MOSIP has provided comprehensive investment management services, education, and support to Missouri school districts, counties and other political entities since 1991.
Learn more at
mosip.org
This information is for institutional investor use only, not for further distribution to retail investors, and 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 Liquid 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) and Securities Investor Protection Corporation (SIPC) (www.sipc.org). PFM Fund Distributors, Inc. is an affiliate of PFM Asset Management LLC.
MISSOURI MUNICIPAL LEAGUE
BOARD OF DIRECTORS
President: Michele DeShay, Mayor, Moline Acres; Vice President: Matt Turner, Alderman, Harrisonville; Immediate Past President:
*Joe Garritano, Council Member, Wildwood; Damien Boley, Mayor, Smithville; *Chuck Caverly, Council Member, Maryland Heights; Bryant Delong, Council Member, North Kansas City; Reed Dupy, Council Member, Chillicothe; Jerry Grimmer, Council Member, Bridgeton; Cemal Umut Gungor, City Administrator, Grandview; Dwaine Hahs, Mayor, Jackson; Heather Hall, Council Member, Kansas City; *Debra Hickey, Mayor, Battlefield; *Chris Lievsay, Council Member, Blue Springs; Ken McClure, Mayor, Springfield; Chris McPhail, Alderman, Clever; Sheryl Morgan, City Clerk, Blue Springs; Lori Obermoeller, Finance Director, Creve Coeur; Tom Oldham, Council Member, Sedalia; Len Pagano, Mayor, St. Peters; *Matt Robinson, Mayor, Hazelwood; Mike Roemerman, Mayor, Ellisville; *Kathy Rose, Mayor, Riverside; *Carson Ross, Mayor, Blue Springs; Erin Seele, Attorney, Cunningham, Vogel and Rost; Gerri Spencer, Alderman, Kearney; Jeana Woods, City Administrator, Osage Beach
*Past President
AFFILIATE GROUPS
Missouri City Management Association; City Clerks and Finance Officers Association; Government Finance Officers Association of Missouri; Missouri Municipal Attorneys Association
EDITORIAL
Laura Holloway / Editor Lholloway@mocities.com
Richard Sheets and Lori Noe Contributing Editors
GRAPHIC DESIGN
Rhonda Miller
The Review March/April 2023; Volume 88, No. 2
The Missouri Municipal Review (ISSN 00266647) 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. Website: www.mocities.com.
We all have goals in our life, perhaps for our career, education, health or community. There are certainly a variety of techniques to reach those goals, but one constant remains no matter the desired outcome: proper training leads to results.
Without proper training in the best practices for running a city well, a local leader will not be equipped to wisely administer city services. Without proper training, local leaders will become strained and even the most vibrant community can suffer.
The Missouri Municipal League provides a fantastic way for you to keep your skills sharp through the Missouri Governance Institute (MGI). The MGI program allows you as a leader to have every tool for success. I encourage you to review this program and consider becoming a Certified Local Government Official. Since established in 2013, more than 200 officials have registered.
Participants must complete 12 hours of study in core areas and four hours of elective training. The program is open to both elected and appointed municipal officials and uses existing MML training opportunities, such as conferences and online training, as well as specialized workshops to provide meaningful and useful knowledge.
Enrollment is low cost and many of the credits can be earned via online webinars. You can even track your progress through the MML website.
Once you have achieved your certification, take the opportunity to enhance your skills even more with the Advanced Municipal Governance Institute (AMGI). With this program, you will complete 14 hours of study in core areas and three capstone projects in leadership, advocacy and community service.
At the most recent MML Annual Conference in September 2022, we recognized 26 officials for completing the MGI program. Even more exciting, we recognized the first class of AMGI honorees, with 15 receiving pins to award the achievement.
Of course, the best way to learn is through MML’s in-person trainings, where you can fully interact with other local officials and share best practices through networking. Consider joining me at the upcoming MML Elected Officials Training Conference June 8-9 in Columbia, Missouri, where hundreds of local officials from across Missouri will gather to increase skills regarding conducting city business, personnel law, planning and zoning, ethics and more. You do not want to miss this conference! Learn more on pages 6-7 and register today!
" Without proper training in the best practices for running a city well, a local leader will not be equipped to wisely administer city services. The MGI program allows you as a leader to have every tool for success.
"
Thursday, June 8
9:00 a.m. Registration and Municipal Resource Showcase
9:45 a.m. Welcome - Barbara Buffaloe, Mayor, Columbia
10:00 a.m. MML Services - Ramona Huckstep, Policy and Membership Associate, MML
10:30 a.m. Fundamentals of Municipal Gover nment - Allen Garner, Attorney, Allen Garner Law, LLC
11:30 a.m. Conducting City Business - John Young, Attorney, Hamilton Weber, LLC
12:30 p.m. Lunch and Municipal Resource Showcase
1:30 p.m. Personnel Law - Ivan Schraeder, Attorney, Schraeder Law Firm
2:30 p.m. Break
2:45 p.m. Ethics - Liz Ziegler, Executive Director, Missouri Ethics Commission
3:45 p.m. Break
4:00 p.m. Planning and Zoning - Brian Malone, Attorney, Lashly and Baer, P.C.
5:00 p.m. Adjour n
5:30 p.m. Reception/Networking
Friday, June 9
7:30 a.m. Breakfast
8:00 a.m. KEYNOTE: Destination Creation In Any Size Community: One Business At A Time - Jon Schallert, President, The Schallert Group, Inc. 9:00 a.m. Break
9:15 a.m. Media Relations - Drew Douglas, Director of Communications, Nixa
10:15 a.m. Revenue Sources - Stuart Haynes, Director of Administration and Policy, MML
11:15 a.m. Break
11:30 a.m. Missouri Sunshine Law - Erin Seele, Attorney, Cunningham, Vogel and Rost, P.C.
12:30 p.m. Adjour n
Jon Schallert is the only professional speaker teaching businesses and communities how to turn themselves into consumer destinations. Schallert speaks to thousands annually on his “Destination Business” process, that he developed after speaking in more than 600 communities and interviewing more than 10,000 independent business owners.
