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Budget “Crisis” Was a Total Nothingburger

11 Jun

County executive Ken Waller, a Republican, went to the microphone Thursday to inform the unquestioning St. Louis media that there was a budget crisis in Jefferson County and that a shutdown was imminent. In fact, there were merely two typos in some account numbers, something that was easily fixed. This is all part of a six-month fight by Waller, who is trying to stop the county council from cutting spending. Instead of accepting political defeat after a veto-proof majority of the council opposed him, Waller decided to freak everybody out with a #fakenews shutdown threat. This is another sign of the abysmal leadership Waller has provided in his 7.5 years as executive.

waller-pc

Back Story

As I wrote in January, the council passed an amended version of the 2018 budget Waller proposed. However, Waller’s ally Tony Dorsett, the county counselor who has announced he is resigning effective June 22, used some tortured analysis of the county charter to say that Waller could just ignore the council’s budget until January 1 and then implement his own budget. However, the council is also required to pass an ordinance to implement the budget. But Dorsett waved his hand and said this was not necessary.

Meanwhile, the council, as is its right, moved to amend Waller’s budget again to make its desired changes, while also passing the implementation ordinance. The main changes the council desired, totaling about $130,000 in reductions, were:

  • Cutting the county’s contribution to the Economic Development Corporation (which doesn’t do much, from what I can tell) in half,
  • Cutting the salary budget of the counselor’s office, and
  • Cutting the salary budget of the county auditor’s office.

Waller argues that the latter two cuts are retribution for those officials’ refusal to approve the payment of the county council’s legal bills in its efforts to fight the politician pay lawsuit, in which several current and former elected officials (including Waller, who has since withdrawn from the suit), sued the taxpayers to get more money for themselves. And that may be true or not, but the council has the right to take steps to stop those in county government who want to play games. The council says the cuts were not punitive and were made to reallocate the money to other purposes (county bus, legal fees, legal fees).

Quick Fix

Waller called for an emergency council meeting for June 8, the day after his press conference. He placed an item on the agenda to rescind the ordinance that the council passed over his veto, thus eliminating the council’s budget cuts. At the meeting, the council amended the item to reiterate its previous cuts, making the following corrections (by a 6-1 vote) to two account numbers:

account strings

This hardly seems like a crisis. When county auditor Richard Carter III resigned on Wednesday over this issue, he said “the account strings are all wrong.” That seems to be an epic overreaction, especially since the auditor’s office knew exactly what accounts the council meant, judging from this February memo:

strings memo auditor.jpg

Again, seems like a pretty minor thing. So when Carter told the Leader “oh, we can’t transfer money between accounts because some of the accounts do not exist,” he knew exactly what the council’s intent was.

Word is that Carter already had another job lined up when he resigned, so maybe his departure was not all about taking an ethical stand. His term was to end in January, and he was not running for re-election.

I would also not look at Dorsett’s resignation as some kind of moral move. He has been providing legal cover for Waller for years; why stop now? Waller recently tried to appoint him to the county municipal judge job, but the council refused to go along. Dorsett presumably would have been out the door in January, also, when Waller’s term (mercifully) concludes.

Why Go Nuclear?

The question is, why would Waller get everyone all spun up about a fake shutdown threat? It just makes the county government look bad. He may think it only makes the council look bad, but he has plenty of stink attached to himself. I’m seeing many comments saying “the whole idea of charter government was a mistake.” It seems like he just wants to damage candidates ahead of November’s election, even though this will only help Democrats. I can’t imagine it will help his own run for county clerk.

Unfortunately, bringing in the St. Louis media for his press conference accomplished Waller’s goal of inciting mass hysteria. The big city outlets, who do not follow JeffCo affairs, had no idea of the back story, and took Waller’s scaremongering at face value, spreading the erroneous fears throughout the region and causing unnecessary alarm to county employees who feared they would miss out on pay.

