Arnold Regime Sticks With Each Other – and With ATS

Outgoing Arnold councilwoman Michelle Hohmeier forced the issue of red light cameras (RLCs) at Thursday night’s council meeting. With the election coming up, she believed that the council should go on the record about what they want to do with the soon-to-expire contract with vendor American Traffic Solutions. Councilman Phil Amato, with city attorney Bob Sweeney helping out, once again raised the bogus specter of the city being liable if someone is hurt in a red light accident. Amato tried to shut down the vote itself, too, using procedural tactics. He must have known that the vote might have electoral consequences.

The vote proceeded, and Hohmeier and Ken Moss voted to end the contract, as did Mary Elizabeth Coleman (I salute her for that) and Jason Fulbright. Fulbright was apparently quite perturbed over the vote, but he’s running for state representative (as a Republican!), so he voted in a way that may not reflect his true feelings. Council members Crisler, Amato, Freese, and Cooley voted to keep the contract. This created a tie, and it was up to the mayor to break it. Ron Counts sided with the cameras. So perhaps Fulbright figured out that his vote was not going to kill the contract, thanks to the mayor’s tiebreaker.

So here is where we stand on red light cameras as the election nears:

Ward 1

• Doris Borgelt – publicly opposed to RLCs
• Nancy Crisler (incumbent) – voted to maintain the contract; also reportedly came up with the idea to stop prosecuting RLC tickets but keep issuing them and accepting payments from those who didn’t come to court to fight.

Ward 2

• Bob Hohmeier – publicly opposed to RLCs
• Brian McArthur – told the Leader basically that there is nothing to be done on the issue. Ignored my question about his stance on the contract. We can assume he is pro-camera.

Ward 3

• Rodney Mullins – publicly opposed to RLCs
• Paul Freese (I) – voted to maintain the contract

Ward 4

• Ken Moss (I) – publicly opposed to RLCs, voted to end contract
• Gary Plunk – told Leader there is nothing for council to do on issue. I’ve heard no public pronouncement on the contract; I will assume he supports it.

Help From Their Friends

The latest round of Missouri Ethics Commission campaign finance reports are out for Arnold candidates. Only those I have identified as pro-camera have filed reports, which are required if activity is over $1,000. Mayor Counts has been generous in helping out his fellow regime members (and not just with the city newsletter). His campaign committee gave over $600 to Crisler and Plunk, and over $300 to McArthur and Freese (I guess he wants Borgelt and Moss to lose less than he does Hohmeier and Mullins). He also hosted an event for these four candidates on March 4th. I was not invited to this event, and neither were the other four candidates, apparently.

Imagine if Counts’ nightmare comes true and 3-4 of his candidates lose. How much of his agenda does he expect to accomplish if the council is made up of candidates he actively fought to defeat?

In addition to Counts’ cash, Bob Sweeney’s mom and former councilman Bill Moritz gave to Crisler. Moritz also gave to McArthur. Councilman Fulbright is serving as deputy treasurer for all four of these candidates.

 

Arnold Candidates Try to Sweep Red Light Cameras Under the Rug

In the Leader‘s election guide, Arnold city council candidates were asked about the red light camera (RLC)  issue. As a reminder, the city has reluctantly decided to stop issuing and prosecuting RLC tickets in response to recent adverse Missouri Appeals Court rulings and the state Supreme Court’s decision to not hear these cases.

In light of this decision, pro-RLC council members and candidates are trying to claim that the issue is moot and should not be considered by voters. Two candidates, Nancy Crisler and Paul Freese, gave almost the exact same answer to the question, suggesting it was crafted collaboratively, perhaps by someone with a law degree who supports both of these candidates. Here is Crisler’s response:

Until the red-light camera company, at its expense, wins its appeal to the Missouri Supreme Court, this is a non-issue. The city of Arnold is no longer using the cameras at this time.

Freese elaborated a little bit:

Until ATS, the red-light camera company, on its own dime, wins its appeals to the Missouri Supreme Court, and/or the state Legislature adopts a new state law, this is a non-issue. The City of Arnold is no longer using the cameras at this time.

First, what is this about ATS suing on its own dime? Arnold is still a party to Brunner et al vs City of Arnold, the case that struck down Arnold’s ordinance. On February 14, one of ATS big-m0ney, high-powered attorneys filed a motion with the Supreme Court to take up the case, after the Eastern District Appeals Court denied transfer. The motion is listed as being filed on behalf of the city of Arnold and ATS on Casenet. If it is true, as Freese and Crisler say, that it is up to ATS to win a lawsuit, then the council should order the city to withdraw from the the Supreme Court appeal.

