June Newsletter (Issue 06-2017)


Dismissal of School District Employee Who Reported Violations of Purchasing Laws To Employer Was Illegal

JC_Nichols_Fountain_by_Henri-Léon_Gréber_Kansas_CityFacts: Newsome worked for the Kansas City School District (District) as a purchasing manager. Newsome was responsible for administering the District’s purchasing and contract functions in compliance with state law and the District’s policies and procedures.  In June 2011, the District’s superintendent asked Newsome to adjust the purchase order for Ron Epps so Epps, an independent consultant, could be paid for additional visits not specified in his contract with the District.  Newsome believed it was illegal in Missouri to alter contracts after the fact and reported this to Epps and his supervisor, Lee-Gwin who agreed.

Soon thereafter, the District’s facilities department made a purchase request for three vehicles.  Newsome identified a state contract with a Ford dealership for Explorers and Escapes on which the District could “piggyback.”  Next, the school board approved the purchase of three Explorers from the dealership, but Newsome subsequently learned the dealership could only provide three Escapes by June 30, the desired procurement date.  Despite the vehicle change, the facilities department wanted to proceed with the purchase of Escapes, which had a lower value than the Explorers, for a price that was at or near the same price as the Explorers and was higher than the price provided for Escapes under the state contract.  Concerned that this purchase would violate state law and the District’s policies, Newsome reported the proposed PO of the Escape to Lee-Gwin, who initially agreed with Newsome and told him to cancel it.  Lee-Gwin, later changed her mind and told Newsome to go ahead and issue a PO for the Escapes. When Newsome objected, Lee-Gwin told him that she “didn’t want to hear anything else about it” and that he “needed to take care of it.”  Newsome prepared the PO for the Escapes placing a memorandum in the District’s electronic accounting system documenting his concerns that the purchase was for different vehicles and a different price than approved by the school board.  He also attached a hard copy of his memorandum to the Escapes purchase order.

Three days later the District presented Newsome with the option of resigning and accepting $20,000 or being terminated. To receive the $20,000, Newsome had to sign a “General Release and Waiver of Claims,” which waived all claims he may have against the District.  He signed the waiver that day and resigned but, as allowed by the terms of the waiver, he timely revoked his signature and rescinded his resignation on June 30.  The District then terminated Newsome’s employment.

Newsome filed a petition for damages against the District, asserting a claim of wrongful discharge in violation of public policy.  The case proceeded to a jury trial.  At the close of evidence, the District moved for a directed verdict, which was overruled.  The circuit court submitted to the jury a verdict director requiring the jury to find, among other elements of the claim, that Newsome either “refused to approve a payment to Ron Epps that he reasonably believed would violate School District contracting law” or “reported to a superior that he reasonably believed the purchase of Ford Escapes would violate School District contracting law.”

The jury returned a verdict in favor of Newsome on his wrongful discharge claim and assessed Newsome’s damages at $500,000.  The circuit court entered judgment in accordance with the jury’s verdict.  The District then filed motions for judgment, which were overruled.  The District appealed to the Missouri Supreme Court.

Opinion: The District argued that Newsome only complained of the violation of law to other public officials, not the public; therefore, he was not a “whistleblower” and did not fall within the public policy exception.  The Supreme Court rejected this argument because the District misconstrued the cases on the public policy exceptions, which in addition to protecting certain whistleblowers, also protects public officials who refuse to violate laws.  In this instance, the District wrongfully dismissed Newsome for reporting to the District that the District’s actions were in violation of Section 432.070.

The District asserted that its actions in dismissing Newsome were protected by sovereign immunity.  The basis for its sovereign immunity defense was that the District purchased liability insurance covering this type of claim.  The District argued that it’s purchase of liability insurance did not waive sovereign immunity because Endorsement 13 specifically provided that the insurer shall not be liable to make any payment for loss in connection with any claim made against the insurer that is barred by the defense of sovereign immunity and that nothing in the policy shall constitute a waiver of the defense of sovereign immunity by the District.  The difficulty with this defense was that Endorsement 13, was not part of the policy but was negotiated several months later, and was not subscribed to or by an authorized agent of the District; therefore, Endorsement 13 did not comply with Section 432.070, which requires that all contracts entered into by a school district “…shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”  Contracts that violate section 432.070 are null and void.

