee, so that OSCA can
automatically extract required reporting information to electronically provide to the Department
of Revenue. In an effort to comply with this requirement, the Court Administrator shall actively
review and correct data errors identified through the case management system’s problem logs.
[Courts Using an Automated Case Management System Approved for Local Use and Approved
for Electronic Reporting to the Department of Revenue] The Court Administrator shall insure
the accuracy of data entered into the automated case management system and assure required
reporting information is transmitted electronically in a format approved by the Department of
Revenue.
[Courts Not Using an Automated Case Management System, or Using an Automated System Not
Approved for Electronic Submission to Department of Revenue] The Court Administrator shall
complete the report by submitting a completed “Abstract of Court Record,” portion of the
Uniform Citation, or by submitting a completed “Record of Convention” form referenced in
Supreme Court Rule form 37B. Source: SCR 37.B
2.
Crime Victims Compensation Fund. The Court Administrator shall cause
a $7.50 Crime Victims Compensation Fund (“CVC”) surcharge to be assessed on all nonmoving
and moving traffic violations and all other nontraffic municipal ordinance violations, unless the
case has been dismissed. The Court Administrator shall forthwith cause the CVC charge to be
reported to DOR and distributed as follows:
95% ($7.13 of each fee) shall be sent to the DOR no less than monthly and 5% ($.37 of
each fee) to the general fund of City in accordance with IV.C, infra.
Source: §§ 488.5339 and 595.045 RSMo.
3.
Abuse and Lose Procedures. In the event that the Judge shall enter an
order suspending or revoking the defendant’s driving privileges uder the Abuse and Lose law,
the Court Administrator shall send any Missouri license surrendered to the Court, along with the
certified copy of the Order of Suspension on the official DOR form, to the DOR. The Court
Administrator shall follow those procedures regarding Abuse and Lose reporting as set forth in
Chapter 3 of the then current Clerk Manual. Source: §§ 577.500 through 577.505 RSMo.
4.
Failure to Appear or Pay – License Suspension. The Court Administrator
shall notify defendants within ten (10) days of that defendant’s failure to dispose of a moving
traffic violation that the Court will order the DOR to suspend that defendant’s license in thirty
(30) days, if the charges are not disposed of or fully paid. Such notification may not be sent until
a summons has been sent to the defendant and there shall thereafter be no appearance. The Court
Administrator shalol send the F.A.C.T. form to the DOR when a defendant has failed to appear
on a court date after a summons has been issued to the defendant, when the defendant fails to
appear on a subsequent court date to which the case has been continued, or when the defendant
218
without good cause fails to pay any fine or costs assessed against him or her.
Upon payment of all fines and costs, or if earlier ordered by the Judge, a compliance
notice on forms approved by the DOR shall be issued to the defendant, and the Court
Administrator shall forthwith advise the DOR of such compliance. Source §302.341 RSMo.
5.
Withholding Renewal of License. In the event a driver shall fail to appear
when ordered, and without being first granted a continuance, the Court Admiinistrator shall
notify the DOR within ten (10) days of the failure to appear, by using the “lieu of Bail” form
supplied by DOR, except such notification shall not be required if the Court Administrator has
utilized the notification procedures set for in paragraph 4, supra. When the case is disposed of,
the Court Administrator shall report the disposition as on any other traffic case. Source:
§544.045.4 RSMo.
6.
Non-Resident Violator Program. In the event a defendant who is not a
resident of Missouri fails to appear, the defendant shall be notified by regular mail and given a
specific amount of time to dispose of the traffic ticket before notification is made to DOR. If
defendant fails to comply, the Court Administrator shall forward the Non-Resident Violator
Compact Form provided by DOR, to DOR. This provision shall be in effect for non-resident
defendants from all other states in the United States which are members of the Non-Resident
Violator Compact. Source: §544.046.
7.
Driver Improvement Program. In the event that the Judge has ordered a
defendant to complete the Driver Improvement Program, the Court Administrator shall send
notice of its completion to the DOR within fifteen (15) days of Program completion. The Court
Administrator shall not send any notice of the Driver Improvement Program if the moving traffic
violations has been amended to a nonmoving violation by the Prosecutor. Source: §302.302
RSMo.
8.
Ignition Interlock Device. When the Judge shall order the use of an
ignition interlock device, the Court Administrator shall forthwith send the Order to install
ignition interlock device to DOR properly executed, containing the requirements for the period
of the use of the ignition interlock device. Source: §§ 577.600 through 577.614 RSMo.
C.
Reporting to OSCA.
NOTE: For the judge authorizing this order, three options for reporting are listed below. Retain
only the appropriate section [minus text in brackets] that applies to the type of case management
system operating in the Court. The other sections as well as this note should be deleted.
[Courts Using Automated Case Management System Approved for Statewide Use] The Court
Administrator shall insure the accuracy of data entered into an automated case management
system approved for statewide use by the State Judicial Records Committee, so that OSCA can
automatically extract required reporting information as provided by Supreme Court Operating
Rule 4.28. In an effort to comply with this requirement, the Court Administrator shall actively
219
review and correct data errors identified through the case management system and filing and
disposition exception reports. Source: COR 4.28.
[Courts Usinng an Automatic Case Management System Approved for Local Use] The Court
Administrator shall insure that required reporting information is transmitted either electronically
or manually in a format according to provisions of Supreme Court Operating Rule 4.28. The
Court Administrator shall insure the accuracy of data entered in the case management system.
This information shall be submitted to OSCA no later than the 15th day of each month, with data
completed from the previous month’s court activity. Source: COR 4.28.
[Courts Not Using an Automated Case Management System] The Court Administrator shall
complete and deliver the “Municipal Division Summary Reporting” form to OSC no later than
the 15th day of each month, with data completed from the previous month’s court activity. This
data shall be delivered by e-mail or fax to OSCA on the then current form provided by OSCA.
The Court Administrator shall complete the form in accordance with the instructions submitted
from time-to-time by OSCA, and as contained in the then current Municipal Clerk’s Manual. A
copy of the OSCA form shall also be submitted to the Judge each month. Source: COR 4.28.
D.
Reporting to the Missouri State Highway Patrol (Criminal History Reporting
including Intoxication-Related Traffic Offenses, “Fingerprint Cards”).
The Court Administrator shall report to the Missouri State Highway Patrol and violations
of municipal ordinances involving alcohol or drug related driving offenses or any violations
deemed to be “comparable ordinance violations” as defined by Section 43.503 RSMo and as
listed in the Missouri State Charge Code Manual. The Court Administrator shall report
violations without undue delay or within 30 days of case disposition.
At any court appearance for any reportable offense, the Court Administrator shall inform
the Court that the def3endant needs to be finger printed and photographed, if not already
obtained. The order for fingerprints shall contain the offense, charge code, date of offense and
any other information necessary to complete the reporting.
For any reportable violation, the Court Administrator shall report to the Missouri State
Highway Patrol a record of all charges filed, including all those added subsequent to the filing of
the case, amended charges, and all final dispositions of cases where the central repository has a
record of an arrest. The Court Administrator shall abide by reporting requirements found in
Section 3 of thee then current Municipal Clerk’s Manual. Source: §43.503 RSMo.
Dispositions that must be reported to the Missouri State Highway Patrol are:
●
●
●
Not guilty, dismissed, nolle prossed or acquittal
Plea of guilty or finding of guilt
Suspending imposition of sentence
220
●
●
●
●
Suspended execution of sentence
Probation
Conditional sentences
Sentences of confinement
NOTE: For the judge authorizing thie order, two options for reporting are listed blow. Retain
only the appropriate section [minus text in brackets] that applies to the type of case management
system operating inn the Court. The other section, as well as this note, should be deleted.
[Courts Using Automated Case Management System Approved for Statewide Use] The Court
Administrator shall insure the accuracy of data entered into an automated casemanagement
system approved for statewide us3e by the State Judicial Records Committee, so that OSCA can
automatically extract required reporting information and forward it to the Missouri State
Highway Patrol. In an effort to comply with this requirement, the Court Administrator shall
actively review and correct data errors identified through the case management system’s problem
log reports. Source: §§ 43.503 and 43.506 RSMo.
[Courts Using an Automated Case Management System Approved for Local Use or a Manual
Case Management System] The Court Administrator shall insure that required reporting
information is transmitted manually by completing and sending to the Missouri State Highway
Patrol the Prosecutor Action and/or ourt Action Segment(s) of the State Criminal Fingerprint
Card, which contains an Offense Cycle Number (OCN), pursuant to 43.506 RSMo. Source: §§
43.503 and 43.506 RSMo.
E.
Reporting to Circuit Court en Banc.
The Court Administrator shall prepare a report every six months which shall include, but
shall not be limited to, the total number and disposition of every intoxication-related traffic
offense adjudicated, dismissed or pending in its municipal court division. The municipal court
shall submit said report to the circuit court en banc. The report shall include the six month
period beginning January first and ending June thirtieth and the six month period beginning July
first and ending December thirty-first of each year. The report shall be submitted to the circuit
court en banc no later than sixty days following the end of the reporting period. Source:
§577.006 RSMo.
The Court Administrator shall send the intoxication-related traffic offense case activity
report to the Presiding Judge no later than August 29 for the January to June reporting period and
no later than February 28 for the July to December reporting period.
NOTE: For the judge authorizing the order, two options for reporting are listed below. Retain
only the appropriate section [minus text in brackets] that applies to the type of case management
system operating in the Court. The other sections, as well as this note, should be deleted.
221
[Courts Using Automated Case Management System Approved for Statewide Use.] Unless
instructed by the circuit court to provide additional information or report in a different manner,
the Court Administration shall run the Report.net reports described in Chapter 1 of the then
current Municipal Clerk’s Manual and complete the “Municipal Division Summary Reporting
Form.” The Court Administrator shall send the “Municipal Division Summary Reporting Form”
along with a cover letter to the presiding judge of the circuit to meet the bi-annual reporting
requirement to the circuit court en banc.
[Courts Using an Automated Case Management System Approved for Local Use or a Manual
Case Management System] Unless instructed by the circuit court to provide additional
information or report in a different manner, the Court Administrator shall use the “Municipal
Division Summary Reporting Form” that is submitted monthly to OSCA to meet the bi-annual
reporting requirement to the circuit court en banc. The Court Administrator shall make copies of
each month’s report for the required reporting period and send along with a cover letter to the
presiding judge of the circuit.
F.
Policy.)
Reporting to OSCA and MSHP (Intoxication-Related Traffic Offense Written
The Court Adminnistrator shall provide a signed copy of the Municipal Court Operating
Order #1 to the Missouri State Highway Patrol and the Office of the State Courts Administrator
at the address shown below. If any revisions are made to this order the Court Administrator shall
provide a revised copy to the Missouri State Highway Patrol and Office of the State Courts
Administrator’s Office. Source: §577.006 RSMo.
Addresses and facsimile numbers where copies shall be sent are:
Office of State Courts Administrator
Attention: Court Services Division, DWI Reporting Policy
PO Box 104480
2112 Industrial Drive
Jefferson City, Missouri 65110
FAX: 573-522-5961
Missouri State Highway Patrol
Criminal Justice Information Services Division
Attention: Captain Timothy McGrail
PO Box 9500
Jefferson City, Missouri 65102
FAX: 573-751-9382
IV
Fines, Court Costs, Surcharges and Fidelity Bonds.
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A.
Collection of Fines, Court Costs and Fidelity Bonds. The Court
Administrator shall use his/her best efforts so that on each case, fines assessed and general court
costs in the amount set forth by ordinance, CVC surcharges, Peace Officer Standards and
Training Commission (POST) surcharges, Law Enforcement Training Fund (“LEFT”) surcharge,
recoupment, domestic violence, inmate security and other surcharges as are set forth by City
ordinances are collected and remitted timely to City and to DOR, respectively, in accordinance
with this Order. The Court Administrator is not required to refund any overpayment of court
costs of $5.00 or less. The Court Administrator is not required to pursue collection of
underpayments of court costs of less than $5.00.
NOTE: For the judge authorizing the order, two options for reporting are listed below. Retain
only the appropriate section /minus text in breackets] that applies to the type of case
management system operating in the Court. The other section, as well as this note, should be
deleted.
[Courts with no written agreement from the court commission or council that the city may retain
funds.] The Court Administrator shall pay such overpaid funds to the county on a regular basis
then there is an overpayment of $5.00 or less.
