More Legal Trouble in Overland
Mike O'Connell of KMOV Channel 4 just reported (June 5th, 2007 10:00PM news) that Councilperson Mary Beth Conlon filed suit against Councilperson Mike Schneider over the Mayoral election. You can see that report here (membership on KMOV's site may be required to access this page).
The focus of the lawsuit seems to be concerns about Councilperson Schneider's residency and whether or not he has been officially a resident of Overland for two years or more as is required to run for Mayor in Overland. For your review:
The focus of the lawsuit seems to be concerns about Councilperson Schneider's residency and whether or not he has been officially a resident of Overland for two years or more as is required to run for Mayor in Overland. For your review:
Overland Statutes - Article 1 - Mayor - Section: 110.010 - QualificationsNo person shall be Mayor unless he/she is be at least thirty (30) years of age, a citizen of the United States and a resident of such City at the time of and for two (2) years next preceding his/her election. When two (2) or more persons shall have an equal number of votes for the office of Mayor, the matter shall be determined by the Council.
Missouri Revised Statutes - Chapter 77 - Third Class Cities - Section: 77.230 - Qualifications of mayor.No person shall be mayor unless he be at least thirty years of age, a citizen of the United States and a resident of such city at the time of and for two years next preceding his election. When two or more persons shall have an equal number of votes for the office of mayor, the matter shall be determined by the council.
Though I am all about law and order, I also understand that residency is a very hard thing to disprove. If memory serves this issue came up years ago in Overland and though those who told me about this bit of history were convinced the case questioning that Councilman's residency was successfully made, the Judge ultimately ruled in favor of that councilman. Some have described that ruling as being similar to the "home is where the heart is" cliche (if anyone has first hand knowledge of this case please feel free to email me about it or add this information to the comments below).
According to KMOV's coverage, the lawsuit references Councilperson Schneider's 2007 personal property tax bill which appeared to include a non-resident waiver for the 2005 and 2007 property tax years. I imagine this could be sufficient evidence to support Councilperson Conlon's suit, however it's also likely that a reasonable explanation exists.
We'll attempt to contact all three candidates tomorrow morning (as it is a bit late in the evening to be calling people) to get their take on this issue and will update you should we learn anything new.
Ultimately it looks like Overland politics will be played out in the courts once again.
We'll attempt to contact all three candidates tomorrow morning (as it is a bit late in the evening to be calling people) to get their take on this issue and will update you should we learn anything new.
Ultimately it looks like Overland politics will be played out in the courts once again.
Labels: Lawsuits, Mayoral Election, Overland, Residency
posted by Overland Sailor @ 11:17 PM 
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A bit more research turned up another statute the could possibly apply in this situation:
Missouri Revised Statutes - Chapter 115 - Election Authorities and conduct of Elections - Section 115.346 - Persons in arrears for municipal taxes or fees shall not be candidates for municipal office, when:
"Notwithstanding any other provisions of law to the contrary, no person shall be certified as a candidate for a municipal office, nor shall such person's name appear on the ballot as a candidate for such office, who shall be in arrears for any unpaid city taxes or municipal user fees on the last day to file a declaration of candidacy for the office."
I've not found any provisions to the law to the contrary at this point.
My concern here is that if the filing for the exemption was some sort of mistake then I imagine Councilperson Schneider might still be facing disqualification as those taxes do not appear to have been paid prior to the last day of the filing period.
One possible angle on this might be that they are county taxes and not city taxes or municipal user fees. However, since a portion of those personal property taxes are specifically earmarked and collected for the city I imagine they might be considered one and the same legally.
The county records show that the property that Mr.Schneider lives in had a change of ownership on 04/04/2005. It lists the sale price as $0 which seems strange to me. But if he did move in on that date he meets the qualification since he will have been in the property two years in 04/07 and prior to the election date.
I don't believe the sale price being zero would be an issue if the property was an inheritance and I seem to recall hearing that was the case though I haven't verified that yet. If the house was inherited that would be a simple explanation on that issue I believe.
However, owning a property and residing there are not always the same thing. According to the Channel 4 report, Councilperson Schneider filed for a non-resident waiver on personal property taxes for the 2005 and 2006 tax years.
Interestingly, I believe he would have had to file that he had been an Overland resident since at least April 2005 to have run for Council in 2006.
I am still holding out for a reasonable explanation here, but on the surface it looks like one of those filings had to have been incorrect which would leave us with two possibilities:
Either the non-resident waiver is accurate which could disqualify him do to needing to be a resident for a minimum of 2 years
Or the declaration he would have had to make to run for Council in 2006 is accurate which could disqualify him due to being in arrears on property taxes for the 2005 and 2006 tax years.
