//Springfield City Council Members Face Opposition
Springfield City Council Members

Springfield City Council Members Face Opposition

Springfield, Missouri has been a fast paced political battle ground for 3 City Council members. With two Recall Movements, and a hearing about City Council woman Kristi Fulnecky’s eligibility to sit on the council, there has been a lot to keep up with. Below is a brief summary of what led us to this point, and I follow up with some brief analysis of the ongoing process to unseat each council member.

City Council Member Justin Burnett

City Council Member BurnettJustin Burnett was the first city council member to run into trouble. A Free The Nipple rally occurred in Springfield where protesters used strategically placed tape on their breasts in order to obey the existing Indecent Exposure Ordinance they were protesting. Councilman Burnett both requested and sponsored a bill to update the city’s Indecent Exposure Ordinance in response to the protests. However, the replacement he sponsored received warnings from the City Attorney Dan Wichmer, who told the council, “Chicago had an indecent exposure law identical Springfield’s proposed enhanced ordinance, and it was recently held unconstitutional as applied to the ‘Free the Nipple’ rally there.” In the Council Meeting that followed Councilman Hosmer also pointed out concerns that the new law legalized men showing their covered erections in public.

Despite these questions, the new law was passed 5-4, and an ACLU lawsuit followed bringing up additional concerns like an alleged conflict with the state’s protection of breast feeding. Justin had already lost some support though his position on legalizing discrimination of LGBT individuals, and his failed attempt to spend over $75,000 to put “In God We Trust” in the city council chambers. This last fiasco galvainzed a group on Facebook to Recall Burnett, and they gathered over 1,400 members interested in circulating a petition to hold a recall election.

The movement is finding no shortage of support on the streets. 1912 signatures are needed to recall the council man, but since he only won a minority of the vote in a close three way race, there are 3,884 people that voted against him. Katie Webb has been leading the canvassing efforts, and she reports that 90% of people reached are signing the petition for a recall. Despite the high signing rate, Katie admits that finding registered voters at home has been a challenge.  Only approximately 1 in 4 people are available. The bottom line is that it can take an hour to get 5 signatures. They have been getting better success by tabling at various events, but the movement’s success will likely depend on whether a large number of volunteers remain committed enough to gather signatures.

City Council Member Kristi Fulnecky

City Council woman FulneckyCity Council woman Fulnecky was the next person to face threats to her seat. Shortly after alleging that the mayor was misleading citizens about his knowledge of the ACLU to sue the city, the mayor held a press conference. Rather than addressing these allegations, the mayor revealed that Mrs. Fulnecky may not be eligible to hold her office. According to the letter submitted to the mayor, she was disqualified due to the city law that says “No person shall be entitled to hold any office or employment who is in arrears for any city taxes.”

On Novermber 3, the city council voted for retired Missouri Supreme Court Justice John Holstein to oversee a hearing to determine if she is in fact disqualified to hold office due to her failure to pay license taxes.  Holstein will be paid $225/hour to oversee the hearing, and outside attorney Kevin O’Keefe will be paid $300/hour to represent the city. The request for the private attorney rather than the city attorney was made Councilman Craig Fishel in order to avoid any conflict of interest. The city council is currently seeking to make an ammendment to their case that has to be to Holstein by next week. There are no solid dates for the when the hearing will take place.

The Nick Reed Show on KSGF interview with Fulnecky

On the Nick Reed show today, Kristi again claimed she didn’t need to be licensed as a lawyer, but as we pointed out before, that claim is false since she wan’t even qualified to be a lawyer when she was running her company. She also admitted that she paid and filled out her licensing paperwork after taking office. She falsely refers to a bill that failed by a wide margin named Hancock II as the reason the license tax is in fact a fee. She also admits in the interview that she has no comprehension of the charges factually pointing out her conflict with the city law by not being current on city taxes when she took office. *She believes part of the discussion over her by city staff involves complaints that her company consults with contracting companies that have been involved in bills she voted in. Fulnecky released a press release yesterday describing her disappointment in the city for using an outside attorney that advised the city in closed meetings that she was advised were a conflict of interest for her to attend.  Fulnecky has also been accused of bullying city staff members.

KristiLetter

Hancock Amendment

There is still the issue of the Hancock Amendment. Missouri caps the amount of taxes that can be levied on its citizens, so the question of whether a tax or fee is mislabeled comes up often, since fees are not subject to the revenue caps that taxes are. The court uses five criteria that determine whether a tax should be actually be considered a fee:

1) When is the fee paid? – Fees subject to the Hancock Amendment likely are due to be paid on a periodic basis while fees not subject to the Hancock Amendment likely are due to be paid only on or after provision of a good or service to the individual paying the fee.

2) Who pays the fee? – A fee subject to the Hancock Amendment likely is to be blanket-billed to all or almost all the residents of the political subdivision while a fee not subject to the Hancock Amendment likely is to be charged only to those who actually use the good or service for which the fee is charged.