Candidates Brian McArthur and Gary Plunk also gave answers that basically said “there’s nothing to be done on this issue at this time.”

This is far from correct, however. The city’s contract with camera vendor American Traffic Solutions (ATS) expires at the end of May. Previously, the city had to give 60 days notice if it wanted to allow the contract to expire. However, after the city stopped issuing tickets, and ATS graciously agreed not to sue in response, ATS also allowed the city to wait until June 1 to decide whether to renew for two years. I’m sure this allowance had nothing to do with waiting until after the election. City administrator Bryan Richison said on February 6 that he would give notice of non-renewal and try to negotiate a shorter deal with ATS. But that was before ATS waived the 60-day notice requirement. So while this week would have been the deadline to provide notification of non-renewal, now the council can wait two months. So unless the issue is brought up at Thursday’s council meeting (if it even takes place), the next council will decide whether or not to sign another contract with ATS.

That being the case, Freese, Crisler, Plunk, and McArthur should come out and tell us before the election if they will vote to renew the contract or not. If they won’t say, then we have to assume that they will renew it. I asked McArthur about this on Twitter; I await his response.

Given the legal blows that Missouri courts have delivered to RLC ordinances in recent months, the only proper move is to not renew the ATS contract. It is unlikely that the Legislature will pass a bill to save ATS – while the House passed a bill that would allow RLCs in certain instances, the Senate seems ready to kill that bill. So instead of trying to sweep the issue under the rug, council candidates need to tell us where they stand. If they don’t, we can draw our own conclusions.

Recent Legislature Action

Here is how your local state representative voted on two bills of note in Jefferson City this week:

• The House passed a bill (HB 1307) extending the state’s waiting period for an abortion from 24 hours to 72 hours. Rep. Michael Frame (D – 111th) voted no, while all other Jefferson County reps (Roorda, Wieland, McKenna, Harris, Gannon, McCaherty) voted yes.

• The House passed a bill (HB 1557) which legalizes red light cameras under the guise of regulating them. Cameras would be limited to school zones, work zones and areas where serious traffic accidents are more common (that last one is an invitation to abuse). The bill would allow the non-assessment of points for these infractions and allow a maximum fine of $135 (much more than the $94.50 Arnold was charging). Missouri courts were on the way to eliminating these cameras. Reps. Jeff Roorda (D – 113th) and TJ McKenna (D – 114th) voted yes, while Wieland, Gannon, Harris, McCaherty, and Frame voted no. Notably, Roorda’s other employer, the St. Louis Police Officers’ Association, voted to oppose red light cameras in 2009.

No, Arnold, You Really Don’t Have to Turn on the Red Light (Cameras)

The city of Arnold just can’t quit red light cameras (RLCs). Despite losing its case in the Eastern District of Missouri appeals court, and having transfer to the state Supreme Court denied, Arnold just can’t bring itself to turn them off. This despite the fact that American Traffic Solutions (ATS) customers throughout the state, including Kansas City, are doing just that (St. Louis, though, continues to defy the courts). Arnold just keeps pointing to its contract with scamera vendor American Traffic Solutions (ATS) and saying the RLCs have to stay on. I wonder if that contract shouldn’t be framed and hung up in the council chambers, since it seems to be the city’s supreme document. This despite the fact that it contains a clause allowing for termination if the camera use is deemed impermissible.

After beginning to informally dismiss the tickets of everyone who bothered to come to court and plead not guilty (only after those pleading guilty were sent out to the payment window), the city council voted February 6 to dismiss the tickets officially for people who come to court to fight them. The city also won’t go after those who ignore the tickets (not that they have been doing that). But if you send in payment for your ticket, the city will gladly cash your check. This decision, proposed by Nancy Crisler and acceded to by Bob Sweeney, was made without much discussion. A suggestion/clarification, brought up I think by city administrator Bryan Richison, to suspend the issuance of tickets, was rejected by Sweeney in favor of the suspension of prosecution.

Not only does this ignore the appeals court decision and create a double standard, it means the city will keep wasting the services of a police officer, who has to continue to review video of RLC infractions and issue tickets. Considering that most of these tickets will be dismissed or ignored, couldn’t we find a better use for this officer’s time, like, say, patrolling shopping centers?

I also don’t see why this would appease ATS, if they were really interested in suing, which we are led to believe is the case. This is going to cut into their revenue. Plus, the first item on the ATS contract, under the city’s scope of work in Exhibit B, is to “diligently prosecute each citation.” Isn’t the city violating this now?