In this session, Schallert explains his proprietary 14-step Destination strategy that can turn any city, town or county, large or small, into one that attracts more customer traffic from both inside and outside a marketplace, leading to measurable revenue increases.
This is community reinvention from the bottom up as entrepreneurs contribute to the improvement of a community, regardless of an area’s current demographics.
8 hours of MGI and 1 hour of AMGI credit available!
This past November, voters in Missouri – for the second time in four years – approved an amendment to the Missouri Constitution drastically changing how Missouri cities may regulate and consider marijuana. In November of 2018, Missouri voters initially approved the legal use of medical marijuana in Amendment 2, that added Article XIV, Section 1, to the Missouri Constitution. Amendment 3 has taken Article XIV a step further by legalizing recreational adult use of marijuana, as well as making modifications to the medical provisions.
More specifically, Article XIV, Section 2, of the Missouri Constitution, generally legalizes the possession and consumption of marijuana for people 21 years of age and older and establishes a framework for the regulation of businesses involved in the production, transportation and sale of adult-use marijuana. Additionally, Amendment 3 revised certain provisions of Article XIV, Section 1, of the Missouri Constitution affecting how Missouri cities regulate medical marijuana facilities and handle employees who are qualified patients permitted to use medical marijuana. Amendment 3, continuing the regulatory scheme implemented by Amendment 2 – places the Missouri Department of Health and Senior Services (DHSS) as the statewide regulatory body responsible for adultuse marijuana.
Both the enactment of Article XIV, Section 2, and the revisions to Article XIV, Section 1, will have long-lasting effects on Missouri cities. This article will provide a general overview of the new facilities authorized by Amendment 3 and discuss issues for Missouri cities brought about by Amendment 3. Specifically, this article will discuss (1) municipal regulation of adultuse marijuana both from a personal use perspective and regarding the newly created marijuana facilities; (2) personnel issues in both the medical and adult-use marijuana context; and (3) the taxation of adult-use marijuana.
A key portion of Amendment 3 is the creation and addition of two classes
of marijuana facilities. Amendment 3 classifies the first group of marijuana facilites as comprehensive facilities. The second class is micro-businesses whose ownership is restricted to people meeting one of the enumerated qualifications for ownership. Comprehensive facilites and micro-businesses are each authorized to operate in both the medical and adultuse marijuana industries.
Amendment 3 authorizes three different types of comprehensive facilities: (1) comprehensive marijuana cultivation facilities, (2) comprehensive marijuana dispensary facilities, and (3) comprehensive marijuana-infused products manufacturing facilities. As with the medical facilities authorized by Article XIV, Section 1, the title given to each classification of comprehensive facilities explains the role each type of facility plays in the marijuana marketplace. Comprehensive marijuana cultivation facilities cultivate marijuana, comprehensive marijuana dispensary facilities dispense or sell marijuana, and comprehensive marijuana-infused products manufacturing facilities manufacture products infused with marijuana. DHSS is authorized to issue, at a minimum, the same number of licensees for each classification of comprehensive facilities as it was for their medical marijuana counterpart.
A key portion of Amendment 3 is the creation and addition of two classes of marijuana facilities. Amendment 3 classifies the first group of marijuana facilities as comprehensive facilities. The second class is micro-businesses whose ownership is restricted to people meeting one of the enumerated qualifications for ownership.
While Amendment 3 authorizes the new comprehensive facilities and establishes a timeline for the issuance of new comprehensive facility licenses, it also provides that existing medical marijuana facilities – referred to as medical facilities in Amendment 3 – may convert their existing license with DHSS to a comprehensive license. Many medical marijuana facilities have already done so, but to convert the existing medical marijuana license to a comprehensive license, the proposed comprehensive facility must be in good standing with DHSS. It must also be either (1) at the same location as the existing medical marijuana facility or (2) if located in a jurisdiction that has prohibited nonmedical marijuana facilities, the new proposed comprehensive facility must be in the same congressional district as long as the new location meets all the requirements of the constitutional provisions and DHSS regulations. Once a medical marijuana facility applies to convert its license, DHSS has 60 days to act on a conversion request once received, or else the conversion request is deemed approved.
In addition to the creation of comprehensive marijuana facilities, Amendment 3 creates a separate classification of licenses titled marijuana microbusiness facilities. Marijuana microbusiness facilities may either be microbusiness dispensary facilities or microbusiness wholesale facilities. Microbusiness dispensary facilities are similar to comprehensive marijuana dispensary facilities in that they are authorized to sell marijuana in both the medical and adult-use marketplace; however, based on the plain language of Amendment 3, it does not appear that microbusinesses may interact with medical facilities or comprehensive facilities. Microbusiness wholesale facilities are essentially a combination of a cultivation facility and an infused products manufacturing facility. This means microbusiness wholesale facilities may cultivate marijuana and manufacture marijuana-infused products.
DHSS is authorized to issue 18 total marijuana microbusiness facility licenses per each United States congressional district. Amendment 3 contemplates
that DHSS will issue 18 total marijuana microbusiness facility licenses in groups of six with at least four of the six licenses being for microbusiness wholesale facilities.
The key distinction between comprehensive marijuana facilities and marijuana microbusiness facilities is the restrictions on ownership of marijuana microbusiness facilities and the costs to secure and renew the license. Amendment 3 explicitly restricts ownership of marijuana microbusiness facilities to individuals meeting at least one of Amendment 3’s enumerated qualifications. Specifically, individuals seeking to receive a license to own and operate a marijuana microbusiness facility must:
1. have a net worth of less than $250,000 and have an income below 250% of the federal poverty level for three of the 10 calendar years prior to applying for a marijuana microbusiness facility license.
2. have a service-connected disability card issued by the United States Department of Veterans Affairs.
3. have been or have had a parent, guardian, or spouse that has
been arrested for, prosecuted for, or convicted of a non-violent marijuana offense – excluding offenses relating to providing marijuana to minors or driving under the influence of marijuana – at least one year prior to the effective date of Amendment 3.
4. reside in certain distressed census tracts as defined by Amendment 3; or
5. have graduated from or live in a zip code containing an unaccredited school district for three of the past five years.
