April Newsletter (Issue 04-2016)

The Primary Obligation Of Professional Engineers Is To Protect The Public
Van Kirk, a professional engineer, was one of the more senior experienced engineers on his team at Burns and McDonald (Burns).  Van Kirk has a doctorate in engineering and is licensed in Missouri, Wyoming, Texas, Illinois, and Ohio, among other states.  Van Kirk was employed at Burns for approximately a decade until he was terminated in April 2009.

While working on the Frontier Boiler Project (Project), for Burns, Van Kirk complained that the company was not ensuring that the Project’s drawings, specifications, and contract documents were prepared under the direct supervision of and sealed by a responsible professional engineers licensed in the state where they were performing the work.  He also complained that individuals who were not licensed professional engineers in any state were performing mechanical engineering and engineering Project manager work on the project.  Van Kirk worked on the Project primarily out of the Kansas City office and on a limited basis at Burns office in Houston, Texas and at the project site in Cheyenne Wyoming.

During the course of the Project the construction manager, who was a non-licensed engineer, planned to lift a boiler over a network of pipes that contained volatile chemicals. Van Kirk complained to the construction manager and the Vice President of Engineering about the lack of a boiler lifting plan prepared by a professional engineer licensed in Wyoming.

Despite Van Kirk’s complaints, Burns proceeded with the non-licensed engineer’s plan for lifting the heavy boiler over the volatile chemicals. During the lift, workers were under the chemical pipes, transferring ropes over the pipes with the heavy boiler hanging in the wind above them.  This method of moving the boiler and the workers’ presence under the boiler was unnecessary to the job and could have been avoided using proper engineering practices.  Van Kirk complained to his superiors about the unsafe hoisting of the boiler over the network of pipes containing volatile hydrocarbons.  Specifically, the boiler was not adequately secured and was not hoisted in accordance with prevailing professional standards; therefore, as a result, the client’s property and the workers’ safety were put at risk.

Shortly thereafter, one of Van Kirk’s supervisors at Burns convened a team meeting.  While looking at Van Kirk, so that the rest of the team could see, the supervisor stated that complaints had been made about sealing practices.  This topic was brought up in a way that clearly targeted Van Kirk.  Three days later, Burns fired Van Kirk.

Van Kirk then filed a petition asserting claims of wrongful discharge in violation of public policy alleging that he was fired because of his whistleblowing about the unauthorized practice of engineering and unsafe engineering practices.  Burns moved to dismiss the petition for failure to state a claim upon which relief could be granted, arguing that Van Kirk failed to identify any well-established and clearly mandated Missouri public policy violated by his discharge.  The circuit court granted the motion and Van Kirk appealed to the Western District.

The Western District noted that Van Kirk’s complaint falls under the public policy exception to the at-will employment doctrine that prohibits disciplining an at-will employee for “reporting wrongdoing or violations of law to superiors or public authorities.” The allegations by Van Kirk of the unauthorized practice of engineering falls under the theory of wrongful discharge, which is commonly referred to as “whistleblowing.”

The whistleblowing complaint filed by Van Kirk alleged that: (1) he reported serious misconduct that constitutes a violation of the law and of well-established and clearly mandated public policy to his superiors; (2) the employer terminated his employment; and (3) there is a causal connection (contributing factor) between his reporting and his termination.

The Eastern District found that the public policy was expressed in regulations contained in the Missouri Board for Architects, Professional Engineers, Professional Land Surveyors, and Landscape Architects Code of Conduct that provided: “Licensees shall not assist non-licensees in the unlawful practice of . . . professional engineering.” In addition, 20 CSR 2030-2.010(5), provides, “Licensees shall comply with state laws and regulations governing their practice.”

Missouri’s regulations contain no geographical limitation on its prohibition against licensed engineers’ assisting non-licensed engineers in the unlawful practice of engineering, and the Regulations do not state that Missouri-licensed engineers must comply only with Missouri state laws and regulations; therefore, Missouri law applies even though the actions took place in another jurisdiction.

Burns argued that the Missouri Regulations were too vague and impermissibly required the court to decide on its own what constitutes public policy.  The Western District held that state laws and regulations are clear and are not vague; therefore, the petition states a claim for wrongful discharge in violation of public policy based on his whistleblowing about the unauthorized practice of engineering and a claim for wrongful discharge in violation of public policy for Van Kirk’s whistleblowing.  Van Kirk v. Burns & McDonnell Engineering Company, (WD78577, 03/22/60)

Comment Howard: Professional engineers working for local government have an obligation under Missouri law to report unsafe engineering practices if their judgment is overruled.

