The following officers shall be elected by the qualified voters of the City and shall hold office for the term of two (2) years, except as otherwise provided in this Section, and until their successors are elected and qualified, to wit: Mayor, Board of Aldermen, Collector and Municipal Judge.
The Mayor, with the consent and approval of the majority of the members of the Board of Aldermen, shall have power to appoint a City Treasurer, City Attorney, City Administrator, City Assessor, Street Commissioner and Night Watchman and such other officers as he/she may be authorized by ordinance to appoint, and if deemed for the best interests of the City, the Mayor and Board of Aldermen may, by ordinance, employ special counsel to represent the City, either in a case of a vacancy in the office of City Attorney or to assist the City Attorney, and pay reasonable compensation therefor.
[Ord. No. 1390 §1, 12-14-2015]
In accordance with the authority granted by Section 79.240 of the Revised Statutes of Missouri, the Board of Aldermen of the City of Pevely has enacted the following provisions regulating the manner of impeachment and removal of elected and appointed officials and the consequences thereof.
The City of Pevely recognizes that the City has a duty to provide for and protect the health, safety, peace, comfort, and general welfare of its citizens. The City acknowledges this includes: a duty to take the necessary steps to maintain good government; preserve peace and good order; to install public confidence in the elected and appointed officials of the City; and to protect the Citizens from those elected or appointed officials who would abuse their office or use it inappropriately or improperly.
Removal Of Elective Or Appointive Officials.
The Mayor may, with the consent of a majority of all the members elected to the Board of Aldermen, remove from office, for cause shown, any elective officer of the City, such officer being first given opportunity, together with his or her witnesses, to be heard before the Board of Aldermen sitting as a Board of Impeachment. Any elective officer, including the Mayor, may in like manner, for cause shown, be removed from office by a two-thirds (2/3) vote of all members elected to the Board of Aldermen, independently of the Mayor's approval or recommendation.
The Mayor may, with the consent of the majority of all the members elected to the Board of Aldermen, remove from office any appointive officer of the City at will, and such appointive officer may be removed by a two-thirds (2/3) vote of all members of the Board of Aldermen, independently of the Mayor's approval or recommendation.
The Chief of Police may only be removed or discharged pursuant to the provisions of Section 106.273, RSMo., and as the same may be hereafter amended.
Any impeachment or removal hearing shall be conducted in compliance with the Missouri Administrative Procedures Act, Chapter 536, RSMo.
Grounds For Removal Of Elective Officers.
An elected officer of the City may be impeached or removed from office for cause shown. "For cause shown" means a legally sufficient ground or reason that relates to and affects the administration of the officer's office and that is something of a substantial nature that directly affects the rights and interests of the public. The cause must be one touching upon the performance of an officer's duties showing that he or she is not fit to hold the office. Such cause for removal or impeachment may include any ground or reason deemed sufficient as a matter of law in this State.
Grounds or reasons may include, but are not limited to, the following:
Willful violation of any of the officer's official duties or the willful violation of City ordinances or State Statutes.
Official negligence or dereliction of official duties.
Incompetence or inability to perform the duties as required.
Any conduct inconsistent with the officer's official character and duties; including misconduct, oppression or corruption in office; moral turpitude; and/or offensive conduct that brings discredit upon the City.
Intoxication while in the performance of any official act or duty, or intoxication so as to render the officer incapacitated to perform any official act or duty at the time or in the manner required by law.
Misappropriation, destruction, theft or conversion of City property.
Inducing or attempting to induce any officer or employee in the City service to commit an illegal act or to act in violation of any departmental order.
Solicitation or acceptance for personal use of any fee, gift or other valuable thing in the course of service as an Alderman by any person in expectation of receiving more favorable treatment or a favorable vote.
Failure to attend four (4) consecutive regular Board meetings or six (6) regular meetings within a twelve (12) month period, unless said absence was "excused" (i.e., medical or family emergency).
