There have been several public forums where Clay County citizens have had an opportunity to hear presentations for and against the Constitution, with opportunities for some people to ask questions.
What follows is objective answers to the questions that have been presented, often with citations to the document itself. Consider this the “no spin” zone, and read carefully.
Isn’t the Commissioner’s lawsuit designed to keep me from being able to vote, and didn’t the judge throw it out?
No. The Commissioner’s lawsuit is designed to protect your right to vote for 10 different offices and have a powerful, clear voice in your government. This constitution prevents you from personally selecting your elected officials, diluting your voice and centralizing power. Also, the judge wholeheartedly agreed that the ballot language, drafted by the Constitutional Commission in an effort to highlight only a few seemingly positive points of the document, but completely ignore the most important provisions, was defective and could not be presented to the people. Furthermore, the Commissioners were given a court date of November 15 to discuss the many issues raised by the lawsuit. The judge decided to leave the document on the ballot and try to fix it only if the people actually approve it. The Commissioners were simply trying to avoid a complete breakdown of county services from Nov. 6 to Nov. 15, and beyond.
Would the constitution allow the County Council to abolish or change the nature of the Sheriff’s office (or any other office described in the Constitution for that matter)?
Article II, Sec. 2.13.C.2 does not have any express limitation that would prevent it from applying beyond the powers of the County Council that are outlined in the proposed Constitution. In fact, Article 1, Sec. 1.05.C says: “The explicit stating of a power in this Constitution or in any Missouri Law is not to be construed as denying or limiting any other power.” The Constitutional Commission members have repeatedly assured the public that they meant well when they wrote the words of the Constitution. However, their intentions are not the words that will guide courts and future Council members. Art. II, Sec. 2.13.C.2, like the rest of the document, must be construed liberally in favor of the government, and is not limited in its effect. Entire offices may be abolished or restructured without a vote of the people, but only a vote of the Council.
Since Sec. 4.01 of the Constitution states that the Sheriff and Prosecutor shall be elected, it seems clear that the subject of whether these offices shall be elected is something this constitution controls—otherwise there would be no reason to make this statement. Any power given under this constitution CAN be taken away because Missouri law to the contrary is superseded. In fact, as the constitution continues, and clearly outlines which current laws and policies shall apply to these offices, it becomes obvious that the Constitution Commission members believed they had the authority to pick and choose which laws and policies applied—otherwise there would be no reason for this outline.
Furthermore, Sec. 5.01.A states that “The authority to create, alter or abolish any part of the administration of County government is vested in the County Council, except as otherwise herein established.”
If the Constitution is adopted, will it cause the Clay County government to terminate effective the day after the election (Nov. 6, 2013)?
It is not clear what the clause in the constitution means when it says that the current officeholders shall continue to perform their duties after the offices themselves have been abolished. Hopefully, a court will be able to provide clarification quickly after the election so that County services can continue with only brief interruption. However, it is the many clauses of the Constitution that reference no effective date that are more problematic. Here is what the Constitution itself says:
Section 11.01. APPROVAL AND EFFECTIVE DATE OF CONSTITUTION.
If approved by a majority of voters, this Constitution shall become fully effective the day following the election in November, 2013, except as otherwise provided for in this Constitution. This Constitution, to the extent authorized by the Missouri Constitution, shall supersede all laws of Missouri, except as otherwise expressly provided in this Constitution.
So, the provisions about the office holders are interesting, but it is absolutely clear that the following items shall be immediately effective on Nov. 6:
- The maximum cumulative property tax rate for all funds shall be unconstitutional if it exceeds $.14 per $100 of assessed valuation (1.06.B);
- The current County Administrator shall have no further authority (3.02). This person must be appointed by the Council (which will not exist until May, 2014), and there is no provision for the current Administrator to continue to perform his duties. Furthermore, the current Administrator’s duties are outlined by the current County Commission, and it is clearly intended that the office of the Administrator shall have a different role, with different duties under the new constitution. Anything that the new constitution redesigns or restructures—even with the best of intentions—necessarily means that the existing version of that office or policy is superseded immediately. Without a new council in place to actually implement the new office or policy, there must be a vacancy in that office or no effective policy until the new council can act.
