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
May 9, 2011

The meeting was called to order by Mayor Pogue at 7:00 p.m.

             PRESENT                                              ABSENT
MAYOR TIM POGUE 
ALDERMAN JIMMY TERBROCK 
ALDERMAN MICHAEL FINLEY 
ALDERMAN RON MARKLAND 
ALDERMAN MARK HARDER 
ALDERMAN FRANK FLEMING 
ALDERMAN JIM LEAHY 
ALDERMAN RICHARD BOERNER 
ALDERMAN KEN MELLOW 
CITY ADMINISTRATOR ROBERT KUNTZ 
CITY ATTORNEY ROBERT E. JONES 

The Pledge of Allegiance was given.

MINUTES
The Minutes of the April 25, 2011 Board of Aldermen meeting were submitted for approval.  A motion was made by Alderman Leahy and seconded by Alderman Terbrock to approve the Minutes.  A voice vote was taken with a unanimous affirmative result and the motion passed.

OATH OF OFFICE
Mayor Pogue asked City Attorney Jones if he had any information from the Election Board that would prevent the Oath of Office being administered to Alderman-Elect Jimmy Terbrock.  City Attorney Jones said he does not.  He called Darold Crotzer, Council for the Board of Elections today.  They were meeting this afternoon, will discuss any issues and will call him tomorrow. 
The Oath of Office was administered to Ward 1 Alderman Jimmy Terbrock by Municipal Judge Virginia Nye. 

SECOND ROLL CALL

                                   PRESENT ABSENT
MAYOR TIM POGUE  
ALDERMAN JIMMY TERBROCK ALDERMAN JIM LEAHY 
ALDERMAN MICHAEL FINLEY ALDERMAN RICHARD BOERNER 
ALDERMAN RON MARKLAND ALDERMAN KEN MELLOW 
ALDERMAN MARK HARDER CITY ADMINISTRATOR ROBERT KUNTZ 
ALDERMAN FRANK FLEMING CITY ATTORNEY ROBERT E. JONES 

PRESENTATION
None.

PENDING ISSUES
None.

CITIZEN COMMENTS
None.

PUBLIC HEARINGS
None.

NEW BUSINESS

LEGISLATION

BILL # 3674 - AN ORDINANCE ADOPTING A MANCHESTER ROAD REVITALIZATION OVERLAY DISTRICT FOR CERTAIN LAND COMMONLY KNOWN AS 15200 MANCHESTER ROAD IN THE CITY OF BALLWIN AND CURRENTLY ZONED C-1 COMMERCIAL.

A motion was made by Alderman Terbrock and seconded by Alderman Leahy for a first reading of Bill No. 3674.   A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3674 was read for the first time.

A motion was made by Alderman Terbrock and seconded by Alderman Leahy for a second reading of Bill No. 3674.  A voice vote was taken with a unanimous affirmative result and the motion passed.  Bill No. 3674 was read for the second time.

A roll call was taken for passage and approval of Bill No. 3674 with the following results: 
Ayes – Terbrock, Finley, Mellow, Fleming, Harder, Markland, Leahy.   Nays – None.  Bill No. 3674 was approved and became Ordinance No. 11-18.

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. Liquor License Renewals

Alderman Fleming asked about the Wine Tasting license for U-Gas.  Assistant City Administrator Aiken explained that U-Gas would not be able to charge for tasting the wine and is only in conjunction with the package liquor license.  The wine tasting is a sampling without selling it.

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

MAYOR’S REPORT

Closed Session – Personnel:  Mayor Pogue asked for a Closed Session at the end of the Board meeting in accordance with State Statute 610.0213 for the City Administrator’s annual performance evaluation. 

Energy Efficiency Loan Program Cooperation Agreement:  The program “St. Louis County Saves” offers low interest loans to residents for the purchase of energy efficiency improvements.  The city would have to post this online and in one of our publications.  There would be no cost to Ballwin.  This will allow our residents to participate in the St. Louis County program.  The list of criteria to distribute the loans is listed in the e-mail attachment that he sent to the Board.  The St. Louis County Director of Energy is conducting the program.  He said he is not sure where St. Louis County is getting the funds for this program.  Ballwin would only be helping to market the program in exchange for allowing the Ballwin residents to participate. 

A motion was made by Alderman Harder and seconded by Alderman Finley to accept the Energy Efficiency Loan Program Cooperation Agreement with St. Louis County.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Great Streets Master Plan:  Mayor Pogue said that at the last Planning & Zoning Commission meeting, the members approved a resolution to add the Great Streets Master Plan to our current Comprehensive Plan.  This will be added as an addendum. 

Scholarship Fund:  Mayor Pogue said there is going to be a scholarship fundraiser barbeque in honor of Peter Navaro, who was a Lafayette graduate, specialist in the Army, and was killed serving in Iraq.  The fundraiser will be on May 14 at Lafayette High School from 11:00 – 4:00. 