Any elected or appointed official who attends a closed meeting, or who has been supplied with closed record(s), closed pursuant to the Sunshine Law contained in Section 610.021, RSMo., has a duty to preserve the confidentiality of any and all information discussed or disclosed in that closed meeting and/or record. Any elected or appointed official breaching this duty may be excluded from attending subsequent closed meetings and/or may be denied access to closed records. A second violation of the duty of confidentiality shall be an impeachable offense.
Institution Of Removal Proceedings — Suspension — Service.
Impeachment proceedings shall commence upon the motion of any Alderman to have articles of impeachment drafted, when the majority of the Board of Aldermen present and voting, shall be satisfied that there is good cause to impeach the accused elected officer, and said motion is approved by a majority of the Board of Aldermen. The accused elected official shall have the right to vote upon said motion. The Mayor shall have a seat in and preside, but shall not vote on the question except in case of a tie.
The drafting of the articles of impeachment shall to be transmitted to the City Attorney, City Prosecutor or special counsel, which said articles shall describe with reasonable precision and detail the facts constituting sufficient cause for removal or impeachment. Such articles of impeachment shall specifically state the separate and distinct charges on the grounds of which the removal of such officer is sought.
At any time after the approval to have articles of impeachment drafted, the Board of Aldermen, by majority vote of those present and voting, may make an order suspending the accused officer for a period not to exceed sixty (60) days while an investigation is conducted or articles of impeachment are prepared. The Board shall provide a general description of the alleged acts for which investigation is to be conducted or for which articles of impeachment are to be drafted, and shall identify the person(s) responsible for conducting the investigation or drafting the articles of impeachment.
When an order of suspension has been authorized, the Mayor or the President of the Board of Aldermen, if the Mayor be the accused, shall forward a copy of such order to the City Clerk to be served on the accused as provided herein.
Upon the reading of articles of impeachment by the City Attorney, City Prosecutor or special counsel and upon the consideration of the charges at the Board of Aldermen's next regular or special meeting, the Board of Aldermen, if the Mayor be the accused, shall move, by majority vote of all the elected members of the Board of Aldermen, to make a resolution for removal or impeachment and shall set a date and time for a removal or impeachment hearing to be heard by the Board of Aldermen setting as a court of impeachment.
When articles of impeachment shall be approved by a majority of the Board of Aldermen, the Mayor or the President of the Board of Aldermen, if the Mayor is the accused elected officer, shall immediately appoint some day and time, not less than twenty (20) days after the approval of the articles of impeachment by the Board of Aldermen, for appearance of the accused elected officer and cause summons to be issued, signed by the issuing official, with a copy of the articles of impeachment annexed, requiring the accused elected officer to appear in the City Hall on the day appointed for that purpose, and answer the charges exhibited against him or her. Such summons and articles of impeachment shall be filed with the City Clerk and served on the accused as provided herein.
The summons, articles of impeachment, and order of suspension, if any, shall be served by the Chief of Police, or in his or her unavailability by a member of the Police Department. The accused elected officer, if he or she can be found, shall be personally served with the summons and articles of impeachment; and if the accused cannot be found, then by leaving a copy of such summons and articles of impeachment at his or her dwelling house or usual place of abode, with some member of the family above the age of fifteen (15) years. Upon personally serving the notice and copy of the charges on the accused officer, the Law Enforcement Officer serving said notice and charges shall prepare and file with the City Clerk a return of service that sets forth the identity of the person or persons served as well as the location, date, and time of said service.
If for any reason the accused officer cannot be served with the notice and copy of the charges within three (3) days after the date said charges and notice were filed with the City Clerk, the City Clerk shall thereafter promptly mail the notice of filing, together with a copy of the charges, to the accused officer at his or her last known address by certified mail, return receipt requested, and by regular mail. The City Clerk shall make and keep a permanent record of the service (return of service) in this manner setting forth the identity of the person or persons to whom such notice and copy of charges were mailed and of the addresses to which the notice and charges were sent and of the time when mailed.
