MML Review July 2012

The Missouri Municipal

Review

The Official Publication of The Missouri Municipal League

July 2012

See You in September!

78th MML Annual Conference Tan-Tar-A Resort September 16-19, Osage Beach

Missouri Securities Investment Program A Cash Management Program for School Districts, Municipalities and Other Political Subdivisions

The Missouri Securities Investment Program (“MOSIP”) is a comprehensive cash management program for school districts, municipalities, and other political subdivisions. MOSIP was created in 1991 by the Missouri School Boards Association.

MOSIP offers its participants a professionally managed portfolio with competitive money market rates. MOSIP stresses “safety of principal” as the number one objective and is rated AAAm by Standard and Poor’s.

Registered Representatives

William T. Sullivan, Jr. Managing Director 1-800-891-7910 x225 sullivanw@pfm.com

Maria Altomare Managing Director 1-800-891-7910 x222 altomarem@pfm.com

P.O. Box 11760 • Harrisburg, PA 17108-1760 1-877-MY-MOSIP 77 Port Plaza Drive • Suite 220 • St. Louis, MO 63146 2 /West July 2012 1-800-891-7910

Administered by: PFM Asset Management LLC Sponsored by: Missouri School Boards Association • Missouri Association of School Business Officials Missouri Association of School Administrators

This information does not represent an offer to sell or a solicitation of an offer to buy or sell any fund or other security. Investors should consider the investment objectives, risks, charges and expenses before investing in any of the Missouri Securities Investment Program’s portfolios. This and other information about the Program’s portfolios is available in the Program’s current Information Statement, which should be read carefully before investing. A copy of the Information Statement may be obtained by calling 1-877-MY-MOSIP or is available on the Program’s website at www.mosip.org. While the MOSIP Money Market Series seeks to maintain a stable net asset value of $1.00 per share and the MOSIP Term portfolio seeks to achieve a net asset value of $1.00 per share at the stated maturity, it is possible to lose money investing in the Program. An investment in the Program is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Shares of the Program’s portfolios are distributed by PFM Fund Distributors, Inc., member Financial Industry Regulatory Authority (FINRA) (www.finra.org). PFM Fund Distributors, Inc. is a wholly owned subsidiary of PFM Asset Management LLC. Member SIPC. Standard & Poor's fund ratings are based on analysis of credit quality, market price exposure, and management. According to Standard & Poor's rating criteria, the AAAm rating signifies excellent safety of invested principal and a superior capacity to maintain a $1.00 per share net asset value.

However, Municipal it should beReview understood that the rating is not a "market"www.mocities.com rating nor a recommendation to The Missouri buy, hold or sell the securities.

The Missouri Municipal

Review

July 2012

VOLUME 77, NO. 4

The Official Publication of The Missouri Municipal League President

Mayor Norman McCourt Black Jack

Vice President

Mayor Pro Tem Susan McVey Poplar Bluff

Immediate Past President Mayor Carson Ross Blue Springs

e MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS Donna Baringer, Alderman, St. Louis; Conrad Bowers, Mayor, Bridgeton; Denise Chisum, City Clerk, Lee’s Summit; Roger Haynes, Deputy City Manager, Mexico; Bill Johnson, Director of Administration, Fulton; David Kater, Mayor, Desloge; Bill Kolas, Mayor, Higginsville; Jan Marcason, Councilmember, Kansas City; *Ron Monnig, Councilmember, Slater; Reanne Presley, Mayor, Branson; Don Reimal, Mayor, Independence; John “Rocky” Reitmeyer, Alderman, St. Peters; Lisa Robertson, City Attorney, St. Joseph; Kathy Rose, Mayor, Riverside; Arthur Sharpe, Jr., Councilmember, University City; Tom Short, City Administrator, Carthage; Paul Ward, Councilmember, Kirkwood; *Gerry Welch, Mayor, Webster Groves; * Kevin

Wood, Mayor, Harrisonville. *Past President

e

AFFILIATE GROUPS: Missouri City Management Association; City Clerks and Finance Officers Association; Government Finance Officers Association of Missouri; Missouri Municipal Attorneys Association; Missouri Park and Recreation Association; Missouri Chapter of the National Association of Telecommunications Officers and Advisors; Missouri Chapter of the American Public Works Association; Missouri Association of Fire Chiefs. www.mocities.com

contents 4/ President's Report 5/ Director's Message 6/ 78th MML Annual Conference 8/ Due Diligence And Risk Management Measures For Economic Development Incentive Approvals

by Joe Lauber and Tom Kaleko 13/ Missouri Cities Can Grow Native!

by Carol Davit 14/ Innovative Design-Build Road Maintenance Strategy

by Greg Rokos, Jeff Martin, Mark Scholfield and Jim Townsend 17/ Seat Belt Policies Are A Key To Risk Management

by Mark Woodward 18 / Making Healthier Choices: Eat Smart in Parks

by Cindy Deblauw 21/ MML Annual Conference Brochure • • •

Conference Overview Conference Tentative Agenda Conference Registration Form

26/ 2012 Legislative Wrap-Up

departments 32/ Professional Directory 35/ News From The Bench 36/ FAQ: Missouri Open Meetings and Records Law: Part 1 (Sunshine Law) 38/ Member Accomplishments / Calendar of Events Laura Holloway, Editor Contributing Editors: Dan Ross and Richard Sheets Missouri Municipal Review (ISSN 0026-6647) is the official publication of the Missouri Municipal League state association of cities, towns and villages, and other municipal corporations of Missouri. Publication office is maintained at 1727 Southridge Drive, Jefferson City, MO 65109.

Subscriptions: $30 per year. Single copies: $5 prepaid. Advertising rates on request. Published bi-monthly. Periodicals postage paid at Jefferson City, Missouri. Postmaster: Send form 3579 to 1727 Southridge Drive, Jefferson City, MO 65109.

To contact the League Office call 573-635-9134, fax 573-635-9009 or email the League at info@mocities.com.

The League’s Website address is: www.mocities.com.

The Missouri Municipal Review

July 2012 / 3

President's Report ...

MML President Mayor Norm McCourt Black Jack

T

he 2012 legislative session has wrapped up and cities across Missouri are evaluating new laws and procedures that affect local government. The end of each legislative session is typically a hectic and often confusing time as bills are amended, seemingly during the final moments of open session. To help you stay on top of what you need to know, the staff at the Missouri Municipal League is reviewing the new laws to determine how they affect you. You can find a summary of this year’s session on page 26. As always, be sure to contact the MML with any specific questions or concerns you may have.

Even more recently, the Elected Officials Training Conference wrapped up in Jefferson City in mid-June. It was a great opportunity to get back to basics and review the many vital issues you deal with each day, from conflict resolution to complying with Sunshine Law requests, to the best ways to handle economic development. I’m so pleased

big-city ExpEriEncE. small-town valuEs.

so many of you could be a part of it this year.

For those of you that attended as a newly elected official, be sure to keep MML’s information on hand. MML answers hundreds of questions each month from members who need reliable and practical answers to specific municipal concerns. Consider the League to be your personal resource available to keep you informed with up-to-date information on a wide variety of topics that affect you and your municipality.

And there’s more to come! This issue of The Review features the agenda and speaker information regarding MML’s upcoming Annual Conference.

Mark your calendars for Sept.16-19 and join us at Tan-Tar-A at the beautiful Lake of the Ozarks to learn the latest strategies for improving municipalities and growing a strong, solid community for your citizens. The valuable information, quality exhibitors and opportunity to learn alongside local government colleagues keep officials coming back year after year. I hope to see you there!

816-525-7881 jlaubEr@laubErmunicipal.com www.laubErmunicipallaw.com

The choice of a lawyer is an important decision and should not be based solely on advertisements.

4 / July 2012

The Missouri Municipal Review

www.mocities.com

Director's Message ...

A

fter two years leading MML and many years working in Missouri government, I can fully attest to the power in partnerships.

Missouri municipalities have pulled together on many occasions to make their concerns in the legislature known, or to underscore the benefits that local government provides to Missourians.

I’m happy to note that as of this spring, that partnership is stronger than ever. MML achieved a new milestone in becoming 670 members strong, with more municipalities joining together than ever before. As MML’s Executive

Director, I and your MML staff are proud to serve so many extraordinary local governments working for vibrant and successful communities.

The League is working to take partnerships one step further. In these tight fiscal times, it can only benefit local government to leverage resources and work for a common goal. Over the last year, MML has established mutually beneficial partnerships with several organizations that serve local government, including the Missouri Association of Counties, the Missouri School Boards Association (MSBA), MOREnet and REJIS (Regional Justice Information Service).

Partnerships that initially began as a way to meet and discuss common legislative goals or secure technology services now also offer a way to share valuable resources. From the impressive audio visual studio capabilities of MSBA to the low cost IT expertise of MOREnet and REJIS that municipalities can now access, we will all have a stronger presence in citizen’s and legislator's minds as we work together to highlight the crucial role of local government.

Strategic partnerships provide us more eyes and ears both in the legislature and throughout communities, giving us a greater ability to respond or participate in discussions impacting municipalities as a cohesive unit. This is especially

important given the huge education effort legislator term limits require of everyone.

Our new partners are planning to be a part of our Annual Conference this September. Look for them at Tan-Tar-A as speakers and exhibitors, and be sure to welcome them to our team and learn about how their assets and expertise can help you accomplish your mission.

Whether you are a member city, participating affiliate or associate member, I want to thank you for your investment in the Missouri Municipal League. Our goal is to provide advocacy, publications, educational opportunities and inquiry services to make sure you succeed.

Working together, with valued partners we can build even stronger municipalities and a bright future for Missouri communities.

The Missouri Municipal Review

July 2012 / 5

Dan Ross MML Director

Follow us @MoCities!

Will you be tweeting at MML's Annual Conference?

Use the hashtag

#mocitiesmatter for your conference tweets.

Follow @mocities for the latest information before and during the Conference!

www.mocities.com

78th MML ANNUAL CONFERENCE

T

he 78th MML A n n u a l Conference will be held Sept. 1619, 2012, at the Tan-Tar-A Resort at Osage Beach, Mo. The Conference provides a fantastic opportunity to meet and discuss common issues and solut ions with your counterparts from across the state. Numerous workshops and sessions will keep you abreast of the issues affecting your city.

Topics this year include: social media, planning and zoning, legal issues, collective bargaining, emergency preparedness, technology and much more.

On Tuesday, the General Session/Business Meeting speaker will be author and change agent Peter Kageyama. He will present “For the Love of Cities.”

Conference Registration And Hotel Reservations

A conference brochure including a registration form is included in this issue. You also may register online for the Conference or download the conference registration from the MML website at www.mocities.com. Hotel reservations may be made online by calling Tan-TarA at 800-826-8272.

Business Sessions

A very important activity during the Conference is defining statewide municipal issues and developing practical solutions through the resolutions/ policy-making process. It is important that each municipal official become involved in developing the “2012-2013 Missouri Municipal Policy,” so views can be heard from municipal officials throughout the state. Official voting on the municipal policy and election of officers and board of directors will occur during the business session at the Conference on Tuesday.

Resolutions Committee

The 2012 Resolutions Committee of the Missouri Municipal League will hold a pre-Conference meeting on Aug.

6 / July 2012

7 to consider the recommendations of the four separate policy committees.

The report of the Resolutions Committee will be made to the delegates at the business meeting during the Conference. Any municipal official desiring to have a specific topic considered should submit a proposed resolution to League headquarters as soon as possible. Any resolutions brought directly to the Annual Conference must be submitted 24 hours before the annual business meeting with copies (200) provided to the League’s president, the resolution’s chair and the executive director.

The statements recommended by the Resolutions Committee and approved by official vote of the League’s membership will become the municipal policy statement for 2012-2013. This policy will provide the guidelines for the legislative program of the League, and direct the activities of the League’s staff during the 2013 session of the General Assembly.

