Board of Aldermen Meeting

Meeting Agenda

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Meeting Minutes

MINUTES OF THE BOARD OF ALDERMEN MEETING
CITY OF BALLWIN – 300 PARK DRIVE
March 14, 2011

The meeting was called to order by Mayor Pogue at 7:04 p.m.

             PRESENT                                                     ABSENT
MAYOR TIM POGUE 
ALDERMAN JIMMY TERBROCK 
ALDERMAN MICHAEL FINLEY 
ALDERMAN RON MARKLAND 
ALDERMAN PAT MCDERMOTT 
ALDERMAN FRANK FLEMING 
ALDERMAN JIM LEAHY 
ALDERMAN RICHARD BOERNER 
ALDERMAN KEN MELLOW 
ASSISTANT CITY ADMINISTRATOR THOMAS AIKEN 
CITY ATTORNEY ROBERT E. JONES 

The Pledge of Allegiance was given.

MINUTES

The Minutes of the February 28, 2011 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Boerner and seconded by Alderman Mellow to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion passed.

PRESENTATION
None.

PENDING ISSUES

BILL # 3667 - AN ORDINANCE APPOINTING DAVID PORTA AS INTERIM PROSECUTING ATTORNEY FOR THE CITY OF BALLWIN AND CREATING A PROCESS FOR THE APPOINTMENT AND APPROVAL OF A PERMANENT PROSECUTING ATTORNEY AND A PROVISIONAL PROSECUTING ATTORNEY.

Mayor Pogue asked, “In a prior meeting, we were discussing the provisional prosecuting attorney position.  There was discussion that this should include discussion who should be assigned as the permanent prosecuting attorney.  The way this was presented was that of the three candidates, we would pick the permanent and provisional.  Is that the intent, or is there going to be an appointment of a permanent prosecuting attorney and get input as far as working relationship with who their backup may be?”  Alderman Boerner said, “What I envisioned was to pick both of them among the three.  That is something that you can decide.  A preference would be a Ballwin resident.” 

Alderman Fleming asked City Attorney Jones, “We would be picking two people out of a pool of three.  These two people may not know each other.  Would it be easier for the provisional and the prosecuting attorney to be people who were associated with each other to work together?”  City Attorney Jones said, “Yes, it would be easier to transfer files and discuss the status of cases.  I suppose if they have access to each other, it could be done.”

Alderman Boerner said, “There has been concern expressed to me that there could be conflict of interest.  There are a number of municipalities that have both prosecuting attorney and provisional attorney.”  City Attorney Jones said, “It doesn’t occur that often, but generally when it does occur, it’s a surprise to everyone.” 

Alderman Markland asked, “Wouldn’t this be excluding any individual who has his own law firm by himself, as there would be no partner or associate?”  Mayor Pogue said, “They could pick a provisional or backup that isn’t associated with the firm.”  Alderman Markland asked, “Wouldn’t it be better to have them both from the same firm?”  Mayor Pogue said, “They might have offices in the same building.  It could be a requirement of the position that the provisional cannot work in the same firm.  It’s not stated that way in Bill 3667.  It’s stated that they would both be picked out of the pool of three.  What happens if all three candidates are from the same firm?”  Alderman Boerner said, “This would be up to the Board.  If the Board approves two people from the same firm, that’s fine.” 

Alderman Fleming said, “I would prefer to have the backup be somebody that is down the hall or can be reached by phone for an immediate replacement, as opposed to someone from another firm.  Maybe the prosecuting attorney should have his own backup, and the provisional is someone who takes over when the prosecuting attorney is going to be gone for an extended period of time.” 

City Attorney Jones said, “The assistant/provisional would be sworn to uphold the duties of the office and that person would be able to function as the prosecuting attorney in the absence of the appointed prosecuting attorney.  The person appointed should be available to do the work with few absences.” 

Alderman Markland said that four resumes have been received recently and none are from the same firm. 

Alderman McDermott said there can be a lag in communication if they are not in the same firm.  He asked if this is what Alderman Fleming is referring to.  Alderman Fleming said yes.  Alderman McDermott asked if there is an additional cost if a provisional is located across town?  City Attorney Jones said the draft ordinance states $1,100 per municipal court session.  If the prosecuting attorney handled one session and the provisional handled another session, they would each be entitled to $1,100.  If they are not related by firm, the $2,200 would have to be split between them. 

Alderman Boerner said that most of the candidates are residents of Ballwin.  The court sessions are held after normal working hours. 

Alderman Markland said that the Board is going to make an independent decision as to who the best candidates are.  To say that one is not as qualified as another applicant because he/she has a partner that has also applied – The best person for the job should be selected.  This Board should not have to decide how the provisional is going to relate to the prosecuting attorney, but only to make a decision which of the candidates are qualified. 

