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Comments on Lawsuit Column

12 Feb

Peggy Bess had a column in the February 1 Leader about the big legal bills being rung up by our county government in Hillsboro. I want to make three comments on the article.

First, in tallying up the costs, she doesn’t even add in the impact of the biggest lawsuit: the one concerning politician pay. Bess comes up with a total dollar amount of $83,610 for the Waller lawsuit – that he lost – over who could remove certain board members. But only about a week previously, Steve Taylor, also of the Leader, gave a total bill of over $150,000 for the two cases combined. It seems like mentioning the pay lawsuit would have only bolstered her point.

Second, the article attempts to place blame for these bills evenly between county executive Ken Waller and the county council. But the fact is, Waller is the one filing and participating in lawsuits. He filed the lawsuit Bess mentions. In the column, Bess casually dismisses the result of the lawsuit: “wow, that matters,” she sarcastically notes. But Waller lost because the issue wasn’t even ripe (ready for judicial involvement, since no board member had actually been removed). So it was a totally frivolous lawsuit, filed by Waller in a fit of pique, that is costing county taxpayers so much money. You can’t blame the council for that.

The other lawsuit, that continues to cost big bucks, is the suit by many current and former county officeholders asking for more money. Waller joined in this suit, and later left it under public and media pressure. Again, the council has no choice but to defend taxpayers, or this suit could cost the county $1 million or more in back pay. Once again, Bess should blame the plaintiffs, not the defendants.

Finally, Bess mentions that which is odd about the Missouri Attorney General’s sunshine lawsuit against councilwoman Renee Reuter, alleging that she ordered legal invoices to be destroyed. Namely:

  • The documents were not destroyed and have been provided to parties including the Leader.
  • “Under past Missouri attorneys general, Sunshine Law suits were hardly ever filed.” In one case a few years back in which Arnold violated the sunshine law by refusing to hand over city hall visitors logs, the AG threatened a lawsuit unless the records were handed over, giving Arnold a way out. But the current AG skipped this step.

On another note, not mentioned in the article, is that emails are presumably backed up on the server, and so cannot just be deleted from your desktop. And Reuter would surely know this. Also, the order to delete them allegedly came over the phone, so it comes down to a she said/she said situation. Questionable.

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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.

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.

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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