After Arnold suspended RLC prosecution, a mini-campaign was launched to promote Crisler’s role in it. An unnamed poster on Arnold Topix lauded her, as did councilwoman Mary Elizabeth Coleman on Facebook. This looks suspiciously like an effort to bolster her thin resume before the April election.

Unfortunately for her, though, local newspapers are not cooperating. First, the Post-Dispatch editorial board ripped Arnold’s move:

In a decision remarkable for how little sense it makes, the city fathers of Arnold have made paying red-light camera tickets optional.

Even more amazingly, the Leader agreed in an unfortunately unsigned editorial:

It didn’t seem possible that the city of Arnold could do itself or its reputation any more harm than it already has with red-light cameras. But the City Council last week found a way.

The Leader stops short, though, of placing any individual blame. They won’t go too far off the reservation.

The hopes of Bob Sweeney and ATS now hinge on an unlikely move by the Supreme Court to take Arnold’s case, or in a lifeline from the state legislature, like HB 1557. That is also rather unlikely.

Arnold’s contract with ATS expires in June, and renews for two years automatically without 60 days’ notice. Mayor Ron Counts stated he wants the issue on the council agenda before the deadline. Richison says he wants to give notice, and then negotiate a shorter contract with ATS until the legal issues are sorted out. It seems to me that there is no proper move at this time except to cancel the contract. Even if you believe that the contract requires the city to continue to issue citations, why would you renew said contract amid all that is going on? It is hard to argue that is a good idea.

 

 

Arnold Defiant after Red Light Camera Decision

The subject of red light cameras (RLC) came up at the December 19 meeting of the Arnold city council, in the wake of the recent appeals court decision that went against the city’s RLC program. You can watch the discussion here, starting at the 40:00 mark. City attorney Bob Sweeney led the discussion, and he was quick to suggest that the city make no hasty decisions to stop the cameras and, indeed, that nobody think the court decision has any real meaning at all. He said the attorneys from MIRMA, the city’s insurer, which seems have its fingers in everything Arnold related, agree with this move. What he wants to do is take his time, analyze the decision, and apparently change the city’s ordinance to comply with the ruling, if need be. Sweeney, though, expressed confidence that the state Supreme Court will take up the issue (although a request for transfer was denied in a case involving Florissant).

In the meantime, Sweeney stressed that the Appeals Court’s decision is “not final” for 15 days and is “on abeyance” “at this moment” because Arnold plans to ask for transfer to the Supreme Court (he actually said it was already filed, but Casenet shows no such filing). This status could end within weeks, though, if that motion, which must be filed within 15 days of the decision, is denied.

Will ATS Really Sue?

At the meeting, the specter of a lawsuit against the city by camera vendor American Traffic Solutions (ATS) was raised if the council defied Sweeney’s advice. The same threat has been raised for years – but why is everyone so sure that ATS will sue? Sweeney said the city still has contractual obligations to ATS (he ominously said “we have been reminded of that fact,” presumably by ATS).  Never mind that the city’s contract with ATS says it can be terminated “if by virtue of a change to existing Missouri law, the usage of stationary camera systems in aid of enforcing red light violations by the City is deemed illegal, or otherwise impermissible.” I’d say that the Appeals Court declaring Arnold’s ordinance “void and unenforceable” fits that description. But does ATS really want to get in the business of suing its customers? It seems like ATS only does this in cases where voters, not elected officials, force the removal of RLCs, as happened in Houston and College Station, Texas and Bellingham, Washington. In these cases, the city governments basically rolled over, hoping that ATS would win the lawsuits and thwart the will of voters. While I have no doubt Arnold would side with ATS in such a situation, the only attempt by Arnold residents to fight back was a petition asking for the cameras to be put up for a vote. The petition was denied by the city council. Still, the threat of a lawsuit seems to be a handy weapon to wield whenever anyone starts asking questions about Arnold’s RLC program.

Other Cities’ Reactions

There seems to be no fear of lawsuits from ATS in the Missouri cities of Hazelwood, Northwoods, Calverton Park, Kansas City, St. Joseph, or Excelsior Springs. All of these cities are ATS customers that have turned off their cameras or suspended enforcement of tickets in the wake of recent court decisions. I would also note that it does not appear than any of the aforementioned cities waited 15 days to act, as Sweeney urged Arnold to do – many acted within two days. (They also apparently don’t fear councilman Paul Freese’s suggestion that the city might be liable if the cameras are off and an accident occurs). A local legal expert seems to agree that suspending RLCs makes sense:

“In this case, it is sensible for local governments that have ordinances that are similar to the Ellisville ordinance to take a step back and consider whether they want to continue with these programs in the absence of a higher court ruling,” said Richard Reuben, a professor at the University of Missouri School of Law. He specializes in state and local government law.