Alderman Fleming said that what he wants to see answered in the legislation the solution to this:  “All of a sudden, we didn’t have a Prosecuting Attorney, and we had nobody.  Put a line in the legislation that says ‘In the event that the Prosecuting Attorney or the Provisional are unavailable, the Prosecuting Attorney is responsible for providing backup for the next court session.’  Make sure someone is here.  I don’t want a situation like we just had, and the legislation that we had didn’t give us a good answer on what we should do.  That’s why Chapter 16 is being re-written.”  Alderman Boerner said that the interim prosecuting attorney would be appointed by the Mayor, just like this last time.  Alderman Fleming said, “Do we really want the Mayor to have to appoint someone, just because two people have a schedule conflict one evening?  Wouldn’t you rather have the Prosecuting Attorney be responsible for providing the backup that night?”  Mayor Pogue said that all this legislation does is to appoint the interim prosecuting attorney.  It is not about how the permanent prosecuting attorney is going to be selected.  This should be set out in Chapter 16.” 

A motion was made by Alderman Boerner and seconded by Alderman Leahy for a second reading of Bill No. 3667, as amended.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3667 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3667 with the following results: 
Ayes – Boerner, Leahy, Markland, Finley, Mellow, Terbrock, McDermott, Fleming.  Nays – None.  Bill No. 3667 was approved and became Ordinance No. 11-11.

CITIZEN COMMENTS

Robert Klein, 2452 Capitol Landing:  Mr. Klein said, “The Board of Adjustment is under extraordinary influence that adversely affects the Williamsburg Green Subdivision in regards to the way they can approve variances to zoning requirements by the Schnuck’s company.  The Chairman of the Board of Adjustment is also an employee of Schnuck’s markets and she is a spokesperson for Schnuck’s or Desco, and now she’s been appointed as the Chairman of the Board that will oversee any requests to make changes.  That parcel of land has already received an extraordinary zoning designation of a special overlay, so that they can exceed or disregard the normal zoning standards which are in place for commercial development in Ballwin.  I don’t know if that lady will excuse herself if the Schnuck’s company wants a variance or disregarding even further the zoning requirements.  Her backup is Jane Suozzi, and has vowed to the people who voted for Ron Markland, who voted out Jane Suozzi as our representative, now she refers to the group of people like us as the mob.  What are the safeguards for the citizens to be protected against undue adverse zoning and adverse building that would negatively impact all of our property values?  Up until now, it looks like any time we have a dispute, we have to hire legal attorneys and file suit against the City.  I don’t think that’s fair for the citizens of Ward 2 and our subdivision to be faced with what you guys have been talking about, which is conflicts of interest.  It’s apparent that the people in charge of this committee have a lot of conflict of interest.” 

Mayor Pogue said that Ms. Willis was appointed to the Board of Adjustment before the year 2000.  She was re-appointed in 2008 by Mayor Young.  Her term is still in effect.  He said he’s not aware of any proposals to the Board of Adjustment for that development. 

Mr. Klein asked could you deny your employer if he wanted a change made?  Will she be able to deny her employer and be objective?  Mayor Pogue said she would have to abstain from any discussion or vote during the proceedings.  Mr. Klein said then her backup comes in place and her backup is now on record saying that she views everybody that has an opinion different than her is some kind of mob. 

Mayor Pogue said there is more than one alternate to the Board of Adjustment.  They serve as needed.  We have to have a certain number on the committee and there are three spots for alternates.  It’s not just Mrs. Suozzi. 

PUBLIC HEARINGS
None.

NEW BUSINESS
LEGISLATION

BILL # 3668 - AN ORDINANCE REPEALING SECTION 24-4 (f)(1) OF THE CODE OF ORDINANCES OF THE CITY OF BALLWIN REGARDING SIDEWALK MAINTENANCE.

A motion was made by Alderman Boerner and seconded by Alderman Leahy for a first reading of Bill No. 3668.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3668 was read for the first time.

Alderman Fleming said this legislation removes the requirement to shovel.  He asked will there be any liability issues.  City Attorney Jones said the sidewalks are already located in the City’s right-of-way.  The law would perhaps see joint responsibility, but it is still in the city’s right-of-way.  He said this does not affect the City’s liability.  If someone is injured, a lawsuit may be filed.  He said that we cannot tell the court what fine to impose.  This applies to all Ballwin offenses.  It can be stated that a fine up to $1,000 can be imposed.  A penalty provision is necessary if there is a requirement or prohibition.  The easiest way to do this is to remove the requirement to shovel instead of trying to mandate the penalty. 