[Courts with a written agreement from the county commission or council that the city may retain
the funds.] The Court Administator shall pay the overpaid funds to the city on a regular basis in
the event that there is an overpayment of $5.00 or less and a written agreement exists with the
county that allows the city to retain the overpayments. Sources: Court Cost: City Ordinance;
CVC: §488.5339 RSMo and 595.045 RSMo; POST: §488.5336 RSMo; LEFT: §488.5336 RSMo;
Overpayments/Underpayments: 488.014 RSMo.
B.
Receipts for Payment of Fines, Court Costs and Surcharges. The Court
Administrator shall issue a pre-numbered receipt for all collections and provide such a receipt to
the payer if payment is made in person, a retain a duplicate copy of the receipt in the receipt
book or approved automated system. If payment is made by mail, the Court Administrator shall
file the original copy of the receipt with the case fille information, or maintain the original
receipt ina pre-numbered receipt book or approved automated system cross-reference with the
docket entry, unless the payer requests the receipt be returned by mail and provides a selfaddressed, stamped envelope. Source, COR 4.53 and Chapter 4.5 Clerk Manual.
C.
Deposit of Fines, Costs, Surcharges and Bonds to be Placed into Applicable
Accounts. The Court Administrator shall deposit all fines, costs, surcharges and bonds collected
into the Court’s or City’s bank accounts ona dfaily basis, or when the amount on hand reaches
$100 if not ona daily basis. The Court Administrator shall, to the extent possible, work jointly
with the City to effect all deposits by delivery of same for deposit by police officers or other City
personnel. The Court Administtrator shall cause specific surcharges, including by not limited to
CVC, POST, LEFT, police recourpment, and (if applicable) domestic violence and inmate
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security surcharges, to be placed in separate line items or in separate accounts and be remitted to
the proper entity or account no less than monthly. Source, COR 21 and Chapter 4.5 Clerk
Manual.
D.
Fidelity Bonds. In order to follow recommendations of the State Auditor, the
Court Administrator shall request the City to maintain fidelity bonds covering the Court
Administrator and other personnel who handle collection or deposit of fines, court costs and
surcharges related to the Court. The Court Administator shall obtain a copy of the declaration
sheets of any such bonds obtained by the City to keep in the Court permanent files. Source,
Chapter 4.5 Clerk Manual.
V.
Surety Bonds.
A.
Bond Qualifications. The Court Administrator shall keep a list of those sureties
who have qualified to post surety bonds. No personal shall be accepted as a surety on any bail
bond unless he or she is licensed by the Department of Insurance. Source, SCR 37.29 and
§374.710 RSMo.
No lawyer, elected or appointed official, or municipal or state employee shall be accepted
as a surety on any bond unless related to the defendant.
B.
Surety Bond Receipts. The Court Administrator shall use his or her best efforts to
act in conjunction with the City Police Department to establish guidliness on cash bonds. The
Court Administrator shall post the bond amount to the individual case and note the date and type
of bond received.
Cronan comment: I believe the court, and not the court administrator or the police
department should establish the bond amount, preferably by court order. Thus I believe the
preceding paragraph should be adjusted to reflect that ultimately the Judge is the one who sets
bond amounts, perhaps in a separate administrative order.
The Court Administator shall, whenever possible, request that personnel of the City or
other persons meet together with the Court Administrator to count all bond money. The Court
Adminnistrator shall deposit said bond money according to the City’s guidelines. The Court
Administrator shall deposit said bond money according to the City’s guidelines. The Court
Administrator shall maintain said bond account and reconcile said account on a monthly basis.
An open bond report shall be submitted monthly to the City by the Court Administrator. Source,
Chapter 2, Clerk Manual.
C.
Unclaimed Bond Funds and Other Funds. The Court Adminiistrator shall follow
those procures set forth in the then current Clerk Manual to pay to the State Treasurer’s Office
Unclaimed Property Division, all funds nclaimed for three years and each bond unclaimed for
one year, from the date the bond was due back to a person. The Court Administrator shall send a
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letter of notification and otherwise reasonably attempt to contact the person and return the funds.
Said report shall be sent to the State Treasurer’s Office by November 1st of each year, and the
Court Administrator shall remit said unclaimed funds with the report. The Court Administrator
shall request the City assist in process, reporting and remitting to the State Treasurer. Source,
§447.532 RSMo and §447.595 RSMo.
VI.
Warrants. The Court Administrator shall fol.ow those procedures and guidlinnes
concerning warrants as are set forth in Chapter 2 of the then current Clerk’s Manual, unless
otherwise directed by the Judge. Source, Chapter 2, Clerk Manual.
VII
Administrative Search Warrants. The Court Administrator shall keep the application and
any supporting affidavits, and a copy of all search warrants issued by the municipal judge in ther
ecords of the municipal court. Source, Chapter 542 RSMo.
[NOTE: the preceding paragraph is required only for courts that have city ordinance permitting
the issuance of administrative search warrants.]
VIII. Accounting Procedures. The Court Administrator shall, to the fullest extent possible
abide those accounting procedures as are mandated by COR 4.51 and which procedures and set
forth in Chapter 4 of the then current edition of the Clerk Manual entitled “Recommended
Accounting Procedures for Municipal Divisiions.” In particular, the Court Administrator shall:
A.
Reconcile bank statements monthly and same shall be reviewed by a person
independent of the Court.
B.
Maintain all funds that are being held in trust by the Court and reconcile monthly.
All unusual items or exceptions shall be investigated promptly.
C.
Ensure all payments on accounts are receipted, recorded to the accounts, and
deposited intact.
D.
Work jointly with the Police Department to account for all traffic tickets in
numerical sequence and maintain a record of the disposition of all tickets assigned and issued by
the police department.
E.
Maintain all the Court’s records except for those permitted to be destroyed or
transferred in accordance with Supreme Court Operating Rule 8.
F.
Not waive any fine, court costs or surcharge, or agree to collect a different amount
of fine, court costs or surcharge than the amount listed in the Violation Bureau Schedule or what
has been assessed by a Court Order, except as discussed in item IV.A supra.
G.
Develop a system for independent monitoring, receiving and depositing monies as
225
an independent task segregated from the recording and disbursement of collections. In the event
that such duties cannot be segregated, at aminimum, the Court Administrator shall request the
City develop a documented independent comparison of receipt slips issued in the amount and
composition of deposits, and independent review of the bank statements and month-end
reconciliations. Source, COR 4.51
IX.
Confidential and Closed Records.
A.
Identify Records. The Court Administrator shall identify all Court records that
contain confidential information and maintain all confidential records in accordance with those
procedures set forth in Chapter 5 of the then current Clerk Manual. The Court Administrator
shall permit closed records to be inspected by the defendants, courts, and those agencies as are
set forth in §610.120 RSMo. The Court Administrator shall identify all Court records (including
docket entries for cases that have been nolle prossed, dismissed, Substance Abuse Traffic
Offender Program (SATOP), or the defendant found not guilty) that contain confidential
information. The Court Administrator on behalf of the Judge shall request the City provide
adequate and secure file cabinets for the retention of confidential records and closed files.
Source, §610.120 RSMo.
B.
Confidentiality of SATOP Programs. If the Court orders the defendant to
participate ina SATOP program, the Court Administrator shall file all documents received from
the program provider in the case file, and all documents relating to the program assessment,
assignments, and completion shall remain confidential. Source: CFR Part 2, 42 U.S.C. §290 dd3.
X.
Record Retention and Destruction. The Court Adminnistrator shall retain all Court
records unless there shall be an order signed by the Presiding Judge of the Circuit Court to
destroy same. The Court Adminnistrator shall follow Missouri Supreme Court Operating Rule 8
and the City shall cooperate with the Court Administrator to follow a regular schedule to destroy
and/or transfer cases eligible for transfer or destruction in accordance with Supreme Court
Operating Rule 8. The Court Administrator shall abide by trhose recommended procedures set
forth in Chapter 5 of the then current clerk Manual. All requests to destroy or transfer records
shall be signed by the Presidiing Judge. Source: COR 8.03.
XI.
Marriage Records. If the Judge performs marriages, the Court Adminnistrator shall
communicate with parties desiring to have a marriage solemnized by the Judge. The
Adminnistrator shall require that the parties provide a marriage license and a Certificate of
Marriage blank form to the Court at least ___ hours before a scheduled wedding to ensure
adequate review of such license.
[NOTE: Number of hours should be entered by local court based on local need.]
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The Court Administrator shall assist the Judge in completing the license and the
Certificate of Marriage. The Court Administrator shall retain a full record of the solemnization
performed by making a copy of the completed marriage license and a copy of the executed
Certificate of Marriage, and keeping both documents in a permanent binder or folder. The Court
Administrator shall cause the executed marriage license return to be sent to the appropriate
licensing official assoon as possible, but not later than 10days after the marriage is performed.
Source, §§ 451.110 through 451.130 RSMo.
SO ORDERED:
_______________________________
Judge, City of ______
Date: ____________
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Appendix 20a – Ordinance Closing Street
Ordinance # ______
AN ORDINANCE CLOSING GOVERNOR STREET
BETWEEN OKLAHOMA AND WABASH
WHEREAS. The City has received a request to close the eastern half of Governor Street
in a block where the western half has already been closed by the adjoining property owners
building a fence down the middle of the right of way, and
WHEREAS, Governor Street apparently was never opened to vehicular traffic, and there
are no houses facing this street, and
WHEREAS, the City can find no evidence that any of the street was formally closed by
action of the City Council,
NOW, THEREFOR BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY
OF CLARK, MISSOURI AS FOLLOWS:
Section I: Street Closed. Governor Street between Oklahoma and Wabash streets is
hereby closed, and the city abandons any claim to a street easement over this property.
However there is an existing alley, perpendicular to Governor Street on each side of the street.
The city retains the easement for the alley where it crosses the Governor Street easement. And
the city retains the easement for any water or sewer lines that may exist within the right of way
of Governor Street
Section 2: Recording in Land Records. A duplicate original of this ordinance shall be
provided to and requesting adjoining property owners, so it can record in the land records if the
owner wishes.
READ TWO TIMES AND PASSED THIS _____ DAY OF ____________, 2011.
________________________________
Mayor
ATTEST:
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________________________________
City Clerk
229
Appendix 22a – Petition in Circuit Court to Enforce Nuisance
Ordinances
IN THE CIRCUIT COURT OF SALINE COUNTY, MISSOURI
AT MARSHALL, MISSOURI
City of Slater, 232 North Main Street, Slater, MO 65349
Plaintiff
versus
[Count One]
Norman Depue, 516 East Parker Street, Slater, MO 65349
Betty Depue, 516 East Parker Street, Slater, MO 65349
[Count Two]
Samuel Logan, 826 North Central Street, Slater, MO 65349
Giles Allen, 826 North Central Street, Slater, MO 65349
[Count Six]
Jerome Stabenow, Sullivan Hall Apartments, Slater, MO 65349
[Count Eight]
Charles R. Hockaday, 114 N. Central Street, Slater, MO 65349
Marilyn Hockaday, 114 N. Central Street, Slater, MO 65349
[Court Fourteen]
Ruth Wright, 115 South Jefferson Street, Slater, MO 65349
Chhachela Wright, 117 Boothe Street, Slater, MO 65349
[Count Sixteen]
Edith Vivian Campbell, probably deceased
Betty J. Watson, personal representative of the estate of Eugene
Kirtley, Jackson County Probate Estate # 181468, serve at:
1433 East 76th Terrace, Kansas City, MO 64131
Defendants
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PETITION FOR MANDATORY INJUNCTION
TO REQUIRE IMMEDIATE CLEAN UP OF PROPERTY,
TO REQUIRE THE PROPERTY BE MAINTAINED IN CLEANED-UP CONDITION, FOR
FORECLOSURE OF EXISTING CLEAN-UP LIENSAND FOR A JUDGMENT FOR CLEANUP EXPENSES, ATTORNEY FEES AND COSTS
COMES NOW the City of Slater, Missouri, and for its petition against the defendants
listed herein, states to the Court:
Allegations Common to All Counts
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1.
The City of Slater is a municipal corporation of the third class, organized generally
pursuant to Chapter 77 of the state statutes.
2.
Defendants (more particularly described in the various counts below) are the legal and/or
equitable owners of real estate in Slater, Missouri. All of these individual properties are
uninhabitable, unsanitary, unsafe, and unsightly.
3.
