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MUNICIPAL ATTORNEYS NEWSLETTER
Missouri Municipal Attorneys Association
1727 Southridge Drive, Jefferson City, MO 65109
Editor Howard C. Wright 417-569-0386
Asst. Editor Ragan Wright
573-635-9134, Fax: 573-635-9009
December 2009, Issue #12-09
CASE OUTLINES (MISSOURI)
STATUTORY PROVISIONS ARE INCORPORATED BY REFERENCE IN A BOND. A subcontractor employed workers (Employees) for a public works project who were required by law to be paid prevailing wages. The subcontractor paid the Employees, but did not pay them prevailing wages. The general contractor for the project purchased two bonds to insure the general contractor’s work: one bond was a performance bond and the other was a payment bond. The performance bond did not have a provision requiring the payment of prevailing wages. The payment bond had a provision that required that notice of any claim on the bond be given within 90 days from the date which the employee performed the work. The Employees failed to make a claim within the 90 days of the date on which they preformed the work. The Employees made a claim on both bonds that was denied. Employees sued the contractor and the bonding company on both bonds in circuit court. The trial court granted defendant’s motion to dismiss and the Employees appealed to the Eastern District. The Employees’ claim against the performance bond provided a remedy because a bond written in contemplation of the statute requires the bond to include all of the provisions in the statute. The statute provides that a performance bond shall include provisions to guarantee the faithful performance of the Prevailing Wage Law as provided by contract – which provision was repealed by the General Assembly while this case was pending. The Eastern District held that a bond written in contemplation of a statute, by operation of law, contains the statutory provisions regardless of whether or not the bond includes the statutory language; therefore, the Employees stated a cause of action under the performance bond. With respect to the failure of the Employees to make a claim on the payment bond within 90 days after performing the work, the Eastern District held that a payment bond cannot shorten the statute of limitations in which an employee has to make a claim; although, a notice provision that is shorter than the statute of limitations can provide a basis for denial of a claim if it can be shown that the contractor or the surety was prejudiced by the lack of notice. There was no claim in this case that the contactor or the surety was prejudiced by the failure to make a claim within 90 days after the work was preformed; therefore, the matter is reversed for further proceedings. Thomas et al., vs. A. G. Electrical, Inc., et al., and Contractor’s Bonding and Insurance Company. (ED92109, 11/24/09).
Comment Howard. This is a very good case for local government since it gives employees a remedy against the contractor and its surety for non-payment of prevailing wages. No reason to hassle local government officials since the employee has a very good remedy. Footnote #13 is very interesting, suggesting that any attempt to limit the right of employees to bring an action by shortening the statute of limitations would in all likelihood run afoul of Section 431.030 that declares any contract or agreement that shortens the statute of limitations is null and void. The court also notes in Footnote #13, that its analysis may be contrary to a line of cases that seem to shorten the statute of limitations. The footnote also suggests that this case can be distinguished from other cases not involving prevailing wages noting the strong legislative intent that prevailing wages should be paid.
STATUTE THAT MAKES IT ILLEGAL TO POSSESS A FIREARM WHILE INTOXICATED DOES NOT VIOLATE MISSOURI CONSTITUTION. Defendant while having a dispute with his wife stated that if his wife called the police he would go outside with a gun and make the police shoot him. At the time he had ingested an unknown amount of morphine and amitripyline. Defendant’s wife called the police and when the police arrived Defendant was seated in his home unconscious, intoxicated, and in possession of a handgun with extra ammunition. He was charged with one felony count of possession of a loaded firearm while intoxicated. Defendant argued that the law was unconstitutional to the extent it prevented a citizen from possessing a firearm in the confines of his/her home while he/she is intoxicated. The Missouri Supreme Court examined this case under the “right to bear arms” of the Missouri Constitution, since there are no Second Amendment cases that hold, that the Second Amendment of the United States Constitution applies to the states (although the opinion notes that this issue is now pending before the United States Supreme Court). The Missouri Supreme Court held that the right to bear and keep firearms in defense of home, property, and person is not unlimited, and under the facts in this case the General Assembly may use the police power to regulate the use and possession of firearms while a person is intoxicated. State of Missouri vs. Richard (SC89832, 11/17/09).
Comment Howard. Obviously this case will be of great interest because it clearly states that the right to bear arms is not unlimited. Judge Fischer, in a concurring opinion, indicated his preference was to hold that the Second Amendment applies to the states. I assume the principle opinion wanted to keep this case simple by deciding it on the narrowest of grounds although we are left to wonder how this case would be decided under the Second Amendment.
