March Newsletter (Issue 03-2018)

Second Circuit Holds That Title VII Prohibits Discrimination Based On A Persons Sexual Orientation

One of the big unanswered questions, working its way through the court system, not yet been addressed by the United States Supreme Court, is whether or not Title VII of the Civil Rights Act (Act) prohibits discrimination based upon sexual orientation. Similarly, the Missouri Supreme Court has not addressed this issue.  A recent decision by the Second Circuit Court of Appeals in Zarda v. Altitude Express, held that the Act prohibits discrimination based upon a person’s sexual orientation.

Facts and Procedure: In the summer of 2010, Donald Zarda, a gay man, worked as a skydiving instructor at Altitude Express.  As part of his job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients.  In an environment where close physical proximity was common, Zara’s co-workers routinely referenced sexual orientation or made sexual jokes around clients, and Zarda sometimes told female clients about his sexual orientation to assuage any concern they might have about being strapped to a man for a tandem skydive.  That June, Zarda told a female client with whom he was preparing for a tandem skydive that he was gay “and ha [d] an ex-husband to prove it.”  Although he later said this disclosure was intended simply to preempt any discomfort the client may have felt in being strapped to the body of an unfamiliar man, the client alleged that Zarda inappropriately touched her and disclosed his sexual orientation to excuse his behavior.  After the jump was successfully completed, the client told her boyfriend about Zarda’s alleged behavior and reference to his sexual orientation; the boyfriend in turn told Zarda’s boss, who fired shortly Zarda thereafter.  Zarda denied inappropriately touching the client and insisted he was fired solely because of his reference to his sexual orientation.

One month later, Zarda filed a discrimination charge with the EEOC concerning his termination.  Zarda claimed that he was “discriminated against because of [his] sexual orientation, [he] was also discriminated against because of [his] gender.”  In particular, he claimed that “[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex,” but that he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”

In September 2010, Zarda brought a lawsuit in federal court alleging sex stereotyping in violation of Title VII.  Defendants moved for summary judgment arguing that Zarda’s Title VII claim should be dismissed because, although “Plaintiff testifie[d] repeatedly that he believe[d] the reason he was terminated [was] because of his sexual orientation ․ [,] under Title VII, a gender stereotype cannot be predicated on sexual orientation.” The district court granted summary judgment to the defendants on the Title VII claim and plaintiff appealed to the Second Circuit.  The question before the court sitting en banc was whether or not plaintiff had established a prima facie case of gender stereotyping discrimination under Title VII.

Opinion: Title VII makes it an: “…unlawful employment practice for an employer . to fail or refuse to hire or to discharge or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin․”

In determining whether or not Title VII prohibits sexual orientation discrimination, the 2nd Circuit was guided by the above text and, in particular, by the phrase “because of ․ sex.”  In interpreting this language, the court did not write on a blank slate.  It construed the text in light of the entirety of the statute and relevant precedent.  Title VII, provides that an employer has engaged in “impermissible consideration of sex in employment practices” when “sex was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” Therefore, if the action was “because of sex” it was “a motivating factor.”

The Second Circuit concluded that Congress intended to make sex “irrelevant” to employment decisions.  Supreme Court precedent has held that Title VII prohibits not just discrimination based on sex itself, but also discrimination based on traits that are a function of sex, such as life expectancy, and non-conformity with gender norms.

The 2nd Circuit concluded that if sexual orientation discrimination is motivated, at least in part, by sex it is sex discrimination.  The most natural reading of the statute’s prohibition on discrimination “because of sex” is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.  Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.  Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected. (“[D]iscriminating against [an] employee because they are homosexual constitutes discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex.”)  Zarda v. Altitude Express, Inc., (2nd Cir., 15–3775, 02/26/18)

Comment Howard: This case creates a split in the Circuits on whether or not Title VII prohibits discrimination based upon the sexual orientation of a person, making it more likely that the United States Supreme Court will ultimately have to resolve this issue. Missouri courts continue to struggle with whether or not the Missouri Human Rights prohibits discrimination based on sexual orientation although a recent case decided by the Western District in Lampley v. Missouri Commission On Human Rights, held that sex stereotyping was gender discrimination.  My December 5, 2017, Post on the Lampley case provides an update on the current status of sex discrimination cases in Missouri as of December 5, 2017.