Alderman Fleming asked if there are any other cities that have taken this approach.  City Attorney Jones said he does not know which cities have this requirement.  Mayor Pogue said it’s the Board’s discretion on how to handle the ordinance.

Alderman Markland said he was given photographs of Ballwin’s properties that showed no one shovels snow on city property.  If the City of Ballwin doesn’t have to shovel snow and ice off of the sidewalks and steps at The Pointe, how can we impose upon a citizen that same requirement? 

Alderman McDermott said there are no steps at The Pointe that are not cleared.  Every sidewalk where somebody walks is cleared, however, there is a patio area that is not clear, but it’s not a walking path to and from the parking lot.  He said that is the picture that was presented at the last meeting.  He said, “You are completely wrong on that account.” 

Alderman Markland said there were stairs and sidewalks with footprints; it did exist.  He said that is the reason he suggested that we eliminate the requirement. 

Alderman Terbrock said there are no outside stairs at The Pointe.  Alderman Markland said the photographs speak for themselves.  Alderman Markland said the picture shows The Pointe.  The Ballwin Golf Course sidewalk also had snow all over it. 

A motion was made by Alderman Markland and seconded by Alderman Boerner for a second reading of Bill No. 3668.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3668 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3668 with the following results: 
Ayes – Markland, Boerner, Mellow, Terbrock, Fleming, McDermott, Leahy, Finley.  Nays – None.  Bill No. 3668 was approved and became Ordinance No. 11-12.

CONSENT ITEMS:  (Budgeted items which are low bid and do not exceed expenditure estimates and/or items which have been previously approved in concept.)

A. Pizza (Delivery to Recreation Centers concession stand & birthday party packages)
(Dominos Pizza $9,563.85)
B. Pool Chemicals (Purchase and delivery – Pool Pros, $1.60/gallon)

Alderman Leahy requested that Item A be removed for further discussion.

A motion was made by Alderman Fleming and seconded by Alderman Boerner to accept the Consent Item B.  A voice vote was taken with a unanimous affirmative result and the motion passed.

MAYOR’S REPORT

H.B. 534:  Mayor Pogue said House Bill 534 would end the tax sharing of the 1% local sale tax that is shared with the pool areas of the cities and County in St. Louis County.  This bill was voted out of committee on Wednesday through the Local Government’s Committee.  Currently approximately $12.8 million is shared from the 1% sales tax that is shared equally per capita among the cities and the county.  If this bill passes the House and the Senate and becomes law, it is estimated that this will reduce the amount that each cities gets from $116 per person, down to $76 pre person, just with a couple of cities changing their status on this issue.  It is estimated that this amount will continue to deteriorate because as cities are receiving only $76 per person, it will become more beneficial for them to switch as well.  It is estimated that just the two largest contributors to this will take an additional $10 million in this pool to replace those two cities.  The St. Louis Municipal League has voted to take a stand of opposition to this bill.  He said he signed a letter in opposition to this and it was presented to the committee.  He asked for the Board to authorize the writing of a letter from the City of Ballwin and the Board of Aldermen in opposition to this bill because of the deterioration of our tax base that this bill would cause. 

Alderman Markland stated that the letter will state that since we feel that this will reduce the amount of tax revenues we receive, we are against this bill.  Mayor Pogue said this is correct.  The Mayor and Board agreed that a draft of the letter will be sent to the Board via e-mail for approval.
A motion was made by Alderman Boerner and seconded by Alderman Terbrock to pass a resolution to send a joint letter to the State Legislature in opposition to H.B. 534.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Next Meeting:  Mayor Pogue said that since there are no Planning & Zoning issues this month and a very light agenda for the March 28 Board meeting, he recommended that this meeting be cancelled. 

Alderman Markland said that one meeting is cancelled in March, June, July, August, November, and December.  He said that it looks like 50% of the time, we can get by with one meeting per month.  Mayor Pogue said that it depends on what is coming to the Board from the Planning & Zoning Commission or bids for approval.  Alderman Markland said that when you look at the overhead for each Board meeting, there is a lot of expense to have the second meeting.  He asked that someone investigate the savings of having one meeting per month instead of two.  He said that the City Attorney is paid for his attendance.  Mayor Pogue said this is included in the retainer and all of the department heads are salaried and do not get compensatory time off.  Assistant City Administrator Aiken said that is correct.  Alderman Fleming said that since we don’t know very far ahead what agenda items are coming, it’s easier to have two meetings scheduled each month, and then cancel a meeting if the schedule allows for this.  Alderman Markland said there are many communities that have one meeting each month.  Alderman Finley asked if there was a pressing issue in June, would the second meeting be held.  Mayor Pogue said yes. 