Councilmember John Sharp of Kansas City has been appointed chairman of the Resolutions Committee for 2012. Other members are: Mayor Dale

The Missouri Municipal Review

Bagley of Macon, Alderman Donna Baringer of St. Louis, Loss Control and Member Services Director Patrick Bonnot of MIRMA, Mayor David Bower of Raytown, Mayor Conrad Bowers of Bridgeton, Alderman Shane Cohn of St. Louis, Mayor Melodee Colbert-Kean of Joplin, Executive Director Tim Fischesser of St. Louis County Municipal League, Mayor Barry Glantz of Creve Coeur, City Administrator J.T. Hardy of Sullivan, City Clerk Barbara Hogelin of Joplin, Alderman Leonard Jones of Grandview, Mayor Patrick Kelly of Brentwood, Councilmember Jan Marcason of Kansas Cit y , Ma yor N orma n McCourt of Black Jack, Mayor Robert McDavid of Columbia, Mayor Arthur McDonnell of Kirkwood, Councilmember Steve Moore of Fulton, Executive Director Jan Neitzert of Missouri Park and Recreation Association, Councilmember Myron Paris of Independence, Mayor Frank Roland of Hillsboro, Mayor Kathleen Rose of Riverside, Alderman Joseph Runions of Grandview, Mayor Stanley Salva of Sugar Creek, Mayor Mike Schneider of Overland, Councilmember Arthur Sharpe, Jr., of University City, Councilmember Gary Shaw of Joplin, Councilmember Scott Wagner of Kansas City, Mayor David Willson of Manchester and Mayor Kevin Wood of Harrisonville.

Conference Highlights And Entertainment

In addition to the regular educational sessions, several special events are planned for conference delegates.

Sunday, Sept. 16, MML will host the 2012 Scholarship Golf Outing at “The Oaks” of Tan-Tar-A. This will be a four-person scramble golf tournament with a shotgun start at 10:30 a.m. Also on Sunday, 1-4 p.m., MML will have a Pre-Conference Workshop. City Attorney Dan Wichmer and Director www.mocities.com

of Public Information Cora Scott will present on “Practical Applications and Legal Considerations for Social Media in a Municipal Setting.” On Sunday evening from 6-7:30 p.m., there will be a Grand Opening Reception in the Exhibit Hall that will provide an opportunity to meet the Missouri Municipal League’s board and staff, as well as visit the numerous vendors exhibiting at this year’s Conference. The Exhibit Hall will feature more than 120 firms, offering the latest products and services tailored to municipal needs. On Tuesday afternoon at 2-4 p.m, there will be a mobile workshop; “Highway 54 Expressway Tour – Cutting Through The Waves of Anxiety.” This will be a guided tour along the new Hwy 54 Expressway.

Participants will get a glimpse of what obstacles project managers faced and overcame to build the new expressway.

The featured entertainment at this year’s Annual Banquet on Tuesday evening will be the “Courthouse Steps.”

Affiliate Group Functions

As they have for many years, the League’s affiliate groups have scheduled meetings and sponsored sessions in conjunction with the Annual Conference.

The City Clerks and Finance Officers Association (CCFOA) has scheduled its Advanced Academy session from 9 a.m. – 4 p.m., Sunday, Sept.

16, “Time Management: Discovering the Truth and Debunking the Rest.”

This session is open to all delegates as a pre-Conference seminar as well as to members of the CCFOA. For further information and registration forms for the Advanced Academy, please contact Belinda Davis at the Management Development Institute at MSU (417836-6866). CCFOA also is sponsoring a session “Emergency Response Operations” at 2 p.m., on Tuesday Sept. 18.

The Missouri Park and Recreation Association (MPRA) is sponsoring a session on Monday, Sept. 17, at 10:45 a.m. on “Healthy Concessions.”

The Government Finance Officers Association (GFOA) has scheduled a session on “Fraud Prevention in Local Government” at 3:30 p.m., on Tuesday, Sept. 18.

The Missouri City/County Managers Association is sponsoring a session on “Lessons in Disaster Preparation and Recovery” on Monday, Sept.

17 at 9 a.m.

www.mocities.com

T

MML Nominating Procedures

he g overning b ody of the Missouri Municipal League consists of the President, Vice President, all Past Presidents who continue to hold elective office, 12 Board Members who are elected municipal officials and five Board Members who are appointed municipal officials. The Bylaws require there be at least one Board Member from each of the nine Missouri Congressional Districts, and no municipality can be represented by more than one Board member (except officers and Past Presidents). Board Members are limited to not more than two consecutive full terms. Officers (President and Vice President) shall have served not less than one year on the Board.

At the Annual Conference, nominations for President, Vice President and Board Members are made by a Nominating Committee of not more than 11 municipal officials appointed by the President. The Committee holds an open session to explain the nominating procedures and to allow delegates to suggest names for nomination. The Committee then meets in executive session to prepare a slate of nominees.

At least 24 hours before the Business Meeting, the Committee posts the slate of nominees. Within ten hours of the Business Meeting, other nominations may be made by petition signed by at least ten municipal officials representing at least ten municipalities. The petition provision provides an open process within which interested municipal officials may challenge the Committee’s nominees.

The Nominating Committee determines which members of the slate may be contested by the petition without jeopardy to the requirements of the Bylaws for the composition of the Board.

The vote in any contested election is by written ballot, and each member city present has one vote.

The Board of Directors and membership have adopted an open and accessible nominating procedure. Municipal officials are encouraged to communicate suggestions to the Nominating Committee directly or through League headquarters. The Committee Members solicit input at the Annual Conference (where they are easily identified by

ribbons) and at the open meeting of the Committee. Your MML nominating process is open and easy, but it is up to you to use it.

The Missouri Municipal Review

July 2012 / 7

2012 Nominating Committee Mayor Carson Ross, Chair City of Blue Springs cross@bluespringsgov.com Mayor Michele DeShay City of Moline Acres mdeshay@molineacres.org Mayor Bill Falkner City of St. Joseph mayor@ci.st-joseph.mo.us Mayor Deborah Gahan City of Perryville gahandeb@yahoo.com Mayor Penny Lyons City of Osage Beach palyons@osagebeach.org Mayor Jim Odom City of Belton jodom@belton.org Mayor Bob Riley City of Moberly briley@artsappliance.com Councilmember Gary Shaw City of Joplin gary@centralchristiancenter.org Councilmember David Watkins City of St. James mwoolsey@stjames-mo.org Mayor Gerry Welch City of Webster Groves gwpw@sbcglobal.net Mayor Kevin Wood City of Harrisonville kwood@wradvisors.com

DUE DILIGENCE AND RISK MANAGEMENT MEASURES FOR ECONOMIC DEVELOPMENT INCENTIVE APPROVALS

by Joe Lauber and Tom Kaleko

I

“There but for the grace of God go I…”.1 Much ink has been spilled in the media and the statehouse over the past year regarding the unfortunate situation in which our colleagues at the City of Moberly find themselves, as a result of the failed Mamtek project, “Project Sugar.” But before anyone heaves the next stone in this matter, take a moment to consider what you might have done had you been in the exact same circumstance.

n June 2009, Randolph County that has Moberly as its largest city, experienced a spike in unemployment to 12.2 percent. 2 Throughout 2010, the year Mamtek came calling to several cities in the plains states, Randolph County’s unemployment averaged 9.74 percent, higher than the statewide average 9.36 percent for the same period.3 It probably sounded like a dream come true when Mamtek representatives estimated they might add nearly 250 employees within its first 18 months of operations.

Unfortunately, that dream transformed into a nightmare. Indeed, “there but for the grace of God” goes many of us.

Without doubt, the difficult employment situation in Randolph County cannot completely justify the events that followed, but the very difficult lesson learned by Moberly in this situation serves as a poignant reminder to all of us not to get in too big a hurry when selecting our private sector partners in economic development matters. To that end, through this article we hope to provide some guideposts to follow as you navigate the sometimes treacherous path of economic development incentive approvals.

Economic development occurs within the context of the broader economy. Therefore, it is important to recognize that development lending practices changed drastically in 2008 after the real estate bubble burst.

Federal banking regulations have tightened and commercial banks are far more risk averse, constraining previously available access to credit for developers. Underwriting standards have also increased, with loan to value ratio parameters dropping to as low as 8 / July 2012

60/40 from the 80/20 ratios that were commonly seen prior to the recession.

Banks are virtually unwilling to take on construction risk and have increased their scrutiny of leases and tenants before extending credit. Developers are also finding that significant leverage has shifted to tenants as a result of an oversupply of space and reduced demand for new projects. With all this increased pressure from these sophisticated partners, where are developers turning for help? To cities, of course!

Developers are increasingly looking for the public sector to take on a larger role in their projects through: • substitution of public subsidies for owner equity; • provision of credit through special assessments; and • assumption of risk through publicly issued debt obligations backed by general obligation guarantees or annual appropriation pledges.

Sophisticated developers will bring a team of experts to pursue their requests. The city will need its own team. If needed to augment the expertise of city staff, consideration should be given to engaging a financial advisor and special legal counsel of the city’s choosing to represent the city’s interests. To offset the costs of these advisors, cities should adopt and follow a policy that requires developers to enter into a funding agreement to cover the city’s costs of reviewing the incentives application. Funding agreements commonly have an initial deposit amount and an “evergreen” clause that requires the developer to replenish the fund as the city draws down on the deposit. While financial advisors and legal The Missouri Municipal Review

counsel both are required to adhere to strict ethics rules, cities should consider whether the consultants represent both developers and cities on a regular basis – there are firms for both professions that represent only public entities and may give additional peace of mind as to where their consultants’ long-term allegiances will lie. Cities should also seek a financial advisor that has a fiduciary duty to the city by virtue of Municipal Securities Regulatory Board regulation.

At one time or another, we’ve all probably encountered the phrase “the best defense is a good offense,” and that adage applies equally to a municipality’s offering of economic development incentives. If you desire to increase economic activity in your jurisdiction, it is critical that you plan for it. One approach to doing so involves asking “six important questions” about each request for public assistance for development projects. A discussion of those questions follows. As you read through these questions, please keep in mind that (1) not every step is required in every case – this process can and should be tailored to situational needs and the characteristics of your community; and (2) the process for reviewing an economic development incentive request is a reiterative one, where information gathered in one step sets the stage for questions to ask in the next step, but also may require further investigations into any inconsistencies or gaps identified with the information you have just received. Ultimately, your goal is to reach a level of comfort (both at the city staff and elected officials level) that is sufficient to continue with the developer’s proposal.

www.mocities.com

Is This Something Our Community Really Needs?

Have a plan in place before a developer comes to you with his or her vision for your community – that way you can compare the developer’s vision with your own. Is your emphasis on revitalizing the older core of the community or on expansion? What kind of business do you need to strengthen the local economy and diversify the city’s revenues? If you don’t know the answers to these questions, now would be an excellent time to prepare an economic development plan so that you can target economic development incentives to encourage growth of the type you desire and in the place you want it. This plan can be stand-alone or part of the city’s comprehensive or strategic plan.

Important tools to implement the plan are an economic development policy and practice. The policy should communicate what your community is willing (and not willing) to do to achieve its plan goals. For example, you may be unwilling to assist with property acquisition through the exercise of eminent domain, or you may not be

www.mocities.com

willing to issue debt that is backed by an annual appropriation pledge of the city’s general fund revenues. An economic development policy also should link the plan with an economic development practice. This practice establishes the process by which you will consider economic development proposals.

Who Are These Guys?

