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

CASE OUTLINES (MISSOURI)

OPENING STATEMENT OF COUNSEL, EX PARTE CONVERSATION OF BOARD OF ADJUSTMENT MEMBER AND PAST APPLICATION OF BOARD’S PRACTICE CAN BE CONSIDERED AS EVIDENCE.  Sprint had a lease with a landowner to construct a 95-foot cell tower on a vacant lot that was zoned C-1.  The city of Columbia (City) ordinance allows, in the C-1 zoning district, towers up to 36 feet with a 6-foot extension for the antenna and other light commercial uses.  It also requires that all equipment for the tower be placed underground or concealed within the structure.  Since the proposed use by Sprint did not comply with the City’s ordinances, Sprint requested a variance from the height limitation and the outside storage provision from the board of adjustment (Board).  The Highlands Homes Association, (Association) representing an upscale residential subdivision across the street, opposed the granting of the variances. The Board heard the case and based on the evidence it granted the variances as requested based on a determination of “practical difficulties.”  The Association appealed the decision to the circuit court, which upheld the Board’s decision.  The Association appealed the court’s decision to the Western District.  The Western District noted that whether or not there are “practical difficulties” is in fact a question to be determined by the Board, which will not be overturned unless it abused its discretion.  There is no precise definition of “practical difficulties” when it comes to determining whether or not a variance should be granted.  The Association argued that since the height of the tower is limited, that the granting of the variance should be a “use” variance subject to a slightly higher standard of review than a variance based on practical difficulties, and that Sprint had to show that the topography of the land made the use of the tower at this location impractical before the variance could be granted – which arguments were rejected by the court.  The Association also argued that the only evidence presented by Sprint on the variance from the outside storage standard was the opening remarks of its counsel, a statement that the court acknowledged as true.  Nevertheless, the court determined that strict rules of evidence do not apply to Board hearings, and that the Board could consider the statements made by counsel in its opening statement as evidence.  In addition, there was discussion by some Board members at the hearing about the difficulty in applying the below ground or in the tower standard for storage including ex parte discussions with city staff, and a discussion of the Boards past practices in trying to resolve application of the requirement that the equipment be underground or in the tower.  The court again condoned this practice and affirmed the Board’s decision on the grounds that there was no abuse of discretion.  The Highlands Association, et al., v. The Board of Adjustment, et al., (WD70862, 12/22/09).

        Comment Howard.  This case ought to make the hair of local government attorney’s for administrative boards, stand on its end.  Lawyers for developers ought to love this case.  Not only do they get paid as a lawyer but as a witness.  On top of that, the Board can consider past applications and difficulties in applying a city ordinance as well as ex parte discussions by one Board member with city staff.  The opinion has a good analysis of the application of the “practical difficulties” to the facts, and discusses the difference between a use variance and a variance based on practical difficulties.  You may want to consider a proactive approach to this decision by making sure the rules adopted by the Board do not allow this to happen, and by making sure the Board has not and will not allow these practices to occur.

EMPLOYMENT IS A GOVERNMENTAL FUNCTION PROTECTED BY SOVEREIGN IMMUNITY. Bennartz (Employee) was employed by the city of Columbia (City) as a water utility mechanic at the City’s water treatment plant.  John Betz was the plant supervisor (Supervisor) and was in charge of the operations department and the maintenance operations, including supervising the Employee.  The Supervisor was rejected for a promotion apparently leading to a lot of personal hostility that manifested itself against the maintenance employees and in particular this Employee. The Employee complained several times about his Supervisor to his superiors; however, management failed to take any action.  The Employee was about to file a formal grievance against the Supervisor, but was told it would only make things worse.  Employee applied for and was appointed to another position in the public works department that resulted in higher pay, but less opportunity for promotion and overtime pay.  After being promoted, the Employee filed a lawsuit against the City and his supervisor in circuit court alleging constructive discharge in violation of public policy under the “whistleblower” exception to the at-will employment doctrine.  The City and the Supervisor claimed they were protected by sovereign immunity from the claims of the Employee.  A jury verdict was returned against the City in the amount of $68,000.  The jury also returned a verdict against the Supervisor, but did not award the Employee any damages for the Supervisor’s actions.  The City appealed the verdict to the Western District.  The Western District held that the City was protected by the doctrine of sovereign immunity because employment is a governmental function.  Bad conduct by the Supervisor against the Employee causing the Employee to be constructively discharged did not create an exception to sovereign immunity.  Bennartz v.  City of Columbia, (WD70457, 12/22/09).