“Licensees at all times shall recognize that their primary obligation is to protect the safety, health, property, or welfare of the public. If the professional judgment is overruled under circumstances where the safety, health, property, or welfare of the public are endangered, they shall notify their employer or client and other authority as may be appropriate.” 20 CSR 2030-2.010(6)

This Rule has the potential to create serious employer/employee conflicts.  Public officials who work with professional engineers need to be aware of the obligation of professional engineers to protect the public and to report violations of unsafe engineering practices to state authorities, if their judgment is overruled.

City Can Establish Rules For Decertification of Union

On September 1, 2013, following the passage of legislation establishing local control over the City of St. Louis’s Police Department, the City created its own police force, making it an internal department of the City.  The Police Department had previously operated under the control of the state appointed Police Board.  When the City assumed control of its own local police department the police chief assumed the position of Police Chief for the newly created City department.

In 2014, an employee of the Police Department submitted a petition requesting decertification of the St. Louis Police Leadership Organization (SLPLO) as the exclusive bargaining agent for the City police sergeants under Rule 13 of the City.  The Police Chief, pursuant to Rule 13, appointed a committee to review the petition, which determined and reported to the Police Chief that the petition was authentic and contained the signatures of the majority of the employees in the designated bargaining unit as required by Rule 13. The Police Chief then decertified the SLPLO as the exclusive bargaining agent.

The SLPLO then filed suit in circuit court contending that the action taken to decertify was constitutionally deficient under Article 1, Section 29 of the Missouri Constitution because it did not provide the SLPLO with an opportunity to challenge the decertification petition nor did it require a vote to be held by its members to determine whether or not to decertify the SLPLO as exclusive bargaining unit; thereby, violating the right to bargain collectively under the Missouri Constitution.

The circuit court rendered judgment for the City and the SLPLO appealed to the Eastern District.  The Eastern District noted that the Missouri “Meet and Confer law” does not cover Police Department employees; therefore, the City may provide for its own procedures relating to collective bargaining.  The City Missouri Constitution does not “…require any specific procedures within which to conduct collective bargaining activities by either employees or employers.”  In the absence of wording in the Missouri Constitution a public employer may establish standards for bargaining units, election processes and the appropriate subjects for bargaining.

The rules of the City did not provide a right to challenge the decertification petition and has no affect on the police officer’s right to bargain collectively.  Rule 13 allows decertification to occur by petition rather than a vote renders an election unnecessary. Rule 13 is the City’s only rule or regulation providing a procedural framework for the decertification of a recognized labor organization. This rule was in effect at the time the city assumed control of the police force from the Police Board.  St. Louis Police Leadership Organization vs. City of St. Louis, (ED103063, 03/22/16)

Comment Howard: This opinion reaffirms earlier Missouri Supreme Court decisions allowing local government to establish procedures relating to collective bargaining for its employees who are not covered by the Missouri Meet and Confer Law.  The Opinion by the Court is very useful in that it collects authority to establish  city procedures to implement the duty to bargain collectively under the Missouri Constitution.

Employees Who Testify About Discriminatory Practices Are Protected From Retaliation
Walsh was hired to work as a repairman in the Kansas City Water Department (City) in 2003 and was promoted to work as a maintenance mechanic on Dan Crabtree’s crew several months later.  Walsh worked under Crabtree’s direct supervision with no apparent issues from that time until 2011.  Prior to 2011, the City’s Human Resources department approved Walsh to work “out-of- class” as a maintenance supervisor, meaning that he was approved to take on Crabtree’s duties at times when Crabtree was not working. Opportunities to work out-of-class were generally rotated among approved employees on an even basis, and Walsh worked out-of-class on several occasions when it was his turn in the rotation.

In April 2011, one of Walsh’s coworkers, John McCormack, filed a discrimination complaint against Crabtree with the City’s Equal Employment Opportunity Office (“City’s EEO Office” or “the EEOO”).  McCormack’s complaint alleged that Crabtree had made a number of religiously-offensive comments in the workplace.  The EEOO began an internal investigation in response to McCormack’s complaint.  On April 28, 2011, Walsh served as a witness in the City’s investigation and corroborated McCormack’s allegations against Crabtree.

Shortly thereafter, Walsh reported to the City’s HR department that Crabtree was retaliating against him as a result of his participation in the EEOO investigation.  Walsh reported that Crabtree denied him the opportunity to work out-of-class on May 4, 2011 and May 12, 2011.  Despite the ongoing internal investigation in response to Walsh’s allegations the City offered Walsh a choice between resigning, transferring departments, or going to mediation with Crabtree.  Walsh chose mediation, though it appears that this never occurred.  Walsh continued to work under Crabtree’s supervision until May 16 or 20, 2012, when he reluctantly transferred to a new department.