Every request for public incentives related to a private development project creates a partnership between the parties. Hopefully, you wouldn’t go into a private venture using your personal nest egg without knowing your business partners; we owe our constituents the same protections as we enter into public-private partnerships using public funds. During this process you should evaluate the experience of the developer’s team in carrying out the type of project proposed. Just because the developer’s firm has a great reputation, it doesn’t mean that the individuals working on your project are the “first string” players. Additionally, you should investigate the developer’s financial resources, including those of the company, the ownership, and any

The Missouri Municipal Review

affiliate companies (who are often transferred the development rights). Finally, the city should seek disclosures from the developer regarding any conflicts of interest or priority for other projects already in the works, as well as, defaults, law suits, judgments, bankruptcies or criminal convictions. Developers are sometimes squeamish about providing this private information to the city where it would likely be subject to release under the Sunshine Law. Your financial advisor, however, can conduct this review pursuant to a nondisclosure agreement and provide the city with a summary finding. The best developer reviews are conducted through a combination of methods including written requests for information, reference checks, independent research, developer interviews and site visits.

Is This Project Feasible?

Project feasibility is a critical issue for any development project, but is especially important when the city will be financially at risk. In fact, the statutory enabling authority for some economic incentives requires project feasibility analysis as a requirement for

July 2012 / 9

approval. 4 A market feasibility study is an excellent method for estimating project feasibility. A quality market feasibility study should contain the following basic elements: (1) a description of the site and neighborhood; (2) an overview of the market area; (3) a supply and demand analysis for the type of development proposed; (4) a project description and recommendations for project components; (5) market penetration analysis; and (6) a projection of income and expense for the proposed project.

Market feasibility forecasts prepared by the developer may be appropriate when the developer will bear all of the financial risk. However, for projects in which the city will share the risk, the city should insist on an independent feasibility study conducted by a consultant of the city’s choosing. The city can then use this independent report to carefully estimate the capability of the project to provide the public funding sources required.

Other considerations at the project feasibility stage include a plan for site control. Does the developer already control the site because of ownership or options for ownership of the site? If not, is the developer’s plan for obtaining site control realistic? Will the developer re10 / July 2012

quest assistance with acquisition in the form of eminent domain? Is your community willing to assist if requested?

Finally, it is important to research for yourself whether appropriate authority exists for the public participation requested. Don’t assume that the developer’s team are experts in public incentives and public financing – often the developer’s counsel or other consultants are familiar with laws related to private real estate financing, but aren’t as familiar with the multitude of requirements and limitations that apply when financing is provided using public funds.

Will Our Community Benefit From This Project?

Another critical piece of the puzzle relates to the identification and measurement of project benefits and costs.

The goal of the project is to strengthen the local economy and increase governmental revenues. So, will it? The approach to measuring benefits and costs varies depending upon certainty of payback, size of the project, and the financial exposure faced by the public entity. For projects with little risk, a straightforward benefits analysis may The Missouri Municipal Review

be sufficient. In this approach, the direct governmental receipts (taxes and fees) are forecasted. A more sophisticated analysis may be merited for more complex projects and projects with significant risk. The city will want to examine both the benefits and the costs associated with the project. Direct benefits and costs will certainly need to be examined. An assessment of “multipliers,” the spin-off benefits and costs, also may be appropriate.

Is A Subsidy Even Needed For This Project?

The fifth important question to ask is another one that is statutorily required in some circumstances; can the project generate a reasonable profit without the requested public subsidy, within the current marketplace and time? Put another way, would the developer be expected to undertake the project “but-for” the requested incentives? The “but-for” analysis should include a projection of the developer’s internal rate of return (IRR) both with and without the requested subsidy. The internal rate of return is the real estate industry’s most common benchmark for measuring profitability.

www.mocities.com

The first step in an internal rate of return analysis is an examination into the reasonableness of developer’s assumed development costs and income.

Is the developer putting too much “padding” into his or her costs compared to similar projects in the marketplace?

While some conservatism in estimating development costs and income can be helpful (may serve to reduce the risk that the project will fail), too much “padding” could result in the developer enjoying an excessive rate of return while unnecessarily using public funds.

Project cash flow is then forecasted using the cost and income assumptions. A hypothetical sale is assumed, usually after 10 years of project operation. While the project may not be sold at this point in time, this assumption is critical to placing a value on the project. A capitalization rate is applied to the estimated project cash flows to calculate the internal rate of return. The forecasted internal rate of return can then be compared to like projects in the market at the time to determine whether a public subsidy is required and, if so, whether the requested subsidy amount is appropriate.

Will The Developer Do What It Says It Will?

The final question you should ask regarding incentives approvals is whether you will get the results the developer is promising. Development deals are inherently risky, but there are precautions you can put into place in the development agreement that will help to manage that risk through the implementation of the incentives program. As you go through the incentives approval process, remain mindful of the ultimate goal and be aware of the ebb and flow of the city’s negotiation leverage. You should ask yourself at what

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point theMunicipal city’sReview negotiation leverage is Missouri 2 1 the highest—is it just before or just after the incentives program is approved?

Obviously, the forgoing was a rhetorical question— the city’s leverage is always higher before the governing body has committed to the project through an ordinance approving the incentives. Considering this, the city should attempt to get as many of the most critical terms related to the deal established in a preliminary “terms sheet” that is used in the approval process. If the developer is requesting annual appropriation backed bonds, this is the perfect time to specify that such bonds would only be issued subject to certain criteria, including signed sales contracts or leases for the development that include a covenant to open by a date certain and are based on revenue

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projections provided by a third-party 5/11/11 12:24:59 PM revenue consultant. For manufacturing facilities, you might require pre-sold contracts for goods. Additionally, you might consider requiring supplemental debt service reserve funds, insurance coverage for the project in amount to cover replacement costs and require the insured to use any proceeds towards restoring the project to its original condition. For projects promising job creation you can include “clawbacks” that require the developer to pay back certain incentives if the promised results aren’t achieved.

You also might consider including a public participation provision, which is a term that acknowledges the fact that the project is the result of a public-private partnership that would not have occurred but for the inability

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The Missouri Municipal Review

July 2012 / 11

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Missouri’s First Municipal Self Insurance Pool

of the project to produce enough return to make it feasible for the developer to undertake the development without incentives. In the event an “excessive” rate of return is actually incurred by the developer, a public participation provision would require the developer to share the excess with the city in an amount proportional to the public investment in the project. Keep in mind, however, that any risk management technique used that requires a payment from the developer could be viewed as a “private payment,” and therefore affect any tax exempt debt that was issued in conjunction with the project. It is always a good idea to include express authority in the agreement to waive any terms that might have such affect, and to consult your bond counsel prior to final negotiation and approval of the development agreement to ensure that the protections you put in place don’t have unintended consequences at later stages of the financing.

2012 Legislative Activity

As was mentioned in the introduction to this article, fallout from the Mamtek project caused a stir in the statehouse over the winter. Both the Senate and the House convened special committees on government oversight to look into possible legislative solutions to the issues raised by Mamtek.

The committees held hearings and took testimony in January 2012, and both the House and Senate committees released their reports in mid-February.5 Nearly a dozen bills were introduced into the General Assembly this session to implement the findings and conclusions of these committees.6 These bills sought various changes that included a requirement for a public hearing before a city could issue annual appropriation backed debt, and several new requirements for the Missouri Department of Economic Development’s interaction with local governments, including third party verification of financial information, background checks on principals of start-up companies, information 12 / July 2012

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sharing about companies seeking subsidies in state-local incentive deals, and the creation of a 5-star rating system for state-local projects. Most of the provisions ultimately wound up in HB 1865 that passed the House in late April, but became tangled in tax credit reforms in the Senate where it died as the session ended on May 18.

Conclusion

In one of the early news stories emerging from the Mamtek matter, an economic development official from North Dakota, who also was approached by Mamtek, was quoted as saying “the business of economic development is full of carpetbaggers and scallywags … you just have to be cautious.” 7 That seems like a pretty grim characterization of those involved in economic development; however, as in all industries, you will occasionally encounter individuals with compromised scruples. If you have a plan that identifies the things you need and don’t need; establishes what you are and are not willing to do to get those things; and a procedure for vetting each request you’ll be prepared to face developers of all kinds. By developing and executing programs such as the one described here, municipalities can retain local control of how best to utilize economic development incentives in their respective communities and demonstrate that statewide legislation is not an absolute requirement for prudent administration of public incentives. Endnotes: 1. Th i s q u o t e i s c om mo n l y a t -

COVERAGE:

Workers’ Compensation Property General Liability Public Officials Liability Employment Practices Liability Law Enforcement Liability Automobile Boiler & Machinery Airport

4. See, e.g., § 99.810.1(5), RSMo (TIF); § 99.942.3(6), RSMo (MODESA).

5. House committee report: http:// house.mo.gov/billtracking/bills121/ commit/report498/Mamtek%20Report%20Feb.%202012.0150i.arc.pdf (last visited May 29, 2012); Senate committee report: http://www.senate. mo.gov/12info/comm/reports/GAFO_ Mamtek.pdf (last visited May 29, 2012).

6. See e.g. http://www.columbiatribune.com/news/2012/feb/21/billsfollow-mamtek-review/ (last visited May 29, 2012); 7. Rudi Keller, Moberly Officials Mostly Mum on Mamtek, Columbia Daily Tribune, September 20, 2011(available at http://www.columbiatribune.com/ news/2011/sep/20/moberly-officialsmostly-mum-on-mamtek/ (last visited June 4, 2012)).

Joe Lauber has dedicated his entire career to the practice of municipal law on behalf of public entities. In 2010, Joe established Lauber Municipal Law, LLC, after years of practice representing public entities at larger firms in the Kansas City area. Joe has experience representing municipalities statewide regarding a wide variety of economic development tools and is a regular speaker, author and contributor for MML. He can be reached at 816525-7881 or jlauber@laubermunicipal.com.

Tom L. Kaleko, senior vice president, directs Springsted’s public sector advisory services in Kansas, Missouri and Iowa. Mr. Kaleko has 20 years of local government experience, including six years as the city administrator in Gardner, Kansas and 12 years serving in the capacity of assistant city administrator in Lenexa, Kansas and Blue Springs, Missouri. Tom can be reached at 816-333-7294 or tkaleko@springsted.com.

tributed to the martyr John Bradford of the 16 th century. See e.g., http://www. phrases.org.uk/meanings/there-but-forthe-grace-of-god.html (last visited May 25, 2012).

2. See http://www.labor.mo.gov/ des/tool/ui_ben_stats.asp?Submit=Yes (last visited June 4, 2012).

3. Extrapolated from http://www. labor.mo.gov/data/statArchives.asp (last visited June 4, 2012).

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www.mocities.com

MISSOURI CITIES CAN GROW NATIVE! Beautify, improve environmental quality and reduce costs with Missouri native plants.

M

by Carol Davit

issouri is home to more than 2,000 native plant species – found in forests, prairies, wetlands, glades and increasingly, in cities. Municipalities across the state are bringing elements of the natural world into city landscaping for a variety of reasons. Drawing upon the native plant diversity of Missouri, cities are beautifying public areas, providing habitat for wildlife and pollinators, and also saving on mowing and stormwater control costs.

For example, mowing just one acre of lawn can easily cost city governments $1,400 to $2,900 a year. For expansive lawns not used for recreation, converting an acre of turf to a planting of Missouri prairie grasses and wildflowers might have a slightly higher one-time start-up cost, but can quickly save funds yearto-year, as well as add visual interest to a site, provide food and shelter for butterflies, birds and other wildlife, and increase stormwater absorption.

While turf grasses have roots of only a few inches deep, many prairie plants have roots reaching 15 feet deep. The dense, deep roots not only absorb and hold enormous amounts of stormwater, but also trap nitrogen and other nutrients that can pollute cityowned and managed ponds and lakes.

Prairie plantings upslope from a golf

course pond, for example, help trap sediments, lawn chemicals and other pollutants that otherwise would run off into the pond and stimulate algal growth or contaminate water.