        Comment Howard. A concurring opinion was filed joined in by one other judge urging the Missouri Supreme Court to consider this case based on the fact that the City was not liable for deliberate actions of its Supervisor that had the affect of encouraging this type of activity. The court concludes that current Missouri Supreme Court precedent limits the ability of the court to decide this case any other way.  The concurring opinion provides a roadmap to distinguish the facts in this case from other Missouri Supreme Court decisions.

FACILITY IS MAINTENANCE WORK UNDER PREVAILING WAGE LAW. The Pemiscot County Memorial Hospital (Hospital) entered into a contract for repair work with respect to its nursing center and emergency room.  The Hospital is a political subdivision of the state of Missouri, supported by public funds making it a “public body” within the meaning of the prevailing wage law.  The Hospital contracted for work on the nursing center that consisted of: repainting all residential rooms; replacement of sinks, vanities, laboratories, doors and windows, hardware and locks, discolored tile and ceiling tiles; and replacement of individual air-conditioning units in residential rooms.  The emergency room repairs consisted of: repainting, repairing or replacing damaged or discolored tile; removing curtains and replacing them with dry wall; and enlarging the existing nursing station to accommodate an automated medication dispensing system.  The contractor did not pay the prevailing wage and the employees (Employees) sued the Hospital to recover wages for work performed under the prevailing wage law.  The trial court held that the work constituted maintenance work a category of work specifically excluded from the prevailing wage law and found for the Hospital.  The Employees appealed to the Southern District on the grounds that the work described was construction work under the prevailing wage law.  The Southern District held that the word facility should be given its usual and ordinary meaning and that the workers were simply maintaining existing facilities.  There was no change or increase in size, type, or extent of the nursing center or the emergency room.  Dobson v. Pemiscot County Memorial Hospital, (SD29227, 12/30/09).

        Comment Howard. This, in my opinion, is a very close case since the difference between “maintenance work” and “construction” that includes within the definition “painting” or “major repairs” is problematic.

WESTERN DISTRICT DECIDES MML CHALLENGE TO THE EMINENT DOMAIN INITIATIVE PETITION.

Note: Since I am a party plaintiff and the decision is not final my comments are restricted to briefly summarizing the opinion for MMAA readers. ~ Howard

The Missouri Municipal League and others, including myself (collectively referred to as the “MML” for convenience in referring to all party plaintiff’s) sued the secretary of state, the state auditor, and Ron Calzone alleging that the fiscal note and the fiscal note summaries prepared by the state auditor were inadequate, and that the secretary of state failed to properly prepare the ballot summaries.  The circuit court ruled that the ballot summaries prepared by the secretary of state and the fiscal note summaries prepared by the state auditor were fair and sufficient with the exception of one statement in the ballot summary that was deleted by the circuit court on the grounds that the Missouri Constitution already required payment of just compensation and provided public use restrictions.  The MML appealed and the secretary of state cross-appealed the circuit courts certification of the revised ballot summary.  With respect to the obligations of the state auditor under state law, the Western District held that the auditors’ current process (used by the state auditor) to simply check for typo’s, overall reasonableness, and a reasonable relationship between agency comments and the proposal, was sufficient to meet the auditors’ obligations under the statute.  With respect to the ballot summaries prepared by the secretary of state – the test is “whether the language fairly and impartially summarizes the purposes of the measure, so that the voters will not be deceived or misled.”  The Western District held that the ballot summary prepared by the secretary of state was sufficient to meet her obligations under the law with the exception of the statement that property owners be paid just compensation, which the court determined was already currently required by the Missouri Constitution. The secretary of state’s appeal of the circuit court decision with respect to the ballot language, was upheld (with the exception noted above) based on the grounds that that the Missouri Constitution has historically only required the ballot summary to be fair and impartial in describing the purpose of the measure so that the voters will not be deceived or misled. Missouri Municipal League, et al., v. Robin Carnahan, (WD71224, 01/05/10).

INDEPENDENT CONTRACTOR OR EMPLOYEE?  Local government attorneys are periodically required to determine if a person is an employee or an independent contractor.  This is a threshold question that can implicate liability for the political subdivision.  A recent decision in Brister v. Ikenberry, (ED92993, 12/22/09), discusses the difference between an employee and an independent contractor with respect to liability.  In this case, Ozark Border Electrical Cooperative (Cooperative) hired Midwestern Power Line (Midwest) to perform work on its electrical lines.  An employee of Midwest was seriously injured while working on the electrical lines of Cooperative.   The employee brought a suit against Midwest and Cooperative for his injuries claiming Midwest was not an independent contractor because the Cooperative retained control over the work and the site.  The Cooperative filed a motion for summary judgment that was sustained by the trial court on the grounds that Midwest was an independent contractor, and the employee was covered by the workers compensation policy of Midwest.  The employee appealed the decision arguing that the Cooperative retained control over the work and was therefore liable.  The Eastern District held that there was sufficient evidence to show that the Cooperative retained some control over the work therefore the motion for summary judgment should not have been granted since facts were in dispute.  The court cited as authority Section 220 of the Restatement of Agency, frequently cited by Missouri courts as helpful, in determining whether or not a person is acting as a servant or an independent contractor.  Brister v. Ikenberry, (ED92993, 12/22/09)