Amendment 3 does articulate many protections for the adult-use of marijuana and does state it is intended to prevent arrest and penalty for personal possession and cultivation of certain amounts of marijuana by adults. However, these protections are not universal – the Amendment specifically states that it “is not intended to allow for the public use of marijuana, driving while under the influence of marijuana, the use of marijuana in the workplace or the use of marijuana by persons under 21.”
Amendment 3 includes several key dates as part of the implementation of adult-use marijuana. Since the passage of Amendment 3, some of those dates have already passed. Below is a summary of those key dates going forward from March 1, 2023, highlighting the implementation process.
June 6 2023
DHSS applications for marijuana microbusiness facilities available.
Oct. 4 2023
First group of marijuana microbusiness facility licenses issued.
April 4 2025
Final group of marijuana microbusiness facility licenses issued.
Sept. 4 2023
DHSS begins accepting marijuana microbusiness facilities applications.
Thus, despite the broad protections, cities are not without tools to exercise authority over a wide range of activities related to adult-use marijuana. In particular, cities are authorized to limit or enforce laws relating to the amount of marijuana that a person may possess, the consumption of marijuana in public, the time, place and manner of the operation of marijuana facilities within the city and prohibit comprehensive marijuana dispensary facilities and marijuana microbusiness dispensary facilities.
To legally possess, consume or cultivate recreational marijuana a person must be 21 years of age or older. Moreover, DHSS may limit the amount of marijuana that may be purchased in a single transaction; however, the limit may not be less than three ounces of dried, unprocessed marijuana or its equivalent. Additionally, while DHSS is prohibited from adopting any rule that requires a consumer to provide a marijuana facility with an ID besides one to determine the age of the consumer, if a person over 21 desires to cultivate marijuana they must obtain a registration card from DHSS. Once a person 21 years or older obtains the proper cultivation card, they may
June 30 2024
Second group of marijuana microbusiness facility licenses issued.
cultivate up to six flowering plants, six unflowering plants, and six “clones” under 14 inches in a locked space not visible by normal, unaided vision from a public place.
Given that these provisions come directly from Amendment 3, cities may adopt mirror provisions regulating and prohibiting possession by people under 21 years of age, possession above the amount authorized by DHSS, cultivation without having first received approval from DHSS, or cultivation in a manner not permitted by Amendment 3 or rules that may be adopted by DHSS.
Cities may enact ordinances or regulations governing “the time and place where marijuana may be smoked in public areas within the locality” and the “consumption of marijuana-infused products within designated areas.” The ordinances or regulations governing the time and place where marijuana may be smoked or consumed in public may go as far as outright
548 Days
548 days after DHSS begins “issuing licenses for marijuana facilities,” DHSS may begin issuing non-conversion licenses and non-microbusiness facility licenses. (presumably Aug. 2024)
prohibiting the smoking or consumption of marijuana in public as Amendment 3 unambiguously is “not intended to allow for the public use of marijuana.”
To ensure the application of current smoking bans, it is suggested cities either amend existing smoking bans to explicitly include marijuana or adopt new ordinances directly governing the time and place where marijuana may be smoked or infused products consumed.
Amendment 3 permits cities to enact ordinances or regulations governing “the time, place and manner of operation of a marijuana facility” if the ordinances or regulations are not so unduly
burdensome that they rise to the level of an implicit prohibition. Amendment 3’s addition of a definition for 'unduly burdensome' when determining if a city has an implied ban on marijuana facilities transforms an otherwise objective test into a reasonably prudent businessperson standard. The proposed definition of unduly burdensome – applicable to medical marijuana facilities, comprehensive marijuana facilities, and marijuana microbusiness facilities – requires that the ordinance or regulation not “subject licensees or potential licensees to such a high investment of money, time or any other resource or asset that a reasonably prudent businessperson would not operate the marijuana facility.” Prior to adopting time, place and manner ordinances, it would be prudent for cities to speak with legal counsel and review case law regarding the regulation of adult-based businesses and decisions from other jurisdictions that have adopted a similar definition of unduly burdensome in the context of marijuana facilities and businesses. Ordinances
regulating the time, place and manner of the operation of marijuana facilities may be enacted utilizing zoning or business licensing authority as is commonly done with other businesses.
Amendment 3 extends the 1000foot separation requirement currently applicable to medical facilities to marijuana facilities while modifying the existing language in Article XIV, Section 1 regarding how to measure the distance between marijuana facilities and churches, daycares and schools. Amendment 3 incorporates definitions for churches, daycares, and schools and defines how the 1000-foot separation requirement is to be measured. The distances between marijuana facilities and churches, daycares and schools are to be measured utilizing the “shortest path between the demarcation points that can be lawfully traveled by foot.” The applicable demarcation points that the 1000-foot separation requirement is to be measured from depends
on whether the medical facility or marijuana facility and the church, day care or school are in freestanding or nonfreestanding buildings. The definitions and explanations on how to measure the separation distance are the same as what DHSS adopted in their regulations regarding medical marijuana.
Amendment 3 does authorize cities to prohibit (1) microbusiness dispensary facilities and (2) comprehensive marijuana dispensary facilities, but only after approval by voters. To do so, the city must place the question of prohibiting the facilities before voters at the November general election of a presidential election year beginning in 2024. This is not a simple majority vote, at least 60% of the votes cast on the question must support the prohibition. Amendment 3 prescribes that the ballot language for the prohibition be:
“Shall (insert name of local government) ban all non-medical microbusiness dispensary facilities
Most see fiber optic cable. We see a connected community.
and comprehensive marijuana dispensary facilities from being located within (insert name of local government and, where applicable, its “unincorporated areas”) and forgo any additional related local tax revenue? ( ) Yes ( ) No.”
Amendment 3 does offer protections to medical marijuana users. Specifically, it states an employer may not discriminate against a person in hiring, termination or any term or condition of employment or otherwise penalize a person” if the discrimination is based on:
1. Status as a qualifying patient or primary caregiver who has a valid identification card –unless the person was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.
