SECOND REGULAR SESSION
HOUSE BILL NO. 1132
91ST GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE WALTON.
Pre-filed December 4, 2001, and 1000 copies ordered printed.
TED WEDEL, Chief Clerk
AN ACT
To repeal sections 77.340 and 79.240, RSMo, and to enact in lieu thereof twenty new sections relating to the impeachment of municipal elected officials.
Section A. Sections 77.340 and 79.240, RSMo, are repealed and twenty new sections enacted in lieu thereof, to be known as sections 77.340, 79.240, 106.301, 106.303, 106.305, 106.307, 106.309, 106.311, 106.313, 106.315, 106.317, 106.319, 106.321, 106.323, 106.325, 106.327, 106.329, 106.331, 106.333 and 106.335, to read as follows:
77.340. 1. The mayor may, with the consent of [a majority] two-thirds of all the members elected to the city council, remove from office, for [cause shown] commission of a felony upon conviction of such felony, or for gross misconduct, habitual intoxication, willful neglect of duty, corruption in office, incompetency, any offense involving moral turpitude, or as otherwise provided by law or municipal ordinance, any elective officer of the city, such officer being first given opportunity, together with his or her witnesses, to be heard before the council, sitting as a court of impeachment as described in sections 106.301 to 106.335, RSMo. Any elective officer, including the mayor and the members of the city council, may, in like manner, for [cause shown] commission of a felony upon conviction of such felony, or for gross misconduct, habitual intoxication, willful neglect of duty, corruption in office, incompetency, any offense involving moral turpitude, or as otherwise provided by law or municipal ordinance, be removed from office by a two-thirds vote of all the members elected to the city council, independently of the mayor's approval or recommendation, as described in sections 106.301 to 106.335, RSMo.
2. The mayor may, with the consent of a majority of all the members elected to the council, remove from office any appointive officer or employee of the city at will; and any such appointive officer or employee may be so removed by a two-thirds vote of all the members elected to the council, independently of the mayor's approval or recommendation.
3. The council may pass ordinances regulating the causes, procedure, and manner of impeachment and removals, provided that such ordinances are consistent with the provisions of sections 106.301 to 106.335, RSMo.
79.240. 1. The mayor may, with the consent of [a majority] two-thirds of all the members elected to the board of aldermen, remove from office, for [cause shown] commission of a felony, upon conviction of such felony, or for gross misconduct, habitual intoxication, willful neglect of duty, corruption in office, incompetency, any offense involving moral turpitude, or as otherwise provided by law or municipal ordinance, any elective officer of the city, such officer being first given opportunity, together with his or her witnesses, to be heard before the board of aldermen sitting as a board of impeachment as described in sections 106.301 to 106.335, RSMo. Any elective officer, including the mayor or members of the board of aldermen, may in like manner, for [cause shown] commission of a felony upon conviction of such felony, or for gross misconduct, habitual intoxication, willful neglect of duty, corruption in office, incompetency, any offense involving moral turpitude, or as otherwise provided by law or municipal ordinance, be removed from office by a two-thirds vote of all members elected to the board of aldermen, independently of the mayor's approval or recommendation, as described in sections 106.301 to 106.335, RSMo.
2. The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer or employee of the city at will, and any such appointive officer or employee may be so removed by a two-thirds vote of all the members elected to the board of aldermen, independently of the mayor's approval or recommendation.
3. The board of aldermen may pass ordinances regulating the causes, procedure, and manner of impeachments and removals, provided that such ordinances are consistent with the provisions of sections 106.301 to 106.335, RSMo.
106.301. For purposes of sections 106.301 to 106.335, the following terms shall mean:
(1) "Chief executive", the mayor of any city, the chairman of the board of trustees of any town or village, or any other person who serves as the chief elected official of any municipality in this state;
(2) "Clerk", the city clerk or person serving a similar function in any town or village;
(3) "Elected official", any person holding elective office in any municipality in this state;
(4) "Governing body", the city council, board of aldermen, or other entity serving as the legislative body of any municipality in this state;
(5) "Municipality", any city, town, or village in this state.
106.303. 1. No elective officer of any municipality shall be removed from office except upon the consent of two-thirds of all the members elected to the governing body, and except for commission of a felony upon conviction of such felony, or for gross misconduct, habitual intoxication, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude, or as otherwise provided by law, municipal charter, or ordinance, such officer being first given opportunity, together with his or her witnesses, to be heard before the governing body, sitting as a court of impeachment as described in sections 106.301 to 106.335.
2. Except as otherwise provided by law, charter, or municipal ordinance, the chief executive of a municipality may, with the consent of a majority of all the members elected to the council, remove from office any appointive officer or employee of the municipality at will; and except as otherwise provided by law, charter, or municipal ordinance, any such appointive officer or employee may be so removed by a two-thirds vote of all the members elected to the governing body, independently of the chief executive's approval or recommendation.
3. The governing body may pass ordinances regulating the causes, procedure, and manner of impeachment and removals, provided that such ordinances are consistent with the provisions of sections 106.301 to 106.335.
106.305. When any person or any elected official has knowledge that any elected official may be subject to removal from office for the causes set forth in section 77.340, RSMo, or section 79.240, RSMo, or in any city charter, or in any other provision of law, such person or such elected official may make an affidavit before any person authorized to administer oaths, setting forth the facts constituting such causes and file the same with the clerk, for the use of the chief executive or governing body, furnishing also the names of witnesses who have knowledge of the facts constituting such offense. The chief executive or any member of the governing body may file articles of impeachment with the clerk if such person is of the opinion that the facts stated in such affidavit justify the removal of the elected official from office. The articles shall set forth, in plain and concise language, the charge against such official.