The various defendants have been requested to cleanup their properties, generally with a
deadline for compliance, and have ignored these requests. A few have been prosecuted
previously in municipal court, and a few have also been prosecuted in an administrative
complaint procedure before the city’s administrative hearing officer. Some have been
ordered to clean up their properties, have in fact done so, and then have allowed their
property to revert to its previous condition.
4.
Obviously the maintenance of substandard property to bring it into compliance with city
requirements can be an expensive proposition.
5.
In every instance, each of these defendants has been offered the opportunity to convey
the property over to the City, with the city assuming 100% of the cost of demolition,
cleanup, or repair. In every instance, each of these defendants have declined to take the
affirmative steps necessary to accept that offer.
6.
The City has adopted what is known as a “dangerous building ordinance” which in
general requires that every building within the City to be safe and habitable. That
ordinance is Chapter 510 of the Ordinance Code of the City.
7.
The Missouri legislature has authorized all cities in the state to adopt such an ordinance,
at RSMo §67.410
8.
The City has adopted what is known as a “nuisance ordinance” which in generally
requires that no personal property be maintained or stored outdoors on any real estate in
the city, with some exceptions. Most notably the ordinance forbids the storage of
unlicensed motor vehicles, appliances, used automobile tires, lumber, building materials,
trash, debris, and similar items in the yard of any dwelling.
9.
The Missouri legislature has authorized all cities in the state to adopt such an ordinance,
and has repeatedly reaffirmed its grant of authority by statutes found at RSMo §§71.780
(general); 67.308 (debris); 71.285 (weeds, trash); 67.386 (debris); 67.398 (appliances,
tires, broken glass); 71.700, 71.710, 71.140, 79.390, 80.090 (general), and 236. 220 (old
well or cistern); Chapter 267 (diseased animals); 269.020 (dead animals); 701.010
(improper sewer disposal); 700.525 et seq. and Model Traffic Ordinance (towing and
storage of unclaimed vehicles or mobile home); 260.350 (removal of hazardous material)
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10.
The City has adopted what is known as a “weed ordinance” which in general requires that
no vegetation within the city (except for cultivated trees, bushes, gardens etc.) extend
more than 7 inches above the ground.
11.
The Missouri legislature has authorized all cities in the state to adopt such an ordinance,
at RSMo §67.398.
12.
To give teeth to these ordinances, the legislature has authorized cities to impose liens for
the expenses of abating nuisances as declared in the ordinance, generally giving these
liens the priority common to unpaid taxes, that is having priority over existing deeds of
trust or mortgages, existing court judgements, and existing property exemptions.
13.
Also, the legislature has specified that these liens are not merely taxes charged against the
property but are also personal debts of the individual property owners.
14.
To enforce its ordinances, the City has employed the undersigned as its attorney. Under
the existing ordinances of the City, and under the authority of the law of the State of
Missouri, the attorney fees incurred by the City in enforcing these ordinances are
chargeable to the property owners whose property becomes a nuisance. In order to
minimize these costs, the City has brought this action against numerous property owners,
in a variety of different counts, so that the attorney fee expenses can be minimized and
spread over a multitude of properties.
15.
The City has no adequate remedy at law. Municipal court prosecutions are useful with
the run-of-the-mill honest citizen who creates a temporary nuisance and promptly cleans
it up when prosecuted. But it has little effect upon a scofflaw who must be repeatedly
prosecuted over numerous occasions to effect a clean up of property. And because the
municipal court is one of limited jurisdiction (having the authority only to impose a fine
of up to $500), it lacks the leverage of using orders of probation to cause a cleanup of
nuisance property. Similarly, the administrative hearing process works when the
defendant desires to comply with the law. But because an administrative order is not
self-enforcing (with the resulting risk of violence when the city seeks to carry out the
order) and because the administrative hearing officer does not have continuing
jurisdiction to enforce its order, its effectiveness with scofflaws is dubious. In any event,
the courts of Missouri have concluded that a city is the arbiter of which remedy is
adequate for its purposes in any particular nuisance prosecution, and the courts have not
interfered with this choice.
16.
This is not to imply that these particular defendants have been prosecuted in municipal
court or served with an administrative hearing complaint. Some have, most have not.
17.
With the exception of two properties (Counts 1 and 12) these properties are residential in
character. None of the properties are used as dwellings. Most are vacant, and have no
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utility service. Most of these properties are held for reasons of investment or sentiment.
The cost of restoring the structures on these properties into a useable state far exceeds the
current fair market value of the property, and far exceeds 100 times the fair monthly
rental value of the property in a restored condition. No structures exist on the property
described in Count 16.
Count One – Norman and Betty Depue
Southwest Corner of Armstrong and Emerson Streets
101.
Norman Depue owns real estate on Emerson Street, the legal description of which is
described as:
East half of Lot 5, Block 11, East Extension to Eubanks
Addition to the City of Slater.
102.
Norman Depue also another parcel of real estate that is appears to be contiguous to the
first, which is described as:
Lot 4 and East half of Lot 6, Block 11. East Extension to Eubanks
Addition to the City of Slater
Although the legal description indicates that Norman Depue only owns the east half of
Lot 6, he occupies both halves and probably owns the West half by adverse possession.
Similarly Norman Depue occupies the west half of Lot 5 and probably owns that half by
adverse possession.
103.
There is no recent owner of record for the land occupied by Norman Depue but not
owned by him.
104.
Norman Depue is also shown in the real estate records of another parcel of real estate that
is contiguous to these other two parcels, which is described as:
Lot 4, Block 11, East Extension to Eubanks Addition to the
City of Slater
Norman Depue has repeatedly said that this property has been “sold” and that is “not
mine.” However the real estate records continue to show it in his name. Perhaps it has
been sold on a contract for deed. Plaintiff does not know the identity of the alleged
purchaser of this property. Note that this legal description overlaps the legal description
mentioned in paragraph 102. This particular property is better maintained than the
adjoining property, and is not the subject of this particular lawsuit, except as it may be
affected by any judgment lien credited hereby.
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104.
The property has been used as a junk yard, where Norman Depue stores various used
items which he has purchased, and from which he apparently sells things from time to
time. Mr. Depue was prosecuted in 2002 and 2003 about the condition of this property,
and there was over the course of that prosecution enormous improvements in the
appearance of the property. Mr. Depue built a fence, and indicated that he would place
all of the junk within the fenced enclosure. The prosecution was dismissed when Mr.
Depue had the fence about 90% completed, with the expectation that the fence would be
finished and the promise fulfilled.
105.
In fact the fence was finished, and everything would be fine at the property except that
numerous items have not been moved inside the fence, and so the property still violates
the nuisance ordinance of the city.
Betty Depue does not appear on the title for any of this real estate, and has often
proclaimed that she has no interest in this real estate and is not responsible for the
condition of the property. However, she is married to Norman Depue and has a marital
interest regardless of her statements.
106.
107.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
108.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri requests this court to:
a.
Order defendants to remove all junk and all personal property that is located on
this real estate outside the existing fence either to within the fence, or to remove it
from the corporate limits of the City of Slater, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to remove all personal property exterior to the fence and to dispose of it, and
e.
To enter a judgement against both defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate outside of the existing fence, and
g.
For such other relief as to the Court seem just and proper, and
h.
a Judgement for plaintiffs costs in this action.
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Count Two – Samuel Logan and Giles Allen
Southwest Corner of Booth and Emerson Streets
201.
Samuel Logan and Gyles Allen own real estate in Slater, Missouri described as follows:
Lots 5 and 6, Block 12, of the East Extension to Eubanks Addition
to the City of Slater, Missouri.
202.
They use the property as a “party house;” they live elsewhere.
203.
Large amounts of personal property, junk, debris are stored at this house, including
several unlicensed motor vehicles.
204.
The two were prosecuted in 2002 for the personal property stored outside the building on
the property, and they gradually cleaned it up. When the work was about 85% finished,
the prosecution was dismissed. Almost immediately following the dismissal the property
began to go downhill, as more junk property was moved onto the real estate and left lying
in the yard.
205.
Clearly these defendants are scofflaws, who have no intention of complying with the
ordinance unless they are subject to continual supervision.
206.
This property is directly across the street from the property of the Slater Housing
Authority and seriously detracts from that property as a location for people to live, even
as a habitation of last resort.
207.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
208.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri requests this court to:
a.
Order defendants to remove all junk and all personal property that is located on
this real estate outside the existing dwelling either to within the dwelling, or to
remove it from the corporate limits of the City of Slater, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to remove all personal property exterior to the dwelling and to dispose of it, and
235
e.
f.
g.
h.
To enter a judgement against both defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate outside of the existing dwelling,
and
For such other relief as to the Court seem just and proper, and
a Judgement for plaintiffs costs in this action.
Count Three – Kevin Head
316 Short Street
[THIS COUNT HAS BEEN WITHDRAWN; THE CITY HAS DECIDED TO GIVE THE
DEFENDANT ADDITIONAL TIME TO COMPLY WITH LOCAL ORDINANCES]
Count Four – Cindy Nold
410 and 402 Central Street
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Five – Trustees of St. Paul Free Baptist Church
536 Blackstone Street
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Six – John and Christine Smith
429 West Maple
[THIS COUNT HAS BEEN WITHDRAWN; THE CITY HAS DECIDED TO GIVE THE
DEFENDANT ADDITIONAL TIME TO COMPLY WITH LOCAL ORDINANCES]
Count Seven – Jerome Stabenow
508 Blackstone Street
701.
Jerome Stabenow owns real estate in Slater, Missouri described as follows:
A part of Lot Two (2) in Block Two (2) in Isabell Adddition to the
City of Slater, Saline County, Missouri, more particularly described
236
as follows: beginning at the northwest corner of said Lot 2; running
thence south along the west line of said Lot 2 a distance of one
Hundred sixty-eight (168) feet; thence East and parallel to the North
line of said Lot to the East line of said Lot; thence North along the
said East Line of said Lot a distance of one hundred sixty-eight
(168) feet to the northeast corner of said lot; thence west along the
North line of said Lot to the Place of Beginning.
This property is popularly known as 508 Blackstone Street, Slater, Missouri.
702.
Jerome Stabenow is single and unmarried.
703.
Jerome Stabenow does not reside in the house located on this property. He resides at
Sullivan Hall Apartments. Jerome Stabenow keeps cats at this property. These cats are
numerous, and apparently roam at will from the property. These cats are well fed by Mr.
Stabenow, and as a consequence do not even keep under control the rodents and snakes
that the rodents attract that are a usual fixture of abandoned substandard housing.
704.
In the summer months the smell of cat feces is noticeable beyond the boundaries of the
real estate.
704.
The City conveyed by letter to Mr. Stabenow an offer to purchase this real estate for
$1,000 and to assume the full costs of demolition. Mr. Stabenow did not reply. The City
is uncertain if Mr. Stabenow understood the offer.
705.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
706.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests the Court to:
a.
Order defendants to remove all structures, all vegetation having a height over 7
inches (except for established trees with a trunk diameter of 3 inches or more),
and all personal property that is located on this real estate from the same, to
remove the existing foundation, to fill with clean fill any basement that may be
under the dwelling, to fill with clean fill any cistern or well that may existing on
the property, to remove all debris left from the demolition, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
237
d.
e.
f.
g.
h.
If the work has not been accomplished, for the court to authorize the City of Slater
to remove carry out the requirements of the court’s order, and
To enter a judgement against both defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
For such other relief as to the Court seem just and proper, and
a Judgement for plaintiffs costs in this action.
Count Eight – Charles and Marilyn Hockaday
108 N. Emmerson Street
801.
Defendants Charles and Marilyn Hockaday own as tenants by the entireties the real estate
in Slater, Missouri, described as follows:
All of Block Three (3) of Isabell’s Addition, an addition to the City
of Slater, Saline, County, Missouri.
Also, the south half of Vacated Blackstone Street which lies North
of the said Block Three (3) of Isabell’s Addition, which street was
vacated by Ordinance No. 2364 as recorded in Book 410 at Page 186,
records of the Saline County Recorder’s office.
The street address of this property is 108 N. Emmerson.
802.
This real estate is “improved” by a vacant residential structure and by several abandoned
automobiles and other personal property. The vegetation on the property greatly exceeds
the maximum height of 7 inches.
803.
The vacant residential structure is uninhabitable.
804.
The City of Slater has offered to defendants to purchase their real estate for the sum of
$1,000 and to assume all expenses of demolition and clean-up, but the defendants have
not accepted that offer.