2. A positive drug test for marijuana of a person who has valid qualifying patient identification card, unless the person used, possessed, or was under the influence of medical marijuana on the premises of the place of employment or during the hours of employment.
Conversely, the protections do not apply if (1) the employer will lose a monetary or licensing-related benefit under federal law or (2) the employee is in a position in which the use of marijuana affects in any manner their ability to perform job-related employment responsibilities or the safety of others, or conflicts with a bona fide occupational qualification reasonably related to the person’s employment.
Amendment 3 clarifies that it “does not prohibit an employer from disciplining an employee for working while under the influence of marijuana” and “does not prevent an employer from refusing to hire, discharging, disciplining or otherwise taking an adverse employment action against a person with respect to hire, tenure, terms, conditions or privileges of employment because that person was working while under the influence of marijuana.” Similarly, cities are allowed to continue to operate drug-free workplaces but must tie the requirement to a potential monetary loss or a licensing-related benefit under federal law. For example, the Drug-Free Workplace Act requires recipients of federal grants maintain a drug-free workplace and that all covered employees (e.g., employees involved in the actions paid for by the federal grant) must abide by the Drug-Free Workplace Program. If
the city or a covered employee violates the Drug-Free Workplace Program, the city may be subject to repayment of the grant and additional penalties.
As with medical marijuana, regular municipal sales taxes apply to the sale of adult-use marijuana. Moreover, cities are authorized, after approval by voters, to impose an additional 3% sales tax on all tangible personal property retail sales of adult-use marijuana. The question to impose the tax may be placed on a ballot for a general, primary or special election. Should a city impose the 3% local sales tax, the sales tax is collected by the Missouri Department of Revenue like other sales taxes imposed by cities. The additional 3% sales tax is applicable to adult-use marijuana sales only since Amendment 3 did not modify the existing prohibition against additional sales taxes on medical marijuana.
Amendment 3 marks yet another drastic shift in how cities regulate and generally interact with marijuana, marijuana users and entitites involved in the marijuana industry. To best adapt to this shift, cities should carefully study the text of Amendment 3, applicable Federal law, and DHSS regulations to update, when necessary, ordinances and policies currently in place.
Padraic Corcoran and John Mullane are attorneys at Williams & Campo, P.C., who strictly represent cities and other political subdivisions as general counsel and special counsel for litigation, economic development, telecommunications, condemnation and utilities matters.
The narrow passage of Amendment 3 to the Missouri Constitution in November 2022 legalizes the broad use of recreational marijuana beginning in February 2023. While the amendment does provide some specific directions for police departments and prosecutors, those directives also give rise to new questions and concerns. This article will provide a brief overview of those directions and explore some of the issues likely to arise.
Under the new amendment, Missourians over 21 years of age have a constitutional right to possess and consume recreational marijuana. While medical marijuana laws remain in place, no medical certification or other form of permit is required for recreational marijuana. Specifically, an adult may possess up to three ounces of marijuana, approximately two and half times what the D-class felony limit of 35 grams
had been under §579.015.2, RSMo. The use of related paraphernalia (the amendment uses the term “marijuana accessories”), the right to cultivate marijuana at home with a permit, and the ability to sell marijuana at licensed recreational dispensaries are now all legal. All provisions relating to marijuana contained in Missouri state laws and local ordinances contrary to this amendment are unconstitutional and void, although possession of marijuana technically remains a federal offense. As of this writing, the General Assembly has not repealed the various state statutes criminalizing the use of marijuana and many cities continue to have similar, now void, anti-marijuana ordinances on their books.
The amendment does prohibit minors from possessing marijuana, bans smoking and cultivating in public, and prohibits possession of twice the legal
limit (which would be six ounces). It is not clear how, without an accompanying state statute or charge code, violations of these provisions will be processed for prosecution. Whatever process is used, each of these offenses is to be punished only by a “civil penalty” with a limited fine amount. For example, a third occasion of possession of twice the limit can be sanctioned with a “civil penalty” of up to a $1,000.00 fine. The amendment does not define “civil penalty,” which has no applicable statutory definition. At this point, the only “civil penalties” would be in municipal court, where violations are considered civil in nature, not criminal in nature. State offenses are all criminal in nature, even misdemeanors and infractions. An early question for the courts will likely be whether an Amendment 3 “civil penalty” merely warrants a written citation or is an arrestable offense where a suspect could then be searched incidental to that arrest and ultimately jailed. Also unclear is when officers can make a felony
arrest for intent to distribute controlled substances under 579.020, RSMo., which has no quantity trigger, or how officers are to calculate the mass of marijuana in edibles.
The biggest concern for law enforcement is likely to be drivers who operate motor vehicles under the influence of marijuana. The amendment expressly states that it does not authorize such driving but does not actually criminalize the conduct. This leaves to the state and municipalities the task of enacting enforcement provisions and policies related to driving high. For example, the amendment does not prohibit a city from passing an ordinance banning the use of marijuana by anyone in the passenger compartment of a motor vehicle, similar to open container laws. Regardless of what new laws are passed, law enforcement can rely upon the existing driving while intoxicated (DWI) statute, §577.010, RSMo., and 577.001(13), RSMo., that already encompasses drug use in the statutory definition of intoxication for purpose of DWI.
The most burdensome practical difficulty faced by law enforcement is the lack of a standardized quantity of THC agreed to cause impairment, akin to the blood alcohol content (BAC) used in drunken driving cases. While Missouri has embraced the 0.08 BAC limit encouraged by the federal government following extensive scientific research and field testing, there is yet no comparable figure for marijuana in the criminal context (the limit for a
federal drug-free workplace blood test is 50 nanograms per milliliter). Part of the reason for not having a limit is that unlike alcohol, typically metabolized at roughly one or two drinks per hour, marijuana is slowly metabolized over a period of days, such that a person can still have a readily detectable amount of THC in their system but genuinely considered not to be impaired. Furthermore, there is presently no rapid field test akin to breathalyzer devices for use with marijuana.