CITY ADMINISTRATOR’S REPORT

Outdoor Displays:  City Administrator Kuntz said he consulted the West County Chamber of Commerce about outdoor displays.  There has been no response at this time.  All of the other cities around Ballwin seem to apply the same outdoor standards for storage of merchandise.  He said that Officer Rogers has completed some initial follow up.  Police Chief Schicker said Officer Rogers contacted nine Ballwin businesses.  Five of those are free-standing businesses, and the rest are in a strip mall.  It was pretty much unanimous that the businesses were in favor of this.  The adjoining businesses on both sides of strip malls were contacted, and it was pretty unanimous that they were in favor of anything that would entice more people to come into Ballwin to make purchases.  They were in favor of anything that would promote foot traffic in the strip malls.  These reports can be provided for the next Board meeting. 

Alderman Markland said, “It sounds as if the Chamber of Commerce says it’s not a big deal, but the people who are doing it says it is a big deal and are interested in this.  Alderman Harder brought up at the last meeting that a focus group be formed to discuss this further.  It sounds like you haven’t formed a focus group.  It sounds like this would be something that would be advantageous to Ballwin.  How do we do this?”  Police Chief Schicker said that additional contacts will be made. 

City Administrator Kuntz said, “I would like to take from that sampling a follow up asking if they would be interested in serving.  No more than 8 – 12.  An Alderman with this interest could attend.”  Alderman Markland said he would like to pursue this. 

Alderman Harder said, “I was wondering if we could direct Officer Rogers to recruit some people for the focus group.”  Police Chief Schicker said this will be done with a report back to the Board.

Minutes:  City Administrator Kuntz said, “I have the question of posting the entire Board meeting packet on the website, including the draft Minutes of the previous meeting.  In checking with other municipal websites, I find that a lot are reaching out to provide that information to the residents, but it seemed like the direction was that if you are looking for Minutes, they were not the one from the last meeting, but the one two weeks before that.  The distinction is, it’s a draft until it’s approved.  If it is significantly amended, frequently there are amendments, such as a fairly significant challenge on an absence issue that was in the Minutes that maybe wouldn’t have been in the final form of the Minutes.  It almost seems like the practice is not to include draft minutes until the draft becomes official.  It it’s amended, all that’s out there is the draft, and if someone doesn’t do research to put the two documents together, they are walking away with potentially some inaccurate information.  It’s the Board’s preference on how this should be handled.” 

Alderman Markland said, “The Minutes have a warning label that says these are not the final Minutes.  The citizens have been informed that these are interim Minutes and may be subject to change.  I think it is wonderful for the public to have an idea what went on at this meeting.  It may not be exactly verbatim, and after we have our meeting, we make adjustments, and those adjusted Minutes are posted.  If we proceed in that way, you sign the Minutes, the Minutes that you sign should be the ones that are posted, and that’s the legal Minutes for the meeting.  I would like to see that proceed.  I don’t see this as a big problem as long as they are notified, and it seems that you have done that.” 

Alderman Finley said, “I agree with Alderman Markland that I think it’s a good idea for the citizens to have an idea of what went on at the last meeting with the disclaimer that these are the final Minutes.  When they do get approved, the notice could be made that these are the final Minutes.” 

STAFF REPORTS

Environmental Standards:  Assistant City Administrator / City Planner Aiken said gave a report on Ballwin’s present regulations of environmental standards.  This is based on storm water review for development projects, which is storm water detention, which deals with runoff of sites and the potential of flooding and any erosion associated with this.  The second part is water quality, which concentrates more specifically on the issue of erosion and hazardous materials that accumulate from runoff and how that can be mitigated in the environment.  Research was done regarding standards for these issues. 

City Planner Aiken said, “Storm water control has been in place for some time, but we don’t have water quality standards.  That’s something that is more recent and has not been added to our regulations.  Under MSD’s jurisdiction, they did more extensive regulations, and Ballwin did more regulations that went beyond MSD’s.  MSD has developed a much more comprehensive storm water control system and implemented water quality standards.  Since we are within MSD’s jurisdiction, it did not make sense for us to try to duplicate or replace its standards.  Our recommendation is to continue to do what Ballwin has been doing for a long time, and to utilize MSD’s extensive and evolving system of storm water control and water quality standards.  MSD has the authority to issue these permits independent of the city and they should continue to do this.” 

City Planner Aiken said, “There are a couple of situations that fall outside of MSD’s authority.  One is for small projects that fall underneath MSD’s threshold.  They have a one acre or a two cubic foot per second runoff increase as a basic threshold.  If the development does not increase runoff by that amount, detention is not necessary.  Two cubic feet is roughly the amount of runoff that comes from a one-acre site in an undeveloped state.”

City Planner Aiken said, “Ballwin has always maintained that detention had to be provided, but we also had a provision that allowed the Board to waive the detention requirements if it could be demonstrated to the city that other approaches were more appropriate than conventional detention basins.  Small basins become maintenance problems.  Many times, there are other alternatives.  The recommendation is to require that even the small sites have to comply with MSD standards.  MSD will review the small sites pursuant to their standards, at our request, and then we can negotiate with the individual developer on a case-by-case basis as necessary to adjust for situations.”

