Charter panel appointments are legal, city attorney says
July 20, 2005 - Crestwood officials did not violate the state's Open Meetings and Records Law when they established a Charter Commission earlier this year, according to City Attorney Rob Golterman.
The Crestwood Citizens for Fiscal Responsibility last week alleged the Charter Commission, which completed its review of the City Charter last month, was illegally established because then-Mayor Tom Fagan's appointments to the panel violated the state's Open Meetings and Records Law, also called the Sunshine Law.
Steve Nieder, speaking on behalf of the citizens' group, alleged Fagan's appointments of Charter Commission members violated the Sunshine Law because the agenda for Jan. 25 meeting did not include any mention of the appointments under "Communications,'' the part of the meeting when the appointments were made.
But Golterman told the Call that after researching the issues raised by the Crestwood Citizens for Fiscal Respon-sibility, the appointments made by Fagan did not violate the Sunshine Law, but were consistent with the city's historical practice of making appointments to volunteer boards and commissions during the "Communications'' part of board meetings.
During the July 12 meeting, Nieder said, "The 'Com-munications' portion of an aldermanic meeting is normally devoted to acknowledging letters and reports received, not for the introduction of legislation establishing a new commission. The agenda distributed to the public for the Jan. 25 aldermanic meeting lists nothing under 'Commun-ications.'
"If a concerned resident were to read the agenda for this meeting, he or she would would have no idea that there would be legislation introduced establishing such a very important commission. He or she would not know this was going to occur and would not be prepared for public comment to support or protest the establishment of the commission,'' he said.
"As citizens of Crestwood, we believe any changes or issues regarding the charter, which is the framework of Crestwood's government, deserves placement on an agenda. It is ... the central document guiding our governance and the citizens should be alerted to the proposed establishment of any commission to review, study or offer changes to the charter,'' Nieder said.
He further contended that the establishment of the Chart-er Commission "was sudden and done without any notice in direct violation'' of the Sunshine Law.
"Therefore, Mr. Mayor and members of the Board of Aldermen, there can be no legitimate report from such an illegally established commission that you can act on because it is evident that the very establishment of the commission was done in direct violation of Missouri's Sunshine Law,'' he said. "As a result, the work of the committee, although to be commended, was illegal and therefore cannot be accepted by this board as legitimate.''
As part of his presentation, Nieder submitted a June 1995 newspaper article regarding a judge's ruling in a Sunshine Law case involving the city of Chesterfield.
In that case, the city was ordered to pay $1,000 in attorney fees to the plaintiffs — the Chesterfield Association for Informed Residents — plus court costs. The court ruled that the city violated the Sunshine Law by not providing enough information on a meeting agenda regarding the appointment of a city prosecutor.
The Sunshine Law stipulates, "All public governmental bodies shall give notice of the time, date and place of each meeting, and its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered, and if the meeting will be conducted by telephone or other electronic means, the notice of the meeting shall identify the mode by which the meeting will be conducted and the designated location where the public may observe and attend the meeting ...''
Golterman told that Call that based on his research of cases interpreting the notice provisions of the Sunshine Law, a review of attorney general opinions, a review of the Ches-terfield case cited by the Crestwood Citizens for Fiscal Re-sponsibility and a discussion with a staff attorney in the Mis-souri Attorney General's Office, Fagan's appointments to the Charter Commission did not violate the Sunshine Law.
Appointments to the city's volunteer boards and commissions, Golterman said, are not legislative actions of the board, but rather "ministerial'' or "perfunctory'' in nature. In addition, such appointments historically have been made during the "Communications'' part of board meetings as the mayor would notify aldermen of his or her appointments.
"The city has done nothing improper in doing it in that fashion for many years,'' the city attorney said of such appointments.
In his review of the Chesterfield case cited by the citizens' group, Golterman noted that Chesterfield — unlike Crestwood — historically had provided detailed information about such appointments on its meeting agendas.
Another important factor in the Chesterfield case, he continued, is that the appointment in question was a paid position — a city prosecutor — unlike the appointments of unpaid volunteers to the Charter Commission.
Furthermore, in his discussion with the staff attorney from the Attorney General's Office, "his main issue or main focus was whether Crestwood is being consistent'' in its practices, Golterman said, noting the city did not deviate from past practice in the appointments to the Charter Commission.
If it so desires, he said, the Board of Aldermen could change that practice and adopt a policy requiring more information be included in the tentative agenda required by the Sunshine Law.
Noting the citizens' group had raised the issue of the importance of any review of the charter, Golterman pointed out that no changes to the City Charter can be made without voter approval. However, other volunteer boards, such as the Board of Adjustment and Sign Commission, have the authority to make decisions not subject to review by the Board of Aldermen, he said.
Unless instructed differently by Mayor Roy Robinson or the Board of Aldermen, Golterman said he was drafting legislation for aldermen to consider next week regarding proposed charter changes recommended by the Charter Commission.
The Charter Commission is scheduled to present its proposed changes to the Board of Aldermen at 7 p.m. Tues-day, July 26, at City Hall, 1 Detjen Drive.
Charter Commission members voted June 21 to propose three amendments to the City Charter, which include re-moving term limits for the members of the Board of Al-dermen, adding a censure provision for elected officials, lowering the number of signatures needed for initiative and referendum petitions and recall elections and changing the wording on several items that either clarify or up-date the City Charter to current or common practice.
"The Board of Aldermen shall by ordinance submit such proposed amendments to the voters at the next general election,'' the charter states.
The next general election is Nov. 8. Voters would have to approve the amendments for the changes to be effective.
City officials began discussing establishing a Charter Commission last year. In fact, when Ward 1 Alderman Richard Breeding was serving as acting mayor after the resignation of Jim Robertson, he made several appointments to the Charter Commission.
During the April 14, 2004, Board of Aldermen meeting, Breeding suggested Ward 4 Alderman Pat Duwe serve as chair along with Robertson, former Mayor Jim Brasfield, David Brophy and former Assistant to the City Admin-istrator Matt Conley as members. He said additional members would be appointed later. Board members approved the appointments with a voice vote.
Breeding's appointments occurred during the "Reports from Mayor, Board Members and City Attorney'' part of the meeting; no mention of appointments was included on the meeting's agenda.
At the Jan. 25 board meeting, Fagan appointed the following to the Charter Com-mission: Ward 1, Brasfield and Rich Bland; Ward 2, Brophy and John Bell; Ward 3, Bernie Alexander and Carol Wagner; Ward 4, Jerry Bratsch and Pat Kapsar; person at large, Kevin King; and aldermanic representative, Duwe. Board members approved the appointments with a voice vote.
Because of resignations, additional appointments to the Charter Commission were made after the panel began meeting in February. At the May 24 Board of Al-dermen meeting, Mayor Roy Robinson made the following reappointments to the Charter Commission: Brasfield, Bland, Brophy, Bell, Alexander, Wagner, Kapsar and Charlene Braun.