This means law enforcement agencies will need to rely on their veteran officers and deputies who have had Drug Recognition Expert (DRE) training to handle the suspected drugged driving
traffic stops involving poor driving. After performing careful field sobriety testing, they will invariably need to get a blood test of the driver’s blood, either consensually or via a search warrant, to prove at trial that indeed it was marijuana that caused the intoxication. Unfortunately, those stops for expired plates or burned-out turn lights with rookie officers and no crime lab report will likely be the cases that are the most vigorously litigated. While normally the blood for crime laboratory drug testing is drawn by medical professionals at hospitals, agencies are exploring alternatives in which paramedics or even law enforcement personnel collect samples elsewhere.
choice of a lawyer is an important decision and should not be based solely on advertisements.
Regarding search warrants, the amendment requires an officer to contact the Missouri Department of Health and Senior Services to ascertain if the suspect has a card prior to applying for a search warrant. As of this writing, there is no formal process or hotline for officers to make such a report. If the search warrant is targeted at marijuana, it cannot have a “no knock” execution provision, meaning the officers must announce themselves and wait before making entry. After any search for marijuana, whether pursuant to a search warrant or not, the officer is required to make a detailed report that includes the reasons for the search, whether marijuana was seized, whether any other contraband was seized, whether an arrest was made, and a “description of the tactics used by law enforcement to enter the property.” While the amendment is silent as to the consequences of failing to make such a report, defendants will surely argue that not doing so is grounds for suppressing the drugs from being admitted into
evidence at trial under the exclusionary rule. What is clear is that all agencies will be required by the amendment to collect these reports and provide them to the Missouri Attorney General’s Office on a yearly basis, not unlike the existing requirement to provide race statistics on traffic stops.
More broadly, the amendment provides that the mere presence of marijuana “without specific evidence that the marijuana is outside of what is lawful … cannot be the basis of a search.” Thus, unless the suspect clearly is in plain-view possession of more than three ounces, an officer will need reasonable suspicion of another crime such as possession of stolen property or felon in possession of a firearm to
conduct a search. As an aside, it also means that all K-9 drug dogs trained to alert to marijuana will need to retire. More troubling, a pressing question for the courts will be whether this limitation on searches applies to a Terry frisk for weapons to protect officer safety.
In the coming months, the questions raised in this article and many others will doubtlessly be taken up by the courts and elected officials. It will be incumbent upon cities and their attorneys to remain focused on these legal developments, be it new legislation or judicial decisions, as they occur in order to properly enforce Amendment 3.
Todd T. Smith is an associate attorney in Lauber Municipal Law’s Jefferson City office. A member of the Missouri Bar since 2011, Mr. Smith earned his J.D. from Drake University and an LL.M. in law and government from American University. A former assistant county prosecutor, he has extensive experience in drug task force operations and felony drug trials. He can be reached at tsmith@laubermunicipal. com.
January
24
January 24 – Final certification date for April 4 municipal election
February
February 7 – Bond Election Day
June
June 8-9 – MML Elected Officials Training Conference
August 8 – Election Day
7 asap 4 8
February 21-22 – MML Legislative Conference
August 29 – Final certification date for November 7 general election
September
March 1 – Deadline to submit MML Innovation Awards application
March 1 – Deadline to submit MML Annual Conference speaking proposals
April
April (At the first meeting of the council or as soon as possible thereafter) –Collector to make list of delinquent property taxes (§ 94.320/94.170 RSMo)
April 4 – Municipal Election Day
April 8 – Deadline for estimated tax rate to County Clerk (§ 137.243 RSMo)
May
March 1 7-13
May 7-13 – Missouri Local Government Week
May 30 – Final certification date for August 8 general election
Note: Cities must publish the semi-annual financial statements and submit the annual financial report to the state auditor. Deadlines for these important documents depend on the start of the city’s financial year. Significant penalties may result from failing to comply with any of these provisions.
September 1 – Deadline to set property tax levy for non-charter county cities (cities in charter counties, deadline is October 1) (§ 67.110 RSMo)
September 10-13 – MML Annual Conference
September 15 – Deadline to re-adopt the city’s personal financial disclosure policy
October
October 1 – Deadline to set property tax levy for charter county cities (cities in noncharter counties, deadline is September 1) (§ 67.110 RSMo)
November
November 7 – Election Day
November 15 – TIF Annual Reports due (§ 99.865 RSMo)
December 5 – First day for candidate filing - 2024 municipal election. Office must open at 8 a.m.
December 26 – Last day for candidate filing - 2024 municipal election. Office must remain open until 5 p.m.
Missouri cities are facing unprecedented water, wastewater and stormwater challenges that will require significant infrastructure investments. Planning investments to address these challenges is complicated by known and unknown drivers such as evolving regulatory compliance needs, increased construction and materials costs, understaffing, supply-chain issues and unanticipated service needs. Solving these challenges requires a novel approach to thinking about water. Using the integrated planning approach provides an exciting opportunity to develop a strategic and adaptable long-term plan that unlocks a future of affordable and equitable water access.
In 2011, the U.S. Environmental Protection Agency (EPA) released the Integrated Municipal Stormwater and Wastewater Planning Approach Framework (Framework) to give municipalities flexibility to cost-effectively address wastewater and stormwater issues and make environmental improvements aligned with community priorities. This Framework was promulgated into the Clean Water Act (CWA) through the Water Infrastructure Improvement Act of 2018. The final bill received overwhelming bipartisan support because it enables communities to take control of infrastructure spending and develop prioritized and affordable capital plans while maintaining compliance with the CWA.
Adopting an integrated approach to CWA obligations is a voluntary and locally driven process, requiring a collaborative effort between the permitted entity, the Missouri Department of Natural Resources (DNR), the EPA and local enforcement officials. DNR has been a strong supporter of integrated planning. As a result, several Missouri municipalities have successfully used this approach to reshape their capital programs, negotiate affordable and achievable compliance schedules, and build community support for rate increases needed to support new investments. In a recent letter supporting an Integrated Plan, DNR states, “The Department’s Water Protection Program (WPP) has reviewed the city’s Integrated Management Plan (IMP) and agrees to use it when making future wastewater and stormwater regulatory decisions affecting the city. As decisions related to regulatory schedules will be based on the timelines set in the IMP, the WPP may reference the IMP as justification for regulatory decisions relating to the city’s wastewater and stormwater permits, and enforcement schedules.” This letter provides the City with future opportunities to adapt the plan as necessary to maintain permit compliance while prioritizing investments based on changing community needs.