City Planner Aiken said, “A frequent situation is that MSD’s approach to large developed sites that are over an acre, and has substantial impervious surface, to redevelop the site, under MSD’s current standards, the site could be stripped to bare ground and start all over again and still retain credit for all of the impervious surface that was there before.  You wouldn’t have to provide any detention as long as you didn’t increase the amount of impervious surface on the site.  This is not the best way to solve the problem because some of the old sites have runoff going into the creeks without any slowing down or detention of any kind etc.  It causes erosion and potential flooding.  It would be better to require that the site at least meet MSD’s current standards for detention, and there would not be credit for existing impervious.  It would have to be treated as though it was a grass site and provide detention pursuant to that.  The ELCO site for the Cadillac dealership is virtually a 100% impervious site.” 

City Planner Aiken said that he and City Engineer Kramer recommend the more stringent approach that should be required to bring the whole site into compliance.  This will create significant economic cost to the developer of the site and might potentially discourage a development that would otherwise happen, because of the cost associated with having to bring a whole site into compliance.  He said we should not try to rewrite rules that parallel with what MSD is doing. 

Alderman Terbrock said that vacuuming pervious pavement is important because when pervious pavement is left alone for 20 years, it becomes impervious.  City Planner Aiken said, “If we are going to require those standards on small sites, we are probably going to have to be the ones who enter into the agreement in order to insure that there is ongoing maintenance.” 

Alderman Fleming stated the following recommendations being submitted to the Board:  “Ballwin delete its current stormwater standards and adopt MSD’s standards by reference, and it is recommended that Ballwin retain the current ordinance language that empowers the Board to waive these requirements if it is determined that such facilities are redundant or otherwise unnecessary.” 

City Planner Aiken said, “If you agree that we are going to apply the MSD standards to small sites, MSD will review small sites pursuant to their standards.  There is wording that the Board of Aldermen has the power to waive these requirements.  He recommended that this language stays.  It gives flexibility that if the MSD standards don’t work on a particular site because of unique characteristics, the Board can waive the requirement and provide an alternative.  This is what we are doing today.”  City Attorney Jones said, “This gives us an opportunity to legislatively provide that kind of a waiver in connection with the development.” 

Alderman Harder asked, “If we adopt the MSD standards, are these standards more or less stringent than the Ballwin standards?”  City Planner Aiken said substantially more stringent.  Alderman Harder asked, “Could this impede development in Ballwin because they are so stringent?”  City Planner Aiken said, “No, because Ballwin is already within MSD’s jurisdiction.  It has authority independent of anything the city does.”  Alderman Harder said, “Your recommendation is to take its standards on the big scale projects, but leave flexibility on our part on the small scale, and they will allow us to do that?”  City Planner Aiken said yes and there’s no problem with this. 

A motion was made by Alderman Fleming and seconded by Alderman Terbrock to accept the recommendation that Ballwin delete its current storm water standards and adopt MSD standards by reference.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Mayor Pogue said, “If we made ELCO bring their whole site into compliance, they would lose a significant number of parking spaces where they store the vehicle they are trying to sell.” 

Alderman Harder asked, “Regarding ELCO, instead of building a detention pond, can they have a certain number of islands of grass instead of losing parking spaces?”  City Planner Aiken said, “This is within MSD’s authority.  We can, under the current structure of the MRD regulation, the storm water detention requirement is in the C-1 district, and the MRD allows the underlying C-1 district regulations to be waived or modified.  They asked to not be required to provide detention, and the Planning & Zoning Commission recommended that they not be required to provide detention.  They were approved by the Planning Commission, subject to them obtaining variances to a couple of requirements of the MRD.  This is regarding the provision of islands in their parking lot, and perimeter land and green scape areas adjacent to the roadway on their site.  Their argument is that the impact would be approximately 20-25% of their inventory storage capacity.” 

Alderman Markland said, “St. Louis has been here many years.  The sewer system may have been developed in the 1700s.  To say that whatever was legal then is legal now doesn’t make sense.  We are so much smarter now than we were 300 years ago.  The amount of water that is running into the sewer system overloads the system, dumps the sewage in the Mississippi River, and down to New Orleans.  To grandfather it means it is still legal.  If property is going to be updated, it should be updated to the state of the art, not what it was many years ago when sewers were built out of wood.  It was okay when ELCO took over the property from Essen.  It’s not okay today.  We’re trying to enhance the water situation, not continue to make it as bad as it’s always been.  This is why I don’t like the grandfather clause.  The creek beds are eroding and no one is going to do anything until a house is threatened.” 

Alderman Leahy said, “I respect this opinion, but I totally take the opposite view.  Are we going to make it financially unfeasible for any business to do any improvements at all by making them do the whole thing?  Would Buffalo Wild Wings be there if we had made them do the whole site?” 

Alderman Terbrock agreed with Alderman Markland.  He said, “We’re here for the betterment of this city.  Allowing the grandfathering and always going with the way we’ve always done it is wrong.  It may put undue financial burden on the developments, but we’re not here to determine if it is financial feasible for something to be built or not.  We’re here to make the city better.  People are losing land because of the impervious surfaces.  The runoff is monstrous compared to what the creek was initially capable of handling.  We should take responsibility for what’s going on in our city.” 