It is located here:

Visibility From Highway Is Not A Property Right – No Nuisance Action

Facts and Procedure: Scott owns an office building, adjacent to Interstate 64, in Chesterfield.  In 2015, MoDOT (Commission) built a sound wall on its own property between the highway and Scott’s building without first providing Scott notice or an opportunity to comment as provided by Missouri Department of Transportation policy. Scott filed a petition for inverse condemnation based on nuisance, pleading that the sound wall impaired Scott’s ability to attract tenants, resulting in $5 million in damages.  The Commission responded with a motion to dismiss the petition for failure to state a claim, arguing that Missouri law does not recognize a protectable interest or right in public visibility of one’s property.  The motion was sustained citing Missouri precedent holding that landowners have no legally enforceable right to the visibility of their property.  Scott appealed to the Eastern District asserting that such precedent doesn’t apply when the Commission’s actions are unlawful.

Opinion: Scott contended that the trial court erred in relying on Missouri precedent, governing traditional inverse condemnation cases, rather than determining the adequacy of the petition based on a nuisance action.  Scott argued that the erection of the sound barrier by the Commission that blocked the view of his property, was an unreasonable, unusual, or unnatural use of one’s property because it substantially impaired the right of Scott to peacefully enjoy his property.  Scott contended that he had satisfied the elements of a nuisance action: (1) notice by the Scott, (2) unreasonable operation by the Commission in spite of notice, (3) injury, (4) damage, and (5) causation.  Specifically, Scott asserted that the Commission built the sound wall unlawfully, and thus unreasonably, by failing to follow procedures requiring notice and public comment.

The Eastern District noted that the procedures in question by Scott are not in the Missouri statutes but are in the Engineering Policy Guidelines published by MoDOT in accordance with Federal Highway Administrative Noise Standards.  Scott provided no authority for the premise that the Commissions noncompliance with the MoDOT policy (while subject to federal scrutiny) was unlawful so as to give rise to a personal cause of action in tort.  Scott failed to show that there was an invasion or appropriation of a valuable property right that directly and specifically affected Scott to his injury. “Visibility is not a valuable property right.”  Scott plead that the sound wall blocked the building out of sight; therefore, binding Missouri precedent squarely defeats Scott’s cause of action.  Scott Family Properties vs. Missouri Highways And Transportation Commission, (ED105836, 02/13/18)

Comment Howard: This case provides an excellent overview of the case law that blocking a view from the highway is not a legally protectable property right in Missouri.

Building Inspector Entitled To Qualified Immunity – Policy 87 Will Be Tried

Facts and Procedure: A SWAT team raided a St. Louis house to execute a search warrant in which the plaintiffs lived.  According to the warrant affidavit, a detective suspected that the house contained heroin, illegal firearms, and drug-trafficking paraphernalia.  The team knocked on the door, yelled “police,” and quickly began striking the door with a battering ram.  The team also tossed a “flash bang device” through a window into the house, and after gaining entry, the team handcuffed the residents who were present and brought them into a front room.  The search turned up marijuana, some drug paraphernalia, and three firearms, which the plaintiffs’ attorney characterized as some old firearms and some personal-use marijuana.

The detective then called for a building inspector to inspect the house under a city program called “Project 87.”  Under that program, police notify a building inspector of properties that constitute a “nuisance,” which is defined as a code violation that “if not promptly corrected will constitute a fire hazard or a serious threat to the life, health or safety of the occupants of the building, structure, or portion thereof in which the violations occur.”  If the owner or occupant of the building refuses to permit a building inspection, the building inspector must immediately condemn the building and issue an order to vacate, and if the owners or occupants refuse to leave, the police must immediately remove them.  The detective testified that it was the police-department policy to request a Project 87 inspection routinely after a search warrant was executed.  The police did not identify any potential “nuisance” before requesting a Project 87 inspection.