M a n y wetland plants, as well, are stormwater control powerhouses.

Bulrushes, prairie cord grass and other grasses, sedges and The Missouri native plants in this rain garden at Visitation wildflowers store Church in Kansas City absorb and filter stormwater runoff, and slowly release add visual interest to the site, and provide habitat for stormwater into the butterflies and other wildlife. Photo credit: Vireo ground, removing nitrogen from runoff in program helps consumers find native the process. plant suppliers, native landscaping M a n y l o c a l g o v e r n m e n t s , professionals, landscaping design businesses, homeowners and other ideas, and comprehensive native plant landowners are incorporating rain horticultural information. Through its gardens – designed to trap and slowly website, www.grownative.org, annual release stormwater into the soil – into workshops and other outreach, the their landscaping plans. With native Grow Native! program has dramatically plants like river oats, asters, copper increased the supply and demand for iris and cardinal flower, rain gardens Missouri native plants. are beautiful as well as functional.

Grow Native! began 10 years Establishing native plantings in parking ago by the Missouri Departments lot depressions is of Conservation and Agriculture; another way to has a new home with the Missouri naturally control Prairie Foundation as of July 1, 2012. parking lot This 46-year-old, nonprofit prairie runoff. Gardens conservation organization protects on roof tops and prairie and other native grassland other impervious communities through land acquisition, surfaces also management, education and research, can use natives and promotes the use of native plants. t o a b s o r b For more information about Grow stormwater.

Native!, visit www.grownative.org, C i t y call 888-843-6739, or send a message to governments grownative@moprairie.com. can find all the resources they need to incorporate Carol Davit is the executive director of the n a t i v e s i n t o Missouri Prairie Foundation. landscaping with Prairie cord grass, native to wet prairies, can be used in the Grow Native! parking lot depressions to slow stormwater and trap pollutants program. This native in runoff, helping to keep waterways clean. Credit: Carol Davit plant awareness www.mocities.com

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July 2012 / 13

INNOVATIVE DESIGN-BUILD ROAD MAINTENANCE STRATEGY: A PROVEN DIRECTION FOR KANSAS CITY

by Greg Rokos, Jeff Martin, Mark Scholfield and Jim Townsend

T

he city of Kansas City has a population of approximately 450,000 people, a quarter of the metropolitan area population. The City maintains approximately 6,200 miles of roadways, with an annual budget of $60 million. Much of the City’s infrastructure is 50 to 100 years old and is in dire need of rehabilitation.

Historically, the City would only reconstruct streets if there was a related capacity or geometric improvement project.

In 2004, the City established Design-Build as an alternative construction delivery method in the City Charter. Between 2004 and 2010, this process was used primarily for buildings. In June 2010, the Kansas City’s City Council passed a resolution to fund $33 million for street maintenance and waterline repair/replacement. There were 12 arterial roadway segments identified in the resolution, each of which were less than one-mile in length identified in the resolution. There had

not been any design completed for any of the projects. Within a period of four months, Requests for Proposals (RFPs) had to be submitted, contractors selected and Notices to Proceed issued by the end of 2010. There was a realization that the standard method for project delivery could not accomplish the objective. With this time constraint, a new and innovative process was developed to meet the City Council’s requirements for the procurement and implementation of the projects, incorporating design-build project delivery.

Program Development

Over a four-month period, the Kansas City Public Works Department and Wilson & Company, Inc., Engineers and Architects (Wilson & Company), worked diligently to develop and administer a program that entailed: • Establishing RFP and contract documents with the purchasing department

•

Defining the scope of work to be completed for each project to meet the desires of the public works departments and the water department.

• D e v e l o p i n g t h e t e c h n i c a l requirements for the DesignBuilder and their Designer of Record.

• Creating a procurement process based on a best-value project selection including qualifications, experience, technical approach, commitments made and cost evaluations.

Due to the complexities of the projects and the fact that this was a new process, the City desired to release the projects in two separate RFP packages. The initial package for the first set of five arterial roadway reconstruction projects was advertised within two months of the Design-Build program being conceived. The DesignBuilders were allowed to propose on any combination of the individual

In June 2010, Kansas City’s City Council passed a resolution to fund $33 million for street maintenance and waterline repair/ replacement. The pictures above show conditions before (left) and after (right) one roadway segment was improved.

14 / July 2012

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projects.

A best value selection process was used incorporating both technical evaluation and bid cost evaluation of the proposals. It was a single step process, without short-listing, and without stipend compensations to the proposers. The technical scoring accounted for 60 percent of the total score and included qualifications and experience, project approach and commitments, maintenance of traffic and project schedule. The bid cost evaluation accounted for 40 percent of the total score and was determined by a set formula based on the bid price relative to the lowest bid price.

Through an expedited process, a mandatory pre-proposal meeting was held to explain the process; proposals were submitted (23 in total), reviewed and scored; selections were made; and recommendations were taken to City Council for an ordinance to formally issue Notices to Proceed so that work authorization letters could be developed and sent.

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Program Refinement

As with any new process or program, refinements should be made to address any issues that arise during the initial roll-out. In response to this need, a Design-Builder forum was conducted to provide a place for the Design-Builder community to voice their concerns and questions about the process. The forum went through the details of the requirements, scoring process and expectations. The DesignBuild teams were given direct feedback to their questions. Additionally, the contractors asked the City to provide additional clarification regarding how scores were developed, and suggested a different process on how the weighting could be distributed.

They also identified items they felt substantially increased their risk, which in turn, increased the bid amounts.

With this information, the city of Kansas City and Wilson & Company worked to refine the process to address comments in the forum and develop a plan to reduce the risk to the DesignBuilder while providing the City with an excellent product. Adjustments were made to the technical scoring criteria, and additional information was provided to the Design-Builders for the second set of projects to reduce their risk and increase the value to the City.

Results www.mocities.com

The refined program resulted in fewer questions for the second s et of project s. The Desig n-Build teams were more aggressive and provided greater value and additional commitments above and beyond the project definitions, including: • • •

Additional sidewalk work A new pedestrian signal Concrete bus pads The Missouri Municipal Review

• •

Open drainage improvements Timing of construction to coincide with other area activities (school, events, etc…)

This process resulted in an excellent best-value selection process.

The City believes the program was a total success in several areas, including: •

under budget at the same time as defined work in the RFP July 2012 / 15

•

•

•

•

A coordinated approach to infrastructure corridor improvements (road, water, sewer, traffic, etc.)

Significantly reduced construction and design conflicts, change orders and scheduled delays.

Reduction of procurement and management staff resource needs by combining design and construction in one RFP package Increased efficiency of taxpayer funds and time spent by City Council in review of contracts.

Lessons Learned

Developing this Design-Build program required an incredible amount of interdepartmental communication and cooperation. Within the contract documents, both the City and the Design-Builder were held to the schedule requirements for both submittals and reviews. Maintaining the communication and cooperation throughout the process was essential for the program to be successful.

It was clear from the first procurement that it was critical for the process to be kept “simple,” both in terms of the technical requirements and the scoring. In terms of the technical requirements, the definitions for the work to be performed had to be defined in a manner that allowed the contractor to propose a more efficient or effective method to exceed the requirements.

This was much more apparent in the second round of RFPs that resulted in a much more competitive best-value selection.

It was evident that there is a level of baseline investigation and information that should be provided by the owner to reduce the DesignBuilder risks and contingency pricing while not providing a stipend.

Providing the Design-Builders with critical information such as right-ofway drawings, aerial photography, pavement core samples and waterline maps significantly decreased the amount of risk to the contractor, and provided the Design Builder enough information to develop alternatives.

This information was critical to allow the Design-Builder teams to propose alternative approaches that resulted in: • C o s t s a v i n g s a n d b e t t e r maintenance of traffic • Coordinated replacements of waterline, storm sewer/sanitary sewer, roadway and sidewalk • Upgrades for traffic management such as ADA ramps and buttons, traffic detection equipment and transit accessibility Finally, having a solid understanding of staffing requirements was critical for the program’s success.

As identified earlier, staff from several departments had to be integrated into the process for contractor plan submittal approvals. This included materials testing, construction

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management, lighting staff, traffic control/timing, water valve shutoffs, etc. Communication and coordination made this project a success.

Next Steps

The city of Kansas City anticipates using this process for at least 80 percent of their future roadway reconstruction work. This process was successful as viewed by staff, management, elected officials, Design-Builders and their construction teams, and the community served by the upgraded facilities.

In early February 2012, Mayor Sly James presented a program to obtain $1 billion bonding authority for investment efforts in the Kansas City core to enhance the aging neighborhoods and promote economic development within the City. Through this street maintenance Design-Build program, the City has developed a proven methodology to effectively and efficiently deliver a roadway reconstruction program of any scale, and can support the Mayor’s investment program. This process has changed the way the city of Kansas City, Missouri, conducts business with its contractor and engineering community.

Project Champions

The following project champions made this project a success: Greg Rokos, PE, City Engineer, City of Kansas City; Sherri McIntyre, Assistant City Manager / Public Works Director, City of Kansas City; Jeff Martin, Assistant City Engineer, City of Kansas City; Connie Hendrix, Manager of Contract Administration, City of Kansas City; Jim Townsend, AICP, Program Manager, Wilson & Company; Mark Scholfield, PE, Firm-wide Design-Build Manager, Wilson & Company; and Paul Plotas, PE, PTOE, Project Manager, Wilson & Company.

Greg Rokos, PE, is the city of Kansas City, Mo., city engineer. Mr. Rokos has worked for the City of Kansas City, Missouri, for the last 10 years, serving as the city engineer for the last 6 years. Greg.Rokos@kcmo.org 816-5139844.Jeff Martin, PE, is the city of Kansas City, Mo., assistant city engineer. Mr. Martin serves as the City’s technical lead for construction activities.

Jeff.Martin@kcmo.org 816-5138722. Mark Scholfield, PE, leads Wilson & Company’s Design-Build practice. Mr. Scholfield provided oversight of the contract documents and technical input. Mark.Scholfield@wilsonco. com 303-501-1226. Jim Townsend, AICP, leads Wilson & Company’s Midwest Region Transportation Planning and Traffic Engineering practice, offering experience from both private and public sectors. Jim.Townsend@wilsonco. com 816-701-3108.

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Seat Belt Policies are a Key to Risk Management

by Mark Woodward

V

ehicle crashes account for the highest number of work-related fatalities.

The 2011 Missouri Division of Workers Compensation annual report states that 32 percent of employee fatalities were the result of vehicle crashes. In 2010, work-related vehicle accidents were responsible for 42 percent of workplace fatalities in Missouri (Bureau of Labor Statistics).

The bottom line is that if your employees are not wearing seatbelts, they are significantly increasing their chances of being injured or dying on the job.

Keys to a Successful Seat Belt Policy

You can’t enforce a policy you don’t have, so the best way to start protecting your employees is by implementing a seat belt policy. If you need help writing a policy, simply visit www.worksafecenter. com and download a sample. A seat belt is the most important safety device a city employee can use. They’re virtually free.

They’re provided by the manufacturer of all modern vehicles and their use is required by law.

Buy in from the top down: The city council, mayor and city manager must all agree that seat belts are the law and that they must be worn whenever employees are driving for city business. City department heads must enforce these rules within the department.

Get it in writing: Have employees and volunteers sign the seat belt policy each year.

This practice makes you accountable for providing the training and your employees accountable for their actions. Take disciplinary action for violating the policy when appropriate. Did you know that under Missouri Workers' Compensation Law a safety penalty can be taken when an employee is injured after failing to follow safety rules? www.mocities.com

Provide quality training: Hold regular fleet safety meetings and trainings. Keep training records on file for employees that drive or operate city vehicles. Audit their driving with a road test or perform a road observation. Consider adding a distracted driving policy. Cell phones are a major distraction and are now the leading cause of vehicle crashes.