City Engineer Kramer said, “DNR is monitoring the water quality of the creeks.  That’s why all of this has been coming down so heavily.  It’s been with the EPA for years, and now it’s down to our level.  It’s being monitored by the State.” 

Alderman Boerner asked, “What would the requirements be if 25% of a site was redeveloped?”  City Planner Aiken said, “Based on the amount of impervious surface.  It’s determined by a formula that is based on the amount of runoff that’s being generated.”  Alderman Boerner asked, “What is Nissan doing?”  City Planner Aiken said, “This is the most sophisticated water quality site in Ballwin.  There’s an under ground absorption chamber, vortex separators, pervious surface in the rear of the property, rain gardens, they have done everything on that site.  It is my understanding that over $1 million is being spent on the site for water quality and detention.”  Alderman Boerner asked, “Is this something we directed them to do?”  City Planner Aiken said this is through MSD. 

Alderman Fleming asked, “Is there a way to blend the comments of Alderman Markland and Alderman Terbrock to state, no grandfathering, they have to bring the whole site up?  Would they still have an out with the Board of Adjustment?”  City Planner Aiken said, “With the Board of Adjustment, there has to be a hardship.” 

Alderman Fleming said, “Everyone has said that they want to get closer to modern standards, but we don’t want to crush development plans either.  Perhaps a phased approach could be presented at the next meeting.” 

A motion was made by Alderman Fleming and seconded by Alderman Markland to ask staff to consider a phased approach to the issue, as described by City Planner Aiken.  A voice vote was taken with a unanimous affirmative result and the motion passed.

CITY ATTORNEY’S REPORT

Legal Updates:  City Attorney Jones said, “Last Thursday, Mayor Pogue and I attended a pre-briefing conference in the Court of Appeals with regard to the Greenburg appeal.  There was no resolution reached.  The parties are back on their briefing schedule.”

Sewer Lateral:  City Attorney Jones said, “In the decision dismissing the Adams vs. Vergonza case regarding the sewer lateral fees, was refirmed.  The most important part of that decision was that someone who wishes to preserve their right to a Hancock type challenge to the sewer lateral fee would have to pay their tax under protest and then file an action to perfect that protest within ninety days.  This is the same as in the tele-communications cases.  There is an opportunity for the plaintiff’s class to try to obtain a re-hearing or transfer to the Missouri Supreme Court.  We won’t know about that for another month or two.  In the mean time, in speaking with Finance Officer Glenda Loehr, there are some parties that have come to the City saying that our sewer lateral fee shouldn’t apply because of the restrictions and conditions that are in the State Statute.  None of those parties have filed an action and paid their taxes under protest, but I think we can identify some properties that may be worth of a refund.  In the past, it was determined not to go through that process, but I think we would be remiss if we didn’t at least try to identify those properties that are being charged and should not be, and think about stopping the collection, notifying St. Louis County that these properties should no longer be collected, and if appropriate, make a refund.”

City Administrator Kuntz said, “The number of properties is only a few.  It may be someone who is grandfathered or free-existing septic system, or some non-ability to benefit, but provide payment.  I know of 5 or 6.”  City Attorney Jones said, “The sewer lateral fee should not apply to condominium buildings that have more than 6 units.  If they have less than 6 units, they are still supposed to be pro-rated.  If there is a 4-unit building, there should be a $28.00 fee charged for that building, but each unit should only pay $7.00.  Apparently, the collector has either charged nothing at all, or charged $28 to each unit.  We should try to fix this problem, other wise we end up in a situation like this Adams vs. Vergonza case where we were one of 32 municipalities being sued, and our potential liability was $175,000.” 

City Administrator Kuntz asked, “Would you like us to identify those now that Adams vs. Vergonza is history, and submit this to the Board for determination at a future meeting.  I will provide to the Board, without the names, the circumstances and amount of refund and the basis for non-participation.” 

Alderman Terbrock asked if this could be set up as a policy without naming the properties?  City Attorney Jones said, “We have ordered a report from St. Louis County to identify the properties.  We can come back to the Board and say we have identified X number of properties with septic tanks, X number of condominium complexes that have buildings with more than 6 units, etc. and provide the amount of money to be considered refunding.” 

Alderman Harder asked if apartment complexes would be included.  City Attorney Jones said they would be covered by the State Statute because typically they would have one lateral that would serve the whole building as opposed to some condominiums that sometimes have more than one for each unit.

A motion was made by Alderman Terbrock and seconded by Alderman Harder to authorize staff to research identifying the properties described by the City Attorney.  A voice vote was taken with a unanimous affirmative result and the motion passed.

Clayton Corners:  City Attorney Jones said, “I received today a copy of the contract between the bonding company at Clayton Corners and West Contracting.  That is the selected contractor for the overlay and the curb and guttering.  We lost a little bit of time with weather, and we lost about a week where GHH, the principle, was protesting this settlement.  The bonding company wants to go ahead with it in spite of the principle’s position.  That contract was sent to West today.  It will be signed, and hopefully work will start immediately.” 

