Kasten Council Resignation Came After AG Conflict Ruling

11 Jan

When former Jefferson County Councilman for District 5 Jim Kasten (Democrat) announced his resignation from the board on October 23, he cited ongoing conflict between the “dysfunctional” council and county executive Ken Waller. He bemoaned the “constant bickering” and expressed dismay that the council did not pass a bill to join a prescription drug monitoring program.

What he did not mention is that he received a letter from the Missouri Attorney General’s Office, dated September 25, 2017, stating that due to his holding of multiple simultaneous offices, he was in violation of conflict of interest provisions, and thus would have to resign from something. This letter came as a result of a citizen complaint to the AG’s office.

Kasten submitted a resignation letter to Waller on September 29, effective December 31. He has since left the council and been replaced by Dan Darian, who was chosen by the county council to complete Kasten’s term.

Multiple Offices

Along with his time on the county council (elected in 2014), Kasten serves:

  • On the Dunklin School Board (elected in 2007)
  • As Herculaneum city administrator (hired in 2008)
  • On the Jefferson County Water Authority (appointed in 2008, part of Herky city admin duties)
  • He was on the Jefferson County Port Authority Board for eight years before being denied reappointment by the county council in December 2016. At that time, his service in multiple positions was cited as a reason to vote down his appointment. After he resigned from the council, Waller again nominated him to the Port board, but the council refused to vote on the nomination at its January 8, 2018 meeting.

The Letter

Here is the letter from the AG’s office:


It cites the “common law prohibition against holding two incompatible public offices,” then goes on to list state Supreme Court precedent and explains how offices that deal with each other, through licensing, taxing, public works, etc. could create a situation where an officeholder finds himself on both sides of an agreement.

According to common law, when an officeholder accepts another incompatible office, he automatically is considered to be resigned from one of them. Missouri uses a last-in-time analysis, and so was already considered to be de jure resigned from the county council. It just had to be made official somehow, which Kasten made happen when he submitted his resignation. The letter points out, though, that actions the council took while he was seated are still valid.

Not Wrongdoing

When Kasten was denied reappointment to the Port board, he responded to the allegations of conflict of interest by demanding that someone point out where he actively acted in a conflicted manner (as I interpret it). But he has it wrong, I think. Conflict of interest isn’t an intentional act of wrongdoing, it is just the inherent circumstance that a person’s judgment and duty could be influenced improperly. It’s like when county prosecutor Forrest Wegge belatedly said he could not take the Dianne Critchlow criminal case because he knows her. The fact that he knows her created a possibility of conflict between the law and his friendship, even if he didn’t actively try to get her off the hook.

In short, nobody says Kasten intentionally committed some wrongdoing, it’s just that he held naturally conflicting interests by holding multiple offices, and so he had to surrender one of them. But he should have admitted this when he resigned from the council.

There are a number of dual office holders in JeffCo, for example, some who sit on a city council and a school board. In the past, there have been men who served on a city council for one city while serving as city administrator for another. Given this ruling, these double-dippers may want to reconsider, though I can’t say for sure that these arrangements are unlawful. And any residents with concerns now know who to turn to with complaints. While serving in elected and appointed positions is a public service (unless you are corrupt or negligent in your duties), serving on multiple boards is not always a good thing.

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Sweeney Rebuked by MO Appeals Court

4 Jan

Robert Sweeney, who serves as attorney for multiple local government entities, including the cities of Arnold and Byrnes Mill, and who appears frequently in these pages, has once again achieved that combination of malfeasance and incompetence that he is known for. This time, his client was the Northeast Public Sewer District (NEPSD) of Jefferson County. In this case, the Appeals Court for the Eastern District of Missouri slammed Sweeney for filing a “frivolous appeal” and awarded legal costs to his opponent as a punishment.

Case Background

  • NEPSD took an easement on the property of one William Feucht of Fenton by condemnation and paid him $570 (Sweeney has experience with land taking – Arnold used eminent domain against a number of people and businesses to help a private developer build Arnold Commons. This led to long legal proceedings and surely big legal bills).
  • Feucht sued and won a jury trial that awarded him $11,500 for the property.
  • Sweeney appealed the verdict on the sole grounds that Feucht’s service in the Marines, which was mentioned during the trial, was irrelevant and prejudiced the jury.

The Decision

Now here is where the incompetence comes in. In order to appeal on certain grounds, you have to present that argument in the original case. If you don’t object to something at the time, you can’t complain about it later.