The Supreme Court did reduce the $500,000 verdict against the District to the statutory cap limit of $403,139.  Newsome v. Kansas City, Missouri School District, (SC95538, 05/16/17)

Comment Howard: There are lots of very important lessons in this case. First, when approving a contract all the material documents should be submitted to the governmental body approving the contract.  Second, when an employee reports to his or her employer that procedures violate the law, HR should review any proposed employment action taken to make sure that the employment action is not based on the reported violation of law.   Since Section 432.070 is a fundamental part of local government law this case is quite significant and should be part of the education process for public officials.

City Sues On Nonexistent Contract And Pleads Itself Out Of Court

The City of Dardenne Prairie (City) filed a lawsuit against Adams Concrete and Masonry (Contractor) claiming a breach of contract by the Contractor based upon Exhibit 1 (Contract), which was attached to the City petition.  The City claimed that the Contractor breached the Contract by failing to deliver a portion of bricks or by failing to take steps to ensure that the bricks were properly stored after fabrication.  The City claimed about $22,000 in damages, which represented the cost of undelivered bricks.  The Contractor filed a counterclaim that the City breached the Contract when it canceled the construction of the Parks Building.  The City then filed a reply to the Contractor’s claims alleging that Exhibit 1 to the City pleading was not enforceable because the board of aldermen for the City “did not approve said agreement by ordinance duly adopted by the board of aldermen and the agreement is therefore void ab initio” under Section 432.070.

The Contractor then filed a motion to dismiss the affirmative defense of the City and it’s petition because the allegation by the City that the City “did not approve said agreement by ordinance duly adopted by the board of aldermen was an admission making the agreement “void ab initio. ” The trial court sustained the Contractor’s motion and the City appealed to the Eastern District.

Opinion: The Court agreed that allegations of fact contained in the pleadings of the City were binding on the City.  The Court could not construe the pleadings of the City as an alternative to another theory.  Furthermore, there was no basis in the record to release the City from the legal effect of its express factual assertion that the Board did not approve Exhibit 1 by ordinance.  City of Dardenne Prairie vs. Adams Concrete And Masonry, LLC., (ED104982, 05/30/17)

Comment Howard: This case is difficult to explain other than there was a failure to realize that contracts not approved by the governing body are void ab initio. Section 432.070 is unforgiving if you do not comply with its terms.

Grassy Area Between Paved Portion Of Street Or Sidewalk Is Not Part Of The Street Or Sidewalk For Purpose Of Notification Of Claim Under Section 82.210

Downtown-Springfield Facts and Procedural Background: Plaintiff claimed that she was “injured due to a meter hole” on May 10, 2013, in Springfield.  The parties dispute the exact location of Plaintiff’s claimed injury.  Plaintiff claims her “fall and injury occurred on the grassy/dirt berm near or adjacent to the street,” and Defendant City of Springfield (City) claims the meter hole was “in” or “on” the street.  The trial court gave Plaintiff the benefit of a reasonable inference from the record that Plaintiff “fell in a water meter hole located in the ‘grassy/dirt berm’ near or adjacent to the street.”  Plaintiff did not send a notice of the claimed injury to the mayor of Springfield within 90 days of May 10, 2013.  Plaintiff originally filed suit for the claimed injury on May 7, 2015.  City asserted in its answer as an affirmative defense that Plaintiff failed to give notice to the mayor as required by Section 82.210.

The trial court granted Defendant City’s motion for summary judgment on the basis that the “grassy berm area” “constitute[d] a thoroughfare” under Section 82.210, and that “there is no legal nor practical difference” in the written notice required under Section 82.210 “whether the water meter hole was located in the street pavement, the sidewalk,[ ] or, on the ‘grassy area’ in between.”