Food Trucks / Trailers:  City Attorney Jones said, “There was a proposed piece of legislation that was provided at the last meeting, to handle this as a special use exception for trailers not exceeding 24 feet in length that were going to be parked on the same property as the holder of a Ballwin business license, who owns the trailer.  Is that something that the Board is interested in going forward with?  The trailer would have to be parked behind the building line.” 

Alderman Fleming said, “I think we’re trying to solve one individual’s problem.  Up and down Manchester Road will be part of the Great Streets Initiative.  In theory, we want everyone to have uniform standards.  My recommendation would be to wait and see how far the Great Streets Initiative goes before we start deciding these things.  Basically, don’t do something that you might decide to undo later.”

Alderman Harder said, “The legislation that you drafted is to allow this or not to allow this?”  City Attorney Jones said, “I guess it will be up to him.  If he could apply for a special use exception and he could park it behind the building line, which he seemed to indicate would not be suitable for his purpose, you would be able to handle this on a case-by-case basis just like you do other special use exceptions.”  Alderman Harder said, “I see this as an entrepreneur that’s trying to do something with a unique situation.  I would be in favor of him parking it behind the building so that it wouldn’t be seen from the street.  The other issue I have even in that same shopping center is that now there are 2 or 3 vans that are labeled that are parked along the curb.  They are using these vehicles as billboards.  Are we going to say something about that?  This seems to be a bigger problem down Manchester Road, are these mobile billboards that are delivery vans, dogs on top of vans, etc.  If we tell him to move it behind the building, what about the rest?” 

City Attorney Jones said the delivery trucks and vans are not prohibited in the C-1 district.  City Administrator Kuntz said they have to be licensed and operable.  City Attorney Jones said he would never be able to park a trailer in the C-1 district in front of the building.  City Administrator Kuntz said he is also using it for meal preparation as a satellite kitchen, which enters into another set of complications which we don’t permit. 

Alderman Harder said, “I’d like to let him try it for 6 months and then see if it works or not.  I think he might go for parking it behind the building to see if his idea will work.  If it doesn’t, he’ll be the first to admit it.”  City Attorney Jones said, “You can’t just give a waiver like that.  We would have to amend our ordinance to permit a trailer to be parked in that area.  Even if you  put a sunset provision on it of 6 months, you would still have to do something affirmative to change the ordinance.” 

Alderman Terbrock said, “The delivery vans are legal.  As it appears to me, as driving by, and I haven’t driven in there and looked at it, the way the trailer is parked, the AT&T truck is fairly much blocked in.  It’s not moving.  The trailer tongue is parked in front of it.  That’s an interesting situation.” 

Alderman Markland said, “I think we are saying that a truck with a sign on it is legal.  If we take the trailer and put it on a truck, does that make it legal?  Could he, just by taking the bed and putting it on a flatbed trailer truck, is that now legal because it’s not a trailer anymore, it’s a truck?”  City Attorney Jones said, “I suppose there’s a point in which a trailer is no longer a trailer.  If you remove the tongue and make it capable of powering itself, it’s no longer a trailer.”  City Planner Aiken said, “If you take the running gear off, then it becomes a building, an accessory structure and a building permit is needed.  You can’t get a building for a front yard accessory structure without a variance.  It’s all very convoluted.  If you put a trailer on a truck, it’s still a trailer.  If you make it so that it’s not a trailer anymore, it becomes an accessory structure and a permit is required.” 

A motion was made by Alderman Harder and seconded by Alderman Fleming to draft legislation for the next agenda.  A voice vote was taken with a unanimous affirmative result and the motion passed. 

Mayor Pogue stated that City Administrator Kuntz and Police Chief Schicker will be leaving at this time to attend a funeral memorial visitation. 

ALDERMANIC COMMENTS

Candidate Certification:  Alderman Boerner asked, “Has there been any movement on the letter that City Attorney Jones sent to the Election Board?”  City Attorney Jones said, “I called Darold Crotzer, Council for the Board of Elections this afternoon to see if they had discussed this.  He said they had not, but that they were meeting this afternoon and maybe they would.  It wasn’t on their agenda.  He promised to call me tomorrow and let me know if there was anything further from the Election Board.” 

Alderman Boerner said, “With respect to Section 342, I think you indicated that this was a consideration in your letter and also before the Board.”  City Attorney Jones said, “I did.  I personally think that because of 115.305, that sub-chapter does not apply to municipalities; 342 would not be something that we need to determine, but it would be good if the Board of Election Commissioners would give us some guidance.”  Alderman Boerner said, “342 is the one that says we have an extra 30 days and referred back to 349.” 

Alderman Boerner said, “I didn’t know how that applied at all because it was not mentioned.  The only one that was mentioned was 115.346 in all the documentation, as far as what we are presenting to the Election Board.”  City Attorney Jones said, “I thought this Board had a concern about 342 as well.  It was part of the discussion, so, I included it in the letter along with 346.  In the letter, I intentionally tried not to color the position of the Board of Election Commissioners instead of asking for their position, if any.” 