The City’s investigation of Walsh’s complaint ultimately concluded that Crabtree knew of Walsh’s participation in McCormack’s EEOO investigation, that he retaliated against Walsh as a result, and that he “treated Walsh differently in the terms and conditions of his employment.”

In a letter dated February 28, 2012, a representative from the City’s EEO Office relayed these conclusions to Walsh.  Walsh then filed a formal claim for retaliation on his claim of retaliation under the Missouri Human Rights Act (“MHRA”).  Walsh alleged that Crabtree, his former supervisor, committed several retaliatory acts against him as a result of his participation in the investigation of Crabtree’s purported discrimination against a coworker.

Prior to trial, Walsh moved for partial summary judgment on the issue of the City’s liability for the May 2011 alleged retaliation, which was granted based upon admissions in the City’s investigation and statements by City’s representative.  Liabilities for actual and punitive damages on Walsh’s claims were submitted to the jury, which found that Walsh had compensatory damages of $524.  The jury also awarded $75,000 in punitive damages against the City.  The City appealed to the Western District, which upheld the trial court.

The MHRA makes it an unlawful discriminatory practice to “retaliate or discriminate against any other person because such person has opposed any practice prohibited by this chapter or because such person has . . . testified, assisted or participated in any manner in any investigation, proceeding or hearing conducted pursuant to this chapter.”
Section 213.070 prohibits retaliation “in any manner.”

To retaliate is to “inflict in return.” Webster’s Third New International Dictionary 1938 (1976). As used in the statute, retaliation includes any act done for the purpose of reprisal that results in damage to the plaintiff even though the act is not otherwise the subject of a claim in contract or tort. Retaliation . . . merely requires the commission or omission of an act as a quid pro quo for [engaging in a protected activity].

The City contested the trial court’s granting of Walsh’s motion for summary judgment on liability; however, the record was replete with admissions by the City that showed Walsh’s supervisor retaliated against him for participating in the investigation of the supervisor.

Comment Howard: This case illustrates the difficulties local government has in defending cases involving retaliation claims under the MHRA.  The “contributing factor” test, to show causation is an easy burden.  In addition, retaliation is defined to include “any act done for the purpose of reprisal.”  Making matters worse were the admissions contained in the City’s own internal investigation as well as statements by the City’s representative that showed Walsh’s supervisor was actually at fault and that he retaliated against Walsh for testifying in an investigation involving another employee.  Ironically the compensatory damages were only $524; nevertheless, the cost to the City was over $450,000 when you include the award of attorney’s fees of $375,000 plus punitive damages in the amount of $75,000.  Walsh v. Kansas City, (WD78035, 2/2/16)

More Retaliation Cases
Retaliation cases seem to proliferate, presumably because of the ease in which a case can be made and the multitude of remedies for damages.  Consider Turner v. Kansas City Public Schools, (WD78309, 04/05/16), a recent retaliation claim, where the employee was awarded $50,000 in compensatory damages, $37,500 in punitive damages, attorney’s fees and reinstatement.

However, Jones v. Galaxy I Marketing, Inc., (ED102633, 12/22/15) may offer a glimmer of hope in certain situations because reporting a claim to your immediate supervisors (who were wrongdoers because they directed that the employee to engage in the fraudulent practice) did not state a cause of action because the notification did not expose the wrongdoers in a way that could remedy the wrong.


Permanent Writ Granted Prohibiting Court From Proceeding With Case When Pleadings Showed Police Activities Were Protected By Sovereign Immunity
Michael Green Sr., Stephanie M. Green, Stephanie N. Green, and Michael Green (collectively “Plaintiffs”) filed a lawsuit, against four police officers and the City of Grandview (City) alleging wrongful arrest, battery, malicious prosecution and negligence.  The City filed a motion for summary judgment claiming sovereign immunity, instead of filing an answer to the complaint.  The circuit court overruled the motion for summary judgment and the City sought a writ of prohibition from the Missouri Supreme Court.
After reviewing the insurance policy of the City, as applied to police officers who are cloaked with sovereign immunity while engaged in police activities, the court ruled that under Missouri law there was no waiver of sovereign immunity because the insurance policy specifically excluded coverage for sovereign immunity.  Clearly the activities described in the complaint were governmental in nature; therefore, there was no waiver of sovereign immunity.  Preliminary writ made permanent.  State ex rel. City of Grandview v. Grate, (SC95283, 04/05/16)

Comment Howard: I particularly liked the procedural approach of filing a motion for summary judgment in lieu of filing an answer.  When the writ of prohibition was denied, by the circuit court, an appeal was taken to the Missouri Supreme Court, which quickly resolved the matter in favor of the City.