Analysis: Plaintiff claimed that the trial court erred in granting Defendant City’s motion for summary judgment because the notice requirement under Section 82.210 is “inapplicable in that the defective condition was located in the grassy/dirt berm adjacent to the street and not on or in any public ‘bridge, boulevard, street, sidewalk or thoroughfare.’ ”

The Southern District reasoned that when reviewing a motion for summary judgment the record is reviewed in light most favorable to the nonmoving party.  In addition, the nonmoving party gets all reasonable inferences from the record.  Section 82.210 provides that no action shall be maintained against the city for injuries with respect to maintaining an action for damages under the statute “…growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city…” Unless notice was given in writing to the mayor of the city within 90 days of the occurrence “…stating the place where, the time when such injury was received, and the character and circumstances of the injury….”

In construing Section 82.210 the Southern District relied on cases that looked to the ordinary dictionary meaning of the words “boulevard, street, sidewalk or thoroughfare” concluding that these words do not include everything owned by the city and around the street.  Furthermore, the court was constrained by precedent to a narrow reading of the statutory terms.

The Southern District concluded that the trial court erred when it granted the City’s motion for summary judgment.   Henson v. City Of Springfield, (SD 34731, 05/10/17).

Comment Howard: There is an excellent dissent in this case, which hopefully will get the attention of the Missouri Supreme Court.  As the dissent notes there was no case cited in the court’s opinion that directly controls with respect to whether or not a street, sidewalk or thoroughfare in Section 82.210 includes grassy strips, or parkways between a curb the sidewalk.

This case is very troubling because of the enormous difficulties it presents for local government.  Under the decision there is no limit on how long a plaintiff can wait (months or even years) before he or she provides notice to the public entity (notice could conceivably be given when the lawsuit is filed).  This creates an incentive for fraudulent claims; eliminates the ability of the public entity to take steps to correct the dangerous condition in order to protect citizens; and the ability of the public entity to determine its liability.  Public property is in a constant state of flux because one day a rainstorm can washout an area while weeks later the same area may be subject to repairs by private or public entities.  Who is responsible?  The taxpayer should not be stuck with liability if some other party caused the dangerous condition.

Furthermore, the idea that a sidewalk or street ends at the edge of the pavement ignores the reality that drainage or the subsurface of the street or sidewalk ends at the edge of the paved portion.  That is not how streets or sidewalks are built or maintained.

The words “boulevard, street, sidewalk or thoroughfare in Section 82.210 have not changed since at least 1929, when it was last amended.  These terms as noted by the dissent had well established meanings at common law and in 1929.  The ritualistic analysis of simply looking to the dictionary to determine the meaning of a word ignores other important statutory rules of construction, such as whether or not these words had a well-recognized meaning based upon the use of the word when Section 82.210 was last amended.  My recollection of Sutherland On Statutory Construction is that if a statute is amended the legislature accepts interpretations of that statute at the time of the amendment.

No Liability For Sight Limitation At Crest Of Hill Because It Was An Open And Obvious Natural Condition Of The Area

 Factual and Procedural History: Mangum was driving a vehicle eastbound on Old Hillcrest Road in Webster County when he collided with a westbound car driven by Lucas Tyson.  Either Mangum or Tyson was driving on the wrong side of the road.  At the time and place of the collision, Old Hillcrest Road was owned and maintained by County, which is a governmental entity.

Mangum filed a petition against the County alleging that the collision occurred “just over a hillcrest on Old Hillcrest Road” and that “Old Hillcrest Road, at the site of the collision and areas adjacent to the collision, were in a dangerous condition because motorists traveling along Old Hillcrest Road did not have enough sight distant [sic] along the road to see approaching motorists.”  Mangum further alleged “County knew or could have known of the dangerous condition in time prior to the collision to have remedied or warned of the dangerous condition.”  The County answered the petition asserting, among other things, that it “is a governmental entity and is protected from suit by sovereign immunity and the provisions of R.S.Mo. § 537.600.”