- The current Circuit Clerk has no further authority or ability to perform his duties. Sec. 5.02.A states that the Circuit Clerk shall be appointed by the judges of the 7th Circuit. Currently, this office is elected. Therefore, immediately on Nov. 6, this office will be vacant, and shall remain so until the 7th Circuit can act to fill this position. The Circuit Clerk uses his/her authority to oversee hundreds of transactions a day that ensure orderly procedures in the court system. Without a Circuit Clerk, court procedure will be halted.
- The current County Auditor has no further authority or ability to perform her duties—and will not be able to do so until May 2014. Sec. 5.03.A states that the County Auditor shall be appointed by the new council—which will not exist until May 2014. Even though the provision regarding office holders continuing to perform their duties until May 2014 includes the Auditor, the duties of the Auditor are specifically changed, and the new Auditor will report to the County Administrator—a position that can’t be filled by the new council until the council actually exists. The County Auditor is not current the county budget officer, which means that 1) the current county budget officer will have no more authority to act in that role; and 2) there will be no county budget officer until the Auditor is appointed by the new council. The current county budget ends on December 31, 2013, and the county will not be able to establish a new one until May 2014. Furthermore, the current Auditor must sign every check written out of the general fund. Since the duties and structure of the auditor’s office will be changed, effective the day after the election, inconsistent provisions in current law will be superseded. Without an auditor operating under the current statutes, and with no ability to appoint a new auditor until the new council is seated, the county will not be able to spend any money out of the general fund—which includes the money in that fund designated for payroll, utilities, insurance, and the operation of the several appointed and elected offices.
- A County Court will be established effective on the day after the election, but the prosecutor, judge, and administrator for that court must be appointed by the council—which will not exist until May 2014. The promise that this court will be established without the legal authority for anyone to actually establish it is empty. Its probably a good thing this court can’t be immediately established, since there is no salary cap for anyone working in it. Even the current judges of the Missouri Supreme Court, and at every other level of court authorized by state law have salary caps—but there is no cap for these people.
- None of the provisions of the Merit System can take effect until at least May 2014—another empty promise. The County Council has to establish the merit system, and they won’t be around to do that until May 2014.
- The current budget of the County will be defunct. Sec. 10.02 states that there shall be a new “unified and uniform budget system.” The provisions regarding this new budget structure are vague, but it is clear that “No payment shall be made or obligation incurred except in accordance with an appropriation Ordinance duly adopted.” Since the new council won’t be around to enact such an ordinance until May 2014, and the current budget operates differently than what is described here, the county will be without a budget until May 2014. (See Sec._____ which states that Ordinances in effect on Nov. 6 are also superseded if they are inconsistent or inefficient. The current budget is an Ordinance, inconsistent with this new structure.) Current Missouri law requires that no payment can be made or obligation incurred except in accordance with an appropriation Ordinance. So, if the current budget Ordinance is superseded, and a new Ordinance can’t be adopted until May 2014, and no payments can be made without an Ordinance under either system, no payments can be made by the County from Nov. 6 until May 2014. Again, payments under the current Ordinance include payroll, utilities, insurance, office supplies, and the operating budgets of each department and office. Even though Sec. 10.08 states that contracts and obligations shall continue, there can be no check writing authority without a budget ordinance. Even though Sec. 10.09 states that employee benefits shall continue, no one can pay the premiums for those benefits without a budget ordinance. Sec. 11.07 states that the Commissioners may continue to act on pending matters. But they can’t act inconsistently with this document. This document provides for a new style of budget, but doesn’t give enough direction to actually appropriate and spend dollars and cents. To spend money according to the current budget ordinance would be contrary to the new style of budget. So, it can’t happen.
Can a person be elected to the position of prosecutor or sheriff if they have been convicted or pled guilty to a felony in Kansas or under military law?
Yes. Sec. 4.08.C states that a person may not be elected to these positions if they have:
- Been found guilty or plead guilty to a felony or misdemeanor under the federal laws of the United States; or
- Been found guilty or plead guilty to a felony under the laws of the State of Missouri.
Remember, this document is not limited unless the limitation is expressly stated in the document itself. There is no further limitation on the felony record of a person that would run for Sheriff or Prosecutor.