United States Supreme Court Holds Districts Are Drawn By Population
Every 10 years, when the new census data is available, local government usually redraws districts in which councilmembers or other public officials are elected.  The United States Supreme Court recently held in Evenwel et al. v. Abbott that districts can continue to be drawn based upon total population established by the “one person, one vote” principle, not the number of voters.  Evenwel et al. v. Abbott, (U. S. 14–940, 04/04/16).

The one person one vote requirement does not need to be perfect and can deviate by up to as much as 10% provided the redistricting does not reflect illegitimate reapportionment considerations.  Harris v. Arizona Independent Redistricting Commission (U.S. 14-232, 04/20/16)

Cole County Circuit Court Holds That Senate Bill 5 dealing with Municipal Court Perform in St. Louis County Was a Special Law and Violated Mandates Provision in the Hancock Amendment
Judge Beetem, held that SB5 which limited what municipalities in St. Louis County could raise through municipal court fees and fines and set minimum standards for police departments was a special law and violated the state mandate provision in the Hancock Amendment.  The General Assembly is now busy trying to provide a legislative fix.  In addition, this case is now on appeal.

Stun Guns Are Protected The Second Amendment

In a Per Curiam opinion the United States Supreme Court unanimously reversed a decision by the Supreme Judicial Court of Massachusetts, which upheld a Massachusetts law prohibiting the possession of stun guns.   In a very short opinion, the United States Supreme Court noted that the Massachusetts Court focused on whether or not stun guns were “dangerous per se at common law and unusual” thereby ignoring statements in Heller that the Second Amendment extends to all arms “…that were not in existence at the time of the founding.”  The Massachusetts Court also erred by asking whether stun guns are “dangerous per se at common-law and unusual” concluding that stun guns were “unusual” because they are a “thoroughly modern invention,” which again is inconsistent with the United States Supreme Court decision in Heller.  In addition, the Massachusetts Court used “a contemporary lens” by finding that there is “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” Caetano v. Massachusetts, (U.S. 14-178, 03/21/16)

Comment Howard: Missouri does not prohibit possession of stun guns or their use unless they are used as an offensive, lethal weapon. (Mo. Rev. Stat. §§ 571.030, 556.061.)

No Statutory Authority To Distribute County Use Tax To The Emergency Services Board

Macon County (County) had a sales tax rate of 1.375.  The Macon County Emergency Services Board  (Board), a separate political subdivision received 0.375 percent of the sales tax money from the County to operate emergency services based upon a vote in 1992 to increase the Macon County sales tax rate from 1% to 1.375%.  In 2012, the County submitted to the voters a use tax at the rate of 1%, which was less than the 1.375% sales tax.  The Board did not object to the 1% use tax rate even though it was 0.375% less than the sales tax rate.

After a successful vote establishing a use tax at the rate of 1% the County refused to distribute any of the funds from the use tax to the Board, which then filed a declaratory judgment seeking a judgment that it was entitled to a proportional share of the County’s use tax revenue equal to the share that was already receiving of the County’s sales tax revenue.  The trial court denied the request on the grounds that the statute does not direct third class counties to disburse any of the County use tax revenue to the Board.  As a result it was within the discretion of the County as to whether or not the County shared the use tax revenues with Board.  An appeal was taken to the Missouri Supreme Court, which affirmed the trial court’s decision based upon an absence of a statutory requirement that the County share of the revenues from the use tax.

The Court noted that the legislature understood how to include specific distribution directions for use tax revenue as shown by other statutes.  Since the legislature did not choose to include any language with respect to distribution of use tax revenues in third class counties, the Court held that the County did not have to share revenues with the Board.  Macon County Emergency Services Board v. Macon County Commission, (SC95003, 05/05/16)

Legislative Update:

4/22/16 MML update on legislation follow this link.  Legislation update.

4/15/16 MML update on legislation follow this link.  Legislation update 2.

Local Leadership Summit

The City of Kansas City, MO and the City of Leawood, KS announced a bi-state summit on municipal leadership to address the critical need of our cities’ youth during the out-of-school time hours.  If you are interested about learning more follow the link below.

“Strengthening Opportunities for Youth, Creating Opportunities for Cities” Saturday, June 4, 2016 9 am – 3 pm Kauffman Foundation Conference Center 4801 Rockhill Road Kansas City, Missouri 64110

The purpose of the summit is to address some these important issues.

  • Juvenile participation in and victimization from crime is at its peak during the hours between 3 and 6 p.m.
  • The absence of summer learning programs can cause lower-income children and youth to fall more than two and a half years behind their more affluent peers by the end of fifth grade, directly contributing to higher dropout rates and two-thirds of the achievement gap.
  • Working parents have significant trouble finding care beyond school hours for their school-age children, which can result in decreased workplace productivity.