The reason Feucht’s service came up was that he was an accountant in the Marine Corps. He claimed at trial that this was part of his qualifications for being able to to state that his land was worth more than NEPSD gave him credit for.

Before evidence was presented at the trial, Sweeney made vague statements like (paraphrasing) “I may object to one or two slides” and “I don’t know what relevance this Marine thing is.” But when Feucht testified on his qualifications, and when he entered his Marine meritorious promotion certificate into evidence, Sweeney did not object. He also never motioned for a new trial. So he lost any right to appeal based on this issue.

And here we turn to the malfeasance. The court states that, even if Sweeney was able to appeal the mention of military service, he would have lost on the merits. The Sweeney Law Firm, actually represented by Bob’s daughter Allison on the appeal, claimed the discussion of Feucht’s military service was “extensive.” The court rejected this claim, pointing out that only a few lines of testimony on the subject were offered. And the court stated that being an accountant was highly relevant and central to Feucht’s ability to claim that he knew what his land was worth.

Penalty

Because of the blatant frivolity of this appeal, the court took the drastic step of forcing Sweeney to pay Feucht’s legal expenses (and he can’t get NEPSD to pay the money for him). But since Feucht was representing himself in front of the appeals court, and thus had few costs, he only got $350. Note: Sweeney lost to a guy representing himself! (Feucht did have an attorney for the original trial and early on in the appeals process.)

Here are some excerpts from the unanimous opinion of the three-judge panel hearing the case (link to the full opinion here):

 

sweeney-sewer1

And this:

sweeney-sewer2

Devoid of merit…failed to take basic steps…bad faith…careless attitude…no prospect of success…lack of professional effort.

These are damning words.

I have long theorized that Sweeney files meritless cases for two reasons: 1) he knows most people can’t afford to fight him in court, and 2) to inflate his legal bills. Both reasons appear to apply here, though the first did not work out for Sweeney. In addition to the $350 levied by the court, NEPSD should demand that Sweeney pay back his legal fees for this appeal.

With Sweeney’s history of failure (see links below), local government entities need to ask themselves why they continue to employ the Sweeney Law Firm, or in the case of Arnold, give him a big raise. It is clearly not in the best interest of these entities or the taxpayers to pay money to a lawyer that continues to litigate and lose weak cases.

Here is a list of Sweeney clients:

  • Arnold
  • Byrnes Mill
  • North Jefferson Ambulance
  • Public Water Supply District No. 13 (Lake Tishomingo)
  • Northeast Public Sewer District
  • City of Iberia, Missouri
  • Jefferson County 911 Dispatch
  • Washington County 911 Dispatch
  • Big River Ambulance District
  • Bismarck Fire Protection Association
  • Saline Valley Fire Protection District
  • Potosi Fire Protection District
  • DeSoto Rural Fire Protection District
  • Glaize Creek Public Sewer District

Sweeney Lowlights

Here are some Sweeney greatest hits:

  • His poor ballot language forced a tax revote
  • He kicked a candidate off the ballot and lost the resulting lawsuit, so new ballots had to be printed
  • He advised Arnold to deny a councilwoman’s request to see a city hall visitor log. The state attorney general intervened with a hard rebuke and threatened a lawsuit against the city.

Waller Eyes Run for County Clerk

21 Dec

Jefferson County Executive Ken Waller, dogged with continuing questions over his lawsuits against the county, faced with a recall effort, and locked in a dysfunctional relationship with the county council, announced in July that he would not run for a third term as county executive. But he kept the door open to running for something else. And now he has updated his campaign committee with the Missouri Ethics Commission, which oversees campaign finance, to state that he intends to run for county clerk in 2018.

clerk committee

Screen shot from Ken Waller campaign committee page at mec.mo.gov

Much of what Waller does is done out of personal animosity, even though he loudly denies it. For example, that time he removed council chairwoman Renee Reuter from her seat on the East-West Gateway board after she called him out for his ongoing conflict of interest in which he is preventing the county from paying the legal bills to defend against his lawsuits.

On this note, guess who is already planning to run for county clerk as a GOP candidate? A guy named Jeremy Day, who ran unsuccessfully for the job in 2014 and who just happens to be one of the leaders of the effort to recall Waller. Day has not announced publicly, but he has made it known in political circles that he is running again, and Waller knows this.

This is not to say that Day owns the nomination since he was first in. We just have to ask whether Waller wants the job because he has something to offer the residents of the county as clerk, or if he just wants 1) a paycheck, and 2) revenge.