        Comment Howard. This is tricky stuff since the Cooperative wanted to be sure it retained electrical power during the electric line relocations.  So the Cooperative put its nose under the tent, and got caught exercising some control over the work and the site instead of turning the work and site over to the contractor.  It was also pretty clear that the contractor did not properly train and control the employee leading to a very serious injury.

SOCIAL HOST LIABILITY NOT RETROACTIVE.  On January 13, 2001, Litia Callowa, an 18 year old (Minor) died from an alcohol overdose while attending a party at Mr. Berry’s residence.  Her mother, Tafi Coons, (Mother) filed a wrongful death claim against Mr. Berry and eight other defendants claiming they were negligent as social hosts for providing Minor alcohol at the party.  Mr. Berry filed a motion to dismiss on the grounds that there was no social host liability at the time of the drinking incident and the motion was sustained. Mother appealed to the Western District, which held that at the time of Minor’s death in 2001, the law in Missouri was that there was no social host liability.  In 2005, the General Assembly amended the state law to create social host liability.  The 2005 law did not apply because the Missouri Constitution prohibits laws that are retroactive.  A retroactive law is a law that may “… take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already passed.”  Coons v. Berry et al., (WD70080, 12/22/09).

        Comment Howard. It would seem that the analysis to determine whether or not a person has a vested right impacted by a change in a local law, starts with the Missouri Constitution that prohibits retroactive laws.  It seems strange that when I have researched the question of vested rights, I did not begin my research at the real starting point.

QUESTION OF WHETHER OR NOT A PUBLIC ROAD HAS BEEN ABANDONED REQUIRES A DETERMINATION OF HOW THE ROAD WAS ESTABLISHED.  In this case, the property owners had a dispute as to whether a road that runs between two properties had been abandoned.  A quiet title suit was filed and the trial court determined that the road had been abandoned.  The decision was appealed to the Southern District. Section 228.190.1 provides that if a road is used by the public for ten continuous years and public funds are expended on the road, it shall be a public road.  If any public road is not used for five continuous years, it shall be considered abandoned and vacated.  A public road may be established pursuant to 228.190; by prescription; or by implied; or common-law dedication.  The Southern District held in order to determine if a road had been abandoned, it was necessary to first determine how the road became a public road; because, an express dedication transfers a fee simple interest and a fee simple interest cannot be abandoned in a manner less formal than the manner in which it was conveyed.  Since there was no evidence of how the road was established, the case was remanded to take further evidence consistent with the opinion.  McCullough v. Doss, (SD29396, 12/30/09).

NEWS AND ADDITIONAL INFORMATION

MULLIGAN RECEIVES HIGH HONORS … University City’s City Attorney John Mulligan was selected as “Lawyer of the Year” by Missouri Lawyers Weekly for his work in securing settlement of the lawsuits against cell phone and landline providers for underpaid gross receipts taxes. Mulligan initiated the class action lawsuits almost ten years ago and persevered against great odds. The settlements have helped Missouri municipalities balance budgets in recent years. Congratulations, John!

SPRINGFIELD LANDLINE CASE SETTLES FOR $12 MILLION. Springfield recently announced that it had reached a settlement on its landline claims with AT&T in the amount of $12 million dollars.  The settlement netted Springfield $7,400,000.  Springfield’s settlement from landline and mobile carriers now amount to approximately $30 million dollars.  This settlement buys peace for five years with AT&T since the payments on all of the current streams of revenue are guaranteed for five years.

LACLEDE GAS APPEALS ST. CHARLES COUNTY DECISION ON UTILITY EASEMENT.  Greg Dohrman, assistant county counselor for St. Charles County, has indicated that Laclede Gas has appealed the St. Charles County’s circuit court decision mentioned in the December 2009 “MMAA Newsletter,” which held that Laclede Gas did not have a utility easement on city rights-of-ways for their gas lines.  This decision could have a substantial impact on other political subdivisions if the circuit court’s decision was reversed.  If you believe that this decision could impact your political subdivision, please contact Richard Sheets at the MML, Greg, or myself.

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 email 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.