Thereafter, the County filed a motion for summary judgment, asserting that Mangum “is unable as a matter of law to make her case against the county” because Mangum failed “to plead or prove a physical defect in the premises which is required to prove a waiver of sovereign immunity” and “[t]he roadway sight distance is an open and obvious condition for which there is no duty to warn or remedy.”

In her response to this motion, Mangum admitted that she was “not claiming the negligent design or construction of the road as a dangerous condition[,]” but rather was “claiming a negligent failure to warn of or remove a dangerous condition of [County’s] property.”  Also in her response, Mangum alleged thirteen numbered additional material facts that remained in dispute.  Only three address the sight distance, or lack thereof, on Old Hillcrest Road:

  1. A westbound motorist approaching the hillcrest to the immediate east of the scene of the collision cannot see eastbound vehicles to the west of the hillcrest due to the hillcrest.
  2. An eastbound motorist approaching the hillcrest to the immediate east [sic] of the scene of the collision cannot see westbound vehicles to the east of the hillcrest due to the hillcrest.
  3. A westbound motorist cannot see over the hillcrest to the immediate east of the scene of the collision until the westbound motorist is “almost cresting” the hillcrest.

The trial court sustained County’s motion for summary judgment and entered judgment on Mangum’s petition in favor of County and against Mangum.  Mangum timely appealed to the Southern District.

Opinion: The Southern District reasoned that the roadway in this case involved only the natural condition of the area, the hill.  The road simply followed the natural contours of the area and did not obscure any man-made physical conditions. Consequently, the court was persuaded that Mangum would be unable, as a matter of law, to make her case against the county because Mangum failed “to plead or prove a physical defect in the premises which is required to prove a waiver of sovereign immunity.”  The “…roadway sight distance is an open and obvious condition for which there is no duty to warn or remedy.”

“Under the facts of this case, in order for this particular hill to be a dangerous condition, Mangum needed to respond to County’s motion for summary judgment by producing evidence of some physical defect in the road or the surrounding area other than its natural condition of simply being located on an open and obvious hill.”  Mangum could not rest upon the mere allegations of her petition, but needed to set forth specific facts showing a genuine issue for trial.

Mangum’s statement of additional material facts established at best that eastbound and westbound motorists cannot see each other until “almost cresting” the hill.  “This sight limitation, however, is not due to a physical defect in the roadway.  Rather, it is due to the open and obvious “natural condition of the area.”  Mangum vs. Webster County, Missouri, (SD34534, 05/25/17)

Comment Howard: The opinion in this case may be useful with respect to similar situations; however, I would reluctantly rely on this case in light of the strong dissent filed by Judge Rahmeyer.  Judge Rahmeyer, argued convincingly that the motion for summary judgment was granted without a proper evidentiary basis.  She argued in her dissent that:

…there were “no signs alerting motorists to the presence” of a hillcrest, “advising motorists to reduce their speed for the hillcrest,” or “warning motorists of the [reduced] sight distance on the hillcrest” near where the collision occurred.  There have been no experts telling us whether, with this sight line, County is reasonable to expect that drivers will appreciate the danger of this particular hill.  We do not know how steep this hill is or the layout of the hill.  We do not know whether this hill was obscured in any way or the speed limit of the roadway.  We simply do not know whether this hill was open and obvious by the summary judgment motion before the trial court.  Instead, we simply rely on a conclusion that, in our judgment, a hill is open and obvious.

No Right To Expungement Of C& I Offense Even Though It Was Originally Filed As A DWI

Facts and Procedure: In 2002, the Town and Country Police Department (City) arrested Petitioner and charged him with driving while intoxicated (“DWI”), pursuant to the City Code, which provided that “[a] person commits the offense of ‘driving while intoxicated’ if he/she operates a motor vehicle while in an intoxicated and/or drugged condition.”

As part of a negotiated plea bargain with the City, the Petitioner pled guilty to an amended charge of “careless and imprudent driving” under the City Code.  Petitioner also received a suspended imposition of sentence, conditioned on a one-day probation and the successful completion of the Substance Abuse Traffic Offenders’ Program.  On April 9, 2003, the Missouri Department of Revenue suspended Petitioner’s driver’s license for 90 days, which was an independent administrative suspension based upon a finding of probable cause to believe that Petitioner was driving a motor vehicle while his alcohol concentration was at or above the limit provided in Section 302.505.

