Opinion
Nos. ED 80093 and ED 80126
April 9, 2002
Appeal from the Circuit Court of the City of St. Louis, Honorable Robert H. Dierker.
Danna McKitrick, Daniel G. Tobben, David R. Bohm, 150 North Meramec, 4th Floor, St. Louis, MO, 63105-3907, Attorneys for Appellants Firemen's Retirement System of St. Louis, et al.
Jerome A. Diekemper, Richard P. Perkins, Diekemper, Hammond, Shinners, Turcotte Larrew, P.C., Attorneys for Appellants Firefighters.
Patricia A. Hageman, City Counselor, Edward J. Hanlon, Room 314 City Hall, St. Louis, MO, 63103, Attorney for Respondent City of St. Louis.
John Fox Arnold, James C. Hetlage, Lisa O. Stump, Lashly Baer, P.C., 714 Locust Street, St. Louis, MO, 63101, Attorneys for Respondents Civil Service Commission of the City of St. Louis and Its Members Nina Murphy, John H. Clark, and Kay V. Leonard.
Before George W. Draper III, P.J. and Mary R. Russell, J. and Mary K. Hoff, J.
Firemen's Retirement System of St. Louis (FRS) and its trustees, (collectively referred to as FRS Appellants) and St. Louis Firefighters Association Local 73 and Keith Allen Hasty, Dennis Roemerman, James W. Wolfslau, and Charles J. Zoeller (collectively referred to as Firefighter Appellants) appeal the trial court's Memorandum, Order and Judgment (Judgment) to the extent the trial court found St. Louis City (City) Ordinance No. 64923 (Ordinance) void due to the absence of a recommendation by City's Civil Service Commission (Commission). We affirm.
It is stipulated that FRS was created by the City of St. Louis (City) under state statutory and constitutional authority by enactment of Chapter 4.18 of City's Code. As set forth in the parties' stipulation, the general administration and the responsibility for operation of FRS are vested in its Board of Trustees.
The FRS trustees named as parties to this lawsuit are: Len Wiesehan; Larry Reinecke; Bruce Williams; Fred Guy; Chief Sherman George; Darlene Green, Comptroller; George Hairston; and Gayle Malone.
The parties stipulated that this local is a labor organization certified as the exclusive representative of all firefighters and captains in City's Fire Department.
The parties stipulated that these four individuals are firefighters or fire captains employed in City's Fire Department and members of FRS.
Commission was created pursuant to Article XVIII of City's Charter for the administration of City's civil service rules and regulations.
The appeal before us does not challenge the trial court's determination that Commission and its members had standing to pursue this litigation, trial court's denial of Firefighter Appellants' motion for evidentiary hearing, and the trial court's decision that each party bears its own costs and attorney's fees.
Notably, City, City's Mayor, and City's Board of Aldermen (Board), who were parties to the proceedings below, have not filed a notice of appeal from the Judgment. To the extent their brief as respondents in these appellate proceedings may be read as raising any problem with the Judgment's terms, we will not address those contentions due to the absence of an appeal by those parties. St. Louis Concessions, Inc. v. City of St. Louis, 926 S.W.2d 495, 498 n. 1 (Mo.App.E.D. 1996); Fischer v. Brancato, 937 S.W.2d 379, 384 (Mo.App.E.D. 1996), cert. denied, 520 U.S. 1233 (1997).
This non-jury case was submitted to the trial court on stipulated facts and undisputed materials submitted with the parties' trial briefs (stipulation). On review of such a case, we determine whether the trial court drew the proper legal conclusions from the stipulation. Deutsch v. City of Ladue, 728 S.W.2d 239, 241 (Mo.App.E.D. 1987). After carefully considering the undisputed record, the pertinent Missouri Supreme Court decisions, and the challenges presented for our resolution, we find the trial court drew the proper legal conclusions and did not err in declaring Ordinance No. 64923 invalid and unenforceable due to lack of a recommendation by Commission.