Why does the Constitution take effect immediately after the election, when the first County Council would not be sworn in until May 1, 2014.
Its not clear why it is written this way. The Constitution Commission members state that they meant for the new government to be able to immediately take the steps necessary to establish the districts and hold an election for the new council members. Certainly, it is important that process be able to begin immediately. If the members of the Constitution Commission meant for the document to be interpreted this way, they should have written Sec. 11.01 as follows:
APPROVAL AND EFFECTIVE DATE OF CONSTITUTION.
If approved by a majority of voters, [the following articles and provisions in]this Constitution shall become fully effective the day following the election in November, 2013, except as otherwise provided for in this Constitution. [List of specific clauses and provisions here _____]. [Provisions requiring action by the County Council established under this Constitution shall not take effect until after the Council is elected, seated, and has had the opportunity to act according to a duly adopted Ordinance.] [Once the Council is seated and has acted according a duly adopted Ordinance on any matter authorized by] this Constitution, to the extent authorized by the Missouri Constitution, [the duly adopted Ordinance of the Council, or the provisions of this Constitution] shall supersede all laws of Missouri […].
Hmmmm… that sure would work a lot better…
Commissioner Craig Porter stated that he is Chairman of the Clay County Republican Central Committee and that the members of that committee supported non-partisan elections on a 2 to 1 basis. However, at its meeting on October 8, 2013, a member of the Committee presented the official opinion that endorsement of a non-partisan document would not be within the by-laws of the Central Committee, since the Committee’s mission is to support Republican causes and elected officials. The Committee then voted NO to having a special meeting to consider endorsement of this Constitution. The Republican Central Committee does not have another regularly scheduled meeting before November 5.
Why does the Constitution provide that the laws of the State of Missouri that are not consistent with the Constitution are superseded?
Unfortunately, this is not all that the document says. In Sec. 11.01, the County Constitution states “This Constitution, to the extent authorized by the Missouri Constitution, shall supersede all laws of Missouri, except as otherwise expressly provided in this Constitution.” There is no requirement that the laws be inconsistent to be superseded. Please note that the Missouri Constitution is no help on this matter either. The Missouri Constitution grants “all the powers of the General Assembly” on county constitutional governments. Don’t despair! There is some limitation on the ability of this document to supersede laws—but it is not limited to only superseding inconsistent laws. Sec. 1.08 states “This Constitution and the Ordinances enacted hereunder shall supersede special and general laws of Missouri that are inconsistent with this Constitution and Ordinances, to the extent permitted by the Missouri Constitution.” This part requires that laws be inconsistent in order to be superseded, but it also adds that Ordinances supersede state law. Not only do the provisions of the Constitution supersede state law, but the mere Ordinances passed by the new Council can supersede any inconsistent state law. But wait… there’s more. Sec. 11.06 takes this to a whole new level. It states that all Ordinances and all laws in effect on Nov. 6 are superseded if they merely “interfere with the effective operation of this Constitution.” There is no requirement that laws be in direct conflict to be superseded—they just have to interfere in some way.
Is it true that the current elected officials make about $80,000 per year, and the elected officials under the new government will make only $12,000 or $24,000, so there will be a savings to the county of almost a million dollars a year?
No. Some parts of this statement are true, but the conclusion is not. Please look carefully at the chart below to determine potential cost of the new government.
