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Legal opinion released by city council

Thursday, March 8, 2012

The Monett City Council has released a legal opinion from its special legal counsel over when the size of Monett's representative government will have to expand from its current three members.

According to Missouri state statutes, when Monett tops 8,000 people in population, the commission form of government will have to expand from three to five members. However, when the law was changed in 1991, an exception was included specifically for Monett.

Deborah Schoen, whose husband, Stephen, is running for city commissioner in the April 3 election, questioned the law and asked for the city's legal opinion.

Pyle said there had been no closed meeting or vote to accept the legal opinion.

"State statutes say 'any confidential or privileged communication' with an attorney is a closed document," Pyle said.

Since the matter represented a point of public interest, the council asked legal counsel Dan Vogel, with the St. Louis law firm of Cunningham, Vogel and Rost, to prepare a document for public release. A copy was sent to Schoen as requested.

Vogel said state law requires a town with a commission form of government, like Monett, to have a mayor and two commissioners or council members if the population is between 3,000 and 8,000. In the 2010 census, Monett topped the 8,000 population.

In 1991, the state legislature made a county exempt from the law that, according to its description, could only apply to Monett. Because the exempt town had not reached 8,000 at the time the law was changed, the old law still applied, making a population of 10,000 the point when Monett would be compelled to expand the size of its council.

Vogel found the language used by legislators was also important.

"The exception is not a permissive authority but is a mandatory directive: 'the law applicable before Aug. 28, 1991, shall continue to apply," Vogel wrote.

According to the court ruling McKittrick v. Wymore, Vogel said, when the legislature uses of the word "shall," compliance becomes mandatory.

"Therefore, Section 78.080, on its face, currently compels Monett to retain a council of one mayor and two councilmen until its population exceeds 10,000," Vogel wrote, "because the exception stated in RSMo. 78.080 is a mandatory director. The city has no express authority to depart from the requirements of the statute as long as it is in full force and effect."

The full legal opinion from Cunningham, Vogel and Rost can be found online at http://www.monett-times.com/files/cityco....


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The very obvious question is "why?" and "who?" Why was Monett exempted in '91...and who asked for the exemption? Doesn't it seem like that would be addressed? Far more pertinent than inane little rules about ridiculous exclusions.

-- Posted by common-tater on Fri, Mar 9, 2012, at 10:56 PM


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