A motion was made by Alderman McDermott and seconded by Alderman Leahy to cancel the March 28 Board meeting and keep the two meetings per month scheduled, with the possibility of cancellation.  A voice vote was taken with a unanimous affirmative result and the motion passed.

CITY ADMINISTRATOR’S REPORT

Pizza:  Assistant City Administrator Aiken asked Director of Parks & Recreation Bruer to explain this transaction from the Consent Items.  Director of Parks & Recreation Bruer said pizza is sold in the birthday party packages at The Pointe and North Pointe and in the concession stand at North Pointe.  About $10,000 worth of pizza is sold each year.  With the new purchasing policy, it was advertised for formal bids.  Two bids were received – one from Dominos, who has been used for the last two years, and Papa Johns in Ballwin.  The information sent out reflected a 3% price break, but the ordinance states 2%.  Previously 3% was used.  With the 2% price break given to Papa Johns, their price is $104 more than Dominos for the whole year.  Dominos is still the lowest price for the year.  This is for unit prices.  We don’t buy a set number of pizzas each year because it depends on sales.  Staff recommendation is to use the low bid which is Dominos. 

Alderman Leahy said that with only a difference of $104, he recommended using the Ballwin business.  They have been around for a long time and serve a good product. 

Mayor Pogue said he shares the same feeling that a Ballwin business should be used whenever possible.  Alderman Terbrock and Alderman McDermott expressed agreement.  Alderman McDermott said this is not a tangible item that is being bought.  It is a pass through cost.  He asked what was the cost to advertise for bids?  Director of Parks & Recreation Bruer said the ad cost a couple hundred dollars. 

A motion was made by Alderman Leahy and seconded by Alderman Terbrock to accept the Papa John’s bid. 

Alderman Markland said he agrees, however, no one else caught the flaw in this.  The ordinance states a different percentage.  He asked when the ordinance was written a year ago, has anyone talked with the employees and said this is what’s in the ordinance?  They are trying to do what’s right.  The ordinance states 2%, but 3% is being used.  He said this is a mistake.  It’s not Ms. Bruer’s fault.  It’s because she is not being trained to do this correctly.  Alderman Terbrock said he thought it was 3%.  Alderman Markland said that it is not his responsibility to have proof read things for correctness.  That’s Mr. Kuntz’s job.  There seems to be a lack of transfer of this purchasing policy down to the people who catch all of the flack for doing it different than the policy.  He said it’s not their fault.

Mayor Pogue said it used to be a 3% rate.  Alderman Markland said it changed a year ago.  There’s a policy that is not being followed. 

A voice vote was taken with a unanimous affirmative result and the motion passed. 

Mosquito Control:  Assistant City Administrator Aiken said this is regarding the mosquito spraying contract with St. Louis County.  The Board elected to go this route last year.  It was less expensive to contract with St. Louis County, due to the way the County does the spraying.  The contract was written in a manner that it automatically renews annually for a period of five years unless voted otherwise.  Is the Board interested in renewing the contract for this year? 

Alderman Finley said he is in favor of keeping the contract with St. Louis County.  They have a dedicated Health Department to focus on this.  He said he is satisfied with the job they have done and the arrangement. 

Alderman Terbrock said he is not in favor of St. Louis County doing the mosquito spraying.  He understands that the cost is higher for Ballwin to do this.  He said the mosquito season was substantially worse last year than in previous years when we did this ourselves.  His house is near Fishpot Creek and it was miserable to be outside; it was terrible.  He said it costs more for us to do the spraying, but we have to do what’s necessary from a cost perspective on this issue.

Alderman Fleming said that he did not vote to contract with St. Louis County for this service.  He did not have a lot of complaints last year from residents.  He asked staff if there were complaints last year.  City Engineer Kramer said he’s not aware of a lot of complaints.  Some people may have called the County directly. 

Alderman Fleming said we went from spraying every week to every once in a while when the traps told St. Louis County it needed to be done.  His preference a year ago was to do the spraying ourselves, because there wasn’t a big cost difference.  If no one is complaining that it was a lot worse, then he didn’t see a reason to change back. 

A motion was made by Alderman Markland and seconded by Alderman Mellow to extend the mosquito spraying contract with St. Louis County.  A voice vote was taken with a unanimous affirmative result and the motion passed.