Enforcement With No Exceptions

The next step is enforcement and it must applicable to all employees.

No exceptions. Common barriers municipalities face with regard to seat belt policy enforcement can include: Police Departments: If you are facing resistance it is important to remember that it is the law in Missouri and it is definitely not safe to be involved in a pursuit at high speed unbelted. Provide officers with quality training so they can drive, access their weapon and participate in evasive maneuvers safely while wearing a seat belt. If your police department is serious about safety, many resources can be found at www.below100.com.

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Fire Departments: According to the Missouri State Highway Patrol, 37 percent of fire apparatus crashes occur during an emergency response. In 57 percent of crashes, fire apparatuses struck another vehicle. Emergency responses are not the time to ignore seat belt use. Firefighters must wear seat belts during any responses and don their protective gear before getting on the truck or after the truck has arrived. Thousands of dollars in firefighting gear is purchased each year, but a simple safety rule like seat belt use might not be enforced. From an insurance perspective, the safety efforts of a fire department with the best safety gear, but no seat belt use, could be labeled ineffective. Firefighter seat belt safety information can also be found at www.firefighterclosecalls. com.

Construction Do your :employees operate construction equipment with rollover protective structures, drive equipment on public roads? If so, they must be buckled in—require seat belt use on construction machinery.

Refer to www.worksafecenter. com for more seat belt policy and fleet safety resources. No matter how great your safety program is, if there’s no seat belt policy in place and enforced, your safety program may be viewed as ineffective and you are putting your employees at risk. Mark Woodward is a senior loss prevention trainer with Missouri Employers Mutual Insurance. He has a Master's in Education from William Woods University and a Bachelor of Science in Safety Management from the University of Central Missouri in Warrensburg. He has instructed thousands of Missouri workers and provided education resources to more than 3,000 safety-related classes.

July 2012 / 17

MAKING HEALTHIER CHOICES: EAT SMART IN PARKS

by Cindy Deblauw

O

besity rates in Missouri a n d around the nation have risen dramatically over the past 30 years. With one out of every three Missourians being obese, this has become a health and economic crisis.

According to the Centers for Disease Control and Prevention, medical care costs related to obesity in 2008 totaled $147 billion. Yet there is no simple answer. Research has shown that there are multiple, complicated causes for this rise in obesity rates including limited access to healthy, affordable foods and exposure to environments that discourage physical activity.

One group stepping in to attempt to address this growing problem is the Missouri Council for Activity and Nutrition (MOCAN). MOCAN, a coalition comprised of representatives from statewide and local organizations and agencies, implements evidencebased strategies aimed at reducing the incidence of obesity and other chronic diseases among Missourians. The most recent of these strategies is the Eat Smart in Parks program, funded by a grant from the Missouri Foundation for Health.

Parks are a key partner in supporting healthy living as a site of facilities and programs that promote physical activity. Yet, ironically, many

18 / July 2012

parks often undermine their own health promotion efforts by not addressing another critical health behavior – healthy eating. A spring 2012 survey of Missouri Park and Recreation Association (MPRA) members revealed that most of the 90 respondents do not currently have any guidelines, policies or rules about the nutritional quality or types of foods sold within their parks.

This one-year project includes the several key components, including: • Development and distribution of Eat Smart in Parks Nutrition Guidelines that can be used by parks to evaluate and improve their menus.

• Training for state and local park staff on identifying, purchasing and preparing foods that meet

The Missouri Municipal Review

the Eat Smart in Parks Nutrition Guidelines.

• Development of Eat Smart in Parks marketing materials that will assist parks in the promotion of healthier menu options.

• Pilot testing of the Eat Smart in Parks Nutrition Guidelines in select state and municipal parks.

Through this project, MOCAN seeks to improve the nutritional quality of Missourian’s diets by increasing the availability of healthy foods.

By making these foods more accessible, MOCAN hopes that the healthy choice also will become the easy choice.

For more information about the Eat Smart in Parks project, please contact Lorin Fahrmeier, Eat Smart in Parks project coordinator, at fahrmeierl@missouri.edu. Cindy Deblauw is a registered dietitian with the University of Missouri Extension in Columbia.

She promotes healthy eating, physical activity through education and policy and environment changes.

Learn more about committing to the long-term health of your citizens, your community and the economic benefits of healthier Missourians at the “Eat Smart in Parks” presentation at MML's Annual Conference on Mon., Sept. 17 at 10:45 a.m.

www.mocities.com

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July 2012 / 19

2012 MML Scholarship Golf Outing “The Oaks” Golf Course Tan-Tar-A Sunday, Sept. 16, Shotgun start at 1 p.m.

Join MML for this four-person scramble!

Open to all MML officials, consultants, retirees and friends.

Register now to reserve your spot! Prepayment required.

Name:

_______________________________________________________

Telephone Number: _____________________________________________ Address:_______________________________________________________ Team Members Names: _______________________________________________________________________________ ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ tickets

Fees

Golf Tournament (Per Person)

$95

50/50 Raffle Tickets

$5 or Five for $20

Mulligans (Limit two per person)

$5

Skins Game (Per Team)

$20

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Total Due DEADLINE – Sept.3, 2012. Registrations are accepted on a first-pay, first-play basis. No cancellations will be accepted after Sept. 3, 2012. Call Tony Russo at (314-435-3779) with questions. Payment with registration is required. Please return this form with payment made out to MML (Missouri Municipal League) at: 1727 Southridge Drive, Jefferson City, Missouri 65109-5675 Check Enclosed ______ or Please charge my Name on card

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Card # __________________________________ Exp. Date _________ 3-Digit Security Code ________ Cardholder billing address _________________________________________ Email address_____________________________________________________ Authorized signature _____________________________________________

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2012 Missouri Municipal League Annual Conference Osage Beach, Tan-Tar-A Resort September 16-19 pre-C onferenCe WorKsHop: Practical Applications and Legal Considerations for Social Media in a Municipal Setting.

Learn from a municipal director of public information who will give practical examples of how to implement a social media communication plan, as well as an attorney who will review the legal ramifications of these tools.

2012 sCHolarsHip golf outing: Join us for the MML Scholarship Golf Outing on Sunday, Sept. 16. The four-person scramble will be held at "The Oaks" Golf Course at Tan-Tar-A. Shotgun start at 1 p.m. Contact Tony Russo at 314-4353779 or Trusso@rjn.com. MML appreciates Tony’s time in volunteering to coordinate this event! neW f or 2012! post C onferenCe WorKsHop: Making Your Utility Oversight Effective: Introductory Session for Certificate in Public Policy Development. This program focuses on best management practices for city officials who oversee their community's utility operation. The lead instructor has more than 27 years in utility management and brings a wealth of realworld experience to the sessions. Hosted by the Missouri Public Utilities Alliance.

KeYnoTe S peaKerS : The Future of Local Government

For the Love of Cities Peter Kagayama Author and Change Agent

Ron Holifield, CEO Strategic Government Resources

Peter Kagayama has written a book about the emotional connections people have with some places versus others and the benefi ts that accrue to communities that are able to tap into that emotional wellspring. He notes that if cities begin thinking of themselves as engaged in a relationship with their citizens, and if we as citizens begin to consider our emotional connections with our places, we open up new possibilities in community, social and economic development by including the most powerful of motivators–the human heart–in our toolkit of city-making.

Leadership is not as much fun as it used to be. A variety of political, social and technological trends are dramatically changing what it takes to be an effective leader in today's world. This session will address those trends and provide practical strategies to thrive as a leader in this new world of volatility, uncertainty, conflict and ambiguity. The speaker is a former city manager and lobbyist who later founded Strategic Government Resources to specialize in facilitating collaboration among local governments, with a particular emphasis in employee training and development of next generation leaders.

exHiBit H all Don't miss the Exhibit Hall, with more than 120 firms featuring the latest products and services tailored to municipal needs. Several special events will be held in the Exhibit Hall, including the Grand Opening Reception on Sunday evening and a coffee break, box lunch and snack party on Monday. Plan to visit often during the Conference to show your appreciation to vendors!

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July 2012 / 21

2012 MML Annual Conference Tentative Agenda SUNDAY, SEPTEMBER 16, 2012 9:00 a.m. – 4:00 p.m. CCFOA ADVANCED ACADEMY “TIME MANAGEMENT: DISCOVERING THE TRUTH AND DEBUNKING THE REST!” Speaker Mark Gideon will present a workshop broken up into five, 50 minute segments: Big Issues, Myths and Mayhem, Work Life, Home Life and Big Ideas. (The Academy is open to all conference attendees; registration is through the Management Development Institute at MSU. For registration or questions contact Belinda Davis at 417-836-6866 or bdavis@missouristate.edu.) Registration fee is $125 CCFOA members and $155 non-members.

11:00 a.m. FIRST ANNUAL MML SCHOLARSHIP GOLF OUTING – The Oaks (Must be prepaid, separate registration.)

11:00 a.m. CONFERENCE REGISTRATION 1:00 – 4:00 p.m. MML PRE-CONFERENCE WORKSHOP – “PRACTICAL APPLICATIONS AND LEGAL CONSIDERATIONS FOR SOCIAL MEDIA IN A MUNICIPAL SETTING” Social media provides municipalities a golden opportunity to communicate with the public like never before; it also can be a legal landmine. Learn how to implement a social media communication plan, as well as the legal ramifications of this brave new world from Sunshine Law requests, employees’ Facebook pages, to rogue websites that lambast city officials. (Must pre-register; $45 registration fee) 5:00 p.m. NOMINATING COMMITTEE 6:00 p.m. OPENING RECEPTION MONDAY, SEPTEMBER 17, 2012 9:00 a.m. CONCURRENT SESSIONS 1) Municipal Government 101: Council Procedures: Speakers will discuss forms of government, powers and duties of municipal officials, council procedures, and conflicts of interest.

2) The Good, The Bad And The Ugly: Learning To Communicate In A High Technology World (CCFOA): Strategies for breaking through the high-tech world of voicemail, text messages and tweets.

3) The East Locust Creek Reservoir: A Unique Public Private Collaboration To Meet Critical Water Needs: Civic leaders formed the North Central Missouri Regional Water Commission to pursue funding and construction of a massive reservoir. This $63 million project can serve as a model for other communities and regions.

4) Lessons In Disaster Preparation & Recovery (MCMA): It’s not a matter of if, but when a disaster will strike. This session is designed to provide practical advice and illustrate lessons learned related to disaster preparation and recovery.

10:45 a.m. CONCURRENT SESSIONS 1) Municipal Government 101: Legal Issues: Speakers will discuss legal issues facing local government officials, including liability and risk, and the protections afforded municipal officials in the performance of their work.

2) Healthy Concessions (Missouri Park and Recreation Association) Panel will examine how to effectively purchase, prepare and market healthier concessionaire (hopefully, locally-produced) offerings.

3) Affordable, Customized Government To Government Technology Services: What MoreNet can do for your city.

4) Missouri Collective Bargaining After The Ledbetter Case - Good Faith Decision: The program will provide an explanation of the impact on municipal governments' negotiations after the MO Supreme Court's decision relating to the standard of "good faith."

12:00 p.m. BOX LUNCHEON – Exhibit Hall 1:15 p.m. CONCURRENT SESSIONS 1) Economic Development And Due Diligence Part I: A series of humorous skits serves as the launching point for this two-part session addressing economic development tools and due diligence. (Part II at 2:30 p.m., on Monday.)

2) Sunshine Law: An official from the Missouri Attorney General’s office will review what municipal officials need to know about the Sunshine Law. 3) Municipal Floodplain Management And The National Flood Insurance Program: Explore the relationship between the local floodplain ordinance, state agencies and the National Flood Insurance Program.

