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[1]]
A.
Purpose.
1.
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.
2.
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.
B.
Removal Of Elective Or Appointive Officials.
1.
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.
2.
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.
3.
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.
4.
Any impeachment or removal hearing shall be conducted in compliance
with the Missouri Administrative Procedures Act, Chapter 536, RSMo.
C.
Grounds For Removal Of Elective Officers.
1.
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.
2.
Grounds or reasons may include, but are not limited to, the
following:
a.
Willful violation of any of the officer's official duties
or the willful violation of City ordinances or State Statutes.
b.
Official negligence or dereliction of official duties.
c.
Incompetence or inability to perform the duties as required.
d.
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.
e.
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.
f.
Misappropriation, destruction, theft or conversion of City property.
g.
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.
h.
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.
i.
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).
j.
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.
D.
Institution Of Removal Proceedings — Suspension —
Service.
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
E.
Pleadings - Discovery - Subpoenas - Evidence.
1.
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;
2.
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.;
3.
The issuance, service, and enforcement of subpoenas and subpoenas
duces tecum shall be as provided in Section 536.077, RSMo.;
4.
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;
5.
Evidence at the hearing shall be as provided in Section 536.077,
RSMo., including but not limited to:
a.
All oral evidence shall be taken only on oath or affirmation;
b.
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;
c.
A party who does not testify in his or her own behalf may be
called and examined as if under cross-examination;
d.
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;
e.
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;
f.
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;
g.
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;
h.
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.
F.
Conduct Of The Hearing — Procedure And Burden Of Proof.
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
G.
Consequences And Procedure After Impeachment.
1.
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.
2.
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.
3.
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.
4.
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.
[1]
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]
A.
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:
1.
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.
2.
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.
B.
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.
C.
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.