In 1999 the Missouri Legislature enacted Section 87.371 RSMo Cum. Supp. 1999 regarding a FRS member's unused sick leave. That statute provides as follows:
Any [FRS] member retiring pursuant to the provisions of sections 87.120 to 87.370, after working continuously for an entity covered by sections 87.120 to 87.370, until reaching retirement age, but not including retirement for service-connected disability, shall be credited with all of the member's unused sick leave as certified by the member's employing entity.
No member working on or after June 1, 1999, shall be credited with sick leave at a rate less than the rate being earned on June 1, 1999, nor shall any cap or limit applied to accumulated sick leave after June 1, 1999, be construed as a limit on the number of sick days actually earned without reference to the cap or limit which may be credited pursuant to the provisions of this section. When calculating years of service, each member shall be entitled to one day of creditable service for each day of unused accumulated sick leave earned by the member.
3. Accumulated sick leave shall allow a member to vest in the retirement system by using such credited sick leave to reach the time of vesting and shall also allow a member to exceed a seventy-five percent service retirement allowance by adding accumulated sick leave to no more than thirty years of creditable service or a member who is participating in the DROP program established in section 87.182 may elect upon retirement to have placed in his or her DROP account a dollar amount equal to his or her accumulated number of sick leave hours multiplied by his or hourly rate of pay at the time of
The DROP program is the Deferred Retirement Option Plan.
Without the recommendation of Commission, City subsequently adopted, over mayoral veto, Ordinance No. 64923. That Ordinance, as reflected in Board Bill No. 110, provides in relevant part as follows:
An ordinance pertaining to the firemen's retirement system; repealing Section Seven of Ordinance 63591, approved on November 1995 relating to the crediting of unused sick leave and enacting a new section to conform to the provisions of Senate Bill 308 [which became Section 87.371 RSMo Cum. Supp. 1999], to be codified as 4.18.386 Code of the City of St. Louis; and containing an emergency clause.BE IT ORDAINED BY THE CITY OF ST. LOUIS AS FOLLOWS:
SECTION ONE. Section Seven of Ordinance 63591, approved on November 1995, is hereby repealed and in lieu thereof is enacted the following new section to be codified as Section 4.18.386 of the Revised Code and shall read as follows:
SECTION TWO. 4.18.386(1). Any member retiring pursuant to the provisions of sections 87.120 to 87.370 RSMo., after working continuously for an entity covered by sections 87.120 to 87.370 RSMo., until reaching retirement age, but not including retirement for service-connected disability, shall be credited with all of the member's unused sick leave as certified by the member's employing entity.
(2). No member working on or after June 1, 1999, shall be credited with sick leave at a rate less than the rate being earned on June 1, 1999, nor shall any cap or limit applied to accumulated sick leave after June 1, 1999, be construed as a limit on the number of sick days actually earned without reference to the cap or limit which may be credited pursuant to the provisions of this section. When calculating years of service, each member shall be entitled to one day of creditable service for each day of unused accumulated sick leave earned by the member.
(3). Accumulated sick leave shall allow a member to vest in the retirement system by using such credited sick leave to reach the time of vesting and shall also allow a member to exceed a seventy-five percent service retirement allowance by adding accumulated sick leave to no more than thirty years of creditable service or a member who is participating in the DROP program established in section 87.182 RSMo. may elect upon retirement to have placed in his or her DROP account a dollar amount equal to his or her accumulated number of sick leave hours multiplied by his or her hourly rate of pay at the time of retirement.SECTION THREE. Emergency clause.
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Approved: April 17, 2000
Commission and its members, Nina Murphy, John H. Clark, and Kay V. Leonard (collectively referred to as Commission Members), then filed this lawsuit seeking declaratory and injunctive relief on the grounds the enactment of Ordinance No. 64923 without Commission's recommendation violated Sections 4 and 7(b) of Article XVIII of City's Charter.
Commission Members pursued this litigation in their official capacities on behalf of Commission and in their individual capacities as residents and taxpayers of City.