In addition to these important water and wastewater utility benefits realized through integrated planning, cities can also use the process to provide important community enhancements. Integrating all needed water infrastructure investments into one long-term schedule allows your community to move away from the siloed approach of traditional infrastructure planning and move towards a tailored, prioritized and adaptable long-range investment strategy that delivers high-value projects.
Developing an integrated plan may seem daunting at first, but EPA’s Framework provides a logical, stepwise process that outlines the basic structure needed to build an iterative and adaptive plan that engages your community to define affordable infrastructure solutions. It is important to remember that integrated planning is a CWA flexibility that is available to cities and utilities of all sizes. In fact, at least two small (<15,000 population) Missouri
In a recent letter supporting an Integrated Plan, the Missouri Department of Natural Resources states, “The Department’s Water Protection Program (WPP) has reviewed the city’s Integrated Management Plan (IMP) and agrees to use it when making future wastewater and stormwater regulatory decisions affecting the city. As decisions related to regulatory schedules will be based on the timelines set in the IMP, the WPP may reference the IMP as justification for regulatory decisions relating to the city’s wastewater and stormwater permits, and enforcement schedules.”
communities have successfully applied the Framework to establish alternative infrastructure and compliance plans. A summary of how municipal water and wastewater agencies can apply EPA’s six planning elements of an integrated plan is briefly described below.
is to discuss costs associated with the infrastructure investments and how the integrated plan provides flexibility to schedule those investments to maintain affordable utility rates over time.
Element 4: Evaluate Alternative Solutions. In this element, cities should identify and evaluate a broad range of potential programmatic and project alternatives, including asset management and renewal strategies, green infrastructure solutions, and innovative technologies. Through this process, cities provide planning transparency to the public and lay the groundwork for developing an optimized long-term investment strategy.
Element 5: Develop Solutions and Schedules. Once alternatives are identified, cities should schedule the identified solutions combined with the information gathered in Elements 1 through 4. The goal is to create an optimized schedule that is affordable for the community and maintains compliance with the Clean Water Act.
Element 1: Build the Vision. This initial step provides the opportunity for community leaders to come together and develop goals and priorities for the integrated plan. It is a time for assessing and understanding the existing and anticipated challenges within the water, wastewater and stormwater utilities. Discussions should focus on current and anticipated needs and actions to address regulatory requirements while meeting customer expectations.
Element 2: Evaluate System Performance. A thorough understanding of existing system performance provides the basis for understanding current and future needs. Master plans are a great place to start and will drive the planning process forward. This will assist community leaders in developing meaningful communications strategies (Element 3) and infrastructure alternatives (Element 4).
Element 3: Engage Community Stakeholders. Cities should engage their citizens at a level that is appropriate for the types of projects and needs of the community. The goal is to establish and build support for the community’s infrastructure planning priorities. An important component of the engagement process
Element 6: Implement, Measure and Adapt. The nature of creating a sustainable capital improvement plan requires periodic progress monitoring, updating needs assessments, and mechanisms for applying new data and information to adapt or revise plans over time. Element 6 is one of the most valuable in EPA’s Framework, as it allows the plan to be adaptive as new regulatory drivers, unexpected costs, and new information becomes available over time. It is important to track implementation success through performance metrics and report the successes, enhanced system understanding, revised community goals, and changing conditions back to DNR periodically.
Municipal utilities can achieve several benefits of the integrated planning approach to tackle the multiple and diverse drivers facing today’s utilities:
• Balances and prioritizes regulatory obligations into a streamlined, integrated strategic plan.
• Emphasizes stakeholder empowerment to establish clear investment priorities.
• Considers the end-user affordability and the city’s financial capability.
• Provides a clear path to project implementation.
An integrated plan is not meant to be another report that collects dust on a shelf. It should be actionable, implementable and flexible enough to adapt to changing needs and drivers over time. Cities can divide long-term plans into shorter, 5-year segments to align with traditional capital improvement plans and permit timeframes. The 5-year plan should outline the City’s commitment to addressing the identified infrastructure challenges, filling data gaps, and performing detailed studies, as needed. These 5-year plans, combined with routine updates to community leaders and regulatory agencies, provide your community with an actionable roadmap to integrated planning success.
Lacey Hirschvogel and David Carani lead HDR's Missouri and Kansas water quality and regulators support team out of Columbia, Missouri. They have more than 30 years of combined experience assisting water and wastewater utilities to comply with new and evolving regulatory requirements and have been involved in developing most of the approved integrated plans in both Missouri and Kansas. For more information, contact them at lacey. hirschvogel@hdrinc.com or david.carani@ hdrinc.com.
Two class action lawsuits are pending in the Circuit Court of St. Louis County to collect video service provider fees owed to cities under the Missouri Video Service Provider Act, § 67.2675, RSMo, et seq. from the video streaming industry. One suit is against Netflix and Hulu, and the other against DirecTV and DISH. The city of Creve Coeur brought the cases using the same legal team that has been successfully recovering unpaid telecommunications and electric utility taxes on behalf of Missouri cities for almost two decades. A class consisting
of cities with a population of more than 400 and counties has now been certified in the Netflix/Hulu case, and Creve Coeur and its attorneys are officially representing the class. All cities and counties would benefit from favorable rulings.
The streaming industry, including satellite companies like DirecTV and DISH, sends video programming through facilities in the public right of way to customers throughout the state. Because these companies use the public right of way to provide programming,
the lawsuits seek video service fees owed to cities under the Act.
Successful litigation will bring revenues promised by the Legislature to help fund the high cost of improvement and maintenance of public rights of way and eliminate the unfair competitive advantage streamers have been taking over traditional cable providers. Initial estimates of back fees owed to the class exceed $60 million.