Building inspector Hershel Wallace arrived after receiving the inspection referral.  He testified that he did not notice any potential building-code violations when he arrived except for the window that the police themselves had just broken.  He approached one of the residents, 29-year-old Victor Millbrooks, and asked him to sign a consent-to-search form.  At this point the parties’ accounts begin to diverge.

Since the Eighth Circuit was reviewing an order denying Wallace’s motion for summary judgment, it construed the facts in a light most favorable to the house’s residents. According to Millbrooks, he was handcuffed for no more than ninety minutes while the SWAT team searched the house, and the police uncuffed him only to sign the consent-to-search form and to use the restroom.  Millbrooks testified that Wallace “demanded” that Millbrooks sign the consent-to-search form by saying that “[b]asically if you don’t sign this, I guess the house . . . forecloses or something was going to happen with the house.  We would get put out, something like that,” so “it wasn’t like I ha[d] an option.” He also testified that no one directed any threats toward him.  Millbrooks then signed the form and Wallace conducted the inspection, which turned up only minor violations.

The residents of the house then sued Wallace under 42 U.S.C. § 1983, claiming that Wallace unreasonably searched the house in violation of the Fourth Amendment. Wallace moved for summary judgment on the ground that qualified immunity protected him from suit.  After the district court denied the motion, Wallace filed an interlocutory appeal to the Eighth Circuit.

Opinion: The opinion by the district court held that since there were facts in dispute as to whether or not Millbrook voluntarily consented to the search it could not rule on the qualified immunity claim of Wallace.  The Eighth Circuit agreed that if the question was whether or not the consent to search was voluntary it had no jurisdiction to decide to qualified immunity question because this was a disputed factual question.  However, the Eighth Circuit approached the qualified immunity question differently by stating that the question was whether or not Wallace violated clearly established principles of law when he inspected the plaintiff’s house after receiving Millbrook’s signature on the consent-to-search form.  Since there was no clearly established case law prohibiting the search the Eighth Circuit determined that Wallace was protected by qualified immunity.  The Eighth Circuit reversed the District Court and remanding for further proceedings. The opinion does makes it clear that the city is not off the hook since it may have liability under Monell for its policies and practices under the Project 87 Program.  Estate of Walker v. Wallace, (8th Cir. 17–1058, 02/08/18).

Comments Made By A Candidate For Office Were Protected

Facts and Procedure: Morgan is a deputy in the Washington County, Nebraska Sheriff’s Department.  Robinson is the elected sheriff for that county.  In July of 2013, Morgan notified Robinson of his intentions to run against Robinson in the 2014 primary election.  Throughout his campaign, Morgan made public statements concerning the operations of the sheriff’s department and his plans to improve the department.

Robinson won the election, and he terminated Morgan’s employment six days later, claiming that statements made while he was running for office violated the department’s rules of conduct.  In Morgan’s termination letter, Robinson cited statements made during the campaign (see below) as the reasons for the disciplinary action.

Morgan filed a 1983 action alleging claims of retaliation, deprivation of due process, and breach of the labor contract.  Robinson filed a motion for summary judgment, claiming that he was entitled to qualified immunity on Morgan’s retaliation claim.  The court denied the motion, ruling that Robinson was not entitled to qualified immunity because there was a genuine dispute of material facts concerning the public value of Morgan’s statements and whether the statements caused disruption in the operation of the sheriff’s department.  Robinson appealed to the Eighth Circuit.

Opinion: This case involved, “overt expressive conduct” requiring the court to apply the balancing test found in Pickering and Connick and their progeny.  The first step is to determine if the employee speech was made as a citizen on a matter of public concern and whether or not the employer “had an adequate justification for treating the employee differently from any other member of the general public.”  If each party meets their burden, the court applies the Pickering–Connick test to balance the competing interest.  The ultimate goal of this test is to balance the employees First Amendment rights with the employers corresponding right to control office affairs.