Section 4 of Article XVIII of City's Charter states in relevant part:
The mayor and aldermen shall provide, by ordinance:
Compensation plan. For adoption of a comprehensive compensation plan for the fixing of rates of pay of all employe[e]s in the classified service, and amendments thereto, on recommendation of the civil service commission, and for its application and interpretation. Every appropriation and expenditure for personal services in any position in the classified service thereafter shall be made in accordance with the compensation plan so adopted and not otherwise;
* * *
Retirement system. For a contributory retirement system on a sound actuarial basis, if and when permissible under the Constitution and Laws of the State of Missouri, to provide for retirement of employe[e]s in the classified service who have become unable to render satisfactory service by reason of physical or mental incapacity;
* * *
Hours of duty and holidays. For regulating hours of duty, holidays, attendance, and absence, in the classified service;. . . .
It is not disputed that FRS members are all City firemen, and City firemen are employees in the classified service. See Section 87.130 RSMo Cum. Supp. 1999; Section 1(d) and Section 1(m) of Article XVIII of City's Charter.
Section 7(b) of Article XVIII of City's Charter provides:
The commission shall have power, and it shall be its duty:
* * *
(b) Ordinances. To recommend to the mayor and aldermen in accordance with this article, ordinances to provide for:
a compensation plan providing properly related scales of pay for all grades of positions, and rules for its interpretation and application;
a plan for a system for retirement of superannuated and otherwise incapacitated employe[e]s, if and when permissible under the Constitution and Laws of the State of Missouri;
regulation of hours of duty, holidays, attendance and absence;
such other matters within the scope of this article as require action by the mayor and aldermen;
(5) such changes in any such matters from time to time as may be deemed to be warranted.
After considering the parties' stipulation, the trial court declared Ordinance No. 64923 "illegal and of no force or effect," because it was adopted without Commission's recommendation "as required by" City's Charter. The trial court permanently enjoined implementation or enforcement of the Ordinance other than as set forth in the Judgment. The trial court concluded it was bound by the Missouri Supreme Court's decision in Abernathy v. City of St. Louis, 313 S.W.2d 717 (Mo. 1958), which held a City ordinance regarding hours of work for City employees invalid because it was not recommended by Commission. The trial court stated it was "obvious that the Supreme Court's ellipses [in its quotation of Section 4 of Article XVIII of City's Charter] have the effect of incorporating the qualifying language 'on recommendation of the civil service commission' [which is in Section 4(a) only] into all of the subsections of [City Charter] art. XVIII, Section 4." The trial court concluded
there is no sound reason to believe that the Supreme Court meant to carry that language into Section 4(c), relating to ordinances governing hours of work, and not into Section 4(b), relating to retirement systems. Nor is there any basis in the opinion to suggest that the decision turned on the meaning of the term 'compensation' as used in Section 4(b) [sic 4(a)]. The Supreme Court held that an ordinance regulating the hours of work of City civil servants could not be enacted without recommendation of the Civil Service Commission. A fortiori, ordinances regulating retirement systems must be recommended by the Commission, and that prerequisite is mandatory. Kirby v. Nolte, [ 173 S.W.2d 391 (Mo.banc 1943)]. The portions of the Supreme Court's opinion [at Abernathy, 313 S.W.2d at 718-19 which were] quoted [earlier in the trial court's Judgment] cannot be characterized as dicta, and, even if [they] were, this Court would be hard put to ignore the expressed views of the Supreme Court, dicta or no.
The trial court further found that the Ordinance, passed without Commission's recommendation, was not unenforceable for conflicting with the enabling statute, Section 87.120 RSMo Cum. Supp. 1999, as argued by Firefighters and FRS. Rather, the trial court decided, City is not required to take any action under that statute; City need not enact an ordinance to conform to every change in that statute, but if it does the ordinance must conform to the minimum requirements of the statute; the statute cannot and does not prescribe the method by which City must enact an ordinance; and there was no conflict between the Charter requirement of Commission's recommendation and the statute authorizing adoption of an ordinance. Finally, the trial court also concluded that, due to the "explicit holding" of Abernathy regarding the construction of Article XVIII of City's Charter, "[t]he opinions of the City Counselor ignoring Abernathy are of no weight, . . . the inaction of the Civil Service Commission [during prior years] does not operate to repeal the mandatory requirements of the Charter," and "[t]he positive requirements of the Charter, like those of the constitution, are not subject to waiver or estoppel. See, e.g., Mullins v. Kansas City, 188 S.W. 193[, 196-97] (Mo. 1916)." This appeal followed the trial court's entry of judgment.