The class action legal team has been litigating these cases since 2018 and has already defeated motions to dismiss. As of today, the order certifying the class of cities in the Netflix/Hulu case is on appeal. The matter has been briefed, argued and submitted to the Missouri Court of Appeals. Pending that appeal, both cases have been stayed at the circuit court. The class action legal team hopes for favorable ruling in the appeal and the resumption of the litigation in circuit court.
After appeal, the team intends to continue to litigate its pending motion for summary judgment in Netflix/Hulu and the motion for class certification in DirecTV/DISH. These motions rely heavily on expert witness testimony concerning the use of the public rights of way throughout Missouri and defendants’ revenues. Absent settlement, it will still likely take several years before the cases and all related appeals are over.
In 2007, the Missouri Legislature enacted a set of statutes known as the Video Service Provider (VSP) Act. Prior to the Act, cable television providers had to obtain separate franchises from every city in which they wanted to provide service. By federal law, the franchise fee was limited to 5% of revenues. Since adoption of the VSP Act, video service providers have been able to obtain authority to provide service in cities from the Missouri Public Service Commission by means of an expedited process. This has saved the providers (and the cities) from a great deal of cost and effort. However, under the Act, the providers are still required to pay video service fees to the cities (and counties) in which they provide service. The fees were initially set to match the existing cable franchise fee, but fees can be changed once a year up to the maximum of 5%.
The General Assembly included an express statement of purpose in the Act:
The general assembly finds and declares it to be the policy of the state of Missouri that consumers deserve the benefit of competition among all providers of video programming. Creating a process for securing a state-issued video service authorization best promotes the substantial interest of the state of Missouri in facilitating a competitive marketplace that will, in turn, encourage investment and the deployment of new and innovative services in political subdivisions and provide benefits to the citizens of this state. The general assembly further finds and declares that franchise entities will benefit from immediate availability of the state-issued video service authorization to all video service providers, including new entrants and incumbent cable operators. In addition to the benefits to franchise
entities found in [the Act], this immediate availability of stateissued video service authorization will promote fair competition among all video service providers in a local market and thereby provide new revenues to political subdivisions derived from additional video service customers, and the purchase of additional video services by such customers, and the sale of additional advertising by video service providers. This policy will provide a more predictable source of funding for franchise entities that will continue beyond the natural terms of all existing franchise agreements. The franchise entities will also experience cost savings associated with the administrative convenience of the enactment of the state-issued video service authorization. These benefits are full and adequate consideration to franchise entities, as the term “consideration” is used in … the Missouri Constitution.
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Has there been more recent activity at the Missouri Legislature since adoption of the VSP Act in 2007?
In 2021, the Legislature made changes that removed certain revenue categories (such as advertising) from the revenues that are subject to the video service fees and also enacted a multi-year phased reduction of the fees, currently set to commence this September. Over the ensuing four years, the fee cap will reduce to 2.5%. Absent a legislative change, cities will need to comply with the upcoming reductions.
In conjunction with the step-down of fees, the Legislature also created a task force to study issues and develop recommendations by the end of 2023 regarding “best methods for right-ofway management, taxation of video services, and the future revenue needs of municipalities and political subdivisions as such revenue relates to video service.” Unfortunately, the task force has not met.
Meanwhile, the streaming industry has repeatedly tried (so far unsuccessfully) to get Bills passed by the Legislature to eliminate their video fee obligations. This year is no exception. The MML, the St. Louis Metro Municipal League, and the class action legal team endorse a counterproposal that would postpone the fee reductions and extend the time
for the task force to do its work, so that the deal struck by the Legislature in 2021 can be fulfilled.
Our city received a video fee payment from DirecTV that included an assertion that it was not paying on all its revenues and that if we deposited the check, we would waive claims about underpayment. Can they do that?
Last year, AT&T transferred the U-Verse cable business to its affiliate DirecTV. When it came time to make the next video fee payment, DirecTV sent partial payment to many cities throughout Missouri with a letter asserting that accepting that payment would result in a waiver of claims about the underpayment unless an audit was requested. In the opinion of the class action legal team, such a “paid in full” claim has no effect on obligations to make payments to government entities. (In other words, do not try this approach with the IRS!). The class action legal team told DirecTV’s lawyers and the court they believe such a communication was an improper and ineffective bypass of the court process. DirecTV tried a similar approach in Indiana and the court barred such communications, finding portions of them misleading and
“unnecessarily antagonistic.” If your city is still holding such a payment, consult with your city attorney.
PS – AT&T retained ownership of the transmission facilities in the right of way, and yet DirecTV has made voluntary (albeit partial) video fee payments for sending U-Verse programming over those facilities. Thus, DirecTV has conceded that ownership of facilities in the right of way is not a prerequisite to the obligation to pay video service fees and that transmission of video programming through facilities in the right of way requires payment of video service fees. While the defendants have raised a myriad of (inapplicable) defenses, this concession strikes at the core of their refusal to pay the fees.
The class action legal team is completing the collection of video franchise ordinances for use in the lawsuits. The MML recently sent a request to those cities from which ordinances are still needed. The pertinent ordinance could be one adopted in conjunction with the enactment of the VSP Act or your most recent cable franchise ordinance(s). If your city still does not have a VSP ordinance, then we suggest you discuss adopting one with your city attorney to make your fee requirements as clear as possible given the passage of time since the Act was passed and subsequent amendments.
Please double-check to see if your city received this request from the MML and, if so, whether your response has been sent. Your prompt assistance is important and will help ensure that your city will receive its fair share if the cases are successfully resolved.
A similar effort is underway to complete the collection of telecommunications tax ordinances for use in efforts to enforce those taxes. Your cooperation on that front would also be most appreciated.
Please support MML’s legislative efforts regarding video fees described in this article (and MML’s other legislative efforts too!).
Carl Lumley is a principal attorney and president of Curtis, Heinz, Garrett & O’Keefe, P.C. Contact him at clumley@chgolaw.com or (314) 884-7503.
What sparked your interest in working in local government?
I am always curious about how things work and government might be the best example of that. I started my career on the journalism side but moved to government communications last year, deciding to try something new. It is important to always keep learning, and working in government ensures that will happen.
What has been the toughest lesson you have learned during your career working in local government?