But we have seen this before. Waller sued the council last March after they passed an ordinance that gave them the power to remove people from county boards. A judge eventually threw out Waller’s suit after the county spent big bucks on legal fees. Waller also removed his frequent foe, councilwoman Renee Reuter, from the East-West Gateway board after she resisted his attempts to gut the county’s budget for legal fees to fight Waller-associated lawsuits against the county.

Waller is accustomed to getting his way, and if he doesn’t, he lashes out with no regards for the consequences. And that is why Waller set off a fake news budget crisis over two typos.

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Colorful Prosecutor Running for Top Job

23 Jan

Jefferson County assistant prosecutor Thomas Hollingsworth, who works DWI cases, has announced he will run for prosecuting attorney as a Democrat in 2018, according to the January 11 Leader. There are already two declared Republican candidates – Mark Bishop and Trisha Stefanski.

I have a suggestion for Hollingsworth: since he prosecuted Jame Critchlow’s DWI case last year, his campaign slogan should be “I actually put a Critchlow in jail” – you know, unlike his boss, outgoing prosecutor Forrest Wegge (Democrat).

I was on a jury a couple of years ago for a case in which Hollingsworth was the prosecutor. I found him to be an effective and entertaining courtroom operator, and he won the case. You can take a look at him here, addressing the November 13 county council meeting during the public comments about increasing employee health insurance costs.

Summary of the County Budget Battle

21 Jan

A low-key budget battle has been going on in Jefferson County over the past few weeks that temporarily prevented the county from making payments. It began when the GOP-dominated council passed on December 26 an amended version of the budget proposed by Republican county executive Ken Waller.

The main difference between the two budgets appears to be whether to cut spending or dip into reserves to fund some items both sides seem to agree on – an additional 0.5% county employee pay raise, the JeffCo Express bus system Highway 30 route, and the county council’s legal fees. (You can see the council’s budget amendments starting on page 182 at this link.)

But instead of signing or vetoing the council’s budget, Waller ignored it. He did so based on his reading of this county charter provision:

7.2.8. No later than the last day of the fiscal year, the County Council by Ordinance must adopt the proposed budget as the County budget for the ensuing fiscal year. If the Council fails to adopt a budget by this date, the budget proposed by the County Executive is to be deemed approved.

His reasoning (aided by county counselor Tony Dorsett) is this, from a January 5 press release:

The Charter makes it very clear that an “Ordinance” is a bill that is both “enacted by the County Council, and signed by the County Executive….” Accordingly, the bill passed by the County Council on December 26, 2017 (Bill No. 17-1150A2, A3), and which I did not sign, was not enacted prior to the last day of the fiscal year of 2017.

I guess he thinks the council’s budget was wiped away on January 1 in favor of his own, and he doesn’t need to bother to veto it? One could argue that the charter provision that a bill not signed or vetoed becomes law after 20 days is relevant here.

Chalk this up to another poorly written item in the charter, but I think this claim involves some twisting of the language. It says the council has to adopt a budget; nothing is said about the executive in 7.2.8. From a practical perspective, this interpretation would mean that an executive could always get his own budget enacted by simply ignoring and/or vetoing the council’s budget and waiting for January 1 to roll around. Does anyone think that was the intent? This provision seems to merely provide for a backup budget in a case where the council refuses to or is unable to pass a budget by majority vote.

But to add another layer to this, look at the next paragraph in the charter:

7.2.9. To implement the adopted budget, the County Council must adopt in accordance with Missouri Law:

7.2.9.1. An appropriation Ordinance making appropriations by Department, Division or other organizational unit and authorizing a single appropriation for each program or activity;

The council passed this ordinance in the same bill as the budget, which was not signed into law. So one might think the budget for this year is not in effect.