Under the Pickering–Connick test, the court analyzes the general authority and responsibilities of the employing government entity; the nature and character of the specific employee or employee relationship; the speech involved; and the evidence tending to establish the speeches impact on the efficient operation of the government entity.

This case is extremely straightforward based upon Morgan’s termination letter given as the reasons for the disciplinary action:

  1. You continued to state that the communications system was not completed after 10 years of construction although the record reflects it was completed on time and under budget in 2006[.]
  2. You stated the Fire and Rescue agencies could not communicate and stated someone would be hurt or killed if it was not fixed although the Fire Chiefs submitted a letter to the local paper saying your comments were false.
  3. You continued to tell the public that morale at the Sheriff’s Office was bad and that “all the employees were waiting for the day after I lost to see me walk out of the office”. [sic] You also stated several deputies were actively looking for employment. This was proven false when several of the Deputies were consulted and none were looking and did not know of any deputy looking for employment and I was overwhelmingly supported by the employees of the Sheriff’s Office.
  4. You stated the K-9 had been taken from you for retribution when in fact you demanded the K-9 be taken because it “hindered your ability to do your job”. [sic]
  5. You stated portable radio coverage was poor and continued to state the coverage was poor even after being shown the system coverage for portable radios was 99.2% county wide.”

The court concluded that at most, the above statements were critical of the manner in which Robinson performed his duties as county sheriff, and speech that criticizes a public employer in his capacity as a public official “. . . addresses matters of public concern.”

In addition, many of these statements were made to a group of attendees during a forum held at a local high school while other statements were made on Morgan’s website or were published in a local newspaper.  None of the statements were disseminated to a closed audience or reported as part of Morgan’s official job duties. Therefore, the forum of these statements demonstrates their public import.  Because of the clarity of the issues there was no need for the court to apply the balancing test under Pickering-Connick; thereby eliminating the factual dispute.

With respect to whether or not the sheriff was entitled to qualified immunity the question was whether or not the sheriff could have reasonably believed, at the time he fired Morgan, that a government employer could fire an employee on account of” the employee exercising his First Amendment right to free speech during a run for political office, where that speech had no disruptive impact on office functioning? Clearly the answer was no.  Morgan v. Robinson, (8th Cir., 17–1002, 02/02/18)

Comment Howard: The opinion in this case is extremely well written and would be very useful in addressing similar issues involving free speech made by a political candidate.

City Precluded From Appeal Because Ordinance Was Not In The Record – No Judicial Notice Of Municipal Ordinance

Facts and Procedure: The City of Kansas City, Missouri (“City”) appealed from the trial court’s judgment against Bego Cosic (“Cosic”) awarding the City unpaid earnings taxes and other costs, but failing to award prejudgment interest.  The City argued that the trial court erred in not awarding prejudgment interest because a city ordinance mandates the imposition of interest.

Opinion:The Western District affirmed the trial court decision noting that it cannot take judicial notice of a city ordinance and that the City failed to include it in the record.  An unmarked ordinance with no court sticker identifying the exhibit number on the ordinance that was included in an appendix was not sufficient; therefore, the appeal of the City is dismissed.  City of Kansas City v. Cosic, (WD80985, 02/27/18)

Failure To File A Return To A Writ Of Mandamus Does Not Constitute A False Return Thereby Triggering A Right To Damages And Costs

A recent opinion by the Southern District holds that the failure to file a return to a writ of mandamus is not a “false return” under the statute that allows damages for a person who makes a false return.

In case a verdict shall be found for the person suing out such writ, or judgment be given for him on motion to dismiss, or by nihil dicit, or for want of a replication or other pleading, he shall recover his damages and costs, in such manner as he might do in a civil action for a false return, and the same may be levied by execution, as in other cases. Section 529.060.

The Southern District noted that common-law history of mandamus applied to issues of fact, not issues of law.  Damages for making a false return were intended to pay for the “…vexation and expense in disproving a false issue of fact.”  State of Missouri Ex Rel. Mason vs. Honorable R. Craig Carter, (SD35104, 02/26/18)

Comment Howard: This case is helpful because it provides historical background in understanding writs of mandamus suggesting a new fertile ground for research on unanswered legal questions.