805.
The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
238
806.
This property is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests this Court to:
a.
Order defendants to remove all structures, all vegetation having a height over 7
inches (except for established trees with a trunk diameter of 3 inches or more),
and all personal property that is located on this real estate from the same, to
remove the existing foundation, to fill with clean fill any basement that may be
under the dwelling, to fill with clean fill any cistern or well that may be existing
on the property, to remove all debris left from the demolition, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to carry out the requirements of the court’s order, and
e.
To enter a judgement against all defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
g.
For such other relief as to the Court seem just and proper, and
h.
a Judgement for plaintiffs costs in this action, and
i.
That the Court subordinate defendant Carroll County Trust Bank’s deed of trust to
the judgment for any cleanup expenses
Count Nine – Nylena Bennett
315 Short Street
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Ten – Hubert Dee Griffitt and Cheryl Dee Griffitt
327 S. Jefferson
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
Count Eleven – Helen S. Bennett
111 N. Jefferson
[THIS COUNT HAS BEEN RESOLVED TO THE SATISFACTION OF PLAINTIFF]
239
Count Twelve – Martin Green
Gilliam Chevrolet Building
[THIS PROPERTY WAS PURCHASED BY SALINE COUNTY AT THE RECENT TAX
SALE. PLAINTIFF IS WORKING WITH THE COUNTY REGARDING THIS PROBLEM]
Count Thirteen – Carroll County Trust Bank
Debra and Tim Murray
220 Clyde Street
[THE CITY HAS PURCHASED THIS PROPERTY AT A TAX SALE, AND IS CURRENTLY
ATTEMPTING TO OBTAIN A DEED FROM THE OWNER OF RECORD]
Court Fourteen – Ruth and Chachela Wright
115 North Central
1401. Defendants Ruth and Chachela Wright are owners as joint tenants with right of
survivorship of the following described real estate in Slater, Missouri
The North part of Lot One (1), Block One (1) in the Original Town
(Now city) of Slater, more particularly described as follows:
beginning at the Northwest corner of said lot and running in a
Southern direction along the West boundary line of said lot, a
distance of Twenty-two (22) feet; Thence due East to the East
boundary line of said Lot; Thence North along said East boundary
line to the Northeast corner of said lot; Thence in a western
direction along the North boundary line of said lot to the
Northwest corner thereof, the place of beginning. EXCEPT a
strip of land twenty (20) feet wide across the entire West
side as described in Book 161, Page 354, Office of the Recorder
of Deed of Saline County, Missouri.
The popular address for this property is 115 North Central Street, Slater.
1402. This property is “improved” by a residential structure. This property is no longer
occupied by its owners, who have not maintained it and have allowed it to deteriorate to
the point that it is unfit for human habitation. Apparently the owners have used the
residence as a storage shed, for additional personal property that they do not wish to have
at their existing homes.
240
1403. Due to the irresponsibility of the owners of this property, it was necessary both in
calendar year 2003 and in calendar year 2004 for the City to mow the grass and weeds on
this property. There are outstanding liens against the property of $250.00.
1404. The property is such that it is an eyesore, and depreciates the value of adjoining
properties.
1405. The plaintiff has offered to purchase the property from defendants for $1,000 and to
assume all costs of demolition and clean up of the property. Defendants have not replied
to that offer.
1407. The condition of this property is such that it adversely affects the health and welfare of
the people of Slater, has an adverse effect upon its neighboring properties by attracting
vermin to the area, reduces the property values of neighboring property, and needs to be
cleaned up.
1408. This property is a public nuisance.
1406. The property, in its present condition, is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests this Court to:
a.
Order defendants to remove all structures, all vegetation having a height over 7
inches (except for established trees with a trunk diameter of 3 inches or more),
and all personal property that is located on this real estate from the same, to
remove the existing foundation, to fill with clean fill any basement that may be
under the dwelling, to fill with clean fill any cistern or well that may be existing
on the property, to remove all debris left from the demolition, and
b.
To require defendants to pay all outstanding mowing liens
b.
To establish a date by which this order is to be obeyed and the liens paid, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the work has not been accomplished, for the court to authorize the City of Slater
to carry out the requirements of the court’s order, and
e.
To enter a judgement against all defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order the Sheriff of Saline County to offer the property for sale on a date and
time certain in order to satisfy such liens, or
g.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
h.
For such other relief as to the Court seem just and proper, and
241
i.
a Judgement for plaintiffs costs in this action.
Count Fifteen – 219 East Emma
No apparent owner
[THIS COUNT HAS BEEN WITHDRAWN; THE CITY IS IN THE PROCESS OF
OBTAINING TITLE TO THIS PROPERTY]
Count Sixteen – No obvious owner
Betty J. Watson
1601. There is some real estate in Slater, Missouri, described as follows:
Lot Four (4) in Block Seventeen (17) in the Second West Extension to
the West Addition to the City of Slater, Saline County, Missouri.
There is no popular address for this property, because it is a vacant lot.
1602. The last conveyance of this property to appear of record occurred in 1934 when Taylor
Campbell and Margaret Campbell appears to have conveyed the property to Edith Vivian
Campbell, reserving for themselves the “right to occupy the said premises during their
lives and in the event of the death of either to the survivor.”
1603. No record exists, apparently, to demonstrate that Taylor Campbell, Margaret Campbell or
Edith Vivian Campbell ever died.
1604. Recorded in the land records of Saline County is a stray document recorded August 29,
2003 that appears to be an order entered in the Estate of Eugene Kirtley (Jackson County
Probate Estate # 181468) purporting to authorize the sale of two lots in Jackson County
and this lot in Saline County, Missouri. No deed in conformity to the order has been
recorded.
1605. The taxes for this property are assessed and the bill for the same are mailed to Eugene
Kirtley, c/o Betty J. Watson,
1606. This vacant lot is not mowed by anyone except the City of Slater. The City has
accumulated liens for mowing the lot that by the time of a trial will amount to almost
$1,000.
1607. Betty J. Watson is the personal representative for the estate of Eugene Kirtley, Jackson
County Estate # 181468.
242
1608. The City of Slater has corresponded with Betty J. Watson on several different occasions.
She has ignored all communications and failed to reply at any time.
1609. The City has contacted the attorney for the estate regarding the possibility of the city
purchasing the property, by phone and by letter. Although the attorney said in the phone
call that she would “get back to the city” about the problem, in the three months since the
phone call she has not done so.
1610. Because the defendant is unwilling to maintain or care for the real estate in a reasonable
manner, it is a public nuisance.
WHEREFOR, the City of Slater, Missouri, requests this Court to:
a.
Order defendants to maintain the property so that no vegetation shall have a
height over 7 inches, and
b.
Require defendant to pay the outstanding liens for mowing already provided, and
b.
To establish a date by which this order is to be obeyed, and
c.
Set a hearing for the date by which compliance is to be achieved, at which time
the court will enquire as to the status of the same, and
d.
If the property has not been brought into compliance with the ordinance, and the
mowing liens have not been paid, for the Court to order the Sheriff of Saline,
County, Missouri to sell the same to satisfy the lien of the city for the mowing
that has been done, and
e.
To enter a judgement against all defendants for the costs incurred by the City of
Slater for this enforcement action, and for any required cleanup of the property, to
be a lien against all of the property of defendants and to have the same priority as
unpaid taxes, and
f.
To order defendants to maintain the property in the future such that at no time is
any personal property stored on said real estate and that the vegetation be
maintain at a height no greater than seven inches, and
g.
For such other relief as to the Court seem just and proper, and
h.
a Judgement for plaintiffs costs in this action.
Respectfully submitted
Wm. Patrick Cronan, # 22068
Slater City Attorney
13750 Highway BB
Rocheport, MO 65279
Phone: 573/698-3074
Fax: 574/698-3314
243
E-mail: wpcronan@aol.com
STATE OF MISSOURI)
( ss
COUNTY OF SALINE )
NOW COMES Russell E. Griffith, Assistant Administrator of the City of Slater,
Missouri, and having reviewed the forgoing petition states upon his oath that the facts alleged
therein are true and correct, to the best of his knowledge and belief.
_____________________________
SUBSCRIBED AND SWORN this _____ day of ___________, 2004.
_____________________________
Notary Public
My commission expires: ______________________
244
(PROPOSED FORM OF INJUNCTION)
THE STATE OF MISSOURI TO:
___________________________________________________________
(Name of parties subject to order)
THIS IS AN ORDER REQUIRING YOU TO DO CERTAIN THINGS BY 9 A.M. ON THE
DATE SHOWN BELOW. YOU MUST DO WHAT IS REQUIRED. IF YOU DO NOT OBEY
THIS ORDER YOUR MAY BE FOUND IN CONTEMPT OF COURT AND PUNISHED BY
FINE, BY INCARCERATION IN JAIL, OR BY BOTH FINE AND JAIL. IT IS VERY
IMPORTANT THAT YOU TAKE THIS ORDER SERIOUSLY. IF YOU DO NOT
UNDERSTAND IT, TAKE IT TO A LAWYER WHO CAN INTERPRET IT FOR YOU AND
HELP YOU STAY OUT OF TROUBLE.
This order relates to real estate described as:
This
real
estate
has
a
popular
address
of
____________________________ in Slater, Saline County, Missouri.
The court has determined that you have own or have some control over
this property.
YOU ARE REQUIRED to do these things regarding this real estate:
1.
Demolish all buildings on the real estate. This includes the requirement that you
take out the foundation (if any) to the property and the fill up any excavation,
basement, well or cistern so that it is level with the ground. You must grade the
remaining land so that it is level, and you must seed it with grass to restore
vegetation to the exposed dirt.
2.
Remove all tangible personal property from the property or cause it to be
completely enclosed by a structure , except that any motor vehicle which has a
245
valid Missouri license does not have to be removed from the property or enclosed
in a structure.
3.
Cut all vegetation on the property so it does not exceed a maximum height of 7
inches.
YOU ARE REQUIRED TO DO ALL OF THIS BY 9 A.M. ON ________________________.
IN ADDITION, YOU ARE COMMANDED TO APPEAR BEFORE ME AT ______________
O’CLOCK ON _______________________________ AT A HEARING WHERE I WILL
ENQUIRE AS TO YOUR COMPLIANCE WITH THIS ORDER. THIS HEARING WILL BE
HELD IN ROOM__________ OF THE SALINE COUNTY COURTHOUSE. IF YOU FAIL TO
APPEAR AT SUCH HEARING, YOU MAY HAVE TO SUFFER THE CONSEQUENCES OF
YOUR NON-APPEARANCE.
246
Appendix 22b – Release of Nuisance Lien
(Don’t forget to leave 3” margin at top, to meet recording requirements)
RELEASE OF LIEN
KNOW ALL MEN BY THESE PRESENTS: That the City of Slater, Missouri, for and in
consideration of the payment of the sum of ___________________ dollars ($____________),
paid by _______________________, receipt of which is hereby acknowledged, does hereby
release and quit claim unto the said ____________________, and spouse if any, successors and
assigns, all liens, lien rights, claims or demands of any kind whatsoever which the City of Slater
now has against the premises legally described as:
for nuisance abatement liens previously filed by the City of Slater against said property and
recorded in Book _____, Page _____ of the land records of Saline County, Missouri.
IN WITNESS WHEREOF I have herefore set my hand as City Administrator for the City
of Slater, Missouri and seal of the City this ___ day of _________________, 20__
________________________________
City Administrator, Gene Griffith
(SEAL)
State of Missouri
County of Saline
)
)ss.
On this ______ day of ____________, 20__, before me personally appeared Gene
Griffith, City Administrator of the City of Slater, Missouri, to me known to be the person who
executed the foregoing instrument, and acknowledged that he executed the same on behalf of the
City of Slater, Missouri, that he is the City Administrator of said City, and has the authority from
the City’s City Council to execute the instrument as the free act and deed of the City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in
the State aforesaid, the day and year first above written.
____________________________________
Notary Public
My term expires:____________________
247
Appendix 22c – Thank you certificate
City of Slater,
Missouri
Thank You for Assisting
in the Year 2001
City Clean Up Campaign
Mayor Andreè Petersen
Assistant Administrator Russell Griffith
Council Members:
Stephen Allegri
J. H. Audsley
Brownell Bryant
Norman Depue
Cathy Jeffries
Terry Jordon
Harry Lightfoot
Ron Moning
248
Appendix 22d – Various Sample Nuisance Ordinances
I. City of Maryland Heights: High Weeds
Sec.1 7-101.- Nuisanced eclared.
