February Newsletter (Issue 02-2015)

heart-and-love-valentine-day-wallpaper-2015February Newsletter (issue 02-2015)

Midterm Summary Of United States Supreme Court Decisions And Amicus Briefs Filed By The State And Local Legal Center.

The State and Local Legal Center has an excellent summary of U. S. Supreme Court cases involving local governments that was recently put online.  The summary covers decisions already made in the 2014–2015 term as well as amicus briefs for cases the Center will file or has filed.  I highly recommend this midterm update on the Supreme Court.  The link to the article is below. http://statelocallc.squarespace.com/storage/pdf/Midterm LOCAL 2015.pdf

Public Notice Requires a Public Hearing.

coal20ash20landfill.png.492x0_q85_crop-smartIn Campbell vs. Franklin County the Missouri Supreme Court, in a case of first impression, addressed what constitutes a valid public hearing under Section 64.875 RSMo.

A brief review of the facts helps put this case in perspective.  Union Electric Company (“UE”) owns and operates an electric power generating facility in Franklin County (“County”).  In conjunction with the operation of the power generating facility UE also has a coal-ash landfill.  UE announced that it would build a new coal-ash landfill on land it had recently acquired near its current plant in the County.

In order for UE to operate the new coal-ash landfill it was necessary to amend the County Zoning Ordinance.  The amendment required any coal–ash landfill to be located within 1,000 feet of an existing electric utility power generation plant and under common ownership with the adjacent power plant.  There was only one electric generating power plant in the County, which was owned and operated by UE.  Consequently, the Zoning Amendment had the effect of rezoning the property specifically for only UE at a site within 1,000 feet of its existing power plant.

The County Planning and Zoning Commission (“Zoning Commission”) held a public hearing as well as the County Commission.  At the start of the public hearing before the Zoning Commission and the County Commission the chair announced that speakers could not discuss the UE proposal for a coal–ash landfill because: “We are not here to discuss any particular project.”   The amendment to the Zoning Ordinance did not specify a specific project since it was an amendment to the permitted uses under the Zoning Ordinance.

The public was allowed to speak generally to the amendment but could not discuss the specifics of the UE proposal particularly as it related to their property and the specifics of the location of the landfill.  As a consequence speakers were denied the right to discuss the amendment to the Zoning Ordinance as it pertained to the UE proposal to construct a new coal–ash landfill.

The Commission approved the amendment to the Zoning Ordinance and a group opposing the landfill (Neighbors) filed in circuit court a petition for writ of certiorari alleging that the adoption of the amendment was illegal because the Zoning Commission and the County Commission failed to conduct valid public hearings and that the amendment did not promote the health, safety, and general welfare of the citizens of the County.

After the petition was filed the trial court issued a writ of certiorari to the Commission directing it to provide the court with a full transcript and complete record pertaining to the matter and UE intervened in the proceedings.  Upon certifying the record of the proceedings to the trial court, the County Commission and UE filed motions for judgment on the pleadings or in the alternative to dismiss for failure to state a cause of action upon which relief could be granted.  The trial court sustained the motion to dismiss and the Neighbors appealed to the Eastern District, which reversed on grounds that the Commission did not conduct a valid public hearing for the purpose of adopting a zoning amendment.  The case was transferred to the Missouri Supreme Court, which held that the Commission failed to hold a valid public hearing.

Section 64.875 provides that “no amendments shall be made by the county commission except after recommendation of the county planning commission, or if there be no county planning commission, of the county zoning commission, after hearings thereon by the commission” [Emphasis by the Court].  In addition, Section 64.875 requires that notice be given in accordance with Section 64.815, which requires notice of the time and place “… be published in at least one newspaper having general circulation within the county, and notice of such hearing shall also be posted at least fifteen days in advance thereof in one or more public areas of the courthouse of the county.”  While the statutes do not state whether the “hearing” is public the court concludes that: “It would be nonsensical to require public notice for a non-public hearing.”  In addition, notice of a hearing would be worthless if the public was denied the opportunity to speak.

The Court applied the ordinary dictionary meaning of the word “hearing.”  A “hearing” is “a session … in which testimony is taken from witnesses,” an “opportunity to be heard, to present one’s side of a case, or to be generally known or appreciated,” and “a listening to arguments.”