The other office Waller had expressed interest in was circuit clerk, a job held by Republican Mike Reuter, who happens to be the husband of the aforementioned Renee Reuter, and thus another person Waller may want to take on for personal reasons.

There were also whispers that Waller wanted to challenge GOP State Senator Paul Wieland, with whom he has also had disagreements (I sense a pattern here).

It should be mentioned that county clerk is one of the few county elected offices still held by Democrats. The incumbent is Randy Holman, who was appointed by…Ken Waller, after longtime clerk Wes Wagner retired and Waller had to appoint another Democrat, per the county charter. If Waller gets the nomination, he will have to explain to voters why he is a better choice for auditor than the guy he appointed to be auditor and spoke glowingly about. Unless Waller and Holman made some sort of “step aside in 2018” deal.

Waller will be a formidable candidate for clerk, with his $65,000 campaign fund and his widespread name recognition as a veteran Republican politician in a Republican county. But he needs to tell us why he really wants the job, and whether he will be able to get along with the people that he needs to get along with to do it.

JeffCo School APR Scores 2017; Sunrise Rises, Followed by Fox

19 Nov

Once again, the state has released the yearly Annual Performance Report (APR) scores for each Missouri school district, and once again I will compile scores for the districts in Jefferson County. Here is my report from last year. The state has also released the Missouri Assessment Program (MAP) scores; these tell us how students did on the subject standardized tests. I will look at the MAP numbers in a separate post.

Here is a table of this year’s APR data:

2017 apr table.jpg

 

As you can see, Sunrise R-9 school district made a big jump, from 89% all the way up to a perfect 100%, one of eight area districts to achieve this score. Sunrise is a K-8 district near Desoto that is considering expanding to K-12. From what I can tell by looking at the raw data (which is hard to find and a bit hard to decipher), Sunrise’s increased score is entirely due to improved performance on the science portion of the state standardized test. Sunrise went from 64% proficient or advanced in that subject last year to 76% this year. As you see from the chart, Sunrise also saw a big jump in APR score from 2015 to 2016.

In other news, Fox jumped ahead of Festus, who led the ratings each of the past three years. This year, the difference between Fox and Festus is one point on the 140-point scale. Jefferson, who was 4th last year, also jumped ahead of Festus by half a point. Fox’s score went up four points from last year.

Desoto, which has been rocked by the controversial departure of a principal and two resignations from the school board and is facing a state audit, came in last place in the county for the third year in a row. For comparison, a score of 70% or more is required to be considered fully accredited; Desoto scored an 87.1%.

As the Post-Dispatch explains, “Missouri’s Annual Performance Reports score school districts on measures such as academics, college and career readiness, student attendance and graduation rates.”

Jefferson County Government Chaos Continues

16 Nov

Despite a full agenda that included approving higher-cost insurance coverage for county employees, appointing several people to county boards, adopting a procedure to fill resigning councilman Jim Kasten’s seat (Democrat, district 5), and dealing with a controversial zoning change on Old Lemay Ferry Road, the council instead voted to adjourn its November 13 meeting early in a continuing, seemingly intractable row between the council and County Executive Ken Waller over the payment of legal bills to defend the county against two lawsuits filed by county officeholders, including Waller himself.

After public comments part of the meeting, which happens right after roll call and in this case took over half an hour (mostly focused on the insurance issue), it was time to approve the agenda of the meeting. Councilman Don Bickowski (GOP, district 1) made a motion to add to the agenda a “resolution to acknowledge the valid obligations of Jefferson County to pay for legal services.” At a special meeting on November 6, the council voted to have this item placed on the agenda for the November 13 meeting, as the county charter allows in section 3.5.10. However, Waller did not place the item on the agenda. County counselor Tony Dorsett stated at Monday night’s meeting that there were unspecified “errors” with this vote, which apparently explain Waller’s failure to add the item to the agenda.

Dorsett also stated that, because of the Sunshine law and the charter’s 72-hour rule, both regarding advanced notice to the public of meeting agenda items, Bickowski’s resolution could not be added to the agenda. Some discussion took place over whether these rules apply to resolutions as opposed to bills, and Waller, in his role as chairman of the meeting, refused to allow a vote on this motion, stating at one point that “we aren’t going anywhere.” The meeting was at a standstill.

Bickowski then motioned to adjourn, and this motion passed on a 5-2 vote, with councilwoman Renee Reuter (GOP, district 2), who had been pressing for a vote on Bickowski’s agenda item, and councilman Phil Hendrickson (GOP, district 3), voting no. Though clearly frustrated, Kasten voted yes on the motion. So the meeting ended. The above described events can be watched on video here, starting at the 43:30 mark (the back-and-forth only lasted 10 minutes).