County Checks

I have learned from county officials that Jefferson County did not issue checks the first half of this month due to this confusion over the budget. However, Waller  informed the relevant offices that deal with payments (auditor, clerk, treasurer) early this week that Dorsett’s legal opinion was that Waller’s budget is valid and that payments can proceed. New council chairman Don Bickowski (GOP, District 1) had sent an email to these offices last week stating that the lack of an appropriations ordinance meant payments could not be made, and pointing out that the county charter calls for removal of county officers who spend money that is not duly appropriated.

Questions

This state law, RSMo 50.62, seems to be relevant here:

If at the termination of any fiscal year in counties of classes one and two the appropriations necessary for the support of the government for the ensuing year have not been made, the several amounts appropriated in the last annual appropriation order for the objects and purposes therein specified, so far as they relate to operation and maintenance expenses, are deemed to be reappropriated for the several objects and purposes specified in the appropriation order

In summary, if the council doesn’t pass an appropriations ordinance, the county can continue operating at last year’s spending levels. Is this what Waller is doing?

Also, at the January 8 council meeting (agenda here), Waller proposed an amendment to his budget to allocate money for the aforementioned three items (pay raise, bus, legal fees). It passed, 7-0. It would need to be passed again at the next meeting (Monday) to go into effect. But it isn’t on the agenda. Why not?

Stay tuned.

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.

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.

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.

Waller Lawsuit Dismissed

27 Oct

Jefferson County Executive Ken Waller (Republican) was a plaintiff in two lawsuits. One was asking for more salary for county elected officials. This suit is ongoing, but Waller took his name off of it (though he probably still stands to gain if it succeeds). The second suit was filed against the county council in a dispute about who can remove the appointed members of county boards (the council or the executive) in the wake of a recent piece of county legislation. On Tuesday, a judge granted the council’s motion to dismiss this suit.

Part of the judge’s decision was whether to enforce the settlement that was initially agreed to in the case. Apparently the two attorneys in the case made a deal, but the council did not accept the deal and thus did not vote to accept it. Waller asked the judge to make them accept it, but he ruled that a deal isn’t a deal until it is made official, so he would not enforce the settlement.

The dismissal of the case centers on ripeness. You can’t sue over a hypothetical. Nobody is actually trying to remove a board member at this time, so there is no dispute for the judge to decide on. So this case is over for now. It could be filed again if an attempt was made to remove a board member.

This seems like a fairly obvious result. However, it took seven months and tens of thousands of dollars of legal bills to get here. Thanks, Ken.

Update: Waller Response

Here is a press release Waller issued in response to the judge’s decision:

waller press release board lawsuit.jpg

Paying the Bills for the Lawsuits

There is an ongoing dispute over the payment of the legal bills for the county to defend against the lawsuits filed by the sue-happy county exec. First, Waller tried to cut the allocation for legal defense from $100,000 down to $25,000. This drew a strong rebuke from councilwoman Renee Reuter, who Waller then retaliated against by removing her from the East-West Gateway council.

There is also a question about the date that the council’s lawyers started working on the cases versus the date when the money was allocated (the council argued that the relationship with the attorney and the allocation of money were pre-existing). The council is trying to clarify the effective date of the appropriation, but Waller vetoed the change, in a clear conflict of interest (he is once again trying to cripple the defense against his lawsuits). The council tried at its Monday night meeting to override this veto, but fell one vote short, according to the JeffCo Citizens for Honest Government Facebook page. As has happened several times that I can recall, an absence from the council doomed a bill, as councilman Dan Stallman (GOP) was not there. In addition, new councilman Phil Hendrickson (GOP) abstained, as he did on a vote to add additional money to the legal defense fund. (He abstained when the vetoed bill was originally passed, but that was on the day he was sworn in to the council, so I can excuse that). So it is not clear where we go now in this dispute.

These abstentions by Hendrickson are wrong. It doesn’t matter if he wasn’t on the council when all this stuff started. He’s on there now, and he needs to take a stand. If he doesn’t want to, he should not have applied to fill the seat. In addition, council members need to be present for meetings.

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