Sunshine Law Hearing 8/23/06

Well the plaintiffs Won against the Mayor! However, that is not the end of the story. The plaintiffs won the preliminary hearing, which means they won the right to have a hearing. That hearing is set for November 28th, 2006 at 9am. The injunction continues, so all City Council Meetings will be required to be held at the Community Center until that time.

The Judge was irritated on several occasions. What it comes down to I think it that she was aggravated with the length of time the preliminary hearing took. At one point there was a motion to join the preliminary hearing and the actual hearing, which she denied. That would have allowed this issue to be concluded when this hearing was done. The judge stated later that perhaps she should have allowed that. She said now it was her "buyer's remorse" for not doing so.

The Judge did however state that they would not be going over what was already covered in the preliminary hearing and that she would only be hearing argument moving forward from there. She even mentioned that this issue will be resolved in that one day even if they have to "work into the wee hours of the night".

In this hearing we seemed to get to the heart of the Mayor's Attorney's defense strategy. There are two main points here.

One is that she is not the proper party to sue. That she is not the City and that the City is the party that is responsible here.

The other is that she does not have the authority to move the meeting. That moving the meeting requires a vote of the council.

Well, as to the first part of her defense, it is true that government officials tend to be personally insulated from their actions in lawsuits. However, in this case the City has stipulated, in the Court room that they expect an attendance of more then 160 people in the foreseeable future and want to hold the meetings in the Community Center. The Majority of the City Council has voted to do that several times, and the Mayor has chosen to oppose that measure. If the Mayor is going to ignore the will of the City Council then she is effectively "going rogue" in my opinion, and should be on her own in regard to any litigation that results from those actions.


The second part hinges on the idea that it requires a 5 vote majority to pass anything at the council. The standard thinking here is that we require 5 votes to pass an Ordinance but only a quorum to conduct city business, and a simple majority of those present is required to pass measures that are not ordinances. I have expressed my disagreement with the idea that 5 votes are required to pass on ordinance when there are less then 8 members on the City Council. The ordinance in question here is:

110.260: ORDINANCES -- BILL REQUIRED -- VOTE REQUIRED
No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the City Council shall vote for it, and the "ayes" and "nays" be entered on the journal. (Code 1961 §2-29; CC 1976 §2-121) (source)

As I have stated previously, the above ordinance requires "A Majority of the members elected to the City Council". Currently we have 7 elected members to the council. Any grade school student could tell you that a majority of 7 is 4. Furthermore, if we were to appoint someone to fill that seat, they would not be "elected" so I believe it could be argued that their vote would not count in this regard.

So, at least in part, this case seems to hinge on the idea of what makes a majority on the City Council. GOOD! I would love a judges ruling on that. If anyone has any case law related to this issue (I tried to look up the various cases reference by the Mayor's Attorney but had no luck finding them on "FindLaw"), I would LOVE to see it.


The Mayor's Attorney once again asked the court to take judicial notice of a long list of sections in Missouri Revised Statutes, Chapter 77. I am surprised that the judge has not lost it on him over this since he has insisted on asking the court to take judicial notice of various parts of chapter 77 about every day of the hearing (sometimes repeating sections) when the Judge already took judicial notice of the entirety of Chapter 77 on the first day.

Reviewing some of these recommendations causes me to wonder if he is just pulling things out of the chapter at random. Why cite 77.250 which gives the city the authority to hire a city administrator or cite 77.042 which defines the role of a city administrator if we have yet to hire one? Is he suggesting that this would not have happened if we had one? Perhaps, but then his client needs to propose someone to the council for a vote if she wants to fill the job.

He sites 77.590. Now this on is interesting. Feel free to click that link and review it in it's entirety. The part I find most interesting:

...The council may enact and make all necessary ordinances, rules and regulations; and they may enact and make all such ordinances and rules, not inconsistent with the laws of the state

So, if Ordinance 110.150 which covers council meetings states in part:

The City Council shall hold regular meetings on the second (2nd) and fourth (4th) Mondays of each month with the exception of holidays and the months of July, August and December wherein there shall be one (1) meeting per month held on the second (2nd) Monday of the month, at the City Hall in the evening at an hour agreed upon by the Mayor and City Council....

"at City Hall" being the key.