The parties made it clear during oral argument, in their briefs, and through the filing of the notices of appeal that the prospective nature of the trial court's Judgment is not challenged on appeal. Therefore, the following provision of the Judgment is not before us:
shall operate prospectively only, and . . . shall not be construed as requiring any reduction in benefits of any member of the Firemen's Retirement System who has retired prior to the date of this judgment or any reimbursement to the System of benefits previously paid, nor as requiring any reduction in accumulated sick leave credited as of the date of this judgment to any account of any member of the System eligible to retire prior to the date of this judgment, nor as prohibiting payment in accordance with such credits of lump sums to any member of the System eligible to retire prior to the date of this judgment, upon actual retirement, so that the members of the Firemen's Retirement System shall remain in statu quo as of the date of this judgment.
Additionally, we do not have before us the validity of any ordinance other than Ordinance No. 64923.
In its Judgment, the trial court noted the amended petition sought relief only with regard to Ordinance 64923 and stated that its Judgment "must perforce be limited to declaring the rights and obligations of the parties under that ordinance." This aspect of the Judgment has not been challenged on appeal.
In their first point, FRS Appellants argue the trial court erred in declaring the Ordinance invalid and void because Commission does not have a right to recommend ordinances relating to the FRS. Specifically, FRS Appellants urge Section 4(b) of Article XVIII of City's Charter does not mention or grant authority for Commission's recommendation; the subsequent language in Section 7 of Article XVIII of City's Charter gives Commission at most an advisory, and not a mandatory, role with respect to retirement plans for City firefighters; and Abernathy is not controlling because it did not address either FRS or retirement systems under Article XVIII, Section 4(b). In their sole point, the Firefighter Appellants contend the trial court erred in declaring the Ordinance invalid based on the absence of Commission recommendation because Sections 4(b) and 7(b) of Article XVIII of City's Charter do not require Commission recommendation for ordinances pertaining to the FRS and Abernathy does not apply. We will address these similar points together.
Section 4(a) of Article XVIII of City's Charter clearly includes an express requirement that City enact ordinances pertaining to a "comprehensive compensation plan" for City's classified service employees "on recommendation of the civil service commission." The Missouri Supreme Court has decided that this Commission recommendation language is mandatory in nature. Kirby v. Nolte, 173 S.W.2d 391 (Mo.banc 1943) (discussing Section 4(a) of the 1941 amendment to City's Charter which contained language identical to that of the first sentence of Section 4(a) of Article XVIII of City's present Charter). In other words, when this Commission recommendation language applies, a recommendation by Commission is required, not merely suggested, desirable, or advisable.
Section 4(b) of Article XVIII of City's Charter does not contain express language requiring Commission's recommendation prior to City's enactment of any ordinance pertaining to a contributory retirement system for City's classified service employees, such as the FRS for City's firefighters and fire captains. The question before us is whether, as the trial court found, the Missouri Supreme Court's decision inAbernathy makes Commission's recommendation a prerequisite to City's adoption of an ordinance pertaining to the FRS despite the absence of Commission recommendation language from Section 4(b) of Article XVIII of City's Charter.
In Abernathy, the Missouri Supreme Court concluded a City ordinance setting forth both the maximum hours per week for regular full time employment and what constituted overtime hours of all City employees was void because the Commission had not recommended the ordinance prior to its enactment. Abernathy, 313 S.W.2d at 718. In reaching this conclusion, the Supreme Court looked to the language of Section 7(b), Section 4(a), and Section 4(c) of Article XVIII of City's Charter. Id. In pertinent part, the Supreme Court stated:
[N]otice the wording of Section 4 of Article XVIII wherein it is provided that "The mayor and aldermen shall provide, by ordinance * * * on recommendation of the civil service commission, * * * (c) * * * For regulating hours of duty, holidays, attendance and absence, in the classified service." We therefore, conclude that Ordinance No. 47744, upon which plaintiffs based their claim, is void for the reason that it had not been, before its passage, recommended by the Civil Service Commission.
