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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Bills from Our Reps

2 Feb

With the new legislative session underway (and overshadowed by the Governor Greitens affair scandal), let’s take a look at the bills the representatives from JeffCo have introduced. Most of these bills cover several items; I will highlight ones that I find interesting. The below information can be found here. I wil talk about our senators in another post.

Elaine Gannon (Republican, 115th district, from DeSoto)

  • HB 1365 – Allows parents to opt students out of standardized testing. Gannon was a teacher.
  • HB 1606 – Requires school districts to develop policies for accelerated student advancement
  • HB 2182 – Requires counties and cities to participate in the National Flood Insurance Program

Ben Harris (D, 118th, Hillsboro) – None

97th district – John McCaherty’s old seat, he resigned, now vacant. Special election will be February 6.

Shane Roden (R, 111th, Cedar Hill)

  • HB 1461 – Creates presumption that firefighters who were exposed to carcinogens and got cancer incurred the cancer on the job. This has the governor’s support. Roden is a volunteer firefighter.
  • HB 1462 – Removes residency and specific training program requirements for public safety jobs
  • HB 1913 – Gives businesses tax deductions for installing diaper-changing stations in mens or unisex public bathrooms
  • HB 1914 – Would overturn the recent transition of the St. Louis Police Department to local control, putting a state-appointed board back in charge
  • HB 1915 – Increases penalties for violating no-call list rules
  • HB 2113 – Prohibts some charges by water supply districts
  • HB 2158 – Allows motorcyclists to not wear a helmet if they have insurance and can prove financial responsibility. This is a pet issue for Roden.

Becky Ruth (R, 114th, Festus)

  • HB 1373 – Requires a teacher representative on the state board of education. Ruth was a teacher.
  • HB 1374 – Establishes a waterways trust fund
  • HB 1375 – Makes June 27 “Post Traumatic Stress Awareness Day”
  • HB 1796 – Establishes the First-Time Home Buyer Savings Account Act and authorizes a tax deduction. Ruth is a realtor.
  • HB 1830 – Increases minimum teacher salaries
  • HB 1831 – Adds diapers to the list of exempt items on back to school tax free weekend in August
  • HB 1927 – Requires the Department of Health and Senior Services to develop a voluntary nonopioid directive form to allow a person to refuse the administration or prescription of opioids

Dan Shaul (R, 113th, Imperial)

  • HB 1396 – Expands his ban on plastic bag bans from two years ago to other types of containers (cloth, paper, plastic, glass, etc)
  • HB 1397 – Prevents cities/counties from penalizing employers who alter or adjust employee schedules. I believe this relates to a push in some states to prevent employers from making short-notice changes to employee’s shift schedules.
  • HB 1570 – Requires state agencies to reduce impact of new regulations on small businesses
  • HB 1857 – Makes changes in election laws, including moving the absentee ballot deadline back a week and changing provisions about removal of names from ballots and paying election costs
  • HB 2121 – Extends the holding period for people arrested from 24 to 72 hours if the arrestee is a danger to himself or others
  • HB 2277 – Exempts permanently disabled persons from the requirement that a physician’s statement be provided each time a disabled license plate or windshield placard is renewed
  • HCR 64 – Urges Congress to pass a bill to allow the Delta Queen riverboat, which is moving to Kimmswick, to operate
  • HRB 1 – Repeals obsolete, expired, sunset, and terminated statutory sections and portions of sections

Rob Vescovo (R, 112th, Arnold) – serving as House Majority Leader  – None

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.

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.

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