Alderman Boerner said, “The only thing we didn’t do was include a copy of what was submitted to them.  That was the issue, which was the attestation and certification.  There’s more than what you put in the letter.  It says for every municipality, the authorized official must be the City Clerk.  For every special district, the authorized official must be the secretary of the Board unless otherwise specified in writing.  That’s not clarified because the whole issue was if section 115.346 did apply, and if we should pass an ordinance that would require the City Clerk to do certain things.” 

City Attorney Jones said, “You can do that.  We don’t have to have direction from the Board of Election Commissioners to tell you if you can pass an ordinance to specify duties for the City Clerk’s attestation.” 

Alderman Boerner said, “This is a form that’s provided by the Election Board.  I assume that every municipality is using that form.”  City Attorney Jones said, “The odd thing about that is it refers to the State Statute 115.349 which only applies to primary partisan elections.”  Alderman Boerner said, “I don’t think your letter actually hit the mark in terms of requesting specifically what was asked in terms of the attestation and what we’re required to do.”  City Attorney Jones said, “I respectfully disagree with you.  I did what I was directed to do.”  Alderman Boerner said, “I disagree with you.  This is something that the Board should decide as to whether it was effective and perhaps the results will speak for themselves.” 

Alderman Boerner asked, “When was the declaration of candidacy form changed?”  City Attorney Jones said, “We’ve used different versions of the declaration of candidacy for years.”  Alderman Boerner said, “If there is a change in the election forms, the forms should be approved by the Board for review.”  City Attorney Jones said, “We changed the form to include the statutory reference of 115.346.  The blank form that they sent to us would not be used.  It referenced 115.349.” 

Alderman Boerner said, “My interest is to get this resolved.  Do you have any comments about this, Alderman Fleming?”  Alderman Fleming said, “I understand your suggestion that when a form changes, the Board should look at it.  The easiest way to handle that is to have this as an agenda item before candidate filing opens.  The Board can be given a copy of the packet that will be given to the candidates.  It could be reviewed, and if there are any changes, this could be done before filing opens.” 

Mayor Pogue asked, “Are we going to have to tell staff to get Board approval every time they want to change a form?  The forms were not part of any policy.  It’s just a form that is used for candidate filing.”  Alderman Boerner said, “In my way of thinking it was a policy.  We provided certain documents and it was a change.”  Mayor Pogue said, “That’s what I’m asking, are we going to ask staff to come to the Board every time they need to change a form.  That’s essentially what you’re asking.  Where do we draw the limit on where staff has to come to us to change a form?”  Alderman Boerner said, “It’s a policy.”  Mayor Pogue said, “It’s not a policy and is not in the policy manual.”  Alderman Boerner said, “It doesn’t matter whether its in a policy manual.  If you change from saying that you don’t have to comply or that you don’t have to be in arrears, or you’re verifying that you’re not in arrears in county taxes and you eliminate county from that, that is a material change.”  Mayor Pogue said, “That’s not a policy, and I respectfully disagree with you.” 

Alderman Boerner said, “We have a situation that it’s a Class C felony to provide false information.”  Mayor Pogue said, “Why would we care that the form was changed?  How does this come to the Board whether we changed the form to make it a Class C felony?”  Alderman Boerner said, “If I’m looking at that, I’m thinking that I’m doing something that I did in the past as an alderman.”  Mayor Pogue said, “You’re filling that form out as a candidate, not as an alderman.”  Alderman Boerner said, “You’re right, the reference to 349 is not correct.”  City Attorney Jones said, “What we were trying to do was come up with a form that was particular to municipal elections.  There was no attempt to change any policy.  It’s just a simplified form that makes it particular for municipal elections.” 

Alderman Markland said, “The document is the document.  I don’t care what you would like to use now to confuse it.  The people that signed it signed something that said I qualify under 115.346, notwithstanding any 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.  That’s what the piece of paper that you signed said.  Instead of the words last day of candidacy, it said January 18.  It got specific.  When we attested to that, we said the persons that I’m sending are all qualified per 346.  I’m still going back to the piece of paper said this.  To try to confuse it, doesn’t change the fact that you attested this piece of legislation.  If you weren’t qualified to those, you were probably perjuring yourself.  This is what I was attempting to discuss before we got to the point in the meeting where we had a candidate who may or may not have been qualified was sworn in as alderman.  I think it’s wrong.  I don’t think it complies with the piece of paper that they signed.  You apparently think it’s okay.  I think it’s wrong.  Alderman Boerner thinks it’s not in compliance.” 

Mayor Pogue said, “I’m basing my decision on the election authority who certified the election.  Under State Statute, they are designated the election authority.”  Alderman Markland said, “When I talked to them, they said Ballwin was the qualifying authority.”  Mayor Pogue said, “At this point, they have certified the election, and we’ve heard nothing back to the contrary.”  Alderman Markland said, “That is wrong.  They certified the number of votes and voters.”  Mayor Pogue said, “You’re making statements that are not true.  You’re saying either that they did not certify the election, or we’ve not heard information to the contrary to prevent us from swearing in the alderman-elect.”  Alderman Markland said, “The Board of Election Commissioners has told me that they will certify the number of votes cast per candidate.  They do not determine whether that candidate is qualified.  They just said, he got X vote, he got Y votes.  That’s all we’re doing.  To think beyond that, you and I do not agree.”  Mayor Pogue said, “I base my decision on information that they certified the election, and we have no information to the contrary to prevent the swearing in.”