ISSUANCE OF PERMITS BY THE SEWER DISTRICT TO CONNECT TO THE SEWER SYSTEM IS MINISTERIAL. The Northeast Public Sewer District (District) operates a sewer system and charges a connection fee for new connections to the sewer system. Section 8.02 of the District’s ordinance requires a $2,500 connection fee for all residential living units including multiple residential structures and mobile home courts. Sunswept requested that the district allow Sunswept to connect its newly developed apartment community to the District’s sewer system. It proposed to pay for the 115 additional units that would result from the development and a credit for the elimination of mobile home units that were previously connected to the District’s system. On March 21, 2007, the District convened in a closed session for the purpose of discussing advice of counsel, litigation, and personnel issues. During the closed session, the District approved a motion to deny the request from Sunswept – all members of the District’s board approved the motion. The decision to deny the request was conveyed to Sunswept almost a month later on April 24, 2007. Sunswept immediately filed suit in circuit court alleging a violation of the Sunshine Law, a request for a writ of mandamus, and a declaratory judgment and injunction. The trial court found that the District violated the Sunshine Law although it did not “knowingly” violate the law, but did declare the action of the District taken in closed session as null and void. The trial court also found that Sunswept was entitled to a writ of mandamus and an injunction thereby requiring the District to issue the permits as requested by Sunswept. The District appealed and the Eastern District affirmed the judgment. The action of the District in issuing permits was considered ministerial because it did not require the District to use its discretion. The District’s ordinance was clear in that it only covered new connections. The mobile home permits for which Sunswept sought a credit, were not considered to be new connections since they were already connected to the sewer system. In reality the issue as characterized by the court versus the way it was characterized by the parties, was whether or not Sunswept was required to pay a connection fee for units that were properly and lawfully connected to the sewer system. The actions of the District were not legislative acts but administrative actions. Upon compliance with the conditions in the ordinance, the District was required to issue the permits. Prior interpretations of the District in granting permits to another company similarly situated were also considered persuasive by the court. Sunswept Properties, LLC v. Northeast Public Sewer District, (ED92290, 11/10/09)
KANSAS CITY FAILED TO PROVE GOOD CAUSE TO MOVE BURIAL REMAINS. Kansas City (City) had a contract with a developer to develop a 300-acre tract of land on airport property. Within the 300 acres, were four small private family cemeteries that were some distance from the road and difficult to access. The contract for the development of the 300-acre tract did not call for the removal of the cemeteries; although, the City contended that the action would allow the City to better develop the airport property. There was no contention that the continuation of the cemeteries would interfere with the development of the property. The City filed a petition in circuit court requesting that the court allow the City to disinter and reinter human remains in accordance with Section 214.208, based on the grounds that the action would allow for future development of the airport property and by moving the remains to another cemetery would allow for a more easily accessible cemetery. The statute allows the action “for good cause shown.” The circuit court ruled against the City and the City appealed to the Western District. The Western District held that there was sufficient evidence to support the trial court’s decision. The court noted that once a body is buried there is a presumption against its removal. The Matter of the Removal of Human Remains From Cemeteries in Kansas City, Platte County Missouri, City of Kansas City v. Unknown and Unrepresented Persons and Olin Miller, (WD 70006, 11/10/09).
Comment Howard. The process for disinterment and re-interment is one that seems to plague local government attorneys and the results in this case are no exception. There is an interesting full-page article covering this case in the November 2, 2009, edition of “Missouri Lawyers Weekly” that states that Kansas City argued in its briefs that the case law from around the United States allowed for the condemnation of the homes of the living and the dead. The court of appeals stated that Kansas City did not raise this argument before the trial court and while it may have some merit, it was not considered by the court although it was apparently fully briefed. Kansas City did present evidence that it had good cause for the disinterment and re-interment of the grave sites, but so did the other side making this a fact question for the judge who ruled against the City. I would suggest if you have a similar situation you may want to get a copy of the Kansas City brief, talk to the lawyers who handled this case, and consider proceeding with condemnation.