More precisely, “The issue raised by Appellants’ pleadings is whether the hearing was insufficient because the commission precluded the public from addressing Ameren’s proposed coal-ash landfill.”  The Court concluded that while procedures can be tailored to meet logistical necessities the requirement of the statute “…at a minimum provides that the public must be given an opportunity to present its views about the subject matter of the proposed zoning amendment.”

Of particular interest, is the fact that the Court spent over five pages discussing the scope of review with respect to a writ of certiorari concluding that the motion to dismiss for failure to state a claim filed by UE, (which was sustained by the trial court) precluded any review of the case on the record under procedures for writs of certiorari.  In addition, the court concluded that the Public Service Commission statutes that provide zoning authorities shall be construed to not authorize interference with public utility services did not apply.  Campbell et al., vs. County Commission of Franklin County and Union Electric Company, (SC93944, 2/10/15)

Comment Howard: The importance of this case cannot be stressed enough because on a daily basis local governmental attorneys are faced with council members who do not want to sit through long hearings that are highly controversial.  Armed with this case, you can advise public officials to be very careful in precluding comments unless they are totally inappropriate or are not germane to the subject.  The court emphasized that local governmental bodies still retained the power to meet “logistical necessities.”  The use of the term “logistical necessities” sounds more like a time and place limitation instead of matters involving substantive issues.  It seems pretty clear, to any impartial observer, that the procedures followed by the Franklin County Commission were rump procedures to allow the Commission to ram through a highly controversial project that would be located in a floodplain and floodway as well as an earthquake fault zone.  Based on recent events involving the pollution of drinking water caused by coal-ash facilities what could possibly go wrong with a coal ash storage facility located in a floodway and floodplain as well as an earthquake zone?

Requiring A Property Owner To Pay A Utility Bill For A Tenant Is Not A Taking Of Property.

istock_000000347706xsmallDynasty is the owner of residential rental properties in Franklin County.  The District is a public water supply district that supplies water and sewer service to the premises of the subdivision.  While the District will open new accounts for water or sewer service in the name of Dynasty or in the name tenants, Dynasty the property owner, requires its tenants to procure service with the District in their own names.

The District published regulations governing the terms of its service pursuant to Section 247.050(17).  In accordance with these rules and regulations, customers are billed on the 24th of each month for that month’s service.  The monthly billing invoice states that the balance is due twenty days after the billing date and if not paid within twenty days, the account is considered delinquent, and a late fee is added.  If the customer does not pay the past due amount and the late fee within forty-five days of the original bill the account is subject to discontinuation of service.  These procedures were followed with respect to the tenants of Dynasty.  When a tenant’s service is discontinued for nonpayment, the District requires the property owners, like Dynasty, to pay up to ninety days of charges and late penalties assessed to the account, pursuant to Section 250.140.2.

Dynasty requested the District terminate service to listed tenants whose accounts are delinquent by thirty days.  The District refused these requests because Dynasty was not the named customer on the account.  Thereafter, Dynasty filed its petition for inverse condemnation against the District for its refusal to terminate service as requested, claiming that the liability for delinquent service charges and late penalties constituted a taking of its property under Article I, Section 26 and the Equal Protection Clause of the Missouri Constitution.  Both parties filed motions for summary judgment, and the trial court granted the District’s motion, which was appealed to the Eastern District.

The Eastern District held that the rules of the District were not inconsistent with the statute because the statute specifically grants the provider of service the right to sue both the occupant and the owner for unpaid bills.  Furthermore, the purpose of the statute was to provide a valuable right to property owners by allowing them to connect to the water system, a right not possessed by unconnected properties.  In addition, Dynasty elected not to be a party to the contract for water service requiring its tenants to procure these services; therefore, Dynasty does not have any contractual right (like the tenant) to disconnect the service under the rules established by the District.  The statute that granted the District the right to sue both the occupant and the owner for unpaid bills and the right to obtain attorneys fees bore a reasonable relationship to the legislative objective.  The property rights of Dynasty were not infringed, nor had it suffered a taking.  Dynasty Home, L. C., vs. Public Water Supply District Number 3 of Franklin County, Missouri (ED100993, 02/03/15)

Missouri Supreme Court To Reexamine Inconsistencies Between Federal And State Law With Respect To Qualified Immunity And Official Immunity And Probable Cause Determination Under The Civil Rights Act And Claims For Malicious Prosecution.