STAFF REPORTS

Golf Course Chemicals:  Director of Parks & Recreation Linda Bruer said this was a sealed, advertised bid.  The golf course staff purchases chemicals throughout the season.  They are not purchased all at one time.  The purchases are made in February and March, but extend through September.  The quantities and products used vary throughout the summer, depending on the weather, the amount of activity, and insects that are observed.  Last year, approximately $48,000 was spent for chemicals.  In the past, informal price quotes were solicited prior to the purchase of a specific chemical.  Generally, the purchases range from $1,000 to $2,000 and the procedure is followed to purchase from the low bid for that particular product.  Proposals were received from five St. Louis area companies.  The bidders were asked to give unit prices on a list of products that Ballwin has used over the last 2 – 3 years.  She said we don’t use every one of the products every year and the quantities vary.  Not all of the bidders carry all of the products, therefore, it is difficult to select one vendor to supply all of the products.  Regarding fertilizer, the prices are only guaranteed for 30 days.  That is because the price depends on what the farmers are using for soy beans and corn in any given year.  This has an influence on the price of the product.  If we award to a fertilizer distributor now, they may not have the lowest price when it’s time to purchase fertilizer in September.  She did not recommend any one low bidder on this item.  She recommends using the low bidder at the time the purchase needs to be made. 

Director of Parks & Recreation Bruer said the recommendation is to continue purchasing as has been done in the past several years, which is to purchase from the low bidder when the purchase has to be made for the product as used throughout the course of the summer.  If we award to one for the whole year, we’re not getting the best value for our money. 

Alderman Terbrock asked if the greens keepers attend seminars.  Mrs. Bruer said yes.  The superintendents are both certified sprayers.  They have to be certified to spray.  They also have college degrees in horticultural.  Golf course care is a science. 

Director of Parks & Recreation Bruer said the question is, is the Board in agreement with this method of purchasing?  The cumulative purchase is more than $10,000 throughout the year, but the relative amounts of each chemical might vary from year to year depending on weather and other circumstances. 

A motion was made by Alderman Leahy and seconded by Alderman Boerner to allow staff to purchase via separate contracts to be awarded to the low bidder on an incremental basis.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Fuel Sources:  Deputy Director of Parks John Hoffman said this is regarding fuel sources for city vehicles. 

Alderman Markland said that according to the numbers in the memorandum, we use about 1,400 – 1,500 gallons of fuel per week with a 1,000 gallon tank.  Sunset Hills lost power for six days, and there is an even more serious problem in Japan.  If something of this nature happens in our area, we only have a 3 – 5 day supply of fuel on hand.  If we couldn’t get fuel delivery in 3 days, the police cars wouldn’t have fuel.  He asked if it is possible for us to store more fuel so that we are not faced with a crisis?  What are we going to do if there are only 200 gallons in the tank and we lose power for a week? 

Deputy Director of Parks Hoffman said that right now we can use local service stations as a backup.  Alderman Markland said that we could have a major storm or an earthquake.  If fuel cannot be delivered, we’re out of business.  He said we wouldn’t be able to use QuikTrip because they also wouldn’t be getting fuel and wouldn’t have power at the pump.  He said this should be looked into regarding what is our emergency plan for something like this.  Fuel is now being delivered twice weekly.  This is not very economical. 

Alderman McDermott said this situation is similar to the Fire Department.   It has 1,500 gallons of fuel on site, and would run out a whole lot quicker than the city’s supply.  He said there are provisions to share resources with the City of Ballwin, and all of the cities in this area, to acquire fuel from the fuel stations regardless of power availability.  He said that’s one of the Fire Department’s jobs; to function in all situations.  Police Chief Schicker most likely has the same understanding in emergency preparedness for the city.  We have provisions to get fuel and water without electric and with broken water mains.  He said he promises that those situations are already covered.

Police Chief Schicker said that Fuelman has stated that we can use any Fuelman location, whether it was a private business or government entity, which would allow us to use Metro West, if they are a Fuelman source.  We have an available list of those locations.  Resources could be shared with another government agency that is on the Fuelman system as well.  They could use our pumps and we could use theirs.  It’s not like we are limited and tied to our resource in Ballwin.  We have the ability to use other Fuelman stations and other government agencies.  This is not a problem.

Deputy Director of Parks Hoffman said that Fuelman owns the tank and pump that Ballwin currently uses.  If we are going to start all over, we would have to purchase tanks and pumps, which is approximately $63,000 for an above-ground tank to replace what we have now.  Assistant City Administrator Aiken said that when Ballwin had an underground tank, it leaked, and an expensive cleanup was necessary.  This is the reason Ballwin got out of the underground storage tank option. 

Alderman Markland said that there is mention that Ballwin is paying 15 cents per gallon over the refinery cost.  When we had the big gas increase 3 or 4 years ago, some station managers said that they only made 1.5 cents per gallon.  He asked if they were making 1.5 cents over the refinery costs and if Ballwin is subsidizing the tank by paying 15 cents?  This is about $10,000 - $11,000 per year.  Mr. Hoffman said he does not know the answer at this time. 