22 / July 2012

4) How To Eliminate Waste In Administrative Processes: Attendees will gain a basic understanding of Lean Process Improvements and how to apply the concepts learned.

2:30 p.m. CONCURRENT SESSIONS 1) Planning And Zoning Basics: Presenters will review the nuts and bolts of planning and zoning.

2) Utilizing GIS At The Lowest Cost For The Maximum Return: Learn what low cost, cutting edge Geographic Information Systems (GIS) software and programs can do to bring efficiency to municipal government and public works.

3) The New Healthcare Reform Law And Cities: Attorneys will review the impact of the federal healthcare reform.

4) Economic Development And Due Diligence Part II 3:30 p.m. SNACK PARTY – Exhibit Hall 5:30 p.m. EVENING ON YOUR OWN TUESDAY, SEPTEMBER 18, 2012 7:30 a.m. REGISTRATION 8:45 a.m. GENERAL SESSION • “For the Love of Cities” Peter Kageyama • BUSINESS MEETING/ADOPTION OF 2012-2013 MISSOURI MUNICIPAL POLICY/ ELECTION OF OFFICERS 11:00 a.m. CONCURRENT SESSIONS 1) For The Love Of Cities: How To Engage Your Citizen Community Makers: As a follow up to his keynote presentation, author Peter Kageyama will delve deeper into the process of turning emotionally engaged citizens into community development resources.

2) Rates v. Reality – Missouri’s Wastewater Affordability Challenges (MPUA): Session will focus on important factors when addressing the affordability of the NPDES wastewater requirements.

12:00 p.m. GENERAL LUNCHEON Address: “The National Perspective” Don Borut 2:00 p.m. CONCURRENT SESSIONS 1) Emergency Response Operations (CCFOA): Panelist who have been through tornadoes will discuss what they learned after the fact.

2) Pavement Maintenance: Keeping The Water Out: Discuss the costs associated with not doing maintenance, types of cracks and causes, EPA regulations, green products life cycle analysis tools, and more.

3) Missouri Annexation Law Overview And Update: Overview of Missouri Annexation Law including updates from recent court cases.

2:00 - 4:00 p.m. MOBILE WORKSHOP “Highway 54 Expressway Tour – Cutting Through The Waves Of Anxiety”: Take a guided tour in a luxury motor coach along new Hwy 54 Expressway and learn how project managers overcame engineering and community obstacles to build the expressway.

3:30 p.m. CONCURRENT SESSIONS 1) Missouri Guide To Green Infrastructure: Integrating Water Quality Into Municipal Stormwater Management: Presentation will review a how-to guide for municipalities in integrating green infrastructure into local projects.

2) How Much Does It Cost To Live In My Town: Presenters will lay out a comparison tool, and share the challenges of gathering information and building a model that generates accurate cost comparisons.

3) Fraud Prevention In Local Government (GFOA): Discussion of fraud prevention in local government and the results of a fraud prevention survey conducted in conjunction with the MML. 6:00 p.m. HOSPITALITY HOUR 7:00 p.m. ANNUAL BANQUET: Entertainment: Courthouse Steps WEDNESDAY, SEPTEMBER 19, 2012 7:30 a.m. REGISTRATION 7:30 a.m. BREAKFAST BUFFET Address - “The Future of Local Government” Ron Holifield CONFERENCE ADJOURNMENT 10:00 a.m. POST CONFERENCE WORKSHOP (MPUA) “Making Your Utility Oversight Effective – Introductory Session for Certificate in Public Policy Development” (Must pre-register cost is $45.00; includes lunch.)

The Missouri Municipal Review

www.mocities.com

78th MML Annual Conference

September 16-19, 2012 Osage Beach, MO

Tan-Tar-A Resort

REGISTRATION: Please use a separate form for each delegate. Show the number of tickets requested for each event in the “NUMBER OF TICKETS” column on the form below.

FEES: Registration Fee does not cover any meals or events. You will need to purchase separate tickets for these. Meals and events are listed below. All checks should be made payable to the Missouri Municipal League. Spouse/partner registration is complimentary, except for meal tickets and events. This fee does not cover hotel registration. Hotel registration needs to be made with Tan-Tar-A at 800-826-8272.

NAME BADGES: Please enter your NAME, TITLE and MUNICIPALITY as you want them to appear on your Conference name badge. . If you have special needs, please attach a separate sheet describing your requirements.

NAME

TITLE

TELEPHONE NUMBER

SPOUSE/PARTNER NAME (If accompanying delegate)

CITY/FIRM ADDRESS

CITY

MEALS/EVENTS

Registration Fee (Does not include meals/events listed below.)

•SUNDAY, SEPTEMBER 16 2012 MML First Annual Scholarship Golf Outing – The Oaks (Prepaid) Pre-Conference Workshop (Practical Applications & Legal Considerations for Social

Media in Municipal Government)

• MONDAY, SEPTEMBER 17 Complimentary Box Lunch Extra Monday Box Lunch •TUESDAY, SEPTEMBER 18 Missouri City/County Management Association Membership Breakfast (Membership Required) City Clerks/Finance Officers Association Breakfast General Luncheon Mobile Workshop (Highway 54 Expressway Tour – Cutting Through the Waves of Anxiety) (Limited to 100 persons)

Reception, Annual Banquet And Entertainment •WEDNESDAY, SEPTEMBER 19 Buffet Breakfast Post-Conference Workshop (Sponsored by MPUA, includes lunch.)

(Making Your Utility Oversight Effective – Introductory Session for Certificate in Public Policy Development)

FEES $275

STATE NUMBER OF TICKETS

ZIP

MML USE ONLY

$95 $45 XX $19

(1 Per Delegate)

$22 $22 $22 $15 $40 $23 $45

CANCELLATIONS: Cancellations must be received at League headquarters prior to 5 p.m., Friday, September 7, 2012, to be eligible for a refund (less $40 cancellation fee). Officials who register for the Conference but do not pay and do not cancel prior to the September 7 deadline will be billed for the conference registration fee and those events for which they registered.

August 17, 2012 September 7, 2012

Deadline for Hotel Reservations (Tan-Tar-A 800-826-8272) Deadline for Conference Cancellations (MML Headquarters 573-635-9134)

PAYMENT OPTIONS:

Check enclosed ____ Bill City ____ Will pay at Conference

Credit Card

Credit Card Information: MasterCard or Visa or Discover Card Number: (Circle One)

Cardholder Name:

Cardholder billing address:

Exp. Date:

3-digit security code Phone Number: ___________________

Email Address: ____________________________________________________________________________________ Please mail or fax completed registration form to: Missouri Municipal League, 1727 Southridge Drive, Jefferson City, MO 65109; Phone: 573-635-9134; Fax: 573-635-9009

www.mocities.com

The Missouri Municipal Review

July 2012 / 23

GETTING THE MOST FROM YOUR CONFERENCE ATTENDANCE Do you stay home from conferences and conventions that might be helpful to you as a public official because you are worried about criticism from constituents? If the answer is “yes,” you may find these tips for successful conference attendance useful.

While You Are At The Conference • Take time to carefully review the entire program. Make notes and map out your time. Allow time for informal discussions. Some of the best thoughts and ideas come from such dialogue.

• Determine which workshops you will attend. Which will have the most benefit to your community? If there is more than one person in your delegation, get together and try to get the widest possible exposure to the available programs and seminars.

• Be prepared to take notes or tape various speakers.

• Visit the exhibits and gather literature on significant products and services. Ask questions, take notes and allow enough time to cover the entire exhibit hall.

• Keep a daily log or diary of what you did each day. You’ll be surprised how much you’ve covered. This will be a handy reference to substantiate your “positive” participation in the conference. Of course, allow some time for rest and relaxation. Learning and leisure are compatible.

• Make one person (if more than one delegate is attending) responsible for summarizing notes, speeches, literature and other items before you leave the conference.

When You Get Home • After you return home, the various findings should be typed and summarized in a succinct written report. Prepare copies for government personnel, other governing body members and key audiences in the community. Editors and news directors of the local media should get copies, and have copies of the report available for the public at the next meeting of the city council. Be prepared to respond about what the delegates learned that relates directly to local challenges.

• Communicate what you learn at meetings regardless of where they are held. Current trends, opinions, facts and quotes are newsworthy. Special attention to your local problems – and what you learned about them – is very significant to the news media and various community groups.

• Don’t apologize for the costs of the trip if you are asked. But, be ready to answer these questions: What did this trip cost for your delegation compared to the total budget? What is the cost of this in-service training for you as compared to the governmental unit’s in-service training as a total?

Check the dollars and the percentages. You’ll find it relatively small. Don’t be defensive; just lay out the facts. What you learn at such meetings may easily save your municipality thousands of dollars. But more importantly, you’re trying to do a better job for your community by learning.

And that’s what it’s all about.

• Remember, conferences and conventions are necessary for local government members. Such state and national conferences are the only places you can get the background and understanding needed to deal with current challenges. The future of municipal government depends on informed public officials.

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MANY THANKS TO MML'S 2012 ANNUAL CONFERENCE SPONSORS!

Special Sponsors American Fidelity Assurance Co. ConEdison Solutions Curtis Heinz Garrett & O’Keefe Law Firm ING Financial Partners MOPERM Piper Jaffray & Co. Missouri American Water Company MoDNR - Brownfields Voluntary Cleanup Program The Bank of Missouri

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The Missouri Municipal Review

July 2012 / 25

2012 LEGISLATIVE WRAP-UP Staff Report

T

he ending of the Second Session of the 96th General Assembly ended in relative calm, unlike the typical burst of activity which characterized the ending of previous sessions. This more composed ending to the 2012 session may be attributed to it being an election year or that most of the priority issues of the House and Senate leadership were addressed, one way or another, earlier in the session. State budget concerns and redistricting also took up much of the legislative calendar. Despite all of this activity, municipal officials had to fend off legislation that attempted to micromanage municipal operations in many areas, including open meeting and records, utilities, procurement, solid waste and traffic management.

We were successful in defeating or revising many bills that conflicted with MML policy and successfully supported some bills that will be beneficial to municipalities.

Legislation Of Municipal Interest That Passed

Local Sales Tax on Out-Of-State Purchases of Motor Vehicles, Boats and Trailers “Fix�: HB 1329 reestablishes the local sales tax on out-of-state sales of motor vehicles, trailers, boats and motors. The Missouri Supreme Court struck down this tax earlier this year.

There was widespread bi-partisan support in the General Assembly for HB 1329; however, Gov. Nixon has indicated he will veto the bill.

Municipal Business License Restrictions: HB 1504 requires municipalities to apply the state sales tax interest, penalty and statute of limitation on delinquent business licenses. The new requirement also may affect delinquent

26 / July 2012

utility franchise fees owed to municipalities. This amendment was sought by the Missouri Chamber of Commerce and was slipped onto this bill by Sen. Wasson without a public hearing.

Annexation: HB 1900 specifies that a petition requesting a voluntary annexation need only be notarized instead of verified. Any legal action to invalidate a previous annexation must be brought within three years of the date of the adoption of the annexation ordinance. Vetoed by Gov. Nixon.

Economic Development Boards: SB 628 allows municipalities with an economic development sales tax to expand the membership of their economic development board to nine members.

Currently, the board consists of five members.

Municipal Codes Supersede Fire District Codes: HB 1647 prohibits fire protection districts from enforcing building codes within municipalities that have adopted building codes.

However, fire protection districts do have authority over the location and specification of fire hydrants and fire lanes.

Transportation Sales Tax: SB 568 allows the revenue from the city transportation sales tax to be used to construct, repair and maintain sidewalks, trails and parking lots.

The Missouri Municipal Review

Alderman Qualification: SB 569 changes the age qualification for a member of the board of aldermen in a fourth class city from 21 to 18 years of age.