Id. at 719 (omissions in original). This Supreme Court quotation puts the mandatory "on recommendation of the civil service commission" language of Section 4(a) into Section 4(c). The Missouri Supreme Court's decision does not set forth the basis for this reading of Article XVIII, Section 4. Because this reading was not clearly based on any assessment by the Supreme Court of what constitutes "compensation" in Section 4(a) or on any analysis by the Supreme Court of the absence of reference to state constitutional or statutory authority in Sections 4(a) and 4(c), we are not persuaded by any argument that ordinances pertaining to a retirement system, such as the FRS, should be treated differently than ordinances pertaining to employee hours. Thus, the fact Abernathy addressed an ordinance focusing on employee hours, which is not the subject of the ordinance at issue here, does not preclude the application of Abernathy to this case. Without a clear statement of the reason for the Missouri Supreme Court's reading of Sections 4(a) and 4(c) of Article XVIII of City's Charter, we find no basis for interpreting Abernathy as reading the mandatory "on recommendation of the civil service commission" language from Section 4(a) into Section 4(c) but not into Section 4(b) of that Article. Therefore, we understand the Missouri Supreme Court's decision in Abernathy to incorporate the mandatory Commission recommendation language from Section 4(a) into Section 4(b), as well as Section 4(c), of Article XVIII of City's Charter. Having so found, we conclude Ordinance No. 64923 is invalid and unenforceable because Commission did not recommend its enactment prior to its adoption, as required by Section 4(b) of Article XVIII of City's Charter.
Due to our understanding of Article XVIII, Section 4(b) of City's Charter in light of the Missouri Supreme Court's decision in Abernathy, we do not need to address arguments that "compensation plan" and "retirement system" are separate for purposes of Sections 4 and 7 of Article XVIII of City's Charter; that an employee's retirement benefits are not properly considered employee compensation; that the Commission recommendation provisions in Section 7 of Article XVIII of City's Charter are not mandatory; or that the requirement of state legislation prior to enactment of an ordinance pertaining to FRS removes Commission involvement in such an ordinance.
These two points are denied.
In their second point, FRS Appellants urge the trial court erred in declaring the Ordinance invalid and void because Commission had not previously asserted a right to recommend ordinances pertaining to the FRS, and such failure to act is relevant and constitutes laches. In particular, they urge "the failure of the Commission to raise this issue for over 50 years [since the Abernathy decision was issued] . . . is a further basis for the proper holding that Ordinance 64923 is valid and that the Commission has no authority to issue binding recommendations with respect to ordinances affecting FRS."
Firefighter Appellants pursued a similar argument in support of their sole point.
To the extent laches may be urged against a governmental entity in circumstances such as those in this case, we conclude laches is inapplicable regarding passage of Ordinance 64923, the only ordinance now before us.
Laches is "an equitable doctrine that unreasonable delay bars a claim if the delay is prejudicial to the" party asserting the laches defense.Mississippi-Fox River Drainage Dist. No. 2 of Clark County v. Plenge, 735 S.W.2d 748, 754 (Mo.App.E.D. 1987). Whether laches applies under the circumstances is a matter of the trial court's sound discretion. Id. We cannot say the trial court abused its discretion here because there was no unreasonable delay in Commission's assertion that Ordinance 64923 was invalid due to the lack of a recommendation by Commission.
The stipulation reveals that Board Bill 110, which became Ordinance 64923, was introduced to Board in the summer of 1999. By letter, dated August 9, 1999, Commission advised City's Mayor and Board's members that Board Bill 110 had not been considered or recommended by Commission. Board approved Board Bill 110 during the Spring 2000 legislative session. The parties further stipulated that Commission sent a letter, dated March 22, 2000, to City's Mayor advising him of Commission's position that Board Bill 110 had been improperly approved by Board because the Bill had not been recommended by Commission. On March 31, 2000, City's Mayor vetoed Board Bill 110, which became effective April 17, 2000, when Board adopted it by overriding the mayoral veto. Commission filed this lawsuit on October 19, 2000, or approximately six months after the Ordinance became effective.
We find laches inapplicable regarding this Ordinance.
This point is denied.
Judgment affirmed.