Alderman Terbrock said this could be true because the fuel stations are charged 2% by the credit card companies.  The higher the price, their margin is reduced. 

Deputy Director of Parks Hoffman said for 2 above-ground tanks, 2,000 gallon diesel, 1,000 gallon unleaded, with dual pump, and carburetor system, the replacement price is about $63,000. 

A motion was made by Alderman Fleming and seconded by Alderman Leahy to continue using the current fuel source with no modifications.  A voice vote was taken with the following result:               Aye:  Terbrock, Finley, McDermott, Fleming, Leahy, Boerner, Mellow.  Nay:  Markland.  The motion passed by a vote of 7-1. 

CITY ATTORNEY’S REPORT

Prosecuting Attorney:  City Attorney Jones said he was asked to prepare a revision of Chapter 16 regarding the appointment and duties of the Prosecuting Attorney, and to add language with regard to a provisional prosecuting attorney.  He used as the format, the language of Chapter 16, which deals with the appointment and duties of a municipal court judge.  He said he tried to use the same format so that it would be familiar to the Board, but changed the duties to match those of the prosecuting attorney.  He included the language regarding the provisional prosecuting attorney and how that person would serve in the absence of the prosecuting attorney. 

City Attorney Jones said that it was discussed earlier in this meeting of adding some language that may have to do with the relationship between the provisional prosecuting attorney and the permanent prosecuting attorney.  This can be done. 

Alderman Markland asked, “Is it legal to say that if a person reaches 65 years of age, they cannot hold this position?”  City Attorney Jones said, “Our Municipal Court section provides that same language for the municipal court judge; but it says ‘unless age restrictions or otherwise provided by Supreme Court rule or State Statute’.  The Supreme Court operating rules provide that a State court judge must retire at age 70.  I read this to mean that we can ask for 65 years, but we can’t enforce it when the Supreme Court operating rule actually mandates that a State court judge can serve until he/she reaches the age of 70.  I don’t think we can enforce the 65-year old restriction.  It’s sufficient this way since it indicates that unless the State Supreme Court rule or statute provides otherwise.  I didn’t change it because we would also have to change the section that has to do with the judge.  There’s a legal question whether or not we can impose an age restriction at all.  It has to be reasonably related to the job the person is doing, and if it serves a purpose, etc.  We could make it 70 or leave it at 65.  In the end we will not be able to discriminate.”

Alderman Fleming said the goal is to make all of Chapter 16 to be as consistent as possible regarding the municipal judge, prosecuting attorney, etc.  The purpose is not to discriminate.  In the past, someone may have thought it was important to include the age cap, perhaps in the 1960s or 1970s. 

A motion was made by Alderman Fleming and seconded by Alderman Leahy to draft legislation include the amendment as stated as f.5 in Section 16.92 instructing the prosecuting attorney to provide a list of backup attorneys to serve in the even that the provisional cannot serve. 

Mayor Pogue said, “This backup would not have the ability to do any actions other than serve until the next regular meeting and would not be able to serve in the capacity of the prosecuting attorney without being sworn in.”  City Attorney Jones said, “We would make sure that the person was sworn in.  Any Notary Public could administer the oath.”  Mayor Pogue said, “Would we be getting into any liability because now we have a prosecuting attorney, provisional prosecuting attorney, and an interim prosecuting attorney?”

A voice vote was taken and Mayor Pogue stated that the motion passed by a vote of 5 Ayes and 3 Nays. 

Alderman Boerner said, “This doesn’t provide any kind of a process in terms of, and I think there should be some kind of a process.  I think that those who, we should narrow it down to a certain number of candidates, and those candidates should be brought before the Board and talk about why they should be the prosecuting attorney, and we should be able to ask questions.  I think this should be part of this legislation.  Whether it’s 3 or 4 candidates, or whatever number it might be, it should be part of this legislation.  I propose that we adopt the language that’s part of the original ordinance and include it with respect to the, just the process of bringing it before the Board.”

A motion was made by Alderman Boerner to that extent, seconded by Alderman Terbrock.  A voice vote was taken with the following result:  Aye:  Boerner, Terbrock, Finley, Markland, McDermott, Mellow  Nay:  Fleming, Leahy.  The motion passed by a vote of 6 – 2. 

Alderman Fleming asked, “What is the effect of what we just did?”  Mayor Pogue said, “The procedure is going to mirror what we just passed earlier tonight and to this ordinance.”

A motion was made by Alderman Boerner and seconded by Alderman Mellow to draft legislation.  A voice vote was taken with the following result:  Aye:  Terbrock, Finley, Markland, McDermott, Boerner, Mellow.   Nay:  Leahy, Fleming.  The motion passed by a vote of 6 – 2.