February and June Election Dates: SB 569, HB 1036 and HB 1250 restrict the February election date to only bond elections and eliminates the June election day.

Truck Routes: HB 1402, SB 470 and SB 480 requires municipalities to designate at least one city street, county road or state highway within their corporate limits as a truck route.

Billboards: SB 607 allows resetting of non-conforming bills during state highway construction projects, unless prohibited by municipal ordinances.

The bill also makes it easier to upgrade existing billboards to digital, again, if the upgrade conforms to municipal sign ordinances.

Yellow Light Timing: SB 611 requires the Missouri Department of Transportation to establish minimal yellow light change interval times for all traffic-control devices. These standards must be based on nationally recognized standards.

Criminal Records: HB 1647 allows certain criminal records to be expunged for a $100 fee if it has been at least 10 years (for misdemeanors) or 20 years (for felonies) after the completion of the sentence, probation or parole. Records that may be expunged include felonies for passing bad checks and fraudulent credit card use, and misdemeanors for minor property crimes, gambling, peace disturbance and drunkenness. The National Rifle Association pushed this change to allow more people to qualify for concealed weapons permits.

Affordability Findings: HB 1251 requires the Department of Natural Resources to make a finding of affordwww.mocities.com

ability when issuing stormwater control permits.

Inverse Condemnation and Dangerous Conditions On Public Property: SB 628 requires lawsuits against municipalities and other political subdivisions of the state involving dangerous conditions of public property or suits in inverse condemnation be brought in the county in which all or part of the public property lies.

Municipally Owned Vehicles: HB 1402 and HB 1807 modifies the provision of law that exempts municipally owned vehicles from the state registration laws and the requirement that vehicles display plates. Under current law, municipal vehicles do not have to display a plate provided the vehicles display (in specific lettering) the name of the municipality, the department and a distinguishing number. This act gives the municipality the option of having a plate on the vehicle in lieu of the lettering.

Water Primacy Fee: HB 1251 extends the fee to Sept. 1, 2017. The Primacy was to expire this September.

Legislative Issues Of Municipal Interest That Did Not Pass

Municipal Construction Bidding: Legislation was introduced that would place pre-empted local purchasing ordinances and make it easier to sue municipalities over procurement decisions.

Restrictions on municipal smoki n g r e g u l a t i o n s: Rep . L eac h from Springfield introduced legislation restricting municipalities from prohibiting smoking in restaurants, bars and places of entertainment.

Limits on the use of red light cameras: Legislation sponsored by Sen. Kraus required all fines derived from the use of red light cameras to be remitted to the school districts.

“Fair Tax” or “Everything Tax”: Legislation proposed to replace the state income tax with statewide sales

tax that applied to most services and sales transactions.

Prevailing Wage law: A number of bills were introduced that ranged from total repeal of Missouri’s Prevailing Wage Law to exempt repair projects from the law.

Tax Credits: A number of bills were introduced that would have capped or terminated state income tax credits including the historic preservation tax credit.

Local Government “Transparency”: Rep. Smith from Salem introduced legislation requiring municipalities, schools and counties to report financial information to the state’s Office of Administration for inclusion on the state’s web-based “Accountability Portal.”

Municipal Bonds: Several bills were introduced that would have placed burdensome restrictions on municipal bonds used for economic development purposes.

Streamline Sales Tax: Legislation that standardized Missouri’s sales tax statutes in order for the state to enter into the multi-state Streamlined Sales and Uses Tax Agreement.

Initiative Petition: Several bills were introduced that made changes to state’s initiative and referendum process.

Prospects For The Future

As a result of term limits, the dynamics of the legislature is constantly changing. Each year brings more and more new legislators to the Capitol with little or no experience of the legislative process or of issues important to municipalities. Because of this, your communications and assistance is needed more than ever. Municipal officials are encouraged to visit often with legislators, especially the new legislators, to discuss the issues that are important to your municipality.

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The Missouri Municipal Review

Your future. Made easier.®

July 2012 / 27

quarterly staff highlights Legislation

Staff devoted a great deal of time to the MML legislative program during this reporting period. A complete wrap-up of legislation that affected municipalities enacted by the 96th General Assembly (Second Session) appears in this issue of The Missouri Municipal Review.

Staff informed League members of the progress of bills affecting municipalities through the "Legislative Bulletin," “Legislative Alerts,” and “Weekly Legislative Updates.”

The League’s policy committees met at the Legislative Conference to discuss future involvement in the MML lobbying process.

Staff is pleased to report that a number of member cities and organizations invited League staff participation in meetings with legislators.

Staff alerted municipal officials to file personal financial disclosure statements before the May 1 deadline.

Conferences And Meetings

The League’s director attended the National League of Cities Congressional Conference in Washington D.C. The Central Division of the MML met at Columbia’s City Hall. More than 50 municipal officials attended the meeting.

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The program for the Elected Officials Training Conference was completed. Registration information was included in the April issue of The Missouri Municipal Review and the May and June issues of the “Municipal Newsletter.”

The League’s director gave a legislative update at the St. Louis City Attorney’s meeting.

Staff began planning the program for the Annual Conference and initiated the exhibit, special sponsor and hospitality host programs.

The West Gate Division of the MML met at Armacost Museum in Grandview.

The League’s director spoke at the Missouri City Clerks and Finance Officers Association Spring Seminar and Educational Institute on legislative issues. League staff also provided website training during the new clerk’s session.

Staff planned and conducted the 2012 Missouri City/County Management Association’s (MCMA) annual meeting.

Staff conducted the 2012 elected Officials Training Conference. One hundred eighty-nine officials attended the event, representing 88 cities.

Speakers for the Conference included: Kevin O’Keefe, Curtis, Heinz, Garrett &

Water Wastewater Stormwater Highways Streets Roads Bridges Structural Health Care Mechanical Electrical Plumbing Fire Protection GIS Construction Services The Missouri Municipal Review

O’Keefe; Sara J. Read, The Communications Center, Inc.; Dr. David Valentine; Truman School of Public Affairs, UMC; City Administrator Mark Levin, Maryland Heights; City Attorney Nancy Thompson, Riverside; Christine Treat Bushyhead, Mitchell, Kristl & Lieber, P.C.; Public Education Director Thomas Durkin, Missouri Attorney General; Joe Lauber, Lauber Municipal Law; and Sr. Vice President Tom Kaleko, Springsted.

Staff printed and mailed brochures for the Missouri Government Finance Officers Spring Institute.

The MML Board of Directors held its quarterly board meeting prior to the Legislative Conference.

Research And Publications

Staff responded to more than 1,000 requests for information this quarter.

The top items of interest were: council procedure, personnel, Sunshine Law, taxes, utilities, conflict of interest, purchasing, public funds, elections, streets, traffic, financial management, planning and zoning, drugs, municipal court, police, unsafe buildings, animals, annexation, building permits, city administrator, economic development, forms of government, legislation and parks.

As a result of the municipal elections held in April, staff is compiling information for publication of the 20122013 Directory of Missouri Municipal Officials and revising the Municipal Officials Database. Staff expresses appreciation to member municipal officials for completing and returning the forms provided for these changes. Your cooperation in providing information for the Directory and in completing surveys for publication of technical bulletins enables staff to maintain an up-to-date publication.

Technical Assistance

The League’s computerized wage information service, WAGQUE, was provided to 37 municipalities.

Membership

The municipalities of Paynesville and Crystal Lake Park joined the MML during April, May and June, bringing membership to 670. Your League staff welcomes the new member officials.

Please contact us whenever we may provide assistance.

www.mocities.com

Elected Officials Training Conference

On June 14-15, 2012, the Missouri Municipal League held its annual Elected Officials Training Conference. Nearly 190 municipal officials from across the state gathered for this intensive twoday Conference. Topics covered included budgets, ethics, economic development and more. Speakers included attorneys, practitioners and consultants specializing in Missouri municipal governments.

Sarah Read, president, The Communications Center, Inc., spoke about conflict resolution.

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Thomas Durkin, public education director, Missouri Attorney General's Office, spoke about the Sunshine Law.

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The Missouri Municipal Review

July 2012 / 29

Local Government Week 2012: How Did You Celebrate?

M

unicipalities across Missouri celebrated Local Governement Week April 30 May 4, 2012. It was a wonderful opportunity for communities to showcase the vital services they provide each day for citizens.

It was also a great chance to recognize the hard-working employees in each city! From appreciation barbecues to mock city council meetings for youth, municipalities took time to strengthen their community and celebrate how local goverment benefits Missouri.

30 / July 2012

The city of Higginsville showed children what a day in law enforcement is like.

The city of Rolla hosted a barbecue for employees, with council members, leadership and the mayor serving the food.

The City also signed a local goverment week proclamation to display in City Hall.

The Missouri Municipal Review

www.mocities.com

The city of Jackson hosted a Youth in Government Day to showcase city services to young citizens.

A display in the city of Higginsville highlights its work and citizens.

Jefferson City hosted a trash pickup to celebrate the value of a clean community.

Cape Girardeau hosted a Youth in Government Day, where students had the opportunity to participate in a mock council meeting.

How does local government touch our lives each day ?

The city of Kirkwood put together a collage for the local library with a theme on the many ways they "save" in the community, from saving a pet to saving the planet through recycling.

www.mocities.com

Visit www.mocities.com/?page=LGW to watch a video featuring MML Director Dan Ross, Missouri Association of Counties Director Dick Burke and Missouri School Boards Association Director Dr. Carter Ward.

The Missouri Municipal Review

July 2012 / 31

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News From the Bench

by W. Dudley McCarter

TRADE ASSOCIATION HAD STANDING TO CHALLENGE MUNICIPAL ORDINANCE

T

he St. Louis Association of Realtors (Association) filed a declaratory judgment action against the city of Ferguson, challenging an ordinance adopted by the City that created a regulatory fee and licensing system for owners of residential property within Ferguson who lease or rent their property to others. The ordinance required that property owners obtain building inspections and pay licensing fees, in addition to complying with other regulations.

The ordinance makes it unlawful for property owners to rent or lease their property without first obtaining a rental license from the City. The Association is a non-profit trade association with approximately 9,000 members. Its membership includes real estate owners and other individuals who are interested in the real estate profession. The trial court dismissed the Association’s suit for lack of standing, but the Supreme Court of Missouri reversed in St. Louis Association of Realtors v. City of Ferguson, No. SC 91640 (Mo.banc 2011).

“Standing is a question of law, which is reviewed de novo.” Manzera v. State, 343 S.W.3d 656, 659 (Mo.banc 2011). Parties seeking relief, “bear the burden of establishing that they have standing.” Id. “Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.” Ste. Genevieve Sch. Dist. R‑II v. Bd. of Aldermen of the City of Ste. Genevieve, 66 S.W.3d 6 10 (Mo.banc 2002). To assert standing successfully, a plaintiff must have a legally protectable

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interest. Comm. for Educ. Equality v.

State, 315 S.W.3d 719, 724 (Mo.banc 2010). A legally protectable interest exists only if the plaintiff is affected directly and adversely by the challenged action or if the plaintiff’s interest is conferred statutorily. Id. Hunt v. Washington State Apple Advertising Comm’n., 432 U.S. 333, 343 (1977) set out a three-part test to analyze whether the requirements for associational standing have been met in a particular case: The association must demonstrate that “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

432 U.S. at 343. Missouri has adopted the Hunt framework for analyzing associational standing. Missouri Outdoor Advertising Ass’n, Inc. v.

Missouri State Hwy. & Transp. Comm., 826 S.W.2d 342, 344 (Mo.banc 1992). This Court has determined that, although the Missouri Constitution does not have a parallel “case or controversy” requirement, use of Hunt’s three-factor test for standing allows Missouri courts to ensure that “an actual controversy exists between persons whose interests are adverse” and that those who stand to benefit from the litigation “have a legally protectable interest at stake.”

