Appellant, alleging that he is a resident of Fayette, Missouri, an owner of property therein, is entitled to vote therein, and that he is a citizen and taxpayer of said city, filed a petition for declaratory judgment asking that an ordinance of the city increasing the salary of its mayor be declared void. The trial court denied him relief.
William Ayres was first elected as mayor of the city on April 4, 1976. During his first term, the salary was $125.00 per month, plus mileage. On the same night that he took office, the city’s manager resigned, effective 30 days thereafter. Ayres, feeling that it was his responsibility as mayor to do so, took over the city manager’s duties, receiving therefor no additional compensation.
Ayres had been a life-long resident of Fayette, owning and operating a department store therein, from which the larger part of his income is derived. Since he was elected mayor he had been putting in 40 to 70 hours per week of his time for the city. His duties included supervising all city employees; being at the city power plant 3 to 7 times a day during installation of a new engine which went on for 6 or 7 months; supervising the electric and water utility systems; making applications for state and federal grants and making trips concerning them, assuming the lead for the city in applying for them, and reporting to the Board of Aldermen at its bi-monthly meetings on how he was progressing on grants; preparing the city budget for every year he has been mayor; participating in meetings in Jefferson City of the Mid-Missouri Council of Governments, being secretary thereof; at the direction of the Board of Aldermen, he had represented the city in these additional organizations: Chairman of the SubArea Council for the Health Systems Agency for 8 counties, member of the governing
On December 10, 1977, meeting of the Board of Aldermen, a salary of $1,000 per month was discussed, and Ayres made a statement that the job of mayor was costing him money, giving an estimate. This meeting was covered in the Fayette newspaper. The Board did not adopt an ordinance providing for $1,000 per month, but did adopt one calling for $4.00 per hour additional compensation by ordinance dated December 20, 1977.
Ayres, without opposition, was reelected to a succeeding term as mayor on April 4, 1978. After that election, but prior to a Board of Aldermen meeting called by him to be held April 10, 1978, Ayres inquired of the Attorney General whether the ordinance adopted on December 20, 1977, was valid. He was informed that the Attorney General knew of no other official in the state who was paid by the hour. Consequently, and to avoid possible litigation of the matter, Ayres called a special meeting of the Board for April 10, 1978, to see if it could get it resolved, “because I could not follow through with two more years at the time I was putting in on the job for $125.00 per month, and they knew that.” That special meeting was held prior to the time Ayres took his oath of office (he being elected April 4,1978) because he understood that official’s compensation could not be increased once his term of office began. At the April 10, 1978, meeting, Ordinance No. 2.500, providing $125.00 per month for the mayor, and Ordinance No. 2.501, providing additional compensation of $4.00 per hour to the mayor, were repealed, and a new ordinance, upon the expressed desire of the Board of Aldermen to clarify the status of the compensation of the mayor, set his annual salary at $12,000 per year, payable $1,000 per month after 7:30 p. m., April 18, 1978, and by Section 4, required that the Mayor perform the following duties in addition to those prescribed by State statutes and the present ordinances: “1. Prepare the annual budget for the City of Fayette, Missouri. 2. Seek, apply for and administer Federal and/or State grants, subject to Council approval. 3. Monitor and inform Council bi-monthly of status of electrical and water utility systems, both the plants and distribution systems. 4. Day to day supervision of City employees and department heads and reporting bi-monthly to the Board of Aldermen. 5. Represent the City of Fayette and the Board of Aldermen in other miscellaneous organizations, and/or Board of Directors at the direction of the Council. 6. A commitment of 40 hours per week is expected by passage of this Ordinance.”
Mo.Const. Art. VII, § 13, provides that the compensation of a municipal officer shall not be increased during the term of office, and § 79.270, RSMo 1978, provides that the salary of an officer of the city shall not be changed during the time for which he was appointed or elected. The determinative issue is whether the duties above, prescribed by the Board of Aldermen, are within those ordinarily performed by a mayor of a fourth class city, i. e., were they incidental to and germane to that office, or were they, in fact, additional duties for which the Board of Aldermen could, through passage of an ordinance, legally provide extra compensation above the regular salary of the mayor?