Alderman Fleming said, “My focus is trying to do this better in the future.  The end result at the last meeting was that we agreed that the City Attorney would draft a letter, send it to the lawyer for the Board of Elections, and based on what information was provided, we could address the situation in the future.  Your issue got attention at the last meeting under aldermanic comments.  No one made a motion, nor did you, about specifically what you’re asking to have done.  Tonight, even though it wasn’t exactly the Roberts Rules of Order on how to proceed, Mayor Pogue asked City Attorney Jones, was there any response yet, and he was going to let that response be heard if there was one, but there wasn’t one.  So, baring any information to the contrary, I don’t know what else we could have done.  Since you are the one who seems to have an issue with this, I guess it would be appropriate for you to make a motion, or do whatever it is you’re inclined to do.  If you’re looking for me to step in and do it for you, I’m inclined to wait to hear what the Board of Election Commissioners say.” 

Alderman Boerner said, “According to the attestation form, the authorized official is the City Clerk.”  Mayor Pogue said, “The Election authority is the St. Louis County Board of Elections by State Statute.”  Alderman Boerner said, “According to this form from the Election Board, it says that we are the official.”

Alderman Finley said, “I’ve taken an overall review of this issue.  I commend the group of citizens who brought this issue before us.  There are a plethora of statutes and ordinances at the municipal, state, and federal level, and no official, attorney or judge is going to know them all.  I’ve found information on what the courts have been ruling regarding Section 115.  I want to hear with the Board of Elections has to say.  If they are going to take a laissez faire approach, then I’m going to be prepared for us to come up with an ordinance directing our City Clerk to due the research to make sure that our candidates are in compliance.  Our City Clerk may have to do research to make sure the candidates are in compliance, make decisions on the research, and then the City Clerk and the City Administrator report back to the Board as to the findings.”

Alderman Finley said, “There’s a question as to what do we do with a candidate who may have been in violation.  The case law is limited.  One of the cases points out in Brown vs. Shaw, statutes that regulate access to the ballot are to be construed, if possible, to prevent disqualification of candidates.  The Missouri Supreme Court has stated that they don’t want to see these statutes being used to disqualify candidates.  Another reference to the 115 application is that the court notes that the sections don’t have remedies in terms of disqualifying someone from holding office.  Based on that, I stand by what the City has done in administering the oath to Alderman Terbrock.  The Brown vs. Shaw case was decided in 2004 and the ideological makeup of the Missouri Supreme Court has not changed much at all since then.  I think these are the standards that we need to go by.  I think the main thing is to wait to hear what the Board of Election Commissioners say, and then if they are still taking this laissez faire approach, we need to do something to direct the City Clerk to take the actions of research the candidates, make decisions, and then report back to the Board.” 

Alderman Boerner said, “That’s along the lines of what I was going to propose.  We should have an ordinance that will do that.” 

Alderman Finley said, “What struck me in looking over things in preparation for this meeting was the line that says, the statutes that regulate the access to the ballot are to be construed as possible to prevent disqualification.  I take that to mean that we’re not supposed to be using these statutes to try to preclude people from the elective process.  There is that good remedial measure about notifying someone that if they are in arrears, to notify them and give them time to correct the situation.  It looks to me, that’s what’s been done here in our case.”

Alderman Boerner said, “My motivation is not a personal issue in any way.  We are sworn by an oath of office to support the Constitution and the Statutes of the State and also the ordinances of the City of Ballwin.  That’s my motivation in order to fulfill the oath of office.  I’m sure that’s what your motivation is too.” 

Alderman Markland said, “If there would be any person that would know if you are in arrears in your tax payments, that would seem to be the individual.  For an individual to attest, swear, certify, whatever words you want, that they are in compliance, to me is ludicrous and they should never have filled out the form.  They knew they weren’t qualified by just reading the piece of paper.  All the other stuff muddies it up.  If you just read the paper that was signed, you weren’t qualified.  To put us and Ballwin in the position of trying to discuss this now after the fact, is totally unnecessary and should never have happened.  It could have been stopped many times before tonight, yet people decided you weren’t going to do it.  I guess that’s where we are.  What will be will be.  Everybody has taken a position.  I don’t know what else I can do.  I think it’s wrong.” 

Alderman Boerner said, “I think there has been an obfuscation of the issues related to this.  It was a lot simpler than what we made it.  There has been an obfuscation of the issues.  If we would look at what the forms are in terms of that we attest to, if we begin with the attestation and certification, that would be something we should have started with.  If I would have drafted something, I would have referred to that and started out with the key document that was set to the Election Board.  I would have made the letter to the Election Board more clear and asked specific questions.  I’ve drafted something that if we need to address it to the chairman of the Board of Election Commissioners, we can do that.” 