Pleadings - Discovery - Subpoenas - Evidence.
Entries of appearance by counsel or the accused official are permitted. Answers, amendments, motions, and briefs may be filed in any impeachment hearing, however, that no answering instrument shall be required. Any responsive pleading to the petitioner's articles of impeachment shall be filed within the time limits specified for filing an answer under the rules governing civil practice in Circuit Courts in Missouri;
Discovery, including depositions, may be had, and enforced, as provided by Missouri Supreme Court Rule for civil actions in Circuit Court, except as limited by, Section 536.073, RSMo.;
The issuance, service, and enforcement of subpoenas and subpoenas duces tecum shall be as provided in Section 536.077, RSMo.;
Reasonable opportunity shall be given for the preparation and presentation of evidence bearing on any issue raised or decided or relief sought or granted. Where issues are tried without objection or by consent, such issues shall be deemed to have been properly before the agency. Any formality of procedure may be waived by mutual consent;
Evidence at the hearing shall be as provided in Section 536.077, RSMo., including but not limited to:
All oral evidence shall be taken only on oath or affirmation;
Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any matter relevant to the issues even though the matter was not the subject of the direct examination, to impeach any witness regardless of which party first called him or her to testify and to rebut the evidence against him or her;
A party who does not testify in his or her own behalf may be called and examined as if under cross-examination;
Records and documents of the City which are to be considered at the removal or impeachment hearing shall be offered in evidence so as to become part of the record, the same as any other evidence, but the records and documents may be considered as a part of the record by reference thereto when so offered;
The Hearing Officer shall take official notice of all matters of which the courts take judicial notice. They may also take official notice of technical or scientific facts, not judicially cognizable, within their competence, if they notify the parties, either during a hearing or in writing before the impeachment hearing, or before findings are made after hearing, of the facts of which they propose to take such notice and give the parties reasonable opportunity to contest such facts or otherwise show that it would not be proper for the Hearing Officer to take such notice of them;
Evidence to which an objection is sustained shall, at the request of the party seeking to introduce the same, nevertheless be heard and preserved in the record, together with any cross-examination with respect thereto and any rebuttal thereof, unless it is wholly irrelevant, repetitious, privileged, or unduly long;
Any evidence received without objection which has probative value shall be considered by the Hearing Officer along with the other evidence in the case. The rules of privilege shall be effective to the same extent that they are now or may hereafter be in civil actions. Irrelevant and unduly repetitious evidence shall be excluded;
Copies of writings, documents and records shall be admissible without proof that the originals thereof cannot be produced, if it shall appear by testimony or otherwise that the copy offered is a true copy of the original, but the Hearing Officer may, nevertheless, if he or she believes the interests of justice so require, sustain any objection to such evidence which would be sustained were the proffered evidence offered in a civil action in the Circuit Court, but if it does sustain such an objection, it shall give the party offering such evidence reasonable opportunity and, if necessary, opportunity at a later date, to establish by evidence the facts sought to be proved by the evidence to which such objection is sustained.
Conduct Of The Hearing — Procedure And Burden Of Proof.
In all trials as under articles of impeachment, the accused shall have a right to shall to be represented by an attorney that he or she may employ to conduct his or her defense to the charges and shall be entitled to be heard by himself or herself and his or her counsel.
Any and all matters relating to procedure and the conduct of the trial shall be entered and made a part of the record of the proceeding.
With respect to any removal or impeachment hearing under Section 115.030 of the Municipal Code, the Board of Aldermen shall retain a duly licensed attorney in the State of Missouri to act as Hearing Officer who shall preside over the hearing. The Hearing Officer shall determine all questions of law arising during the trial upon the admissibility of evidence, the competency of witnesses or otherwise, and may punish any person for contempt committed toward it or for obstructing the administration of justice on such trial in as full a manner as any court of record could do for like contempt toward such court.