Drivers License Suspended For DWI Upheld Even Though Police Did Not Know Exact Time When Accident Occurred

Facts and Procedure: On November 26, 2015, at approximately 5:18 a.m., Trooper Highly received a dispatch call regarding a motor vehicle crash.  Trooper Highly received a dispatch call regarding a motor vehicle crash.  At 5:54 a.m., Trooper Highly arrived at the scene of the crash and observed a silver Dodge Durango sitting on its roof.  An ambulance was already on the scene.  Trooper Highly asked emergency personnel where the driver of the vehicle was located, and they informed Trooper Highly that the driver was inside the ambulance. Upon entering the ambulance, Trooper Highly found Trentmann, who stated he had been the only person in the vehicle when it crashed.

In observing Trentmann, Trooper Highly reported a moderate odor of intoxicants, watery and bloodshot eyes, and mumbled speech.  Trooper Highly asked Trentmann what happened, and Trentmann stated, “[n]o idea.”  Trentmann admitted that he consumed alcohol “[l]ast night” and stated that he “woke up this morning to go home.”  Trooper Highly asked whether Trentmann woke up in the vehicle, and Trentmann responded, “[w]ell I woke up…I, I don’t recall,” Trooper Highly asked Trentmann when he stopped drinking the night before, and Trentmann responded, “Around seven o’clock.”  When asked how much he drank, he replied, “[n]ot a lot.”  After observing Trentmann’s condition and responses, Trooper Highly asked Trentmann to consent to a Preliminary Breath Test (PBT).  Trentmann responded, “I guess so.” Trooper Highly asked whether the response indicated yes or no, to which Trentmann answered “[n]o.” Trooper Highly asked to check Trentmann’s eyes and to administer a PBT.  Trentmann refused both requests.

Upon Trentmann’s refusal, Trooper Highly arrested Trentmann for driving while intoxicated and read Trentmann Missouri’s implied consent law.  Subsequently, Trooper Highly asked Trentmann to submit to a breath test to check the alcohol content of his blood.  Trentmann failed to respond, and Trooper Highly treated the silence as a refusal.

Because Trentmann refused this breath test, the Director revoked Trentmann’s driving privileges for one year pursuant to Section 577.041.  Trentmann filed a petition for review in the circuit court, and the circuit court entered judgment sustaining the Director’s revocation, which Trentmann appealed to the Eastern District.

Opinion: The crux of this case is whether Trentmann was intoxicated at the time he drove.  In this case, there is a discrepancy regarding the time of the crash, which could’ve occurred sometime in the morning prior to 5:18 a.m. (when the dispatch call was recorded reporting the accident) and after 12:00 a.m. (based on the statement by Trentmann that he was drinking at home “last night”); therefore, the question was whether or not the arresting officer had reasonable grounds  to believe the person was driving a motor vehicle in an intoxicated condition?  The court resolved this discrepancy by determining that the officer could reasonably conclude that the crash occurred sometime that morning while Trentmann he was still intoxicated because the officer smelled alcohol on Trentmann’s breath at the scene of the crash and evidence that showed he did not consume alcohol after crash.  Therefore, the officer had probable cause to arrest Trentmenn for driving while intoxicated.

Trentmann also argued that the officer failed to provide a reason for requesting the breath test after he was arrested.  The court noted that an officer does not need to provide a specific reasons for requesting a chemical test because the statutory requirements only requires “…preparing an Alcohol Influence Report, informing the driver of the consequences for refusal, and stating that the request for the test is to measure the driver’s blood alcohol content.”   Trentmann v. Director of Revenue, (ED 105642, 02/27/18)

United States Supreme Court Allows Jurors To Impeach Their Deliberations Due To Racial Bias

Facts and Procedure: A Colorado jury convicted petitioner Peña-Rodriguez of harassment and unlawful sexual contact.  Following the discharge of the jury, two jurors remained to speak with counsel for the defendant in private.  They stated that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness.  Petitioner’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.