3) Is the amount of the fee to be paid affected by the level of goods or services provided to the fee payer? – Fees subject to the Hancock Amendment are less likely to be dependent on the level of goods or services provided to the fee payer while fees not subject to the Hancock Amendment likely are to be dependent on the level of goods or services provided to the fee payer.

4) Is the government providing a service or good? – If the government is providing a good or a service, or permission to use government property, the fee is less likely to be subject to the Hancock Amendment. If there is no good or service being provided, or someone unconnected with the government is providing the good or service, then any charge required by and paid to a local government probably is subject to the Hancock Amendment.

5) Has the activity historically and exclusively been provided by the government? – If the government has historically and exclusively provided the good, service, permission or activity, the fee is likely subject to the Hancock Amendment. If the government has not historically and exclusively provided the good, service, permission or activity, then any charge probably is not subject to the Hancock Amendment.

http://court.rchp.com/free-legal-help/library-of-legal-articles/missouri-hancock-amendment/

The above criteria came from a Keller v. Marion County Ambulance District 820 S.W.2d 301 (1991) trying to determine if fees were in fact taxes that should be subject to voter approval as a tax regulated by the Hancock Amendment. In Fulnecky’s case, the judge will be looking at the opposite scenario of whether the Lincense Tax is in fact considered a fee that would never be subject to the Hancock Amendment. Most of the criteria labeling a charge a fee require that the revenue be used to offset a  government’s costs in providing goods or services. A license granting a privilege is considered neither a good or service, such as in Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) where fishing licenses were considered a tax.

Judge John Holstein
Judge John Holstein

It is possible for a license tax to be considered a fee if some good or service from the government can be tied to the license, such as Hendrick v. Maryland, 235 U.S. 610 (1915) where the charge for licensing a vehicle was found to be a compensation to the state for roads it had built. Since the road creation and maintenance were a service from the government, this was a fee instead of a tax. It is difficult to predict how City Council woman Fulnecky might argue Fulnecky Enterprises, LLC were being charged for goods and services from the government through the license taxes she failed to pay.

There is some level of ambiguity in the arguments given above, and it will ultimately be up to Holstein whether this tax is in fact a fee. The legal history of distinguishing fees from taxes is a long and complicated list of cases. It is impossible to know exactly what a legal expert like Holstein may decide, but it seems clear that the key issue he will have to determine is whether the license tax is in fact a fee or properly labeled a tax.

Mayor Robert Stephens

Mayor Bob StephensMayor Robert Stephens faced a recall movement himself. After the press conference about Fulnecky was over, the Recall Stephens Facebook Group formed. Many in the group posted a large number of concerns they had with the procedures used to bring a hearing against Fulnecky. Much like Burnett, the group’s members had issues going further back than the flash point of the Mayoral press conference about City Council woman Fulnecky.

In talking to one of the original admins of the Recall Stephens group, David Cort, I found that the reasons for the recall go back to older issues. When asked, “Would it be fair to say that you believe the mayor is not representing this city on his stance with SOGI and the indecent exposure ordinance?” Mr. Cort responded, “That would be fair to say.”  The mayor actually voted against the original SOGI bill that made discrimination against the LGBT community illegal, however he was the sponsor of a weaker bill that would have still protected the LGBT community from discrimination in housing. The mayor was also among the four that voted against the enhanced Indecent Exposure ordinance, and he vocally criticized the bill enhancing the ordinance as a disappointing waste of time.

The campaign to gather signatures is still in its early stages. David confirmed that canvassing has started on an individual basis, and people have reported they are doing well. The official canvassing committee is still forming, but they do have 50 people that have asked to be part of the petitioners. The number of signatures they need to gather is daunting compared to other petitions. 7891 signatures are needed at a minimum. By comparison, only about 2300 signatures were gathered for the petition to recall the SOGI ordinance. The mayor also won 64% of the vote, but David is not concerned by these figures. He says, “All of the people who voted for the mayor had second thoughts when they cast the vote. There wasn’t a real challenger.”

The number one obstacle this campaign faces is the fast approaching variable deadline. In order to qualify for the last election that could recall the mayor, they would have to turn in petitions by early March of 2016. **Mr. Cort believes that working towards an earlier deadline of Feb 1 is going to cause the mayor to resign by Feb 23., in order to give the mayor a chance to secure a successor. We will be following up with more information on this campaign as it becomes available. It is still too early to make an estimate on how well this campaign will go.

* Note: A change was made to a previous version of this article that had stated Mrs. Fulnecky believed the conflict of interest with the contractors her company works with would be part of the amendment being made to complaints. Though she discussed this conflict of interest, on reexamination it appears she did not directly state this particular concern would be part of the Amendment coming next week. We have changed that statement to better represent what the Councilwoman said about this concern raised by the city.

** Note: A change was made at the request of Mr. Cort. We previously stated that he believed a petition before Feb. 23rd would cause the mayor to resign. He wants to make it clear that “I said the deadline of Feb 1 exists because the mayor IS GOING to resign by Feb 23. That’s going to happen with or without a recall.”

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