The City of Fayette is stipulated to be a fourth class city of this state. Its functions are governed by Chapter 79, RSMo 1978. The duties of the mayors are contained in several sections therein: § 79.110 provides that the mayor and board of aldermen shall have the care, management and control of the city and its finances; § 79.120 provides that the mayor shall have a seat in and preside over the board of aldermen, but shall have no vote except in the case of a tie, and he shall exercise a general supervision over all the officers and affairs of the city; § 79.140, he shall approve or veto bills; § 79.180 grants power to the mayor to administer oaths to witnesses; § 79.190, he shall sign commissions and appointments of
It is true, as appellant argues, that if extra services which are rendered by a public officer are germane to the official duties of his office, or are merely incidental to those duties, the existence of an ordinance or contract for additional compensation is not enforceable as a general rule. Annotations,
Respondents contend that the ordinance, although enacted after Mayor Ayres was elected, was before he took his oath of office, and therefore before his term began. The statutes speak of a term of office for two years, and that cannot be longer than the time when a successor is elected. § 79.050. The matter of when the oath of office is taken is immaterial to its term. See Edwards v. City of Kirkwood,
It is clear that the additional compensation provided by the ordinance is referable to the extra or additional duties provided for therein. Thus, the Mooney case, supra, is distinguishable.
The resolution of the question requires an examination, from a factual standpoint, of the duties performed by Mayor Ayres as prescribed by the ordinance of April 18, 1978, and according to his testimony, with those set forth in the statutes, supra, to determine whether or not they are germane and incidental to the office of mayor of Fayette. In this connection, Missouri subscribes to an exception to the general rule above stated, that if additional services performed are not a part of the regular duties of the officeholder, there is
It does not appear what duties were prescribed for and were performed by the city manager prior to his resignation but the record shows that his compensation had been $13,500 per year.
Appellant argues that the ordinance duty of preparation of the annual budget by Mayor Ayres was not the performance of any new services because, as his witness, Dr. Robert Karsh, an expert in the field of local government, testified, it was the ordinary custom and practice of mayors of cities of the fourth class which did not have city managers to prepare their budgets. It must be remembered that Fayette did not have a city manager during the years May- or Ayres prepared the budget, and the plain implication of Dr. Karsh’s testimony that if there were still one in Fayette, the duty of budget preparation would not fall upon its mayor. Thus, it can be inferred that budget preparation was an additional duty of the mayor which he had not had to assume prior to the city manager’s resignation. Nor is there anything in § 79.110 specifying general duties of the Mayor and Board of Aldermen of “the care, management and control of the city and its finances” requiring any of them to perform the details of preparation of the city budget.
Mayor Ayres testified that he inherited the job of applying for and seeking federal grants when he was first elected. Again, there is nothing in § 79.110 that requires him to do the detailed work of making application for state and federal grants, making trips concerning them, assuming the lead in applying for them and reporting to the Board of Aldermen at its bi-monthly meetings on how he was progressing on them, all as he testified, certainly as the trial court found, and notwithstanding the testimony of Dr. Karsh that it was the ordinary custom and practice for mayors of fourth class cities to make those applications (which testimony the trial court could disregard), these detailed duties were not germane and incidental to the office of mayor, as contended by appellant.
The city of Fayette has its own electric and water utility systems. Appellant contends that new duties of the ordinance to “monitor and inform council bi-monthly of the status of electric and water utility systems, both the plants and distribution system,” were not other than Mayor Ayres had been performing prior to that time. Mayor Ayres did testify that since he was elected, his duties included supervising all city employees (except the city collector), and being at the city- power plant 3 to 7 times daily during the installation of a new engine which went on for 6 or 7 months. Again, it must be remembered that the city manager resigned effective 30 days after Mayor Ayres took office, and undoubtedly he took over the detailed duties of the manager, albeit without pay, those duties being considered to be gratuitous because there was no ordinance providing pay for the extra services at that time, State ex rel. Smith v. Atterbury, 270 S.W .2d 399, 403[1—6] (Mo.banc 1954), and indeed, Mayor Ayres received no extra pay therefor during that time. Appellant again refers to § 79.110 as to the duties of the Mayor and the Board of Aldermen as having “the care, management and control of the city and its finances,” but adds to that general statement the further phrase, “the benefit of trade and commerce and the health of the inhabitants thereof.” In the statute, the latter phrase is preceded by another having to do with the power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city. Obviously, then, and contrary to appellant’s contention, ordinances enacted for
Appellant next claims that the ordinance duty to represent the city before miscellaneous organizations is one germane and incidental to the office of mayor. His witness, Dr. Karsh, testified that mayors of the cities of the fourth class customarily represented the cities and attended meetings of advisory boards, but that testimony was not binding upon the trial court. There is nothing in the statutes requiring the active participation to the extent testified to by Mayor Ayres in the various organizations having to do with municipal governments. Again, § 79.120, that he should exercise “a general supervision of all the affairs of the city”; § 79.110, dealing with his obligation “to have the care, management and control of the city”; and § 79.210, to communicate such measures to the Board of Aldermen as may “tend to the improvement of the finances, the police, health, security, ornament, comfort, and general prosperity of the city”, are all general in nature. Mayor Ayres was under no obligation to perform the detailed and intricate tasks during his first term-he did so gratuitously. Had the city continued its employment of a city manager, there would have been no necessity of Mayor Ayres taking over the city manager’s duties as he obviously did.