I’m not sure how this conflict over the legal bills is going to be settled (besides Waller resigning), but the county has to pay for services it has already received, and it is undeniable that Waller has a big conflict of interest here, since he was involved in bringing these lawsuits (one is a money grab for politicians, the other was a spat over who can remove county board members). However, I do not see what was accomplished by adjourning the meeting prematurely and delaying a lot of needed actions.

Pevely’s Side of Cop Beating Suit

12 Nov

I wrote here about a lawsuit filed against the Pevely police over alleged excessive force. The incident was from November 2016 and the suit was filed in January 2017. In it, a man (Robert Golden Jr) alleges he was beaten by Pevely police at a traffic stop for no good reason.

Having acquired the Pevely and Herculaneum police reports on this incident, I can provide the other side of the story. First, I stated in the previous post that dashcam video should be useful in adjudicating this claim. However, the police vehicle used in this incident (an unmarked one) does not have a dash camera. Several other Pevely cars also do not. The department is looking to phase out dash cameras and switch to body cameras for officers.

As the officers tell the story, Golden’s vehicle drew their attention because one of them recognized it from a brief high-speed chase a few months previously. The vehicle is distinctive in that it is a Chevy truck with a lift kit (as preferred by Florida-Georgia Line) and LED brow lighting. The officers turned to follow the vehicle and claimed that it crossed the center line four times and began to drive very slowly (35 in a 45). Golden states that he slowed down to let the close-following vehicle pass him. A stop was initiated.

Golden pulled over, but says that since he saw nothing indicating the people behind him were police, and he saw their guns drawn, he took off again. Pevely police indicate they were in an unmarked car equipped with lights and a siren that has been used for traffic stops in the past without incident. The police were also wearing plain clothes, as they were working that night on a Minor in Possession grant looking for underage drinkers. The police make no mention of their guns being drawn.

The officers state that Golden took off at high speed and continued to swerve. He proceeded into Herculaneum, where a Herky officer was waiting with lights flashing. Golden says he pulled over to seek assistance, but the Pevely officers say he pulled over abruptly in a way that had his vehicle pointing at the Herky car’s driver door, giving Golden “a distinct tactical advantage” and creating a “very grave and dangerous situation.” As such, the Herky officer drew his gun, a fact agreed to by all, and Pevely police initiated a “dynamic approach” to the vehicle.

Pevely police claim that Golden refused to exit the vehicle, so they yanked him down from his lifted cab to the ground and he sustained an abrasion on his cheek (this is the only injury visible on booking photos). They say he would not put his hands behind his back, so they forcibly pulled them back and cuffed him. This included an officer placing a knee in his back and placing a gun against his head, at which time his resistance stopped. [This is when Golden alleged that other abuse, including kicks and head slams into the ground, occurred.] Meanwhile other officers broke the passenger window after orders to open it were ignored, opened the door themselves, and removed three passengers without incident.

Two minor charges were all that Pevely filed as a result of this incident:

  • Failed to maintain a single lane of traffic
  • Failed to yield to emergency vehicle

Judge Reverses Council on Zoning Rejection

5 Nov

I have written before about what I see as the Jefferson County Council’s excessive willingness to deny rezoning applications filed by people trying to start new businesses, instead siding with the NIMBY interests of neighboring landowners. On this subject, we had a case last month (16JE-CC00344) in which a rejected applicant sued the county and won, with the judge ordering the council to approve the rezoning request.

It was in April 2016 that the council heard a request by Tony Pona to rezone land at Miller Road and West Outer Road in Imperial from residential to commercial in order to open a mini-storage and boat/RV storage facility. The county staff and the planning and zoning commission recommended approval of the project, but the county council rejected it (see meeting minutes here). Pona filed a lawsuit a month later.

In October, JeffCo judge Troy Cardona sided with Pona, stating that:

The reasoning for the denial was at best conjecture and refuted by the evidence presented. The denial cites to traffic concerns as one of the main reasons for denial, yet such speculation used in the denial was refuted by a traffic study that showed little to no impact on traffic. It has been held that it is incongruous to use existing traffic conditions to limit a property owner to a use which those very traffic conditions have made undesirable.

At the council’s October 23 meeting, it passed the first of three votes of approval of the storage project. This was after moving the vote to the end of the meeting, after a closed session that presumably was used to discuss this case and the judge’s order.

This case goes to show that business owners have avenues to challenge the council if it makes improper zoning denials.

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