(a)
All weedsa nd grassesin violation of the propertym aintenancec ode are declareda public
nuisanceO. n farms and lots of three (3) acreso r more locatedi n a "NU" Non-UrbanD istrict,
ill *..dt and grusseso f a height oi sixteen( 16) incheso r more are declareda public nrrir*...
(b)
All trees in the city upon any property which have been declared dead by the building
commissionear rea nuisancea nda hazardt o the public welfare.
(ord. No.86-261$, $1,2, 9-18-86;o rd. No.2000-1773S, 1,4-20-00;o rd. No.2004-2491S,
1,6-17-04)
Sec. 17-102. - Abatement by property owner.
(a)
It shall be unlawful for any owner or lesseeo f any propertyw ithin the city to fail to removea ny
nuisancev iolation after having beend uly notified as set forth in this section.
(b)
Wheneverp rivatep ropertya butsa public right-of-wayo r easemenbt elongingt o the City of
Maryland Heights,o r any public entity, and theree xistsi n suchr ight-of-way or easemenat tree
lawn or grassya reab etweent he private propertyl ine and the edgeo f the streetp avement,t hen
sucht ree lawn or grassya reas hall be consideredf,o r purposeso f this sectionr equiring cutting
of grass and weeds, to be a part of the private lot which abuts the right-of-way or easement, and
it shall be the duty of thoser esponsibleu ndert his sectionf or the maintenanceo f the private lot
to equally maintain the tree lawn or grassy area within the abutting right-of-way or easement,
and all of the provisions of this section shall apply with equal force and effect to said tree lawn
or grassy area.
(c)
Whenevert he building commissionera scertainsth at weeds,n oxious weedso r deadt reesa re
present on any lot or land within the city, he shall cause to be sent a notice to the owner or
other person in control of such lot or land, that the weeds, noxious weeds oi dead trees must be
removed within seven (7) days after such notice is served. The notice shall be r.ru.d in
accordancew ith the PropertyM aintenanceC ode.
(Ord,N o 2007-2933S, I, 6-21-07)'
Editor's noteOrd.N o. 2007-2933$. 1. adoptedJ une2 1.2007.repealedth e former I l7-102, and enacteda
newl$
17-102 as set out herein. The former!!lj!2 pertained to similar subject matter and derived,
from Ord.N o. 86-261,$ $ 2, 3, adoptedS ept.1 8, 1986;O rd.N o. 2000-1773S, 1,a doptedA pril
20.2000.O rd.N o. 2004-2491$. l. adoptedJ uneI 7.2004.
M ML A ttorneysC' onferenc2e0 11-Nu isan ceA batemenSt amp leO rdinances
Sec.1 7-103-. Abatementb y city.
(a)
If t-he owner or other person in control of any lot or land fails to comply with a notice given,
pursuant to this article, within seven (7) days, the building commissioner may cause such
249
noxiousw eedso r vegetationt o be destroyedT. he building commissioners hall havet he right to,
enter upon property on which noxious weeds or trees are growing for the pu{pose of abating the
public nuisancea nd may use any suitablem eanso r assistancefo r the purposeo f destroyinga nd
removing such weeds or trees either by employees of the city or by contract with some
resoonsiblep erson.
(b)
The building commissioner shall keep an accurate account of the cost of destroying and
removing such weeds, noxious weeds or trees and abating the nuisance and shall certify the
same to the director of finance, who shall cause a special tax bill or nuisance fee againsi th;
property from which such weeds, noxious weeds or trees were cut and removed to be issued
and collectedw ith other taxesa ssesseadg ainsts uchp roperty.T he tax bill from the dateo f its
issuances hall be a first lien upon suchp ropertyu ntil paid and shall be pii." Acie eviOenr.o f
the recitals therein contained and of its validity. No mere clerical effor or informality in the
,u-. o, in the proceedingsle adingu p to the issuanceth ereofs hall be a defenset hereto.A s part
of the cost of cutting and removing such weeds or trees, each special tax bill shall include a
charget o be establishedb y ordinancef or computing,m aking, certifying and recordingt he bill.
Each special tax bill shall bear interest at the rate of eight (8) percent per annum beginning
thirty (30) days after the date of its issuance.
(Ord. No.86-261,$ $4, J, 9-18-86;O rd. No.2000-1773S, 1,4-20-00;O rd. No.2004-2491S,
t,6-17-04)
II. City of Winchester -- High Weeds
SECTION 215.130: WEEDS. HIGH GRASS OR OTHER VEGETATION
A. Failure To Keep l(eeds, High Grass And Other Vegetation Cut And Removed, A Nuisance.
All persons owning or occupying any lot or tract of land in the City shall keep the weeds, high
grass and other vegetation growing on such property cut and removed. Whenever such weeds,
high grass or other vegetation shall attain the height of seven (7) inches, it shall be deemed a
public nuisance.
B. Unlawful To Maintain Such Nuisance. It shall be unlawful for any person to create or
maintaina nuisancea s definedi n Subsection( A).
C. Liability. Wheneverw eeds,h igh grasso r other vegetationi n violation of Subsection( A) of
this Section are allowed to grow on any part of any lot or ground within the City, the owner of
MM L A ttorneysc'o nferenc2e0 11-Nui sancAeb atemensta mp leo rdinances
the ground or, in case ofjoint tenancy, tenancy by entireties or tenancy in common, each owner
thereof shall be liable.
D. Notice. The City Attorney shall give a hearing after four (4) days'notice thereof either
personally or by United States mail to the owner or owners, or hislher or their agents, or by
posting such notice on the premises; thereupon, the City Attorney may declare the weeds, high
grass or other vegetation to be a nuisance and order the same to be abated within five (5) days.
E. Disposition In case the weeds, high grass or other vegetation are not cut down and
removed within the five (5) days, the City Attomey shall have the weeds, high grass or other
vegetation cut down and removed and shall certify the costs of same to the City Clerk.
F. Tax Bill. The City Clerk shall cause a special tax bill therefor against the property to be
prepareda nd to be collectedb y the Collectorw ith othert axesa ssesseda gainstt he propertyla
nd
250
the tax bill from the date of its issuance shall be a first (1st) lien on the property until paid and
shall be prima facie evidence of the recitals therein and of its validity, and no mere clerical error
or informality in the salne,o r in the proceedingsle adingu p to the issuance,s hall be a defense
thereto. Each special tax bill shall be issued by the City Clerk and delivered to the Collector on
or before the first (1st) day of June of each year. Such tax bills if not paid when due shall bear
interest at the rate of eight percent (8%) per annum.
III. City of Olivette: High Weeds
SECTION 220.0102 DEFINING AND ENUMERATING NUISANCES
A. "Public nuisences" of the City of Olivette are hereby defined and declared to be as follows:
1. Any act done or committed or suffered to be done or committed by any person or any
substanceo r thing kept or maintained, placed or thrown on or upon any public or private place or
premises which is injurious to the public health, safety or welfare.
2. All pursuits followed or acts done by any person to the hurt, injury, annoyance,
inconvenienceo r dangero f the public.
B. The above definitions shall include, but not by way of limitation, the following:
1. All bawdy houses or buildings or rooms to which any persons are allowed or permitted
by the owner, tenant, keeper or occupants thereof to resort for the purpose of prostitution or
other
immoral purposes.
2. Allslaughterhouses.
3. All ponds or pools of stagnant water and all foul or dirty water or liquid when discharged
through any drain pipe or spout into or upon any street, alley or thoroughfare or lot to the injrrry
and annoyanceo f the public.
MM L A ttorneycso' n feren ce2 01-1u-Ni s an ceA batemesnatm p leo rdi n an ces
4. All privieso r privatev aultsk ept in suchc onditiona st o emit any offensive,n oxiouso r
disagreeabloed or anda ll substanceesm ittinga n offensive,n oxious,u nhealthyo r
disagreeable
effluviai n the neighborhoodw heret hey exist.
5. All carcasseosf deada nimalsw hicht heo wnero r keepetrh ereofs hallp ermitt o remain
within the limits of the city exceedingtw enty-four( 24) hoursa fterd eath.
6. Thek eepingo f animalso f anyk ind,d omestico r wild, upona nyp ublico r privatep lace
or premisesin sucha mannero r conditiont hat samec onstitutea hurt, injury, annoyance,
inconveniencoer dangert o the public or the residentso f the vicinity.
7. Causingk, eepingm, aintainingo r permittingd ebriso f anyk ind includingb, ut not
limited
to, weedc uttings,c ut and fallen treesa nds hrubso, vergrownv egetationa ndn oxiousw
eeds
whicha res even( 7) incheso r morei n height,r ubbisha ndt rash,l umbern ot piledo r
stackeda t
least welve( 12)i ncheso ff the groundr, ockso r bricks,t in, steel,p artso f derelictc arso r
trucks,
251
brokenf urniture,a ny flammablem aterialu pona nyp ublic or privatep ropertyo r
premisesw hich
may endangepr ublic safetyo r any materialw hich is unhealthyo r unsafe.
8. Any dog,c at,p uppy,k itteno r othera nimals oilingo r depositingw asteo r defecationo n
urbanp roperty,o thert hant he propertyo f a personr esponsiblefo r the animal,u nlesss
uchw aste
is immediatelrye movedb y a personr esponsiblfeo r thea nimala ndd epositedin a waste
containeor r buriedo n groundw heret he personr esponsiblefo r the animalh asp
ermissiono r the
right to bury it.
9. All treesb, usheso r vegetationlo catedo n privatep ropertyw hicho verhanga streeot r
sidewalkn ot keptp roperlyt rimmedt o avoido bstructiono f thev iew of traffic andp
edestrians.
10. All deado r damagedtr eeso r plantm aterials.
11 . Any hedge,s hrub,p lant or otherg rowtht o a heightg reatert hant hree( 3) feet or a
tree
having any portion of a limb less than seven (7) feet above the ground within a triangle
formed
by the curbl ineso f intersectings treetsa nda line drawnb etweentw o (2) pointsl ocatedt
wentyfive
(25)f eeta longe achc urbl ine measurefdr om thep ointo f intersectioonf thec urbl ines. At
intersectingp rivates treetst,h is requiremenst halla pplyo nly to locationsa t which a traffic
controls igno r deviceh asb eeni nstalledb y theC ity or otherp ublica uthority. (R.O.2 008
$$100.11106, 0.010,770.1O05rd; .N o.32,7 -17-40O; rd.N o.7 57,9-20-6O6;r d.N o.
1706,611 -91; Ord.N o. 175 7,7 - 14-92;O rd.N o. 2079,2 -13-01O; rd.N o. 2277,5 -24-05)
IV. City of Maryland Heights: Trash in Yards
I Sec. 17-51. - Definitions.
MM L A ttorneycso' nferenc2e0 11-NuisaAnbcea temesnat mploer di nan ces
The following words,t ermsa ndp hrasesw, henu sedi n this article,s hallh avet he
meaningsa scribedto themi n this section,e xceptw heret he contextc learlyi ndicatesa
different
meaning:
Derelict,d amagedo r disabledv ehiclem eansa ny vehiclew hich doesn ot bearl icense
platesp ursuantto RSMo3 01. 1 60a nda vehicles afetyin spections tickerp ursuantto
RSMo
307.350w hicha rec urrenta ndi ssuedto thev ehicle,o r hasb eeni noperablefo r moret
hanf ortyeight(
48) hourso r is in sucha statet hat it is inoperableI.n operables hall meant hat the vehicle
252
cannotb e startedo r that it cannotl egally be operatedu pont he streetsa ndh ighwayso f
the state.
Property means any land owned by the city or located within the city limits, not including
streetsa ndh ighways.
Streeto r highwaym eanst he entirea reab etweenth e boundaryli nes of everyp ublicly
maintainedw ay whena ny part thereofi s opent o the useo f the public for the purposeo f
vehiculatrr avel.
Trashj,u nk, and/ord ebrism eansa nyr ubbishl,u mber,b uildingm aterialsin pieceo r
whole,u sedo r unusedp, ieceso r wholer ocks,p ieceso r wholeb ricks,m etalp roductsi,n
pieceo r
whole,t in, steelp, artso f derelictm otorv ehicleso r landscapeeq uipmentu, nusedh
ousehold
items,b rush,t reel imbs, uprootedb usheso r any othery ardw aste,a ny flammablem
aterialt hat
may endangepr ublic safety,o r any materialt hat may be unhealthyo r may be unsafea
nd
declaredto be a publicn uisance.