State ex rel. Chilcutt v. Thatch, 221 S.W.2d 172, 176 (Mo.banc 1949).

Here, the Association satisfied the first prong of Hunt by demonstrating that some of its members are property owners in Ferguson and, so, would have

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standing in their own right to challenge Ferguson’s ordinance. The record also shows that the association satisfies the third prong of Hunt in that neither the claim asserted, nor the relief requested requires the participation of individual members in the lawsuit. Where an association seeks only a prospective remedy, it is presumed that the relief to be gained from the litigation “will inure to the benefit of those members of the association actually injured.” Warth v.

Seldin, 422 U.S. 490, 515 (1975).

The crux of the appeal is whether the association has satisfied the second prong of the Hunt test by establishing that the interests at stake in the litigation are germane to its purpose. The association’s objective in the current litigation to the challenge what it alleges is an unlawful infring ement b y F erguso n o n t h e property ownership rights of a number of its members. Because the association has demonstrated a clear interest in protecting private property rights, the issue being litigated is plainly germane to the organization’s purpose.

The association has satisfied the requirements of associational standing by showing that one or more of its members have standing to sue, the interest it seeks to protect are germane to its purpose, and neither the claim asserted nor the relief requested requires the participation of individual members of a lawsuit. It, therefore, may seek declaratory judgment on behalf of its members against Ferguson. W. Dudley McCarter is with the law firm of Behr, McCarter and Potter, P.C., St. Louis.

July 2012 / 35

Frequently Asked Questions Each day your Missouri Municipal League staff answers dozens of questions on municipal issues. This column discusses some of the most common questions the League staff receives. This issue’s column is devoted to the Missouri Open Meetings and Records Law, commonly referred to as the Sunshine Law. Many of the answers in this month’s column stem directly from information available on the Missouri Attorney General’s website.

As with all legal matters, municipal officials are urged to consult their city attorney for guidance in the specific problems faced by their municipality.

Answers provided in this column should serve only as a general reference.

Look for the second part of this topic to be covered in the November 2012 issue of the MML Review.

Q. What Is The Purpose Of The Sunshine Law?

The Sunshine Law was enacted to provide that meetings, records, votes, actions and deliberations of public government must be open to the public unless otherwise provided by law. The specific instances that allow closure are to be narrowly interpreted to promote the public policy of openness.

Public meetings, including meetings conducted by telephone, Internet or other electronic means, are to be held at

Missouri Open Meetings and Records Law: Part i reasonably convenient times and must be accessible to the public. Meetings should be held in facilities that are large enough to accommodate anticipated attendance by the public and accessible to persons with disabilities.

Q. Where Are The State Statutes Related To The Sunshine Law Found?

Chapter 610 of the Missouri Revised Statutes contains the provisions that establish Missouri’s Sunshine Law.

Q. What About Nepotism And Council Procedures, Aren’t Those Items Covered In The Sunshine Law?

Chapter 610 of the Missouri Revised Statutes, aka the Sunshine Law, only addresses issues involving the public’s access to meetings and records.

The Sunshine Law does not address issues such as council procedures or conflicts of interest. Those issues are addressed in other statutes.

Q. Are Advisory Committees, Boards And Commissions Subject To The Sunshine Law?

that a task force formed by the school district’s superintendent is subject to the Sunshine Law).

Q. Does The Sunshine Law Apply To Luncheon Meetings Of Members Of A Public Governmental Body Where Public Business Is Discussed?

Yes. A public meeting is any meeting of a public governmental body where public business is discussed, decided or public policy is formulated (Section 610.010(5)).

Public business is defined in Section 610.010(3) as all matters that relate in any way to the performance of the public governmental body’s functions or the conduct of its business. In The Kansas City Star v. Shields, 771 S.W.2d 101 (Mo. App. W.D. 1989), the City Council finance committee, city manager and city budget director held a luncheon meeting without notice in a private dining room of a Kansas City restaurant. The following day, the committee unanimously adopted a budget agreement. This meeting, during which public business was discussed, constituted a public meeting and notice should have been posted. (See Attorney General Opinion No. 10-75).

Yes, when appointed or at the Municipal League - Submitted 11/6-08 (continue to use till updated) direction of a public governmental body (continue (Section 610.010(4)); Attorney County Record - Submitted 2/28/08 to use till updated) Q. Does The Sunshine Law Apply General Opinion No. 129-2004 (stating

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To A Meeting Of Members Of A Public Governmental Body Where Public Business Is Discussed, But A Quorum Is Not Present?

Under the Sunshine Law, a meeting takes place when a majority or quorum of a public governmental body gathers to discuss or vote on public business (Section 610.010(5)) and Colombo v. Buford, 935 S.W.2d 690, 699 (Mo. App. W.D. 1996)). However, it is important to note without a quorum present, no real decision making may take place. Further, if the public and the full public governmental body are not given proper notice of a surreptitious meeting, the body will not have the benefit of a full discussion and exchange of ideas. It also must be remembered that the Sunshine Law will apply to meetings of groups with less than a quorum when the entity is deliberately attempting to evade the Sunshine Law. For example, a public governmental body may not purposely meet in groups with less than a quorum to discuss and or decide public business, and then www.mocities.com

ratify those actions in a subsequent public meeting (Colombo v. Buford, 935 S.W.2d 690, 699 (Mo. App. W.D. 1996)).

Q. What Are The Sunshine Law’s Notice Requirements?

Section 610.020.1 requires a public governmental body to give notice of the time, date and place of each meeting and its tentative agenda in a manner reasonably calculated to advise the public of the matters to be considered. The notice must state if the meeting is to take place by telephone, the Internet or other electronic means, and the location where the public may observe and attend the meeting, or the Internet message board the governing body will be using. Section 610.020.2 requires at least 24 hours of notice (excluding weekends and holidays) before the meeting, unless such notice is impossible. The notice must be posted prominently in the principal office of the governing body holding the meeting, or, if there is no such office, in the building where the meeting will be held. If the governing body is meeting via the Internet, it also is required to post a notice on its website with information on how to access the meeting.

Reasonable notice includes making copies of the notice available upon request to representatives of the news media at the same time notice is provided to members of the public body. If a meeting must be held on less than 24 hours’ notice, minutes of the meeting should state the reasons why it was not possible to give such notice (Section 610.020.4).

Q. Are There Other Instances When More Than 24 Hours Notice Is Required For A Public Meeting?

Yes. At minimum the Sunshine Law requires 24 hours’ notice be given prior to any meeting of a public body. Some issues may be subject to lengthier notice requirements including publication in newspapers depending on the topic. For instance, RSMo 89.050 requires that public hearings regarding planning and zoning changes must be published at least 15 days prior to the date of the hearing. RSMo 67.2725 requires that notice must be given four days prior to any meeting regarding tax increases or eminent domain use.

When in doubt about a particular notice requirement, city officials are urged to consult their city attorney or league staff. www.mocities.com

Q. May A Public Governmental Body Post Its Notice In Locations Other Than Its Office Or The Meeting Location?

Yes. The Sunshine Law requires notice to be posted in one of the locations outlined in Section 610.020.2. Posting notice in any other location will not relieve the public governmental body of its obligation under this provision.

However, there is no reason that a public governmental body cannot post notice in additional places, such as on its website or a common area.

Q. Doesn’t The Sunshine Law Guarantee The Public The Right To Speak At Council Meetings?

No. The Sunshine Law only provides the public with the right to attend council meetings. It does not provide the public with the right to speak during council meetings.

Q. How Long Does The Sunshine Law Require Records To Be Kept For?

The Sunshine Law is actually silent in regards to the retention of public records. However, RSMo 109.255 authorizes the Missouri Secretary of State (SOS) with advice from a board of local records to promulgate rules on how long records are to be retained.

These rules can be found in the retention manuals available on the SOS’s website at: http://www.sos.mo.gov/archives/ localrecs/schedules/

Q. Must members of a public

governmental body be physically present at a meeting to vote?

The Sunshine Law generally allows members of a public governmental body to participate in a meeting and vote without being physically present, for example, by telephone. But if a public governmental body consists of members who are all elected, Section 610.015 requires that members be physically present and in attendance at a meeting when votes are to be taken by roll call. In an emergency, members may vote by phone, Internet or other means, but only if a quorum of the members is physically present at the meeting location. The physical presence requirement does not apply to any committee established by a public governmental body or to members of the General Assembly (Section 610.015).

Q. When Are Roll-Call Votes Required?

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The Sunshine Law requires that any vote to go into closed session (Section 610.022.1) and any votes taken during a closed meeting require a rollcall vote (Section 610.015). While not required under the Sunshine Law (but required in other statutes), passage of ordinances requires roll call votes.

Q. Can Citizens Record Or Videotape Public Governmental Body Meetings?

Yes. However, the public body may establish guidelines to minimize disruption. Recording a properly closed meeting without the permission of the public body, however, is not permitted and is a class C misdemeanor (Section 610.020.3).

Q. Are Public Governmental Bodies Required To Take Minutes Of Meetings?

Yes. Minutes for open and closed meetings shall include, at a minimum, date, time, place, members present and members absent, a record of votes taken and, when a roll call vote is taken, votes shall be attributed to each member (Section 610.020.7). It also is advisable for bodies to keep minutes of the discussion that takes place during meetings, especially of closed meetings.

These minutes are useful for internal purposes, and for creating a record to justify the proper closure of a meeting under Section 610.021.

Q. What Procedures Must Be Followed To Close Meetings, Records Or Votes?

Meetings and records may only be closed if the subject matter falls under one of the specific exemptions detailed under RSMo 610.021. The commonly used exemptions are for real estate, legal matters and personnel. In order to use one of these exemptions, the public governmental body must follow the procedures set out in RSMo 610.022. Specifically, notice that a closed meeting will be held including citation of the statutory exemption under which the meeting will be closed must be provided 24 hours prior to the meeting. In addition there must be a roll call vote with a majority voting to close the meeting prior to going into closed session. In regards to records, governing bodies are advised to adopt a policy that formally closes the body’s records as allowed under the Sunshine Law.

July 2012 / 37

Member accomplishments Brenda M. Cirtin, MMC, city clerk, Springfield, succeeded to the office of President of the International Institute of Municipal Clerks (IIMC) during the Institute’s 66th Annual Conference in Portland, Oregon on May 24, 2012.

Cirtin became a member of the Executive Committee in 2010 when she was elected vice president. She will serve a one-year term through May 23, 2013.

She is the first president from Missouri.

Joyce Pumm, CMC, city clerk, University City, has earned the prestigious Certified Municipal Clerk (CMC) designation from the International Institute of Municipal Clerks (IIMC). The CMC designation program is designed to enhance the job performance of the clerk in small and large municipalities. To earn the CMC designation, a municipal clerk must attend extensive education programs. The program prepares the participants to meet the challenges of the complex role of the municipal clerks by providing them with quality education in partnership with 47 institutions of higher learning. The program has been in existence since 1970 and has helped thousands of clerks in various municipalities.

38 / July 2012

2012 CALENDAR OF EVENTS July 19

26

MML West Gate Meeting and Civic Leadership Awards Banquet Blue Springs, MO MML Policy Committee Meetings Jefferson City, MO

August 21

MML Resolutions Committee Meeting Jefferson City, MO

September 15 16

16-19 29-Oct. 3

October 7-10

9

10

November 6 27-Dec. 1

Financial Disclosure Ordinance Deadline MML Scholarship Golf Outing Lake of the Ozarks, MO MML Annual Conference, Tan-Tar-A Resort Lake of the Ozarks, MO International Association of Chiefs of Police Annual Conference San Diego, CA

ICMA Annual Conference Phoenix, AZ Collective Bargaining in Missouri Workshop Clayton, MO MML Central Meeting

Election Day NLC Congress of Cities, Boston, MA

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July 2012 / 39

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