SECOND NOTICE TO SUSPEND POLICE OFFICER ADEQUATE. A police officer (employee) got into an off duty altercation with a fellow police officer. The City Council of the city of Jennings (City) suspended the Employee for five days without pay. Upon receiving notice of the suspension decision, the Employee notified the City of his intent to appeal the decision and included in his notice a statement that the City failed to provide the factual basis for the suspension decision. Thereafter, the City Council provided the Employee with a more detailed statement setting forth the reasons for the suspension. Along with the revised notice of suspension, the City provided the Employee with a packet of information that the City Council reviewed in reference to his suspension. The police personnel board held a hearing and reduced the suspension from five days to three, and the Employee appealed the decision to the circuit court, which reversed the board’s decision and remanded to the board. The City appealed the decision to the Eastern District, which reversed finding in favor of the board. The Eastern District reversed the trial court since the record of the administrative hearing had competent and substantial evidence to support the board’s decision. In reviewing the Employees contention that he did not receive adequate notice, the Eastern District concluded that the second notice supplemented the original notice and could be considered. In addition, the Employee must show how he was prejudiced by the inadequacy of the notice. A notice of discipline by the City to an employee must inform the employee of the nature of the charge so that the employee can prepare an adequate defense. It must state sufficiently the specifics as to the time and the nature of the incident at issue so that the employee has no uncertainty as to the acts related to the discipline. Patrick v. City of Jennings (ED92500, 11/03/09).
NO LIMITED DRIVING PRIVILEGES IF FELONY CONVICTION. Driver is not entitled to limited driving privileges under statute if the driver has a felony DWI conviction. State ex rel. Director of Revenue, State v. Hyde, (ED 93679, 11/03/09).
INFORMATION FROM READERS, OPINIONS, AND OTHER MATTERS
SHOT CLOCK NOW IN PLACE WITH RESPECT TO PROCESSING TELECOMMUNICATIONS TOWER APPLICATIONS. On November 18, 2009, the FCC issued a Declaratory Ruling imposing new restrictions on local government with respect to interpreting the federal Telecommunications Act (TCA), by requiring local government to act on requests to place wireless facilities “within a reasonable time,” which is defined by the FCC in its Declaratory Ruling. Dan Vogel writes that telecommunications providers will use this Ruling as a basis for legal action against local government until the courts clarify the authority of the FCC to issue the Ruling. Dan urges local government officials to incorporate the new time limits into existing codes while being careful not to accept the FCC Ruling as valid; notify and educate officials; and implement procedures regarding what constitutes a “complete application.” You may access a copy of Dan’s full report on at www.municipalfirm.com. IMLA also has a great amount of information about this topic. Thank you Dan for providing this update and analysis.
CIRCUIT COURT RULES LACLEDE GAS IS REQUIRED TO RELOCATE GAS LINES. Congratulation to Greg Dohrman, assistant county counselor for St. Charles County, who recently won a Motion for Summary Judgment requiring the relocation of utility lines by Laclede Gas Company on county rights-of-ways. The litigation involved the dedication of public roads to St. Charles County and the claim by Laclede Gas that utility easements were also dedicated on the same plat thereby giving Laclede Gas an easement for their gas lines requiring the County to relocate the gas lines at the expense of the County. Relocation was no small task financially since St. Charles County followed this same procedure in processing plats for years. The circuit court decision is well written and is an important decision that is expected to be appealed. The opinion discusses the arcane, but useful, area of the dedication of public roads and easements – opinion can be obtained from the MML Web site. Greg wanted to thank Dan Vogel and his firm for their help and interest in this very important case.
CONSERVATORS OF THE PEACE. Attorney General Opinion No. 126-2009 discusses a number of issues related to the power of the county corner as a conservator of the peace. This opinion is particularly useful in understanding the power of officials who may be designated by statute or ordinance as a conservator of the peace. If the statue or the ordinance does not establish the duties of the person designated as a conservator of the peace, he or she has all of the common law powers of a conservator of the peace. If you have struggled like I have with this issue the opinion is the best I have seen on this topic and a very good primer on the law in this area.
HOW TO OBTAIN OPINIONS
The material contained in this Newsletter was summarized as a service to the MMAA members. Almost everything cited in the Newsletter is available on the Internet. There are a variety of places to search for cases on the Internet. Below are several sites that I use for research. If you have questions or comments please feel free to e-mail me at howardcwright@mchsi.com.
Missouri: http://www.courts.mo.gov/page.jsp?id=12086&dist=Opinions
Federal: http://www.ca8.uscourts.gov/onestop.html.
Supreme Court: http://www.supremecourtus.gov/
Other sources: www.findlaw.com and http://www.molawyersweekly.com/.
The opinions cited in this Newsletter may be subject to revision or withdrawal prior to publication.
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