Some 10 years later, Petitioner filed a motion to expunge in the Municipal Court, which was denied based on the fact that under Section 577.054, Petitioner was ineligible to have the records expunged because careless and imprudent driving was not an “alcohol-related offense.”  The Petitioner met three of the four requirements of Section 577.0544 for expungement of his conviction leaving open the question of whether or not his plea of guilty to the C&I was a conviction of a alcohol-related driving offense.  The trial court found that a guilty plea to a violation of careless and imprudent law was not a guilty plea to an alcohol- related offense within the meaning of Section 577.054.”  The Petitioner then appealed to the Eastern District.

Opinion: The Petitioner argued that careless and imprudent driving, in this case, was an alcohol related offense because the word “related” means having a relationship connected by reason of an established or discoverable relationship or other similar properties.  The Petitioner further argued that the term “alcohol-related driving offenses” includes driving while intoxicated offense because the reduction of the offense to C&I was a continuation of and part of the original offense.

The Eastern District rejected this argument because accepting Petitioner’s argument would essentially rewrite the statute providing an open door to a much broader use of the expungement statute.  It was not up to the court to rewrite the expungement statute beyond what the legislature clearly intended based on the plain meaning of the language used.  Bright vs. Nia Ray, Director of the Missouri Department of Revenue, et al, (ED104934, 5/23/17)

Doctrine Of Official Immunity Reviewed

For a comprehensive review of the doctrine of official immunity   in the context of a high-speed chase to catch a suspect’s vehicle where a third-party was killed because they suspect’s car careened out of control you may want to look at the 28 page opinion by Judge Martin in Thornberry v. Missouri State Highway Patrol, et al., (WD79995, 05/16/17)

Tires On The Passengers Side Of A Vehicle Crossing The Fog Line Constitutes Reasonable Suspicion To Conduct A Traffic Stop

Factual and Procedural Background: Officer House was on patrol when he observed Williams’ vehicle “drift right crossing both passenger side tires over the solid white line on the shoulder of the roadway.”  Officer House conducted a traffic stop.  While speaking with Williams, Officer House observed Williams’ eyes were glassy and bloodshot, and detected a strong odor of intoxicating beverage emanating from the vehicle.  Williams agreed to take a set of three Standardized Field Sobriety tests, which he failed.  Officer House then arrested Williams for driving while intoxicated.  Williams was taken to the police station, where he consented to a chemical breath test.  The test recorded a blood alcohol concentration of .102 percent.

After an administrative hearing, the Director suspended Williams’ driving privilege, pursuant to Section 302.505, for driving with a blood alcohol concentration of .08 percent or greater.  Williams filed a petition for trial de novo.  At trial, the Director submitted Officer House’s alcohol influence report and supporting documentation into evidence.  Williams did not object to any of the evidence.  Williams argued that the alcohol incident “report is false” and that “[i]t fails on the sufficiency of the legality of the stop” because “just touching the fog line is not reasonable suspicion for anything.” The Director responded that, because Williams was over the age of twenty-one, Section 302.505 did not require probable cause for the initial traffic stop, only probable cause for the arrest.

The trial court entered judgment against the Director, setting aside the suspension of Williams’ driving privileges.  In its written judgment, the trial court amongst other things made the following findings

Here, the only behavior described by the arresting officer is that he “observed [Petitioner’s] vehicle driving right crossing both passenger side tires over the solid white line on the shoulder of the roadway.” Resp. Ex. A.  Without more, this did not provide sufficient reasonable suspicion to justify the traffic stop.

Based upon the above findings the trial Court found that the arresting officer did not have probable cause to believe Petitioner was driving with a blood alcohol concentration of .08% or greater; therefore, the trial court reinstated his driving privileges.  The Director appealed to the Eastern District.