Legal Issues and Updates:  AT&T:  City Attorney Jones said, “Several months ago, we received a demand from AT&T Mobility claiming that we have improperly collected business license taxes on internet service, and that the Internet Freedom Act does not permit that.  Instead we are limited to telecommunications services.  The attorneys who handled the class action and obtain the settlement in the AT&T case last year have filed a motion to try to enforce that settlement.  They have obtained a position paper from AT&T’s attorneys as to why they think it’s appropriate, even though they settled the case, and now claim that they want some money back for improperly collecting fees on internet services.  That issue is ongoing and will update later.” 

Clayton Corners:  City Attorney Jones said, “We were assured by an engineer adjustor that there would be contracts let at least to achieve the overlay asphalt coat in the curb and gutters, this month.  That engineer is no longer assigned to the file.  There is now a new adjustor who assured me today that the work will be let and begin in early April.  I sent an e-mail to the property manager and the chairman of the trustees at Clayton Corners informing them of that progress.  It seems that as long as we keep moving forward, it will be okay.  There’s a point that if this work does not get done, we need to pull the plug, issue a request for proposals, bid the work out, do the work, and then we can enforce the bond against the surety.  But we have to do the work first.  It’s sort of been agreed by everyone that it’s a much better process if the surety contracts the work, pays for it, and gets it done themselves.  That’s what we are trying to accomplish.  If it gets much later into the season, we’ll need to do the work ourselves.” 

Mayor Pogue said, “I’m concerned that this progress is continually being pushed back.  This is the third adjustment.  Aldermen Fleming and Leahy have been in contact with the subdivision trustees and management.  Should a date be set that if we don’t see progress by the date, that we will proceed to further action?”  City Attorney Jones said, “That date was September 1, 2010.  We can stop the process whenever we want, but we have to do the work and spend the money before we can collect the money back by reimbursement from the bonding company.  This will require litigation.  There is a disagreement over which items are performance related, which are maintenance related, and there’s some question as to which ones are within the scope of the original bond, which may have been subject to line item releases along the way.  It’s a complicated question.  We’ve been trying to get the final asphalt overlay and the curb and gutter work done as soon as possible.” 

Alderman McDermott asked, “Can we hold up future permits until they finish that work?”  City Attorney Jones said, “If we don’t have adequate financial protection, the bond which is required by our ordinance assures we can, but I’m not aware that this developer is doing any other work in the city.” 

Alderman Markland asked, “Can we give them an ultimatum that if they are not working on it by a specific date, we will get proposals and do it ourselves?”  City Attorney Jones said yes.  “The other problem is that they sincerely believe that a different bond was executed with line item values.  Since some of that work is done, we should have released a portion of the bond.” 

Alderman Fleming said, “If we said that the street must be completed by the end of June, would there be enough time to bid it out to get it done before…..”  City Engineer Kramer said, “It would take about 4 – 6  weeks to do the bidding.  It could be started within 2 months after the start of bidding.”  Alderman Leahy suggested May 15.  Alderman McDermott asked about recovering legal fees.  City Attorney Jones said, “The bond provides for the recovery of legal fees if we have to force the terms of the bond.  I’m relatively certain that the court would have to award them.  They’re not going to pay them voluntarily.” 

A motion was made by Alderman Fleming and seconded by Alderman Leahy that it must be bid, scheduled and presented to the City by May 15.  A voice vote was taken with a unanimous affirmative result and the motion passed.

ALDERMANIC COMMENTS

Coachlight Subdivision:  Alderman Terbrock said on Coach Gate, there are two lots that are empty at this time.  The streets have not had a final coating for 2 or 3 years.  City Attorney Jones said, “We re-wrote the bond and are now using a different form where it’s not required that we do the work before we make demand.  That project is old enough that we probably have the same bond in place.” 

Mayor Pogue said that staff could make contact with a representative from the developer to find out their intentions.  Alderman Terbrock agreed. 

Prosecuting Attorney Selection Process:  Alderman Fleming said, “My only caution, to follow up on putting the process in the legislation that we voted on, is that in the past, we have had a process.  It was different than what we are doing now.  A couple of years from now when we’re doing this again, we might look at the legislation and decide that we don’t want to do it that way.  I think this should be left out of the legislation.” 