In St. Joseph, according to the city manager:

The city’s contract with ATS does not require the city to fulfill a certain amount of revenue per month, like in Kansas City. So a hiatus from use will not keep the city liable for funds, even with zero tickets issued, Mr. Woody said.

St. Joseph gives ATS 100% of the revenue on the first two RLC tickets each day. The Kansas City requirement he refers to is that KC pays ATS $4,500 per camera per month, regardless of the number of tickets. But Kansas City is currently not paying that fee. In an email, Kansas City Star reporter Lynn Horsley told me:

The city has halted the payments and ATS has agreed to that until the legal questions are resolved. The city has the ability to cancel the contract in the event of an adverse legal ruling, so to avoid complete cancellation of the contract, ATS agreed to suspend the payments.

Now this situation sounds exactly like Arnold. Arnold has the advantage here, in that the city could now cancel the contract, so ATS should be happy to settle for a mere suspension of enforcement while the legal issues are sorted out. But since Sweeney and the city are in bed with ATS, Arnold prefers to keep the status quo intact and the cameras on, so both parties can continue to collect revenue. Their only concern now is to keep the cameras on and to make any ordinance changes necessary to (hopefully, in their mind) keep the program from being shut down. Recall Sweeney’s dealings with ATS in the 2010 local election.

Caveats

Yes, all camera ordinances are not the same. But later ones were modeled after earlier ones, and they all share the basics – they don’t put points on the licenses of offenders, they presume the owner of the car is driving (in both cases unless they photograph the driver’s face, which these cities don’t), and they presume guilt. The fact that all these cities have acted to suspend their RLC programs shows that their ordinances are similar enough to all be affected by recent court rulings.

And yes, there are some cities who have left their cameras on: Ellisville, St. Louis, Bridgeton and Richmond Heights, for example. But perhaps these cities should take the above information into consideration as well.

Arnold Red Light Cameras Lose in Court

On the heels of two other similar recent court decisions, the Arnold red light camera (RLC) ordinance was hit hard by the Missouri Eastern District Court of Appeals (decision here). The court called the ordinance unconstitutional and counter to state law. Here I will summarize the ruling.

Plaintiffs Jeff Brunner and Kimberly Moore sued Arnold and camera vendor American Traffic Solutions (ATS) on the following counts, losing at trial and then moving to the appeals court:

• I – whether the Arnold RLC ordinance is counter to state law, whether the city had the authority to enact it, whether ticketing the owner of a car is valid, whether the ordinance compels testimony to prove innocence and violates due process, and whether payments made for tickets must be refunded
• II – unjust enrichment against Arnold
• III – the ordinance compels self-incrimination
• IV – the ordinance violates due process by creating a presumption of guilt
• V – civil conspiracy to generate revenue illegally (abandoned on appeal)
  
• VI – unjust enrichment against ATS
• VII – fraud in in enacting, enforcing, and marketing the ordinance (abandoned on appeal)
  

First the court dismissed Arnold’s claim that the plaintiffs had no standing to sue because Brunner paid his ticket (update: and Moore did not pay hers) and they did not challenge them at the municipal level. Then the court ruled as follows:

• The ordinance is valid under the city’s grant of authority from the state, but the case was remanded to the original court to determine if the ordinance is a valid exercise of the city’s police power (which requires ordinances to be related to better health and safety). No points are issued on RLC tickets, which removes a chance to get bad drivers off the road. Also, studies show crashes go up at some RLC intersections, while engineering solutions, an alternative to RLCs, are proven to reduce red light infractions. The court required discovery to be allowed on this issue.

• The case was also remanded to determine whether the ordinance was instituted solely for revenue. To quote the ruling: “as did the couple in Aesop’s Fable, Arnold seems to have killed the “elusive goose that lays the golden egg,” for the primary and fundamental purpose of the Ordinance seems to be just that—profit. Profit for Arnold and profit for ATS.” Points raised in the opinion were the lack of a photo of the driver, the points issue, the ticketing of the owner, and the high cost of a ticket. Discovery was also ordered on this issue.

• The ordinance conflicts with state statute 302.225, which requires moving violations be reported to the state for the issuance of points on a driver’s license. Arnold implicitly calls an RLC ticket a non-moving violation. The ordinance does not conflict with RSMo 304.281.