Vehiclem eansa ny machinep ropelledb y powero thert hanh umanp owerd esignedto
travela longt he groundb y useo f wheels,t readsr, unnerso, r slides,i ncludingb ut not
limited to
automobilest,r ucks,t railers,m otorcyclest,r actors,b uggiesa ndw agons,o r any part
thereof.
(Ord.N o.I 0l, S 1,9-5-85;OrdN. o.96-1104S, 1 , I0-15-96O; rd.N o.2000-177S3 1, ,4-2000)
Sec.1 7-52-. Entry onto private property.
Theb uildingc ommissioneorr his designeme aye nteru ponp rivatep ropertyt o inspect
saidp ropertyt o determineit s compliancew ith this articleo r for the purposeo f removinga
ny
vehicleo rj unk in accordancwei th this article.I f anyp ersonr efusesto allow entryo ntoh is
privatep roperty,t he building commissioneor r his designeem ay obtaina warrantf rom
the
propero fficial andp roceedin accordancteh erewith.
(Ord.N o.I 0l, S 9,9-5-85;O rd. No.2000-177S3, 1 ,4-20-00)
Sec. 17-53. - Nuisance declared; prohibited.
(a)
MM L A ttorneycso' nferenc2e0 11-uNi san ceA batemesnat mploer di nan ces
Any derelict,d amagedo r disabledv ehicle,o r part thereof,o r junk locatedo n anyp
roperty;o r
any vehicle, part thereof, or junk, allowed to remain unmoved on any street or highway
for fortyeight(
48)h ours,is a publicn uisance.
(b)
253
It shallb e unlawfulf or any persont o createo r maintaina nuisancea s definedi n this
section.
(Ord.N o.101S, $2 ,3,9-5-85O; rd.N o.96-110S4, 2 , I0-15-96)
Crossr eference- Abandoninga motorv ehicle,$ 14-305.
Sec. 17-54. - Abatement bv owner.
(a)
Whenever the chief of police determines that any vehicle or junk is a nuisance as defined in this
article, he shall cause written notice to be served upon the owner of the vehicle or junk, if he can
be located, or the person in custody of such vehicle or junk, by registered mail or by personal
service. The notice shall state that the vehicle or junk is deemed to be a nuisance within the
provisions of this article, and shall briefly state facts deemed to constitute such vehicle or junk a
nuisance within the terms of this article, and state that the nuisance shall be abated within seven
(7) days from receipt ofsuch notice.
(b)
When the owner or custodian of the nuisance cannot be located by reasonable search, the
notice
shall be attached to the property, briefly stating facts deemed to constitute the property a
nuisance and stating that the nuisance shall be abated within seven (7) days of the date notice
was posted, or if the vehicle is on public property, within two (2) days of the date notice was
posted.
(c)
Any person receiving the notice provided for above shall comply with the provisions of the
notice requiring abatement. Failure to comply with this provision is unlawful.
(Ord. No.101, $$ 4-Q 9-5-85)
Sec. 17-55. - Abatement bv citv.
(a)
If not removed within the times specified in the notice given pursuant to this article, the vehicle
or junk shall be transported to a storage area by or at the direction of the chief of police at the
expenseo f the owner or personi n custodyt hereof.I t shall then be storedf or a period of at least
ninety (90) days, and the person entitled to possessiont hereof may redeemt he property by
payment to the city of the actual cost of its removal and a reasonable storage fee. If the vehicle
or
junk is unredeemed after the expiration of the ninety-day period, the chief of police may sell it to
the highest bidder or, if it has no sale value, may otherwise dispose of it. Any money received
from disposal of any vehicle or junk shall be applied to the expenses charged to the owner or
person in charge thereof.
(b)
MM L A ttorneycso' nferenc2e0 L1-NuisaAnbcea temesnat mploer di nan ces
Priort o thes aleo f anys uchp ropertyt,h ec hiefo f polices hallc auseto be postedin city
hall,t he
placeo f storagea nda t leasto ne( 1) otherp ublicp lacei n thec ity, a noticeo f sales
tating:
(1)
Thatt hec ity is sellinga bandonepdr operty.
(2)
254
Thec olor,m ake,y ear,m otor number,a nds erialn umberoif available,a nda ny otheri
nformation
necessarfyo r an accurateid entificationo f the property.
(3)
The terms of the sale.
(4)
Thed ate,t ime,a ndp laceo f thes ale.
No sales hallt akep lacei n advanceo f the dateo r time, asa nnounced.
Thisn otices hallb ep ublishedn ot lesst hant en( 10)n orm oret hant hirty (30)d aysp rior
to the
date of the sale.
(Ord. No. /01, $$ 7, 8, 9-5-85)
V. City of Winchester -- Trash in Yards
SECTION 215.1402 DEBRIS, TREES, SHRUBS AND VEGETATION -- NUISANCE
A. Debris Defined, Any condition on any lot or land that has the presence of debris of any
kind is hereby declared to be a public nuisance, subject to abatement. Debris includes weed
cuttings, cut and fallen trees and shrubs, overgrown vegetation and noxious weeds which are
seven (7) inches or more in height, rubbish and trash, lumber not piled or stacked twelve (12)
inches off the ground, rocks or bricks, tin, steel, parts of inoperable or derelict cars or trucks,
broken furniture and/or any flammable material. The word "debris" also includes any other
material which is found on any lot or land that is unhealthy or unsafe, provided (1) that it is
describedin detail in the notice that is requiredi n Subsection( B) below, and (2) that the
definition is not challenged by requesting a formal hearing as provided in Section (B) below.
B. Notice. Enforcement of this Section shall be the responsibility of the Health
Commissioner. Enforcement shall commence by providing notice to the owner of the property
of the nuisance condition existing on his/her/its property. The notice may be delivered by
personal service, by certified mail or by ordinary mail. (If sent by ordinary mail, there will be a
rebuttable presumption that the letter was delivered five (5) days after the date it was sent.)
1. The notice shall generally describe the nature of the nuisance, the location of the
Property (using the mailing or popular address rather than a legal description, when reasonably
possible to do so),and ordering the property owner to, within a periodo f seven( 7) days
from thereceipt of the notice, abate the nuisance.
2. Any ownerw ho wishest o challengeth e ordero f abatemenmt ay do so,p rovidedt hat
within the seven( 7) dayp eriodh e/sher equestsa hearingo n the validity of the orderu
ndert he
StateA dministrativeP rocedureA ct, Chapter5 36,R SMo. If no suchr equestis madew
ithin that
255
timep eriod,t heo rderb ecomesfi nal andi s not subjectto challenge lsewhereI.f suchr
equesits
made,t he hearings hallb e conductedb y the Boardo f Adjustment.T he requestf or a
hearing
mustb e in writing, but otherwisen o particularf ormality is required.N otice to the property
ownero f his/herr ight to requesst uchh earings hallb eg ivenb y includinga copyo f this
Section
with anyn otices entu ndera uthorityo f this Section.O ncea requesfto r a hearingis
receivedt,h e
hearings hallb e conductedin accordancwei th the "contestecda se"p rovisionso f the
State
AdministrativeP rocedureA ct. The City Attorneys hallr epresentth e City at sucha
hearing.
C. AbatemenOt f Nuisance.I f the nuisanceis presenot n the propertys even( 7) daysa
fter
receipto f the noticeb y the propertyo wner,t he enforcemenot fficer shall causeth e
samet o be
abated.( The costso f abatemenmt ay includea fee for the City's costi n administratingth
is
Sectionw, hichf ees halln ot exceedo neh undredd ollars( $100.00.)T hee nforcemenotf
ficial
shallc ertifyt he costo f sucha batementto the City Clerk or othero fficer in chargeo f
finance
who shallc auseth e certifiedc ostt o be includedi n a speciatl ax bill or addedt o the
annuarl eal
estateta x bill, at the collectingo fficial's option,a nds hallb e collectedi n the samem
annera nd
proceduraes f or collectingr eale stateta xes.
D. ViolationIs An Offense.A n ownerw ho failst o removea nuisancew ithin seven( 7)
dayso f
beingn otifiedt o do so by then otice/abatemeonrtd erd escribedin Subsectio(nA ) aboves
hallb e
guilty of an offensea ndm ay (at the optiono f the City) be chargedin Municipal Courtw ith
the
offenseo f "failureto abatea nuisance"(.O rd.N o. 780$ $1--51, 0-22-97)
VI. City of University City: Trash in Yards
8.24.190- Putrid meat,o ffal, garbage,e tc.
Thea ccumulationo r existenceu pona ny premisesl,o t or parcelo f groundi n the city of
anyp utrid andu nsoundm eat,p ork, fish, hides,d ecayedv egetableso r food, manure,g
arbage,
256
offal, rubbish,d irt or frlth of any kind, which,b y its decayo r putrefactionc, ouldo r would
becomeo ffensivet o humanb eings,o r detrimentatlo health,s hallc onstitutea nuisance.
VII. City of Creve Coeur: Dilapidated Buildings
SECTION215.020: NUISANCESDESIGNATED
The following are hereby declared to be nuisances:
1. Any act done or committed or suffered to be done or committed by any person or any
substanceo r thing kept, maintained, placed or found in or upon any public or private place that is
injurious, harmful or dangerous to the public health.
MM L A ttorneysc'o nferenc2e0 11-Nui san ceA batemensta mpleo rdinances
2. Any building kept or maintained in a condition unhealthy or unsanitary to the public.
3. The deposit into any sewer, sewer inlet or privy vault, which has a sewer connectiotr, ffiy
article, materials or substance that may obstruct, contaminate or damage the sewer.
4. Any cellar or basement, wet or damp from defective hydrants, water pipes, sewer pipes,
cisterns,w ells, gutters,d rains or rainspouts.
5. Any urine, liquid waste from stables, swills, water from privy vaults, waste water from
sinks, wash water or other foul or nauseous liquid waste allowed to accumulate on any public
property or private property or discharge upon public or private property.
6. Any well or cistern where a chemical analysis shows the water of such well or cistern to
be of any impure or unwholesome nature.
7. Any garbage,a shes,f oul, nauseouso r uncleana nimal or vegetablem atter,y ard wasteo r
other substanceth at is or may becomep utrid, offensiveo r unhealthyt o the public thrown,
depositedo r allowed to escapei nto or upon any private propertyo r accumulatet hereon.
8. Any partly dismantled,w recked,d ilapidated,a bandonedo r non-operativea utomobile,
tractor, trailer or other motor vehicle or parts thereof which are found upon any private property
and which are not housedi n a garage,b asemenot r other enclosedb uilding. Any motor vehicle
or automobile or any elementst hereof found disassembledu pon private property shall be
consideredto be dismantled,a bandonedw, reckedo r dilapidatedf or the purposeo f this Article
when such automobile or other vehicle is found lacking essential component parts that prevent it
from being immediately operative under its own power or which vehicle or automobile is not
properly licensed; the procedure for removal of a vehicle or item described herein shall be in
accordancew ith Chapters2 17 and 390 of this City Code.
9. Any partially dismantled,w recked,j unked, dilapidated,u nfloatable,a bandonedo r
discarded boat or parts thereof which are found upon any private property and allowed to remain
on such property unless said boat or parts thereof are housed in an enclosed garage, basement,
othere nclosedb uilding or storedi n conformancew ith the restrictionso f the Zoning Code;t he
procedure for removal of such item described herein shall be in accordance with Chapters 217
and 390 of this City Code.
10. Any fence, wall, shed, deck, house, garage, building, structure or any part of the
aforesaid;o r any tree,p ole, smokestacko; r any excavation,h ole, pit, basementc, ellar,d ock or
loading dock; or any lot or land, yard, premises or location which in its entirety or in any part
thereof, by reason of the condition in which the same is found or permitted to be or remain, shall
or may endanger the health, safety, life, limb or property or cause any hurt, harm, inconvenience,
discomfort, damage or injury to any one (l) or more individuals in the City in any one (l) or
more of the following particulars:
257
a. By reason of being a nuisance, threat and/or hazard to the general health and safety of
the community.