Opinion: The Director argued that in order to stop a vehicle the officer only needed reasonable suspicion under the statute because the proceeding to revoke a license was a civil proceeding, not a criminal proceeding.  The trial court erroneously declared and applied the law by conflating the standard for probable cause to arrest with the standard for reasonable suspicion to conduct a traffic stop based upon a criminal case, which involved a motion to suppress evidence under the exclusionary rule of the Fourth Amendment.  The “exclusionary rule does not apply in administrative proceedings to suspend or revoke a driver’s license.”  By relying on State v. Beck, a criminal case “…the trial court erroneously declared and applied the law by conflating the standard for probable cause to arrest with the standard for reasonable suspicion to conduct a traffic stop.”  Williams vs. Director v. Director Of Revenue,   (ED104052, 06/06/17)

Local And State Government May Have Authority To Regulate Drones

 Lisa Soronen, Executive Director, of the State & Local Legal Center recently wrote about the U.S. Court of Appeals for the D.C. Circuit invalidating a Federal Aviation Administration (FAA) rule that required non-commercial drone owners to register with the agency.  This article may be of interest to you since there is lots of concern at the state and local level about the regulation of drones.  The blog reads as follows:

“The court held that the drone registration rule, known as the 2015 Registration Rule, violated the FAA Modernization and Reform Act of 2012, which prohibits the FAA from issuing any rule or regulation of “model aircraft.”  The invalidated registration rule required all small drone operators to register each of their drones with the FAA before operating them outdoors.  To complete the registration process, owners were required to provide the FAA with their contact information, pay a $5 registration fee, and mark a unique identifier number issued by the FAA on their drone.

Instigated days before Christmas in 2015, the registration system processed more than 300,000 registrations in its first 30 days of operation.  In total, 760,000 recreational drone operators registered more than 1.6 million drones since the inception of the registration system.  The FAA estimates that recreational drone operators will buy 2.3 million drones in 2017 and 13 million by the end of 2020.  The invalidated registration system was instituted after a spate of incidents in which drones flew in, and in some cases crashed, FAA restricted airspace, including over stadiums while events were being held and at least two incidents at the White House complex.

In 2015, the FAA asserted that state and local regulation of drones could not include an independent registration system because: “Federal registration is the exclusive means for registering [drones] for purposes of operating an aircraft in navigable airspace, [and] no state or local government may impose an additional registration requirement on the operation of [drones] in navigable airspace without first obtaining FAA approval.”

At least 38 states are considering legislation related to drones in the 2017 legislative session, according to the National Council of State Legislatures.  These legislative proposals cover a wide range of drone-related activities from prohibiting the use of drones to interfere with wildfire suppression efforts to prohibiting the harassment of livestock using drones.   Last week, the Drone Federalism Act,  a bipartisan bill concerning state and local authority to regulate drones, was introduced in the Senate.  Senator Dianne Feinstein, one of the bill’s sponsors, said that state and local governments “have a legitimate interest in protecting public safety and privacy from the misuse of drones . . . [and the bill] allows communities to create low-altitude speed limits, local no-drone zones or rules that are appropriate to their own circumstances.”

SB 43 – New Employment Discrimination Law

In the coming months local government attorneys will have to relearn parts of Missouri employment discrimination law based upon changes in SB 43.  In many ways, the learning process will be a lot more pleasant than usual because of the many changes made to the law that favor local government.  Missouri Lawyers Weekly recently had as its feature article, a discussion of SB 43, in its May 15, 2017 edition, which provides a general overview of the law.  No doubt there will be many more detailed analysis of the impact all of SP 43. Stay tuned period in

Linn State Drug Testing Litigation Ends

For years we have been following the Linn State drug testing case, which has now come to an end with the denial by United States Supreme Court of certiorari, thereby upholding the decision of the Eighth Circuit.  The Eighth Circuit held that a comprehensive drug testing policy for all students enrolling in Linn State was not a “special need” and therefore not constitutional.  The court did find that the school could test students enrolled in programs that posed a significant safety risk to others and for those programs the school demonstrated a special need.