• The court said “a rebuttable presumption is invalid and unconstitutional if an ordinance is criminal in nature;” the presumption being that the owner of the car ticketed was driving it. In the ruling, the court said the ordinance is indeed criminal in nature. The ordinance threatens an arrest warrant for non-payment of an RLC ticket. The ruling stated “while we agree that the intent of the Ordinance was not to punish violators via imprisonment, Arnold has acted as if the Ordinance was criminal in nature, presumably to coerce violators into paying the fine. Arnold may not use the Ordinance as a weapon and then ask to be shielded by the Ordinance.”

• “To properly and sufficiently establish a claim for unjust enrichment, the plaintiff must prove three elements: (1) the defendant was enriched by
  the receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; and (3) that it would be unjust to allow the defendant to retain the benefit.” This ruling dismissed the unjust enrichment claim against Arnold, but remanded the question of whether the city contracted its governmental functions to a non-government entity (ATS) and thus unjustly enriched ATS. Discovery was ordered on this question too, and the process should provide some interesting material.

City Reaction

The ruling states “likewise, as discussed, infra, we too find this Ordinance—which is similar to that of the Ellisville Ordinance—void and unenforceable.” So Arnold shut off the cameras, right? After all, that’s what Columbia, Kansas City, and St. Joseph, Missouri all did.

Nope.

Bob Sweeney, the Arnold city attorney who is on a losing streak, told the council to wait, because the court didn’t order the cameras to be shut off. I’m not sure what one can do with RLCs that are accompanied by an unenforceable ordinance. Maybe hang some decorations from them? The only thing I can think of is to hope that a few more suckers pay their tickets before the state Supreme Court weighs in. According to the Post-Dispatch, “some Arnold officials cautioned that if the city made a hasty decision, it could be sued by the contractor running its red-light program.”

So the city should be more worried about a theoretical lawsuit by ATS than by the real and actual lawsuit it just took a beating on?

Red Light Cameras – Your Move, Arnold

On Wednesday, the Eastern District of the Missouri Court of Appeals struck down Ellisville’s red light camera (RLC) ordinance.

The plaintiffs argued the Ellisville ordinance violated state law because the owner of the car was ticketed, not the driver. The appeals court agreed, and declared the ordinance void.

This overturns a ruling from a Creve Coeur case in 2011 (Nottebrok), in which the court said a similar ordinance was OK.

In the wake of this ruling, at least three cities in Missouri – Columbia, St. Joseph, and Kansas City – have at least temporarily stopped enforcing their red light cameras.

So what will Missouri RLC pioneer Arnold do? Arnold uses the same camera company as Ellisville, American Traffic Solutions, which is desperately trying to spin this ruling in its favor. Arnold has an RLC case of its own before the Eastern District court, which was heard in August (case number ED99034). Perhaps the court will soon rule on this, and the decision will be taken out of Arnold’s hands.

Could the day be approaching, eight years after they were installed, when Arnold’s red light cameras are finally shut down? In the end, it may be up to the state Supreme Court to decide.

Hat tip to Matt Hay for most of this info.

A Ray of Hope for Arnold Red-Light Camera Opponents?

In a previous post, I wrote about the dearth of good candidates in the upcoming Arnold City Council elections. I dismissed one of the challengers, Mike Evans, who is taking on Paul Freese. But I was wrong to do so, for he is against red light cameras.

That is correct. He says:

I am strongly opposed to red-light cameras and will make removing them from the city’s streets a top priority.

This is reason enough to vote for him, even if he agrees with Freese on everything else, although I can’t imagine he holds the enthusiasm for “free” trash that Freese does.

Having said this, let me advance a red-light camera scenario. Let’s say Evans wins this race, and Michelle Hohmeier manages to knock off Jeff Fitter. These two, along with incumbent Doris Borgelt, would be three votes against the cameras. I assume that, deep down, incumbent Phil Amato loves the cameras, but I also think he wants to run for mayor (or another office, but my guess is for mayor. He ran for, and lost, a race for mayor in 2009.). Recently, Amato voted against allowing the possibility of using eminent domain for road access to the planned CVS development, stating that he supported eminent domain for the Arnold Commons project and got heavily criticized for it (ignoring the distinction between using eminent domain for private developers vs. the public good). He also ran for Jefferson County Council in 2010 as a self-described conservative, despite his past record. This suggests he is willing to change his positions for political expediency.

So imagine a proposal is made after the election to remove the cameras, and Amato joins the anti-camera group? That would create a 4-4 tie, if all members are present. And what if Mayor Counts breaks the tie with a negative vote (I’m not sure he would, but stick with me here). This would be enough to have the cameras taken down.

Long shot maybe, but we can hope.