MM L A ttorneysc'o nferenc2e0 11-NuisanAcbea temensta m p leo rdi nances
b. By reason of being afnehazard.
c. By reasono fbeing unsafe,d angerouso r unhealthyf or occupancyo r use on, in, upon,
about or around the aforesaid property.
d' By reason of lack of sufficient or adequate maintenance of the property and/or being
vacant, any of which depreciates the enjoyment, value, appearance or use of the property in thJ
immediate vicinity to such an extent that it is harmful to the community in which such property
is situated or such conditions exists.
I 1. The abandonmentn, eglecto r disregardo f any premisess o as to permit the premisest o
become unclean with an accumulation of litter or waste thereon or to permit the premises to
becomeu nsightly,u nsanitaryo r obnoxiouso r a blight to the vicinity or offensivet o the senseso f
users of the public way abutting the premises and so to continue for a period longer than ten (10)
days.
12. Any house, building or room in which persons are allowed or permitted by the owner,
keeper or occupant to resort or use for the purpose of prostitution or similar sexual activity.
13. Any non-conforming property, lot, use, building or structure, as defined by the City
zoning ordinance,w hich is allowed by reasono f lack of sufficient or adequatem aintenanceo f
the property, lot, use, building or structure to fall below the standards and level of maintenance
as the surrounding properties and/or being vacant, any of which depreciates the enjoyment and
the use of the property in the immediate vicinity to such an extent that it is harmful to the
community in which the property is situated or such conditions exists. (R.O. 2008 $14-17; Ord.
No. 1896 51,10-27-97)
VIII. City of Breckenridge Hills: Dilapidated Buildings
SECTION 215.040: BUILDINGS AND PREMISES TO BE KEPT SAFE AND
SANITARY
Everyp ersonw ho owns,o ccupieso r controlsa nyb uilding,r esidenceo,t herp remiseos r
vacant
lot muste recta ndm aintaint he samei n sucha mannert hat it will be safea nd sanitary.T
he
neglectd, isregarda, bandonmenotr othera ct or failuret o act so ast o permit any building,
residencep,r emiseo r lot to becomeu nsafeu, nsanitaryo r injurioust o the public health,s
afety
andw elfarei s a public nuisancea ndt he maintenancoef a public nuisanceis prohibited.
(Ord.
No.1 156$ $1- -31,0 -18-10)
IX. City of Rock Hill: Dilapidated Buildings
SECTION220.0l0z DEFINITIONS
For the purposeso f this Chaptert,h e following word shallh avet he meaningsre
spectively
ascribetdo themb y this Section:
258
10
MM L A ttor neysc' on fer ence2 01l- -Nu isan ceA batemensta m p leo rdi nan ces
NUISANCES: Shall mean and include the following:
1. Any act done or committed, or suffered to be done or committed by any person or any
substanceo r thing kept, maintained, placed or found in or upon any public or private place which
is injuriouso r dangerousto the public health.
2. Any act or pursuit followed or act done by any person to the hurt, injury, annoyance,
inconvenienceo r damageo f the public.
3. Any slaughterhouse.
4. Any pond or pool of stagnant water upon any premises, and any foul or dirty water or
liquid when discharged through any drain, pipe or spout, or thrown into or upon any street,
thoroughfare or premises to the injury and annoyance of the public.
5. Any privy or private vault kept in such a condition as to emit offensive, noxious, or
disagreeableo dor, and any substancee mitting an offensive,n oxious,u nhealthy,o r disagreeable
effluvium in the neighborhood where it exists. Any carcass of a dead animal which the owner or
keeper permits to remain within the City limits exceeding twelve (12) hours after death.
6. Any cellar, vault, private drain, pool, privy, sewer or sink, upon any premises permitted
to becomen auseousf,o ul, offensiveo r injurious to the public health.
7. The placing, depositing or throwing, or causing to be placed, deposited or thrown, of any
rubbish, garbage, trash, scrap paper, hand bills, confetti, shavings, dirt hulls, shells, stalks, dead
animals,l eaves,b ranches,y ard waste,o r any other kind of wastem aterialso n any sidewalk,
street, park ways, road shoulders or other public places, or on any private lots or premises in the
City in such a manner and extent to render the same unsightly, unclean or unsafe.
8. The abandonment, neglect, or disregard of any premises so as to permit the premises to
become unclean, with an accumulation of litter or waste thereon, or to permit the premises to
become unsightly, unsanitary, or obnoxious or a blight to the vicinity, or offensive to the senses
of users of the public way abutting the premises and so to continue for a period longer than ten
(10) days.
9, The keeping of any domestic animal such as a horse, mule, jennet, donkey, bull, cow,
calf, sheep, hog, pig, goat, or domestic fowl within or under any building used for human
habitation.
10. Keeping of hogs.
11. Any violation of this Code which if continuedi s liable to endanger,a nnoy or injure the
public; and every act or thing done or made, permitted, allowed or continued on any property,
public or private, by any person, hisArer agent or employee to the damage or injury of any
inhabitantosf thisC ity. (Code1 955$ 20-1;CC1 970$ 20-l; Ord.N o. 1016$ 2,5-4-82;O rd.N o.
t229 51,10-20-92)
77
MM L A ttorneysc'o nferenc2e0 1L -Nu isancAeb atemensta m p leo rdi nances
X. City of Ladue: Noise*
*Note: This is a general prohibition ordinance, not couched under the term ,.nuisance"
Sec. 58-1. - Prohibited generally.
Subjectt o the provisionso f this chapter,t he creationo f any unreasonablylo ud,
259
disturbingo r unnecessaryn oise in the city is herebyp rohibited.
(Code 1969, S I7-l;Ord. No. 118,9I@), II-20-1939)
Sec. 58-2. - Acts enumerated.
The following acts, among others, are hereby declared to be loud, disturbing and
unnecessarny oisesi n violation of the provisionso f this chapter,b ut such enumerations hall not
be deemedto be exclusive:
(1)
Horns or signal devices. The sounding of any horn or signal device on any motorbus,
motorcycle, automobile or other vehicle while not in motion, except as a danger signal if:
anotherv ehicle is approachinga pparentlyo ut of control, or if in motion, the excessiveo r
prolonged sounding except only as a danger signal after or as brakes are being applied and
decelerationo f the vehicle is intended;t he creationb y meanso f any such signal deviceo f any
unreasonabllyo ud or harshs ound;a ndt he soundingo fsuch devicef or an unn...rrury o,
unreasonablpee riod of time.
(2)
Amplifieds ounda nd musical instruments.T he playing of any devicep roducinga mplified
sound, such a radio, phonograph, television or other similar device or playing any musical
instrument in such a manner or with such volume, particularly during the hours between 8:00
p.m. and7 :00a .m..a st o tendt o annoyo r disturbt he quiet,c omlorto r r"por" of personsin any
dwelling, or residencep; rovided that any suchn oiset hat can be distinctly hearda t a distanceo f'
more than 100 feet from its source shall be deemed excessive.
(3)
Animals, birds orfowl. The keeping of any animal, bird or fowl which, by causing frequent or
long continued noise shall tend to disturb the comfort and repose of any person in the vicinity;,
provided that any such noise that can be distinctly heard at a distance of more than 100 feet
from its source shall be deemed excessive.
(4)
Out-of-repair automobiles or tires. The operation or use of any automobile, motorcycle, or
vehicles o out of repair, so loadedo r in suchm €tnnear s to createl oud and unnecessaryg rating,
grinding,r attlingo r othern oiseo r to causet he tirest hereoft o squeal.
(s)
12
MM L A ttorneysc'o nferenc2e0 11-Nui san ceA batemensta mpleo rdinan ces
Whistleso.r
,sirens.
The blowing of any steamw histle attachedt o any stationaryb oiler, or any
other whistle or siren, except to give notiCe of ihe time to begin or stop work or as a warning of
danger.
(6)
Loud, explosiven oisesfr om enginee xhaustsT. he dischargei nto the open air of the blowdown
of any steam engine or of the exhaust of any stationary internal combustion engine, or motor
vehicle,o r of the escapev alve from the unloadero f any air compressore xceprt hrough a
muffler or other device that will effectively prevent loud or explosive noises therefrom.
(7)
Constructionn oises.T he erection( including excavating),d emolition, alteraliono r repairo f uny
Uuitaing or other structure on Sunday or on other days iuring which hours construction is
260
proscribed,e xcepti n caseo f urgentn ecessityi n the interesto f public safetya nd then only with
a permit from the building commissioner,w hich permit will be renewedf or a period of three
days or less while the emergency continues.
(8)
Noisen ear hospitalso r other institutions.T he creationo f any excessiveo r unnecessarny oise
within 150f eeto f any portiono f the groundsa ndp remiseso n which is locateda hospiialo r
other institution reserved for the sick, or any church or any school or other institution of'
learningo r any court while the samea re in sessionw, hich unreasonablyin terferesw ith the
properf unctioningo f any suchp lace above-mentionedp rovided conspicuouss ignsa re placed
in the public highways indicating the zones within which such noises are prohibited. The street
commissioneris herebya uthorizeda nd directedt o causet o be placeda s many rig;i ur he mit
deemn ecessaryto properly indicates uchq uiet zonesa nd to cail attentiont o itre prohiUiiio"
againste xcessiveo r unnecessaryn oisesw ithin suchz ones.
(e)
Loading or unloading bales, boxes crates or containers. The creation of a loud and excessive
noise in connection with the loading or unloading of any vehicle or the opening or destruction
of bales,b oxes,c rates,o r containersi n the vicinity of any dwelling or othei humanh abitation.
(10)
Shouting of peddlers, hawkers or vendors. The shouting or crying of peddlers, hawkers or
vendors, including any person selling or attempting to sell any product which disturbs the peace
and quiet ofthe neighborhood.
(1 1)
Drums, loudspeakers or instruments. The use of any drum, loudspeaker or other instrumerrt or
device for the purpose of attracting attention by creation of noise, or for advertising purposes.
(r2)
Calliopeso r loudspeakerso n vehicles.T he use of calliopes,m echanicall oudspeakerso r
am-plifiers on any vehicles used for advertising or other purposes except when a permit for. sych
use over a specified route is issued by the council, and except within the time specified in said
permit
(13)
13
MM L A ttorneycso' nferenc2e0 11-uNis nac eA batemeSnatm pleo rdi nan ces
Power-driveinn strumerzrTsh. eu seo f a power-drivenla wnmoweor r others imilarp
owerdriveni
nstrumentalitpyr ior to 9:00a .m.o n Sundayo r on anyl egalh oliJay.
(14)
Lgadingo r unloadingw ithin 100f eet of residentiapl roperty.T he causing,p ermittingo r
allowingo f loadingo runloadingo r pickupo r deliveryo n anyc ommerciaoi r Uuiineii
property
in thec ity within 100f eeto f residentiapl ropertya sf ollows:b etweenth eh ourso f l:OOp
.m.
and7 :00a .m.,m erchandisoer suppliesa nda nyo therm aterialso r substanceosf anyk ind
or
descriptioont hert hant hem aterialsre ferredto in subsectio(n2 ) of this r..iiotr.
Thee nforcemenotf this sectionis suspendeddu ringt hep eriodJ anuaryI, 2008,t hrouglr
261
Decembe3r1 ,2 008.
(1s)
Constructiown orkw ithin 100f eet of residentiapl roperty.T hec ausingp, ermittingo, r
allowing
within 100f eeto f residentiaal reasa nyc onstructiown ork or useo f constructioenq
uipment
whichc ausenso isew hichc anb ed istinctlyh earda t a distancoef moret han1 00f eetf
romi ts
sourcee xcepbt etweenth e hourso f 7:00a .m.a nd6 :00p .m.o n Mondayt hroughS
atuiAay.
Activitiest hatp roduces uchn oisea rep rohibitedd uringo therh oursa nda ll dayo n
Sunday.
(CodeI9 69,S I7-2;O rd. No. II8,S 1(b),I I-20-1g3gO: rd. No.727S, I, g-17-1960O;r d. No.
1196S, 1,4-27-1978O;r d.N o.1 491S, 1,7-16-1990O;r d.N o.I 6tt, S I, I0-16-1995O; rd.
No. 1658S, I, 6-16-1997O; rd.o f 1924S, 2, 8-20-2007)
Sec5. 8-3.- Prohibitionso n businesos r commerciapl roperty.
(a)
The following acts are prohibited on business or commercial property: the causing, permitting,,
or allowing of the cleaningo f streets,s idewalks,o r parking lots by motorizede quipment,o . iiie
pickup of trash, garbage, or similar waste material, between the hours of 8:00 p.m. and 8:00
a.m.T his subsectiond oesn ot apply to snow removal.