The authorities received a report of suspected abuse of a child, who had sustained severe bruising around her eye and mouth. A detective interviewed the mother.  Based upon the probable cause statement of the detective, the prosecuting attorney filed felony charges for endangering the welfare of the child in the second degree.  The charges were later dismissed.

The mother brought a civil rights action and an action for malicious prosecution against the detective in state court, which were dismissed when the trial court sustained the detective’s motion for summary judgment.  The mother appealed to the Eastern District.

Based on the record the Eastern District found that the probable cause statement of the detective that the mother “stated she slammed L.C.’s head into the doorknob due to anger” was unsupported and in reckless disregard for the truth with respect to the malicious prosecution claim.  The Eastern District determined that deletion of the mothers statement that she slammed the child’s head into the doorknob due to anger that the probable-cause statement would still establish that probable cause existed to believe that the mother committed some offense against the child leading to the child’s injury; therefore, the detective was entitled to qualified immunity on the section 1983 claim.  As to the mother’s state-law malicious-prosecution claim, however, the Eastern District reached a different result concluding that under a state malicious prosecution claim a false statement showed “absence of probable cause for the prosecution” under the six part malicious prosecution test.

Federal cases analyzing Section 1983 claims and Missouri cases analyzing state malicious-prosecution claims define the term “probable cause” differently.  The federal cases also employ a different test for qualified immunity than Missouri cases for official immunity.  Missouri courts have stated that official immunity does not apply in Missouri to discretionary acts done in bad faith or with malice even though an allegation of malice is not sufficient to defeat qualified immunity under federal law in a civil rights action if the defendant acted in an objectively reasonable manner.

Therefore the Western District reversed and remanded that part of the trial court’s judgment relating to the malicious prosecution claim while upholding the motion for summary judgment with respect to the civil rights action.  The Eastern District promptly transferred the case to the Missouri Supreme Court due to the above inconsistencies of existing law.  Copeland vs. Wicks, (ED101012, 01/27/15)

Comment Howard: This is a very confusing area that needs clarification by the Supreme Court of Missouri.  The inconsistencies pointed out by the Court with respect to “official immunity” and “qualified immunity” can lead to some very different results that are troubling as shown by this case.

Grandview Case Answers Multitude of Collective Bargaining Issues.

In July 2010 the Fraternal Order of Police (Fraternal Order) demanded it be recognized as the exclusive bargaining agent for all police officers, police sergeants, and police communication officers employed by the City of Grandview (City).  In response to the request by the Fraternal Order the City prepared and eventually adopted an ordinance establishing the collective bargaining framework for personnel in the police department.

Thereafter, the Fraternal Order sued the City claiming that the ordinance violated the constitutional rights (right to bargain collectively in good faith and equal protection) of its members because:

 (1) It required a secret ballot election as the designated method for employees to select a collective bargaining representative; (2) It did not allow supervisory and non-supervisory employees to be members of the same bargaining unit: (3) It failed to establish a specialized procedural framework for the resolution of conflicts regarding the composition of collective bargaining units; (4) It prohibited supervisory and non-supervisory employees from being represented by the same collective bargaining agent; (5) It required the collective bargaining representative to receive the votes of a majority of all eligible voters rather than the majority of the votes cast in order to be elected; (6) It provided that the City would not pay any union representative for time spent preparing for or engaging in collective bargaining and prohibited the City from entering into wage commitments that exceeded one year; (7) It allowed the Board of Alderman to modify the economic terms of any labor agreement in the event of a budget shortfall; (8) It allowed the Board of Alderman to modify the terms and conditions of employment for employees in the bargaining unit in the event a collective bargaining representative was decertified.

After filing suit, the police officers, civilian members, and sergeants signed representation cards and presented these to the City requesting that the City recognize the Fraternal Order as their “chosen exclusive bargaining representative for the purpose of collective bargaining.” Thereafter, the parties filed cross-motions for summary judgment.  The circuit court granted summary judgment in favor of the Fraternal Order because it violated the Equal Protection Clause and the duty of the City to engage in collective bargaining in good faith as set fort in the Missouri Constitution.  The City appealed to the Western District.