The City Attorney, City Prosecutor, or in the case he or she be the accused, a witness or deemed biased, some special City Attorney selected by the Board of Aldermen shall conduct the prosecution of the charges against the accused officer.
The proceedings of the Board of Aldermen acting under Section 115.030 of the Municipal Code shall be recorded by a certified court reporter. Said certified court reporter shall be a duly authorized notary public in this State and he or she shall be responsible for administering oaths to the Board of Aldermen and all witnesses called at the removal or impeachment hearing, taking down and recording all witness testimony heard at the hearing, labeling documentary evidence presented at the hearing and, if requested, providing transcripts to the Board of Aldermen and the accused.
At the time and place mentioned in the notice to the elective officer described in Subsection (D) of this Section, the Board of Aldermen shall by motion resolve itself into a Court of impeachment. The Hearing Officer shall preside over such court and the City Clerk shall act as clerk of the court. A majority of the members of Board of Aldermen shall constitute a quorum for such purpose.
If the accused shall not appear after being notified as provided in this Chapter, the Board of Aldermen and Hearing Officer may proceed ex parte.
The Court of impeachment shall be sworn by the certified court reporter authorized under the Statutes of the State to administer oaths before any evidence is offered either for or against the accused elective officer. The Court of impeachment shall first hear evidence offered in support of the charges filed against such elective officer and at the close of such evidence in support of such charges, the Court of impeachment shall then proceed to hear evidence offered in defense of the accused elective officer. The Court of impeachment may adjourn from time to time, if necessary, until all the evidence is heard.
The burden of proof is on the City Attorney, City Prosecutor or the special City Attorney to cause the Board of Aldermen, sitting as a Court of impeachment, to believe by clear and convincing evidence that the accused officer committed the charges of impeachment that have been filed against him or her.
After the hearing of the evidence in support of the charges and the evidence in defense of the accused elective officer, the Board of Aldermen sitting as a Court of impeachment shall vote by aye and nay on each specific charge as to the guilt or innocence of the accused elective officer and should such aye and nay vote show that two-thirds (2/3) of all the members elected to the Board of Aldermen sitting as such Court of impeachment have voted aye. Judgment or sentence of conviction and removal from office shall be given, with the approval or recommendation of the Mayor, upon a majority vote of all the members elected to the Board of Aldermen. Independent of the Mayor's approval or recommendation, such judgment or sentence shall require a two-thirds (2/3) vote of all the members elected to the Board of Aldermen.
Consequences And Procedure After Impeachment.
If the accused elective officer shall be deemed guilty of even one (1) of the charges filed against him or her then his or her office shall be declared vacant by resolution of the Board of Aldermen. Such vacancy shall be filled in compliance with Section 79.280, RSMo., and Section 115.070 of the Municipal Code. The Mayor or the person exercising the duties of the Mayor shall cause a special meeting of the Board of Aldermen to convene where a successor to the vacant office shall be selected by appointment by the Mayor, or any Alderman if the vacancy is in the office of Mayor, with the advice and consent of a majority of the remaining members of the Board of Aldermen.
Any elected officeholder who is impeached from office shall not thereafter, at any time, be eligible to hold, regain, or serve in an elected office in the City of Pevely, and is disqualified to hold and enjoy any office of honor, trust or profit within the City.
The Hearing Officer shall prepare a written findings and conclusions of law. The findings of fact shall be stated separately from the conclusions of law and shall include a concise statement of the findings on which the Court of impeachment based its order. The Board of Aldermen shall give written notice of its decision while acting as the Court of impeachment by delivering or mailing such notice to each party, or his or her attorney of record, and shall upon request furnish him or her with a copy of the decision, order, and findings of fact and conclusions of law.
An impeached or removed elected officer who is aggrieved by the final decision shall be entitled to judicial review thereof by filing a petition in the Circuit Court within thirty (30) days after the mailing or delivery of the notice of the Court of impeachment's final decision, in accordance with Chapter 536 of the revised Statutes of Missouri.