That government is responsible for so many different things for so many different people. Any given day, a resident might have a question about their water bill, street project, ordinance, or the code for backyard fences. There are a lot of topics where we need to be knowledgeable. Explaining different processes is not always easy.
In your opinion, what are the most important issues facing local government in Missouri?
Infrastructure is probably the one all municipalities will wrestle with. Those are high-cost projects where costs are only increasing. Combine that with declining populations in rural communities, which shrinks the tax base, and some communities might have tough choices to make. Environmental changes will also continue to arise and test municipalities.
What do you recommend to ensure/maintain strong communication with your citizens?
You must meet them where they are. That means trying multiple approaches. Social media is the most prominent
form of communication these days, but we also have a newsletter that is mailed to every home. It comes down to casting as wide of a net as possible.
What advice would you offer to someone considering service as a local government official or employee in their community?
Service is the most important part of our job. That needs to be a goal above anything else.
How would you describe your city to someone who had never visited?
Kirksville offers a great balance. It has small-town charm and a state park that is only a 10-minute drive away. But it is also a commercial hub for the northeast corner of the state. Also, if you want to take a weekend trip, the metros are just a few hours away. I would encourage Missourians to come visit.
What are your interests outside of local government?
I’m a big sports fan, so I like traveling and going to games. I also enjoy live music. Each year, I like to pick a city I have not visited before and either go to a game or show.
Where would you most like to travel, and why?
My top three choices are Greece, Scotland and Japan. All three have great scenery I would like to see in person, as well as rich histories to learn.
For over 45 years, Lashly & Baer, P.C. has provided sound legal counsel to municipalities and other public sector institutions. During this time, we have earned a solid reputation for prompt legal services at a reasonable cost. We believe that providing smart legal advice is vital, but providing this help in a timely manner is just as critical to meeting the needs of our clients. Our attorneys are experienced and trial-tested at addressing legal issues and regulations affecting government and public agencies.
Now is the time
Missouri’s municipalities and utilities are reevaluating capital improvement plans to advance critical infrastructure projects. Combining today’s financial backing with design‑build delivery makes now an opportune time to pursue your projects. To learn how to capitalize on the opportunities, listen to our webinar at burnsmcd.com/MML112022.
More than 200 city officials attended the MML Legislative Conference in February, learning about the most pressing proposals in the state legislature this year that affect Missouri cities. After hearing from House and Senate leadership, attendees visited the Missouri State Capitol to visit with their legislators. On Tuesday evening, a panel of House and Senate members leading local government legislative committees shared their thoughts on how cities can cultivate relationships with state legislators and share the challenges and opportunities faced at the local level.
While the MML Board of Directors and staff work continually to promote the interests of municipalities to both state and federal legislators, the most effective legislative communications come from YOU, the elected official, speaking with a united voice.
The League’s Capitol Reports and Alerts highlight important city-related bills as they move through the legislative process.
Thoughtful, factually persuasive contacts can change legislators’ minds and cause them to review their judgments. Although a telephone call, email or a letter can be very effective, personal face-to-face contact is the most effective approach.
There may be times when you think your legislators are on the wrong track, but they may have facts that are not available to you. Try to understand their problems, outlook and objectives.
Make sure one staff person is responsible for immediate review of the Capitol Report and any Legislative Alerts, and for initiating a timely response by your city.
Each letter or email you write should address only one bill and should reference the bill number on a separate line at the top of the page. Otherwise, your information may get lost in the system. Be brief, specific and to the point.
Make it your business to become personally acquainted with your senator and representative outside of the legislative session. Invite them to community functions and ribbon-cutting events.
Always send copies of your letters or emails to the League. The League’s legislative staff reads your letters and incorporates your arguments and local circumstances into League testimony. The staff members also cite your letters when they talk with your legislators.
Remember to thank legislators regularly and publicly for their work, support and votes. Never discount the importance of a thank you.
Approach legislators the way you, as a city official, want to be approached by your constituents – with courtesy and respect.
Congratulations to Jaklynn Welker, city clerk with Union, and Amanda Hurley, city clerk with Des Peres, for earning the Certified Municipal Clerk (CMC) designation from the International Institute of Municipal Clerks (IIMC)! To earn the CMC designation, a municipal clerk must attend extensive education programs often totaling more than 120 educational hours. The CMC designation also requires pertinent experience in a municipality.
At the recent MML Board of Directors meeting in Jefferson City, Mayor Debra Hickey was honored with a resolution by the Board for her service to promote autism awareness and build autism-friendly communities in Missouri.
Mayor Hickey led her city to become the first autismfriendly city in Missouri, creating an educated and welcoming community.
The National League of Cities' (NLC) seven Federal Advocacy Committees, with NLC’s leadership and the Federal Advocacy team, play a key role in all NLC advocacy efforts. These Committees are comprised of local officials from NLC member cities, towns and villages across the country. The Committees play a central role in developing the organization’s federal policy positions that are the foundation of NLC advocacy efforts. NLC’s federal policy positions make up the National Municipal Policy.
2023 Community & Economic Development (CED) Committee
Chair, Tishaura Jones, Mayor, St. Louis, Missouri
Lee Barnes, Council Member, Kansas City, Missouri
2023 Finance, Administration & Intergovernmental Relations (FAIR) Committee
Eric Peterson, Assistant City Manager/Director of Finance, Webster Groves, Missouri
2023 Public Safety & Crime Prevention (PSCP) Committee
Ryana Parks-Shaw, Council Member, Kansas City, Missouri
Matt Turner, Alderman, Harrisonville, Missouri
2023 Transportation & Infrastructure Services (TIS) Committee
Bryant DeLong, Mayor, North Kansas City, Missouri
Dan Fowler, Council Member, Kansas City, Missouri
Melissa Robinson, Council Member, Kansas City, Missouri
MML Central Region and MML Westgate Region hosted meetings in January 2023, in Columbia and Riverside, respectively. A new lunchtime format was introduced in order to accommodate attendees who are unable to meet in the evening. MML Executive Director Richard Sheets shared pending state legislation. Watch for more regional meetings coming up on the League's website and join us! It is a great opportunity to network and learn more about a current topic affecting your region.