The Western District held that the City’s ordinance did not “clearly and undoubtedly” contravene Article I, Section 29 of the Missouri Constitution by: “(1) summarily declaring that police sergeants are supervisory employees and are prohibited from being in the same bargaining unit as police officer; (2) failing to provide a fair and impartial forum for full and fair consideration and resolution of conflicts; (3) prohibiting sergeants and police officers from being represented by the same organization in separate bargaining units; (4) summarily prohibiting collective bargaining representatives employed by the City from receiving pay from the City for time spent preparing for, and participating in, collective bargaining; (5) summarily limiting to a maximum of one year the duration of economic provisions of any labor agreement reached in collective bargaining; (6) retaining the right to require the modification of the economic terms of any labor agreement in the event of a budget shortfall; and (7) retaining the ability to modify the terms and conditions of employment for employees in the bargaining unit in the event a collective bargaining representative is decertified.”

Notwithstanding the above, the court noted that there was nothing in the ordinance, which prevented the City from negotiating with a labor union over whether union representatives should be compensated for collective bargaining activities, the term of the labor agreement, the right to modify the economic terms of any labor agreement in the event of a budget shortfall and the right to modify the terms and conditions of employment for employees in a bargaining unit in the event a collective bargaining representative is decertified.

“The mere fact that some issue is initially addressed in an ordinance providing a framework for negotiations does not mean that the City would be unwilling to negotiate over a change to that ordinance.”  In fact, even though the city has enacted its framework for negotiations “…it has not refused to meet and confer on any of these issues.”  The constitution only requires that an employer “meet and confer” with a collective bargaining representative and engage in the bargaining process in good faith. “Sec. 29, Art. I is not a labor relations act, specifying rights, duties, practices and obligations of employers and labor organizations”

The establishment of a collective bargaining framework is for the legislative body, not the courts.  To the extent that the City may in the future refuse to negotiate concerning any of the terms addressed in the ordinance, the Fraternal Order may challenge the City’s refusal at that time, if it believes that the refusal violates the duty of a public employer to negotiate in good faith.

The Western District made no determination about the constitutionality of the provision of the ordinance requiring that a collective bargaining representative receive more than 50 percent of votes of all eligible voters, leaving this issue for another day when there is actually a controversy based upon a vote by the members of the bargaining unit.  In addition, it reversed the circuit court’s determination that, as a matter of law, an election was not necessary in this case and that the City must immediately recognize the Fraternal Order as the exclusive bargaining representative.  The Western District also determined that the judgment of the circuit court finding that the ordinance violated the equal protection clause was in error because the Missouri Constitution does not give police officers, sergeants, and civilian members the right to determine the framework under which collective bargaining occurs.  West Central Missouri Region Lodge # 50 of The Fraternal Order Of Police v. City of Grandview, (WD77250, 01/27/15)

Comment Howard: This opinion is some 33 pages long.  It is a good starting point since it covers nearly all of the applicable cases in this area providing a very favorable analysis for any public employers of it’s duty to engage in collective bargaining with public employees not covered by the Meet and Confer Law.  The court left for another day the question concerning whether or not the City could simply rely upon provisions in the framework for collective bargaining by simply refusing to discuss certain issues.  In addition, the court draws a very sharp distinction between the legislative branch and the judicial branch stating that the court should stay out of matters that are legislative.

How Many Tests Are Required To Properly Verify And Calibrate A Breathalyzer?

On January 27, 2015, two opinions (one by the Southern District and the other by the Eastern District) were handed down interpreting the regulations of the Department of Revenue pertaining to the verification and calibration of breath test devices police-cars-2(Breathalyzer).  In both cases, the Director of Revenue (Director) revoked the license of the person for operating a motor vehicle with a blood alcohol content that exceeded the legal limit.   In both cases, the driver petitioned for and received a trial de novo in Circuit Court.  In both cases, the Circuit Court held the Breathalyzer had not been verified and calibrated in accordance with 19 CSR 25–30.051(2) and as a result the Director could not revoke the license of the driver.  In both cases, the Director appealed the trial courts decision to the Court of Appeals (One to the Eastern District and the other to the Southern District).  In both cases, the appellate court interpreted 19 CSR 25–30.051 (2) reaching different results on the same day.

Eastern District Opinion.