The affidavits by two jurors, stated that H. C. told the other jurors that he “believed the defendant was guilty because, in [H. C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”  The jurors reported that H. C. stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated,

“‘I think he did it because he’s Mexican and Mexican men take whatever they want.’” According to the jurors, H. C. further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Finally, the jurors recounted that Juror H. C. said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “ ‘an illegal.’ (In fact, the witness testified during trial that he was a legal resident of the United States.)

After reviewing the affidavits, the trial court acknowledged

  1. C.’s apparent bias but denied petitioner’s motion for a new trial, noting that “[t]he actual deliberations that occur among the jurors are protected from inquiry under Colorado Rule of Evidence.  Like its federal counterpart, Colorado’s Rule generally prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict. The defendant, Pena-Rodriguez, appealed to the United States Supreme Court.

Opinion: The United States Supreme Court held that when a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.  Pena-Rodriguez v. Colorado, (US 15-606, 3/6/17)

Comment Howard: In a case that we recently reviewed in this newsletter the Missouri Supreme Court held the grand jury deliberations could not be impeached.  The PENA-RODRIGUEZ case provides an outstanding analysis of the law on impeachment of jury deliberations.

Police Officer Had No Authority To Contract For Emergency Medical Services Without a Written Contract for the City

Facts and Procedure: Howard County Ambulance District is a political subdivision organized under the Chapter 190, RSMo, to provide ambulance services within Howard County.  The City of Fayette is a class four municipality organized under Chapter 79 RSMo, and located in Howard County.

Officer Matt Jones, a reserve police officer for the City of Fayette, was dispatched on a report of a prowler and came into contact Lance Brown.  After a short foot pursuit, Officer Jones took Brown into custody and placed him in handcuffs.  The officer discovered that Brown was seventeen years old and very intoxicated.  Concerned for his health and well being, the officer summoned EMS.

The Ambulance District dispatched personnel to the scene.  The paramedic determined that Brown required medical attention and recommended that he be transported to the hospital.

Officer Jones called Brown’s mother, Janice Brown, and told her the situation.  Brown’s mother told the officer to have him taken to Boonville.  Officer Jones did not sign anything with the Ambulance District at the scene.  The City has agreements with various municipal type entities including a fire district, a rural water district, and a rural electric district.  These agreements are in writing and approved by the Board of Alderman.  The City does not have a written agreement with the Ambulance District. City police officers do not have authority to bind the City for medical care or ambulance transport.

The Ambulance District then billed Janice Brown $1,266.01 for the cost of the transport of her son to the hospital.  When the District was not paid it filed a petition against her seeking payment of the bill, which was later amended to assert a claim against the City for payment                                   .

The trial court entered judgment in favor of the City finding that there was no written agreement between the Ambulance District and the City for the ambulance service as required by Section 432.070.  The trial court entered judgment against Janice Brown and the Ambulance District appealed to the Western District.

Opinion: The Ambulance District was organized under Chapter 190, which grants various governmental powers to ambulance districts.  Included in those powers is the power “[t]o fix, charge and collect reasonable fees and compensation for the use of the ambulance service according to the rules and regulations prescribed by the board from time to time.” § 190.060.1(4).  The Ambulance District also enacted an ordinance governing the liability for ambulance services provided to an individual detained by law enforcement, which provides:

“Whenever an individual has been detained by law enforcement for any reason, whether under arrest or not, and becomes ill or injured and an ambulance is dispatched, the entity at which the individual was detained at the time the ambulance was dispatched shall be liable for all ambulance charges incurred for medical care of the individual….Howard County Ambulance District Ordinance No. 2 shall not preclude the county or city from pursuing collection from the individual.”

Section 432.070 provides:

No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

The statute requires that the contracts made by a city “must be in writing and duly executed as provided in the statute.” “In addition, the requirements of the statute are mandatory, not directory, and a contract not so made is void.”  Howard County Ambulance District vs. City of Fayette, (WD80699, 02/20/18)