And the Missouri Sunshine Law (RSMo Chap 610) states in part:

Each meeting shall be held at a place reasonably accessible to the public and of sufficient size to accommodate the anticipated attendance by members of the public, and at a time reasonably convenient to the public, unless for good cause such a place or time is impossible or impractical. Every reasonable effort shall be made to grant special access to the meeting to handicapped or disabled individuals.

"...of sufficient size to accommodate the anticipated attendance by members of the public" being the key.

Then does not 110.150 violate RSMo 610 and thus violate 77.590? It would seem to me that 77.590 simply establishes that the City Ordinances cannot violate State Law. Now any layman can tell you that Federal Law Trumps State Law, State Law Trumps County Statue, County Statue Trumps City Ordinance, etc. But in this case we have a statute directly related to 3rd class cities that makes that very plain to see.

The Mayor's defense claims that she could not move the meeting because it would violate Ordinance 110.150. They claim that to move the meeting would require a majority vote of the council and that the minimum majority is 5 votes which is why the several 4-3 votes of the council to move the meeting to the Community Center is not valid.

However, as we just illustrated above, 110.150 violates RSMo 610. So, what do the Ordinances say about that in regard to the Mayor?

SECTION 110.030: SHALL ENFORCE ORDINANCES
The Mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the City, and he/she shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty; and he/she is hereby authorized to call on every male inhabitant of the City, over eighteen (18) years of age and under fifty (50), to aid in enforcing the laws.

The above enforcement requirement is in no way limited to enforcing ordinances of the City. It specifically states that the Mayor is required to enforce "all laws" as well, and since the City is not empowered to enact "law" that obviously speaks to laws of other bodies such as the Federal and State governments.

So, We know that the City can not enact an ordinance that violates state law. We also know that the Mayor is required to enforce State law. It seems obvious to me that the Mayor is delinquent in her Duties to enforce RSMo 610, the Missouri Sunshine Law as well as RSMo 77.590. Thus she is in violation of City Ordinance 110.030 and should be subject to the general penalty found in ordinance 100.150 which is up to a $1000.00 fine and up to 3 months imprisionment per incident.

That is the Heart of the Matter. The Mayor of Overland is required by Ordinance to enforce state law and she has chosen not to do so. The legal argument that her Attorney reiterated during the hearing simply does not hold water in my opinion.

What people need to realize is that in cases like this, the people who have to bring the case because the Mayor and others will not follow the law have every right under that same law to seek restitution of their legal expenses. So here we are with yet another unnecessary legal expense thanks the the Mayor's bungling.

Rumor has it that the Mayor's Attorney has submitted his first bill to the City. Since there was never a vote of the council authorizing this attorney to represent the Mayor on the City's dime there is no way the Mayor will be able to get the council votes necessary to pay the bill. I have no issue with the Mayor choosing her own council when she is sued, that is her right. However, it is not her right to expect the residents of Overland to pick up the tab.

How many more suits against the city because of the Mayor's apparent willful disregard for State Law and Statutes, Not to mention Federal Law and local ordinances will we citizens have to pay for out of the revenues of the City? That's hard to say. Now even the ACLU looks like it is getting into the act, thanks to the Mayor's blatant disregard for the First Amendment of the U.S. Constitution at the July 10th, 2006 meeting. The following are copies of a letter sent to the Mayor by the ACLU (technically they are copies of copies), read them for yourself (information that was blacked out are names and phone numbers that I did not feel needed to be published on the Internet):

page 1..................page 2...................page 3(Click the documents to see them at full size)

So, how many more groups, agencies, or governmental bodies will have to file suit against the City of Overland before the Mayor decides to finally start taking legal advice from our City Attorney? At some point, the Mayor will either realize that she has to take the job of Mayor seriously, or the City of Overland will one day soon be filing for bankruptcy. Free Trash? Heck we will be lucky if we can afford paper clips at this rate.

Of course, it would not be a report on a court case without a response to Sweetpickles. She recently posted:

Posted by Sweetpickles on August 24, 2006, 9:50 pm, in reply to "Re: Clifford "
Why do you suppose that they hate it so much that I attend the meeting why are they so afraid of me???? Well I took care of that little situation !!! (source)

I am real curious to know what "situation" you "took care of" Donna. The plaintiffs won the right to have a hearing. If you "took care" of it, I would think the case would have been dismissed. But hay, it's not like this is the first time we have seen you pat yourself on the back for doing next to nothing now is it? For some reason, the phrase "grow up" comes to mind whenever I read the above linked post.