The Eastern District upheld the circuit court’s decision revoking the driver’s license.  The Eastern District sets up the framework for its interpretation of 19 CSR 25–0.051(2) as follows:

“The version of 19 CSR 25-30.051(2) in effect at the time of Driver’s arrest in July 2013 and when the maintenance report on the breathalyzer was completed stated, in pertinent part:

(2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;
 (B) 0.08%; and (emphasis added) (C) 0.04%.

The version of 19 CSR 25-30.051(2) in effect at the time of Driver’s trial de novo in April 2014, stated, in pertinent part:

(2) Standard simulator solutions, used to verify and calibrate evidential breath analyzers shall be solutions from approved suppliers. The standard simulator solutions used shall have a vapor concentration within five percent (5%) of the following values:

(A) 0.10%;
 (B) 0.08%; or (emphasis added) (C) 0.04%.

The difference between the earlier and later of 19 CSR 25-30.051(2) is a single word: “and” versus “or.” (Language bolded for your convenience.)

The Eastern District interpreted the words in the Regulation applying the rule that in the absence of a definition in the Regulation the meaning of a word should be interpreted as generally found in the dictionary.  “The word “and” is a conjunction used to join words or groups of words and means “added to” or “plus.” “The word “or” also is a conjunction; however, “or” is used to indicate an alternative, the equivalent or substitutive character of two words or phrases, or approximation or uncertainty.”

Since the evidence was that the police had only tested the breathalyzer using only the 0.100% standard simulator solution rather than all three standards as required by the Regulation the trial court was correct in holding that the Director of Revenue improperly revoked the license of the driver because a plain reading of the Regulation required use of all three tests in order to properly calibrate the breathalyzer before the results of the tests to be introduced into evidence.

With respect to whether or not the earlier or later statutes should be used the Eastern District concludes: “In this case, the trial court correctly applied the version of 19 CSR 25-30.051(2) that was in effect at the time of Driver’s arrest because the amended version of 19 CSR 25-30.051 that was in effect at the time of her trial de novo contained the following language:

“(8) Maintenance reports completed prior to the effective date of this rule shall be considered valid under this rule if the maintenance report was completed in compliance with the rules in effect at the time the maintenance was conducted. (Emphasis added.)”

Therefore, the Eastern District affirmed the trial court’s decision revoking the license of the driver.  Stiers vs. Director of Revenue, (ED101407, 01/27/15)

Southern District Opinion.

The Southern District applied a completely different rule of statutory construction to determine the meaning of the Regulation.  In this case, the Court looks to the obligation to perform maintenance checks on breath analyzers as addressed in the Regulations and in particular the verification and calibration check as set forth in Report No. #7.  This part of the Regulation specifically provides with respect to the Calibration Check that “(ONLY ONE STANDARD IS TO BE USED PER MAINTENANCE REPORT).”  The Court emphasized that the form is mandatory; therefore, the use of the word “and” was to make “another concentration level available for performing accuracy checks and instrument recalibrations.”  “It was not to mandate an additional concentration level.”  “Thus, the appropriate construction of these two regulations allows the permit holder a choice of three standard simulator solutions to use in verifying and calibrating the breath analyzer, and the use of any one of the three would satisfy the requirements for the maintenance check.”

The Southern District concluded that statutes or regulations are not interpreted in isolation but are given meaning by treating provisions that address the same subject matter in “pari materia” so that they are construed together.  A statute or regulation should not be construed in a way that leads to a direct conflict with other statutes or otherwise leads to an absurd result.  Therefore, the Southern District affirms the Directors decision to revoke the driver’s license.  Riggins v. Director. Of Revenue, (SD33368, 01/27/15)

Comment Howard: Applying completely different statutory rules of construction the Eastern District affirmed the trial court’s decision while the Southern District affirmed the decision of the Director to revoke the driver’s license using another rule.  The conflicting decisions interpreting the same rule would seem to force a ruling by the Missouri Supreme Court to rule on this important issue.  How would you interpret the Regulation?

Comment Ragan: Sadly grammar is art form which is being lost and like many people I have many bad habits.  The drafting of the regulation and the Eastern District opinion shows that none of us really understand what the regulation is saying.  A semi-colon creates or indicates a separate independent clause.  A semi-colon has meaning and when a semi-colon is inserted into a sentence like every other word you have to apply the meaning.  The issue in this matter is not “and” versus “or” but rather what “and” even means in this context after it is placed after a semi-colon.

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