At least, that is what it looks like now. It is my understanding that Councilperson Schneider is away on vacation at the moment so I 'm not sure how easy it will be to get in touch with him to get his side on this.
I will be trying to call him a little later today. He very well may have a simple explanation that will resolve this issue.
I posted the following question on OVCC; why wasn’t Schneider’s residency questioned when he ran for Council?
One interesting legal argument here would be the legal definition of the word "resident".
I came across this opinion written by AG William L. Webster in 1985 which references: State ex rel. King v. Walsh, 484 S.W.2d, 641 (Mo. banc 1972). I have not found a direct link to that case yet. However, according to the above referenced opinion:
"In State ex rel. King v. Walsh, 484 S.W.2d, 641 (Mo. banc 1972), the Court construed the word ‘resident’ and looked to the intent of the party claiming residency. Such intent can be borne out by physical presence or even if there is a lack of physical presence by such manifestations of intent as location of living quarters, membership in a local church, maintenance of an account in a local bank, voter registration, returning to the location where the residence is claimed during holiday periods, and even obtaining a hunting license in such location. While these items may not totally be in point with the factual considerations you may be faced with, the establishment of one's residence is largely a matter of intention. Intention must be considered in light of physical acts performed in conformity with the intent to establish the fact of residency."
This legal conclusion has been added as a notation within our State Constitution where residency requirements are mentioned under qualifications for Governor:
" (1972) Word "resident" as used in this section does not mean or require actual, physical presence, continuous and uninterrupted for ten years, but means that place where a man has his true fixed and permanent home and principal establishment and to which whenever he is absent he has the intention of returning. State ex rel. King v. Walsh (Mo.)"
I am not certain if this legal standard could be applied here or if Councilman Schneider would be able to sufficiently make this intent based argument. Also, even if that argument was successful I am not sure it would address the potential issue of being in arrears on taxes that could arise if he is legally considered a resident for that time period.
Either way, it is a possible legal angle we might see so I am including it here.
Hi NGit To answer your question, I don't know....yet. :-)
It is my understanding that Candidates declare they meet these residency restrictions when they file to run. However, as we have seen time and time again lately, when a election law issue (or Sunshine Law or Freedom of Information act issue for that matter) arises it seems the only remedy is a civil action.
It's possible that Councilperson Schneider's opponent in 2006 didn't look into it or choose to challenge it.
The Candidates sign off on meeting all the requirements to run, and the City generally checks to ensure property taxes on the residence are up to date. I'm still not sure what if any verification is done at the county level.
NGiT There was a case in Overland that I am trying to get more information on. In that case the residency of a sitting Alderman was challenged and it is my understanding the a mountain of evidence was presented to show that the Alderman was living in Clayton and not Overland.
However, the court ultimately ruled in his favor. I have not seen the ruling yet but it has be characterized to me as "home is where the heart is".
It seems to me that Councilperson Schneider's seat on the Council would be safe both because of that case (assuming what I have heard so far is accurate) and that he would have the more then one year as a resident at this point.
Since the issue is about personal property taxes the issue of ownership might be relevant as well.
If I get in touch with Councilperson Schneider today I will ask him about this. It is possible that those vehicles were not in his name durring those tax years in question.
However, it has been reported elsewhere that in that waiver application Councilman Schneider claimed not to have become a resident of Overland until February 2006.
Try as I might there still seem to be as many unanswered questions as there are answered ones on this issue.
He either does not meet the residency requirement or he does not meet the tax requirement. He cannot have it both ways.
While 115.346 states about muni fees, section 115.342 is more specific to property taxes (real and personal).
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Since the issue is about personal property taxes the issue of ownership might be relevant as well.
If I get in touch with Councilperson Schneider today I will ask him about this. It is possible that those vehicles were not in his name during those tax years in question.
Try as I might there still seem to be as many unanswered questions as there are answered ones on this issue.
A candidate for alderman named Joe don't remember his last name ran for office in Overland he lived in Clayton and was in process of fixing up his house on Ridge to move into. His opponent took it to StL county court and lost. Joe ? was allowed to run. Seems to me that it was his parents old house.
The house that Schneider lives in was Mrs Schneiders parents house. Don't know if that makes a difference.
Thanks. Joe Quicke was the candidate's name. As for where he was claiming to live it was his parents home though they were living there at the time.
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