Alderman Terbrock said, “In the letter you drafted, you used the utility bill as proof of residency.  I’m not sure this will be comprehensive enough to determine residency.”  Alderman Markland said, “I think the Election Board says if you give them a bill showing that you pay the utilities on that property, that qualifies you as a voter.”  City Attorney Jones said, “Our Department of Parks & Recreation uses the utility bill to determine residency.  If it’s good enough for the city in that role, I don’t see why it wouldn’t be good enough to determine if a person is a resident.  To date, we’ve only required that a candidate certify that they are a resident with no proof whatsoever.  Whether it’s a utility bill or some other sort of proof, if you decide to adopt an ordinance, you can set whatever type of proof would be appropriate.” 

Alderman Terbrock said, “In my opinion, that would be whether you pay a utility bill or not, it’s whether you fill your income tax in that state to declare if you are a resident to that city.  If you’re not a resident of the state paying income tax to the state, then you can’t be a resident of that city, because you’re not a resident of the state, correct?”  City Attorney Jones said, “That seems logical to me.”  Alderman Terbrock said, “That would cause a hitch in the whole thing to try to narrow this down and get all of this resolved to leave something like that open.” 

Alderman Boerner said, “Once you submit something to the City, it becomes a matter of public record.  I’m not sure people would want their income tax return on file.”  Alderman Terbrock said, “There needs to be a determination of state residence before someone can be a residence of a city.  There’s another residence in another State in his case.” 

City Attorney Jones said, “I suppose we could have the City Clerk review a document and then return it to the applicant without keeping a copy.  There are numerous ways to do this.”

Alderman Markland said, “Statute 115.342.1 states that a candidate’s filing applies to the place of residence as stated on the declaration of candidacy.  If I file on my house, in Ward 2, my address, that’s my place of residency.  I guess you would be able to prove that’s my residency because that’s where I receive my mail, where I pay my bills.  That’s 342.1.  If I have a place at the Lake of the Ozarks that I don’t pay the taxes on, there’s no relevance to this at all; it’s only the place that I filed upon.” 

Alderman Terbrock said, “If I had a piece of rental property, if I live in Webster Groves, and buying a piece of rental property here that I had mail going there, if I had a friend staying there and my mail went there, I could determine that as my residence?”  Alderman Markland said, “I’m not an attorney.  I just read to you what 342.1 says.  You probably could have only one place of residence.”  Alderman Terbrock said, “Again, I resort back to the statement that if you’re not paying taxes in that state, you can’t be a resident of that state.  Is that correct?”  Alderman Markland said, “Some states don’t have taxes, so that’s not relevant either.”  Alderman Leahy said, “That’s why people file in those states, right?” 

Adjourn to Closed Session:  A motion was made by Alderman Fleming and seconded by Alderman Harder to adjourn to closed session in accordance with State Statute 610.302.13 to conduct the annual performance review of the City Administrator.  A roll call vote was taken with the following results:  Ayes:  Aldermen Boerner, Mellow, Fleming, Leahy, Markland, Harder, Terbrock, Finley.  Nays:  None.  The motion passed unanimously to adjourn to closed session at 9:10 p.m.

Closed Session: 
The Board convened in closed session at 9:20 p.m.

A motion was made by Alderman Markland and seconded by Alderman Fleming, based upon tonight’s review, that the Board approve an increase of the average percentage amount given to other Ballwin employees, to take effect on January 1, 2012.  A voice vote was taken with the following result:  Aye:  Aldermen Harder, Markland.  Nay:  Aldermen Mellow, Boerner, Leahy, Fleming, Finley, Terbrock.  The motion failed by a vote of 6-2.

A motion was made by Alderman Fleming and seconded by Alderman Mellow, based upon tonight’s review, that the Board approve an increase of 2% of the current base salary to take effect retroactively to April 1, 2011.  A voice vote was taken with the following result:  Aye:  Aldermen Mellow, Boerner, Leahy, Fleming, Harder, Finley, Terbrock.   Nay:  Alderman Markland.  The motion passed by a vote of 7-1. 

A motion was made by Alderman Leahy and seconded by Alderman Boerner to meet with the City Administrator in closed session during the June 13th Board of Aldermen meeting for the purpose of reviewing his evaluation.  A voice vote was taken with the following result:  Aye:  Aldermen Mellow, Boerner, Leahy, Fleming, Harder, Markland, Finley, Terbrock.   Nay:  None.  The motion passed unanimously.

Adjourn Closed Session:  A motion was made by Alderman Fleming and seconded by Alderman Terbrock to adjourn the closed session and reconvene in open session.  A voice vote was taken with the following result:  Aye:  Aldermen Mellow, Boerner, Leahy, Fleming, Harder, Markland, Finley, Terbrock.  Nay:  None.  The motion passed unanimously.  The closed session adjourned at 11:45 p.m.

The Board reconvened in open session at 11:47 p.m.

A motion was made by Alderman Fleming and seconded by Alderman Terbrock  to adjourn the open session.  The motion passed unanimously and the meeting was adjourned at 11:48 p.m.

TIM POGUE, MAYOR

ATTEST:
ROBERT A. KUNTZ, CITY ADMINISTRATOR

MC