|Current position||Current salary||Abolished? Y or N||If abolished, will there be a replacement in the new government?||New salary||Net savings/cost|
|Elected offices: Assessor, Collector, Recorder of Deeds, Treasurer||Ranges from $62,000 to $68,000. Capped by statute and rarely raised due to political considerations.||Yes.||There will have to be qualified personnel hired to oversee the departments that assess property, collect taxes, record deeds, and balance the county checkbook. The new government states that there will be more stringent qualifications required for these positions—that they will be professionals in their fields.||With new requirements for objective qualifications, it is doubtful that the new officers will be paid less than the current officers. Furthermore, counterparts for these officers in charter counties are paid vastly more (around $100,000). Incidentally, these same elected officers in other non-charter counties are often paid more than Clay officers right now.||NO savings, potential for significantly greater cost.|
|Auditor||See other elected offices, above.||No. Converted to appointed position.||There will be an appointed auditor.||Since the current auditor is a licensed CPA, and the new auditor will have to be a CPA, there shouldn’t be much difference in the salary needs of the new person. However, the position will no longer be subject to salary caps, and the current salary being paid the elected auditor is far below market value for a full-time, licensed CPA.||Almost certainly much greater cost.|
|Public Administrator||See other elected offices, above.||No. Converted to appointed position.||There will be an appointed Public Administrator.||Since the current public administrator is competent and qualified, there shouldn’t be much difference in the salary needs of the new person. However, the position will no longer be subject to salary caps, and the current salary being paid the elected public administrator is far below market value for the position.||Almost certainly much greater cost.|
|Clerk of the Commission||See other elected offices, above.||Unknown.||There are references in the document to some person acting in this capacity, and it seems logical that someone will need to fulfill these duties.||The qualifications for this position in the new government are unclear, so it is unknown whether there will be savings or greater costs.||Unknown.|
|Circuit Clerk||See other elected offices, above.||No. Converted to appointed position.||There will be an appointed Circuit Clerk.||Since the current Circuit Clerk is competent and qualified, there shouldn’t be much difference in the salary needs of the new person. However, the position will no longer be subject to salary caps, and the current salary being paid the elected official is far below market value for the position.||Almost certainly much greater cost.|
|Appointed department heads: Parks, Highways, Facilities Management, Information Technology, Purchasing, Human Resources||Ranges from $75,000 to $100,000.||Unknown. They are not mentioned.||There will have to be qualified personnel hired to oversee the departments that perform these important functions. As they are currently, these positions should continue to be filled by competent professionals, paid market value for their work.||As the current department heads are qualified and paid market value, there should be no need for higher salaries.||No change.|
|No equivalent in the current government.||County Court Administrator||This is an entirely new position. There is no mention of a salary cap for this position.||Market value for a professional in this position could range from $50,000 to $100,000.|
|No equivalent in the current government.||County level Prosecutor||This is an entirely new position. There is no mention of a salary cap for this position.||Market value for a professional in this position could range from $50,000 to $120,000.|
|No equivalent in the current government.||County Court Judge||This is an entirely new position. There is no mention of a salary cap for this position.||Market value for a professional in this position could range from $50,000 to $120,000. Incidentally, this judge would be the only judge in the State of Missouri not subject to a salary cap.|
|Eastern, Western, and Presiding Commissioners||Eastern and Western Commissioners make approximately $51,000. Presiding Commissioner makes approximately $55,000. Total current salary = $157,000 plus benefits. While there is no requirement for the Commissioners to work full time, the current commissioners work from 20-60 hours per week, running the County.||Yes.||Replaced by six council members and a council chair.||Each council member will make $12,000, and the council chair will make $24,000. Total new salary = $96,000 with no benefits.||Potential savings of less than $100,000—even if benefits are taken into consideration.|
It is not clear why they did this, since ballot language is usually written by the election board. However, out of a document that abolishes most elected offices in the county, establishes an entirely new court system, removes salary caps, debt ceilings, and rules against nepotism and conflicts of interest, there were very few details provided in the ballot language. The judge that reviewed this matter ruled that the ballot language was defective and replaced it with neutral language designed only to identify the issue being voted on, without bias or error.
Most likely, it is a devastating thing. The Constitutional Commission members themselves have disagreed publicly regarding which funds could be forced to fit under that $0.14 cap, and have issued conflicting opinions regarding whether the new government could turn around in May 2014 and overturn the current levies, issuing refunds and creating complete chaos for the taxing jurisdictions of the county. A recent informal opinion from the state auditor’s office—the office that certifies levies for the various taxing jurisdictions—has indicated that it would consider the Developmental Disabilities Review Board and other, similarly structured taxing jurisdictions to be part of the “maximum cumulative property tax levy for all funds” in the County.