(b)
Subsection(a ) of this sectiona ppliesw heret he propertyi s within 300 feet of residential
property,r egardlesso f where sucha ctivity occurso n suchp roperty.
XI. City of Berkeley: Noise
SECTION 215.010: NUISANCES -- ENUMERATION
A. Public nuisancesa re prohibited in the City of Berkeley. Public nuisancesa re definedi n
Subsection(sB --D) of this Section.
B. Any act done or committed or suffered to be done or committed by any person, or any
substanceo r thing kept or maintained, placed or thrown on or upon any public or private place
which is injurious to the public health.
C. All pursuits followed or acts done by any person to the hurt, injury, annoyance,
inconvenienceo, r dangero f the public.
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D. The above definitions shall include, but not by way of limitation, the following:
l. All bawdy houses, buildings, or rooms to which any persons are allowed or permitted by
the owner, keeper, or occupants thereof to resort for the purpose of prostitution.
2. All slaughter houses.
3. All ponds or pools of stagnant water and all foul or dirty water or liquid when discharged
through any drain pipe or spout into or upon any street, alley, thoroughfare or lot, to the injury
and annoyance of the public.
4. All privies or outhouses.
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5. All carcasseso f dead animals which the owner or keeper thereof shall permit to remain
within the limits of the City exceeding twelve (12) hours after death.
6. Any excavation which may endanger life or limb of another.
7. Weeds.
a. The allowing or maintaining, on any lot or parcel of ground, of the growth of weeds
to a height of nine (9) inches in any residentially zoned district of the City, or to a height of one
(1) foot in any other zoning district of the City. These limits shall also apply to the growth of
weeds upon improved streets or upon the righfof-way adjoining such premises or upon any
adjoining sidewalks. The word "weeds" as used herein shall include all rank vegetable growth
which exhales unpleasant and noxious odors, and also high and rank vegetable growth that may
conceal filthy deposits or rodents, or which constitutes a general nuisance.
b. Council does hereby determine and find that grass if allowed to grow to heights in
excesso f thoses pecifiedi n Subsection( a) hereinc an maintaina nd concealf ilthy deposits,
rodents, and is a general nuisance to the general public and, therefor, such grass should be cut
prior to its growth in excesso f heightss pecifiedi n Subsection( a) herein.
8. The keeping of hogs within three hundred (300) feet of any dwelling or public highway.
9. The keeping of animals of any kind, domestic or wild, upon any public or private place
in such a manner or condition that same constitute a hurt, injury, annoyance, inconvenience, or
danger to the public or the residents of the vicinity.
10. Causing, keeping, maintaining, or permitting trash, garbage or other obnoxious or filthy
substanceu pon any public or private property constituting a hurt, injury, annoyance,
inconvenience, or danger to the public health or welfare.
I 1. It shall be unlawful for any person to create, make, or cause to be made any loud,
excessive, or unnecessary noise which either annoys, disturbs the comfort, repose, health, or
peace ofothers.
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12. All areasw hich aren ot coveredb y lawn or vegetationo r usedf or the purposeo f
vegetableg ardensa ndf lower bedss hallb e coveredw ith sod,s eeda nds traw,m ulch,o r
other
acceptabllea ndscapingm aterialt o preventd usto r the blowing or scatteringo f dustp
articlesin
the air.
13. Deadt reesa nds hrubss hallb ep romptlyr emoved.A fter thep assingo f one( 1)
growing
seasont,r eesa nds hrubst hat haves hownn o signso f sustainingli fe will be declaredd
eada nd
must be promptly removed.
14. All firewoodm ustb e cut into lengthsf or buming,b e neatlys tackedb ehindt he
building
line,a ndp lacedin a rackw hicha llowsa minimumo f a twelve( 12) inch spacea bovet heg
rounJ
soa sn ott o allowt hen estingo f rodents.I f firewoodi s not usedw ithin a reasonabllee
ngtho f
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timea ndi s showings ignso f deteriorationo,r is harboringin sectsi,t mustb e removedp
romptly.
(cc 1961g 11 .05;o rd. No. 12,5 -2-38o; rd. No. 2044S t, tl-4-74 ord. No. 2067S t,4-7-75;
Ord.N o.3 078$ 1,9 -5-89O; rd.N o. 31245 1,5-21-90)
XII. City of Breckenridge Hills: Noise
SECTION 215.030: CERTAIN NUISANCES DESIGNATED
The following are declared to be public nuisances:
1. All decayed or unwholesome food offered for sale to the public.
2. All diseaseda nimalsr unning at large.
3. All ponds or pools of stagnant water.
4. Any accumulationu pon any premises,l ot or parcelo f ground in the City of
BreckenridgeH ills, or the discharget hereofu pon any public street,a lley or private property,o f
urine, liquid waste from stables, swill, water from privy vaults, wastewater from sinks, wash
water or any foul or nauseous liquid waste of any kind whatever.
5. Carcasseos f deada nimalsn ot buried or destroyedw ithin twenty-four (24) hours after
death.
6. Accumulations of rubbish, garbage, refuse and human and industrial or noxious or
offensive waste.
7. Any accumulation or existence upon any premises, lot or parcel of ground in the City of
Breckenridge Hills of any putrid and unsound meat, pork, fish, hides, decayed vegetables or
food, manure, garbage, offal, rubbish, dirt or filth of any kind which, by its decay or putrefaction,
could or would become offensive to human beings or detrimental to health.
8. Garbage cans which are not fly-tight.
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9. The pollution of any well, cistern, spring, underground water, stream, lake, canal or body
of water by sewageo r industrial wasteso r other substancesh armful to human beings.
10. Denses moke,n oxious fumes,g asa nd soot or cindersi n unreasonableq uantitieso r the
presence of any gas, vapor, fume, smoke, dust or any other toxic substance on, in or emitted
from
the equipment of any premises in quantities sufficient to be toxic, harmful or injurious to the
health of any employee or to any premises, occupant or to any other persons.
I 1. Common drinking cups, roller towels, combs, brushes or eating utensils in public or
semi-public places not properly sanitized after use.
12. Any vehicle used for septic tank cleaning which does not meet the requirements of this
Chapter.
13. Any vehicle used for garbage and rubbish disposal which does not meet the
requirements of this Chapter.
14. All infestationso f flies, fleas,r oaches,li ce, ticks, rats,m ice, fly maggots,m osquito
larvae and hookworm larvae.
15. The keepingo f animalso r fowls in closep roximity to residencess, chools,h ospitalsa nd
public places,p et catsa nd dogs in reasonablen umberss hall be an exceptiont o the foregoing,
provided however, in the event they are kept in an outside pen, said pen shall be located at least
five (5) feet from the property line of any adjoining property owner.
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16. Any stable, stall, shed or compartment or any yard or appurtenance thereof in which
any horse, cattle, cows, swine or any other animal shall be kept or any place within the limits of
the City of BreckenridgeH ills, in which manureo r liquid dischargeso f such animalss hall
collect or accumulate, and which stable, stall, shed or compartment, or any yard of appurtenance
thereof, is not kept in a cleanly and wholesome condition, so that no offensive smell shall be
allowed to escape therefrom; provided that nothing in this Section shall be so construed as to
include manure deposits upon any private property for the purpose of cultivating the same.
17. Unlicensed dumps.
18. Commercial areas used for the storage of rubbish, junk, debris or other noxious
materials offensive to the general public.
19. The maintenanceu, pon public or privatep roperty,o f deado r dying treeso r tree limbs
or branchesw hich, by reasono f their location,s ize or stateo f deterioration,c onstitutea danger
to the public health, safety or welfare or the maintenance upon public or private property of trees
which are infected with Dutch Elm or other contagious disease or blight, dangerous to persons,
animals, other trees or plant life.
20. Any loud and unusual noise created by the repair, testing or operation of motor vehicles
or motorized equipment of any kind or created by aoy other means of sufficient volume to be
clearly audible and to annoy persons in the surrounding area.
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21. The overnight,o utsides torageo r parkingo f trucks,t railerso r otherv ehiclesu sedf or
thec ollectiono r haulingo f "garbageo" r "refuse".
22. Graffitio n privatep ropertyw hichi s visiblet o theg enerapl ublico r exposedto public
view.
23. Any unclean,s tinking,f oul, defectiveo r filthy drain,d itch,t ank or gutter,o r any
leaking,b rokens lop,g arbageo r manureb oxeso r receptacleosf like character.
24. Any dirt gatheredin cleaningy ards,w asteo r mills or factorieso, r anyr ags,d amaged
merchandisew, et, brokeno r leakingb arrels,c askso r boxes,o r any materialsw hich
areo ffensive
or tendt o decayt o becomep utrid or to rendert he atmospheriem pureo r unwholesome.
25. Thes eepagoef wateri n anyc ellar,b asemenotr partt hereofo, f anyh ouseo r building
within the City of BreckenridgeH ills by leakagefr om defectiveh ydrantsw, aterp ipes,s
ewer
pipes,c isternso r wells,g uttersd, rainsr, ains poutso r seepagfero m the surroundinega
rth.
26. The accumulationo f filth or mud in any guttera st o preventt he freep assageo f water
along and through them.
27. Them aintenancoef anyl ot, tracto r parcelo f landi n theC ity of BreckenridgHe ills by
anyp ersonf,i rm or corporationin sucha mannera st o causee rosiono r alterationo f the
natural
topographya ndg radeo f land,o r depletiono f naturald epositso f topsoila ndo thern
atural
materialsI.f in thed eterminatioonf the Chiefo f Policet heo nly feasiblem ethodo f soil
erosion
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controli s by revegetations,p ecificationsfo r the work shallp rovidet hat the lot, tracto r
parcel
shallb e harrowedo r rakedt o establisha seedb eda nds hallb e seededw ith grassp,
ermanent
pasturem ixture,o r othera pprovedfa st-growingv egetationa nds hallb e repeateda so
ftena s
necessaruyn til the lot, tracto r parceli s stabilized.
28. All othera cts,p racticesc,o nductb, usinesso,c cupationsc,a llingst,r adesu, seso f
propertya nda ll othert hingsd etrimentatlo the healtho f the inhabitantso f the City of
BreckenridgHeil ls. (Ord.N o. 1156g gl--3,l 0-18-10)
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COPY ON LETTERHEAD
DATE:
NAME:
ADDRESS:
MunicipaCl odeS ection xxx.XXX - weeds.H igh Grasso r other veqetation
Weeds. Hi ut and Removed. A Nui
owning or occupving anv lot or tract of land in the Citv shall keep the weeds. hiqh srass and
other vegetation
growing on such propertv cut and removed. Whenever such weeds. hiqh grass or other
veqetation shall
attain the height of seven (7) inches. it shall be deemed a public nuisance.
CodeE nforcemenOt fficer
Shouldy ou haveq uestionsp, leasec all City Hall at xxx-xxx-xxxx.B usinessh oursa re_a.m._p.m.,
Monday through Friday.
LETTER HEAD
DATE
xxxxxxxxxxxxxxxx
xxxxxxxxxxxx
xxxxxxxxxxxxxxxxx
Re: StreetA ddressC, ity, State,Z ip - AccessorSyt ructures
Dear Mr. XXXX:
It hasc omet o mya ttentionth att hes hedo n thea bover eferencepdr opertyis in
violationo f theM unicipal
PropertyM aintenancCeo de,S ectionX XX.XX. Thes hedis in disrepairh, avingt hef ronta
ndp arto f the
sidem issing.T his shedm ust be removedr, epairedo r replacedto complyw ith
MunicipalC ode. If
replaceda, buildingp ermitw ill ber equired.
It is ther esponsibilitoyf all "City of " propertyo wnersa ndr esidenttso maintainth eir
propertyt o the standardos f the PropertyM aintenancCe ode. You will havet hirty daysf
rom the dateo f
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thisl ettert o correcth isv iolation.F ailureto complyw itht hei ntento f thisl etterc ouldr
esultin a summons
to MunicipaCl ourt.
If youhavea nyq uestionsy,o u mayr eachm et hroughC ity Hall at xxx-xxx-xxxx.
Busineshso ursa re
a.m. - p.m., Monday through Friday.
Sincerely,
XXXXXXXXX
CodeE nforcemenOt ffrcer
XXX:xx
Enclosur-e M unicipaCl odeS ectionsX XX.XX
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