Appellant next contends that item No. 6 of the ordinances that “A commitment of 40 hours per week is expected by passage of this ordinance” cannot be an additional duty because, as argued, the mayor is expected to put in what hours are necessary to fulfil the duties for which he is elected, whether it takes 10 hours per week or 100 hours per week. This provision, being a part of the enacted ordinance, clearly has reference to the additional duties spelled out therein, each of which is above held not to be germane and incidental to the regular, statutory duties of the mayor. There exists substantial evidence to support the findings and conclusions of the trial court, and it is unnecessary to decide what parties initially had the burden of proof on the issues.
The meeting of the Board of Aldermen on April 10, 1978, was a special one called by Mayor Ayres on that same day for 7:00 p. m., at the city hall. He prepared and signed a written notice of the meeting which was hand delivered to three of the board members, and two others were notified by telephone. The matter of salary increase to $1,000 per month had been discussed at the December 10, 1977, meeting, when the ordinance providing for $4.00 per hour for the mayor’s additional compensation was adopted. On April 8, 1978, Mayor Ayres made a statement to newspaper reporter, Donald Burke, that he was considering resigning but that there was a possibili
Appellant claims that there was a violation of the Sunshine Law, § 610.020, RSMo 1978, because no notice of the special meeting of the Board of Aldermen was given to the general public “[by] a reasonable method of notification” as required by that statute and, therefore, the ordinance is void. Respondents say that notice requirements of § 610.020 do not apply because the matter considered at the special meeting was one relating to personnel, which could be a closed meeting, under these words of § 610.025.4., “ * * * meetings relating to the hiring, firing or promotion of personnel of a public governmental body may be a closed meeting, closed record, or closed vote.” Hudson v. School District of Kansas City,
Without question there was a violation of the Sunshine Law in that there was no public notice of the special meeting. The further question is whether the ordinance adopted increasing the mayor’s duties and his salary should be declared void, and it is one which has never been decided in this state.
Where there is noncompliance with a Sunshine Law, as by failure to give notice or to hold an open meeting, in the absence of a statutory provision declaring an action of a governing body void or voidable, as to whether a court may or should so declare it, there is at least a split of authority. There may be, as appellant suggests, a weight of authority favoring a court-declared invalidity. These following cases illustrate the views taken by various courts under varying statutory provisions of open meetings laws.
In Dobrovolny v. Reinhardt,
Elmer v. Board of Zoning Adjustment of Boston,
In New Hampshire, the Supreme Court has held that if there is failure to give the notices under that state’s “right to know” statute, even though it has no provision that action taken in violation of the statute shall be voidable in a court proceeding, the government “must run the risk that its action will be invalidated.” Stoneman v. Tamworth School District,
Peters v. Bowman Pub. Sch. Dist. No. 1,
In Bigelow v. Howze,
In Lower Colorado Riv. Auth. v. City of San Marcos,
Wolf v. Zoning Bd. of Adjust. of Park Ridge,
In Bogert v. Allentown Housing Authority,
See further Anno.
The lack of public notice of a special meeting would undoubtedly deprive the public of an opportunity to seek injunctive relief against holding such a meeting without proper notice. Yet, injunctive relief is the only remedy which has been provided by the General Assembly to implement the Sunshine Law. Despite the persuasive arguments of some of the cases cited supra, for this court to declare the ordinances raising Mayor Ayres’ salary and increasing his duties invalid because of lack of public notice would amount to judicial legislation, which, because of important public considerations, this court ought not to do. It may be that there is a trend in various legislatures to provide for a declaration of invalidity to acts taken in violation of Sunshine Laws, but that is a matter for determination by the General Assembly. “The courts have no proper jurisdiction to accommodate the law of Missouri to the apparent equities of the particular case. As we said by reference in Harris v. Bates,
The judgment is affirmed.
All concur.