The levies for each year are set near the end of the year. The 2013 levies were set in September, and will be in effect for all 2013 taxes collected over the next several years. Since the proposed Constitution states that all Ordinances that are in effect on Nov. 6 can be superseded if they conflict with the Constitution, or even if they interfere with the effectiveness of the Constitution, it seems clear that the current levy ordinance must be superseded on Nov. 6. Furthermore, it is impossible to fit adequate funding for the Developmental Disabilities Review Board, the Mental Health Services Board, the Senior Services Board, and the various road and bridge districts under $.14—much less maintain any property tax revenue for the general fund of the county. It is true the County has operated without a property tax levy in the past. But that was before the current agreements were reached with the road and bridge districts. The County has never had a balanced budget where it was actually meeting its obligations without a property tax levy. A drastic cut of all funding to the general fund of the county, or to the road and bridge districts, or to any of these organizations that serve our most vulnerable citizens would be devastating.
The current County budget is about $80 million. After subtracting TIF expenditures, capital projects, and statutory expenses, the County’s operating budget is proposed at about $60 million. The current property tax levy brings about $4 million to the general fund, and $2.6 million to the road and bridge districts, which also funds the Highway Department. There is also no Parks levy because the general fund subsidizes the Parks department without using a property tax levy to do so. Lowering the “cumulative total property tax levy for all funds” to $.14 would create a deficit of $10.9 million. Even the most fiscally responsible plan cannot absorb such a loss in a single year—especially a year in which salary caps for several departments are removed and a new court is established.
|Organization||Current levy||Current $ value of levy|
|Road and Bridge districts and Highway Department||$.08||$2.69 million|
|Parks Department||Subsidized by the County general fund|
|Senior Services Board||.0499||$1.68 million|
|Mental Health Services Board||.0963||$3.24 million|
|Developmental Disabilities Review Board||.1191||$4 million|
|County operating budget levy||.12||$4 million|
Income from a $0.14 levy?
The Constitutional Commissioners state that they want more accountability from the elected officials, who are currently independent. Currently, the Commission controls the budgets of each elected office. This simple control is a powerful tool for the Commission to affect behavior in the elected offices. Furthermore, if accountability is a good thing, why is the new government structured so that formerly elected officials lose all accountability to the voters and answer only to a chain of appointed authorities? The proposed document even states that the Council will not interfere with the work of the new department heads. So, the Council won’t interfere, and the voters no longer have a voice—it is unclear how this process increases accountability. It is true that elected officials have been sued for sexual harassment in the past, and it is even true that a felon held elected office in Clay County for a short time. But there is no guarantee that appointing department heads instead of electing them will insulate the County from legal liability. Anyone can be sued. Yes, offending department heads can be fired, but lawsuits will still happen. And that felonious auditor? He was run out of Clay County, spent time in jail, and did no long term damage to the functions of the County while he was here. He did not just resign—he was run out of town. The system worked.
Human beings are flawed. Government necessarily operates through human beings. No governmental structure can guarantee that cronyism, negligence, and stupidity won’t happen. But if the people maintain their right to individually pick and choose each elected official, they maintain their direct power over each official.
Incidentally, one of the more successful charter governments in Missouri—St. Charles County—established itself with a document that was over 650 pages in length, and kept all of the elected offices accountable directly to the people. Their document provides the type of real guidance a sophisticated county needs when it decides to step outside the boundaries of current statutes, and their government operates efficiently, with excellent use of home rule, while keeping its officials accountable through the election process.
The recent statement from the State Auditor’s office, indicating that levies for the Developmental Disabilities Review Board, and other, similarly structured organizations would have to fit under any levy that defined itself as a “cumulative property tax levy for all funds” in a County, clearly indicates that these other agencies. There simply is not enough money under the $.14 levy to fund all of them. It is frightening to think of the services that may be lost.
Even the school districts and cities that get their tax revenue through the county collections process could be affected. If the county attempts to bill taxes, and either a taxpayer suit or the opinion of an authority like the state auditor reveals that the bills as currently calculated, using the current 2013 levies, are incorrect, at the very least the bills will need to be reprinted. It is not guaranteed that the decision regarding which funds must fit under the $.14 cap, or what to do with the new deficit will be made quickly. Bills cannot be recalculated, re-mailed, collected, or distributed until there is clear direction regarding the total tax burden on each taxpayer in Clay County, or a solution crafted to allow collection of only particular levies. The levy question won’t affect how many dollars the schools are entitled to get—but it may affect their ability to actually get that money through the county collections process.