Construction Debris Disposal and 2012 Budget Process:  Alderman Markland said, “At the last meeting, there were two items:  Construction Debris Disposal, which the Minutes state that City Administrator Kuntz said this will be brought back at the next meeting.  It wasn’t on the agenda.  I want to make sure there everyone knows that there were a lot of questions asked that weren’t answered, and tonight was the night we were supposed do this.  On the agenda for the last meeting, there was an item regarding our budgeting process for 2012, and asking for direction.  That was not covered because of the long meeting.  This should also be brought up at the next meeting.  I think we get hung up on the words “zero based budgeting”.  What we are really looking at is not the budgeting process, but the cost controls.  The fertilizer issue is a good cost control item.  No one cares whether we had more or less money in the budget.  We’re buying it as economically as we can, and that’s what I have been trying to get across, to not get hung up on zero based budgeting.  We need to look at this based on cost control.  We have our current auditors that could be asked for suggestions as to how this might be done.  We could ask others how this could be done.  I’d like to see this be presented along with the topic at the next meeting.” 

Mayor Pogue said, “The 2012 budget was not actually an item on the last agenda.  It was for information only.”  Alderman Markland said, “I’m asking that it be an agenda item for the next meeting.” 

Provisional and Interim Prosecuting Attorney:  Alderman Finley said, “Regarding the provisional prosecuting attorney issue, could the things you just said be kept out of legislation, but keeping them as policy?”  Alderman Fleming said, “It could be in the Policy Manual.  We didn’t put it in either place after the last time around, did we?”  City Attorney Jones said, “We took it out.  We had a process in there for the judge, and at the direction of the Board, we adopted a new ordinance, that now reads the same way as it is the Mayor’s appointment with approval of the Board of Aldermen.”  Alderman Terbrock said, “I thought we were not going to have a policy, but to let it be a completely different policy, if that was what they desire to make it.  We can always fall back on State statute.  He can appoint whoever he wants to as long as the Board approves it.  If we want a process, we can have a process.”  Alderman Fleming said, “The next time we discuss it, it will be in legislation and say that you have to go through a whole list, and Mayor Pogue will have to submit three candidates.  You’re putting the process into legislation.  If a couple of years from now, the Board doesn’t like that idea, it can be repealed.”  Alderman Finley asked, “Should we take another approach to this?  What would the ramification be of putting all of these things in the Policy Manual as opposed to legislation?”  Alderman Fleming said, “I think the most you can do in a policy manual is probably what the audience members at the last meeting under Citizen’s Comments suggested, is that Ballwin shall strive for an inclusive hiring policy, which is probably all that could be put in the Policy Manual.” 

Alderman Boerner said, “I thought it was pretty clear that the citizens wanted transparency in the process.  This provides transparency and will provide the Board the opportunity to engage in a discussion or ask questions, and also for them to defend themselves, or to argue for and on behalf of themselves, and that’s what I gathered from what everyone was saying, that this was a desirable thing.  There wasn’t transparency that I thought should have been part of this process.  This defines transparency, whether we do it that way or another way.  I believe that there should be transparency.  The people should be able to see who we have, and if they want to come to the meeting, then we can see too.  This was sight unseen for us the last time.”

Alderman Finley said, “We tacked on some amendments tonight and we can continue to work on this at the next meeting.  I’ll be interested to see what we come up with as far as Alderman Fleming’s proposal, which is subsection 5 about providing the list of backups.  The case load will be different, and the files stay here at the court.”  City Attorney Jones said, “The ones for the municipal court that are heard in this division, but the certified files go with the prosecuting attorney.”  Alderman Fleming said, “If the managing attorney on the case has a conflict and would have to distribute the work to an associate, it’s not a bad thing to have a list and maybe it should be added to have the prosecuting attorney update the list every year as associates come and go, if indeed it is someone who is at a small firm, has a few associates.  I want to keep it so that it’s in place that this can be done, that the prosecuting attorney can keep it within his own firm so that there is consistency with, for example, cases that are certified.  In that way the case management is centered with the certain firm.  I want to see that addressed.” 

Mayor Pogue said, “We’re going to pick a permanent and provisional prosecuting attorney out of the three finalists.  Alderman Fleming was asking for an amendment that if both of those were absent, the prosecuting attorney would present a list for a third prosecutor.”  Alderman Fleming said, “I never want to run into a situation where we are not represented in court.”  Alderman Markland said, “In this case the interim is for one night.  If the prosecuting attorney has a conflict, the provisional has a conflict, in that case an interim could be appointed, and he will be available for the next meeting or when the other attorneys come back.”  Mayor Pogue said, “Hopefully I can be contacted also and still have time to swear this person in before they have to serve that night.”  Alderman Markland asked, “The interim has to be sworn in?”  City Attorney said, “This can be done by anyone who is a notary public.” 

Adjourn:  A motion was made by Alderman Fleming and seconded by Alderman Terbrock to adjourn.  The motion passed unanimously and the meeting was adjourned at 8:53 p.m.

TIM POGUE, MAYOR

ATTEST:
THOMAS H. AIKEN, ASSISTANT CITY ADMINISTRATOR

MC