Citing “fatal flaws” in Neosho’s ethics code and its lack of jurisdiction to hold hearings, the Neosho Ethics Board on Wednesday voted to end proceedings into its investigation of ethics violations alleged against two city council members, with a recommendation to Neosho City Council to either eliminate the board or restrict its function.
The ethics board met for the first time since April 16 when counsel for the two subjects of the investigation, Steve Hart and David Ruth, charged that proceeding with Steven Hays, city attorney, as counsel for the ethics board constituted a conflict of interest. Timothy Lewis, former ethics board chair, resigned his position the next day, and Hays then recused himself the following day. City council appointed Bill McCaffree, city attorney, Nevada, Mo., on Friday to serve as special counsel to the ethics board.
A replacement for Lewis was not named to the board as the two remaining members, Lee Duran and Dr. Andrew Hamby, represent a quorum. They promptly tabbed Hamby as the new chairman, approved the minutes of the April 16 meeting, in which the charges against the two councilmen were deemed “substantiated” to move forward; and then moved into closed session to consult with the new special counsel.
Returning to open session about 40 minutes later, Hamby announced the board had made a recommendation to send to the city council on advise from their special counsel.
That special counsel, McCaffree, then read the document to those in attendance. Neither McCaffree nor the ethics board members would discuss the decision after the meeting, and both Hart and Ruth declined comment.
The document states that it appears that six of the seven alleged violations by Hart are charter violations, and two of the three involving Ruth are charter violations. It further states that the code authority that created the board does not extend to prohibitions of the Neosho Home Rule Charter; that its jurisdiction is confined to violations of the ethics code, and the board is bound by the legislation that created it.
The recommendation to city council states that the ethics code conflicts with all three superior authorities of the Missouri Constitution, the Missouri Revised Statutes, and the City of Neosho Code of Ordinances, which negates its validity of delegation, authority to hear and determine ordinance violations, and that the charter itself places that jurisdiction in the city court; and it cites:
Article V, Section 23 of the Missouri Constitution provides that municipal judges must hear all violations of city ordinances.
Section 479.010 RSMo. provides that violations of ordinances shall be tried only before divisions of circuit courts.
Section 8.01 of the Neosho Charter, provides that there will be a municipal court which shall have jurisdiction to hear and determine all cases arising under the charter or the ordinances of the city.
The document states there is a significant difference between departure from professional standards set out in the ethics code and conduct prohibited by the charter; the first seldom involving more than a reprimand or censure; though the second could involves drastic, instantaneous, forfeiture of public office. It says the legislature has imposed severe restrictions on usage of such procedures; one of which, quo warranto, can only be brought by the Missouri attorney general or the county prosecuting attorney.
A statutory removal procedure can only be brought by the prosecuting attorney, a special prosecutor or the attorney general. In such a case, all traditional procedural due process rights are accorded an accused. The decision to file such a proceeding is subject to the good faith discretion of the prosecutor, special prosecutor, or attorney general. It continues that administrative tribunals are often permitted to deny discovery and adopt hearing procedures, which fall short of the procedural rights accorded a party in a quo warranto or a statutory removal proceeding.
The board concluded that the ethics board lacks jurisdiction to hold hearings and determine either ordinance or charter violations, adding that the board is dependent on the validity of the ordinance reposing power in the board, which as explained is “fatally flawed.” A Missouri Supreme Court decision is cited as a precedent, which ruled that an attempt by Springfield, Mo., a home rule charter city, to delegate to its human rights commission power to determine violations of city ordinances against employment discrimination was void because the constitutional provision required the municipal judge to hear and determine violations of municipal ordinances.
The document states that in Neosho the fatal defect is even more conspicuous since this delegation violates all three superior authorities.
The ethics board recommendations advise the city council to refer alleged ethics code violations to the city prosecutor and to refer alleged charter violations to the county prosecutor and attorney general.
It further advises amending Chapter 105.105 of the city code of ordinances to either eliminate the ethics board or restrict its function to activity within the Constitution, charter, and statutory provisions. It states, “If the board is to continue to function, even for the limited purpose of investigation, it should be provided with a reasonable set of rules and regulations. Because there is an issue whether board members would enjoy prosecutorial or judicial immunity, a better course may be to refer even ethics code infractions to the city prosecutor for trial in city court.”
The document concluded that because violations may occur because of council members’ misunderstanding or failure to comprehend the “separation of powers” and “checks and balances” provisions of the charter, the council may wish to consider some methodology of requiring an annual re-visit or reminder to all city officials and staff of the conduct that is prohibited by the charter.
Nora Houdyshell, city clerk, said after the meeting that the document will be presented to Neosho City Council for its consideration at the May 6 council meeting.