Editor's Note: Section 1 also changed the title of this Section from "Removal of Officers" to "Impeachment and Removal of Elected and Appointed Officials."
All officers elected to offices or appointed to fill a vacancy in any elective office under the City Government shall be voters under the laws and Constitution of this State and the ordinances of the City except that appointed officers need not be voters of the City. No person shall be elected or appointed to any office who shall at the time be in arrears for any unpaid City taxes or forfeiture or defalcation in office. All officers, except appointed officers, shall be residents of the City.
Every officer of the City and his/her assistants and every Alderman, before entering upon the duties of his/her office, shall take and subscribe to an oath or affirmation before some court of record in the County, or the City Clerk, that he/she possesses all the qualifications prescribed for his/her office by law; that he/she will support the Constitution of the United States and of the State of Missouri, the provisions of all laws of this State affecting Cities of this class, and the ordinances of the City, and faithfully demean himself/herself while in office; which official oath or affirmation shall be filed with the City Clerk. Every officer of the City, when required by law or ordinance, shall, within fifteen (15) days after his/her appointment or election, and before entering upon the discharge of the duties of his/her office, give bond to the City in such sum and with such sureties as may be designated by ordinance, conditioned upon the faithful performance of his/her duty, and that he/she will pay over all monies belonging to the City, as provided by law, that may come into his/her hands. If any person elected or appointed to any office shall fail to take and subscribe such oath or affirmation or to give bond as herein required, his/her office shall be deemed vacant. For any breach of condition of any such bond, suit may be instituted thereon by the City, or by any person in the name of the City, to the use of such person.
The Board of Aldermen shall fix the compensation of all the officers and employees of the City by ordinance. The salary of an officer shall not be changed during the time for which he/she was elected or appointed.
If a vacancy occurs in any elective office, the Mayor or the person exercising the duties of the Mayor shall cause a special meeting of the Board of Aldermen to convene where a successor to the vacant office shall be selected by appointment by the Mayor with the advice and consent of a majority of the remaining members of the Board of Aldermen. If the vacancy is in the office of Mayor, nominations of a successor may be made by any member of the Board of Aldermen and selected with the consent of a majority of the members of the Board of Aldermen. The Board of Aldermen may adopt procedures to fill vacancies consistent with this Section. The successor shall serve until the next regular municipal election. If a vacancy occurs in any office not elective, the Mayor shall appoint a suitable person to discharge the duties of such office until the first (1st) regular meeting of the Board of Aldermen thereafter, at which time such vacancy shall be permanently filled.
The duties, powers and privileges of officers of every character in any way connected with the City Government, not herein defined, shall be prescribed by ordinance. Bonds may be required of any such officers for faithfulness in office in all respects.
[R.O. 2004 §110.080; CC 1990 §110.080; Ord. No. 250 §§1 — 3, 8-31-1976]
The City of Pevely shall provide to its present, past or future officers legal representation through its then City Attorney for the purpose of defending any of such officers in any action whereby liability is asserted against any of said officers as individual defendants for any actions, determinations or activities performed by such officers in their official capacities. Provided however, that the provisions of this Section shall not apply to any of the following officials or in any of the following situations:
Any liability asserted against any official of the City arising out of any vehicular collision involving the personal vehicle of such officer or any vehicle driven by such officer in a course of his/her municipal duties.
This Section shall not apply to any transaction performed by any officer of the City for any situation arising out of his/her non-official duties.
The City Attorney shall be paid for the representation of such officials as aforesaid at his/her regular contractual rate of compensation which may then exist by the said City Attorney and the City.
In any case where there is a dispute between the individual officer and the City as to whether his/her representation comes within the meaning of this Section or as to whether any transaction so contemplated herein is within the course of his/her official duties, such controversy shall be determined by a majority vote of the then duly constituted Board of Aldermen prior to the commencement of any representation of such official by the City Attorney.