106.307. 1. No proceedings or trial of impeachment shall be stopped by injunction or restrained in any other way by any court prior to judgment on such impeachment. Judicial review of the removal of any elected official from office may only be had by way of appeal after judgment of removal. In all prosecutions pursuant to section 77.340, RSMo, or section 79.240, RSMo, or pursuant to any city charter or any other law providing for impeachment of elected officials, the defendant shall, upon conviction, after judgment of removal is entered, be entitled to a direct appeal to the court of appeals, and such cause shall have precedence in such court, and the court shall hear the appeal as soon as is practicable.
2. Pending such appeal, the impeached elected official shall be suspended from office, and the governing body shall appoint a resident of the municipality of like qualifications as the elected official so removed from office, who shall assume the duties of that office pending the appeal. If the decision on the appeal shall be in favor of the defendant, the official shall be entitled to the pay for the time for which he or she was removed. The person assuming the duties of the elected official during the appeal shall be entitled to the same compensation, rights, privileges, and duties of office as the suspended elected official. The costs provided for in this section shall be paid by the municipality in which the proceedings originated. The fee of any special prosecutor, as provided for in section 106.335, shall be a reasonable one, fixed by the court, and payable out of the treasury of the municipality.
106.309. If any elected official shall be impeached, that official is hereby suspended from performing the duties of that office until his or her acquittal; provided that the suspension shall not take effect until the official is notified of his or her impeachment.
106.311. If any elected official against whom an impeachment proceeding has been filed shall be found guilty as charged, the governing body shall render judgment removing him or her from such office, and such person shall not be elected or appointed to fill the vacancy thereby created. The vacancy shall be filled as provided by law for filling vacancies in such municipality in other cases. All actions and proceedings for removal of an elected official shall be in the nature of administrative procedure actions, and shall be tried and appealed pursuant to section 536.140, RSMo, unless otherwise provided in sections 106.301 to 106.335.
106.313. When the governing body is satisfied that there is good cause to impeach any elected official, the body shall cause articles of impeachment to be made out pursuant to section 106.305, and shall immediately appoint a special prosecutor to prosecute such impeachment. In case of death, resignation, or failure to serve on the part of any special prosecutor, the governing body shall fill such vacancy as provided by law for other vacancies.
106.315. If, upon the trial of such cause, the defendant is acquitted, the defendant shall be allowed reasonable attorney's fees and costs expended, to be paid by the municipality, and such fees and costs shall be paid by the defendant in case of a judgment of removal.
106.317. 1. In all trials pursuant to sections 106.301 to 106.335, the accused shall have a right to be heard and a right to counsel. All matters relating to the procedure and conduct of the trial shall be determined by the chief executive, who shall preside over such impeachment, and such determinations on procedure shall be subject to a majority vote of the governing body and shall be entered and made a part of the record of the proceeding. Notwithstanding any other provision of law to the contrary, no judgment or sentence of conviction shall be given against any person upon any impeachment without concurrence of two-thirds of the members of the governing body.
2. In the event that the chief executive is the elected official being impeached, then the governing body shall select one of their number to fulfill the duties of the chief executive for purposes of the impeachment proceedings.
106.319. All writs by the governing body involving any impeachment shall run in the name of the municipality, shall be subscribed by the chief executive and countersigned by the clerk and shall be served by the chief law enforcement official of the municipality or by a police officer appointed by the chief law enforcement official for that purpose.
106.321. The judgment of the governing body, whether of conviction or acquittal, shall be signed by the chief executive, and the judgment shall be attested by the clerk and deposited in the office of the clerk. Upon appeal by the defendant of any judgment of conviction, the governing body shall cause a transcript of the proceedings had on any impeachment to be made out and deposited both in the office of the clerk and with the clerk of the court of appeals. In addition, the clerk shall cause all documents and exhibits as well as the judgment of conviction included in the record of the proceedings to be certified and filed with the court of appeals.
106.323. The elected official convicted or acquitted shall, notwithstanding such conviction or acquittal, be subject to indictment, trial, judgment, and punishment for any indictable offense, and subject to any civil action in equity or law, according to law.
106.325. Upon service of the articles of impeachment upon the accused official, such official shall have twenty days to file with the clerk an answer to the impeachment, with a copy to be served on the special prosecutor, postmarked not more than one day after the answer is filed with the clerk. When the answer is filed with the clerk, the special prosecutor may, not more than fifteen days thereafter, file with the clerk a reply and serve a copy of the reply by first class regular mail upon the accused, postmarked not more than one day after the date of filing. When issue shall be joined on any such impeachment, the governing body shall appoint a time for trial, not less than forty-five days from the date of the filing of the reply with the clerk. The accused shall be given notice of the trial by first class regular mail postmarked not more than one day after the trial is set by the governing body.
106.327. The articles of impeachment and summons shall be filed for record in the office of the clerk and entered for record in the minutes of proceedings before the governing body and shall be served on the accused by certified or registered mail, and by posting a copy of such summons and articles of impeachment at the office of the clerk and at the dwelling house or usual place of abode of the accused.
106.329. The chief executive, on application of the respondent, or any of the respondent's counsel, or of the special prosecutor, shall issue subpoenas for witnesses and commissions to take depositions where the witness is unable to attend from sickness or other infirmity, or where the witness is not in the state, which subpoenas may be enforced by the circuit court. Such depositions shall be taken in the same manner, and the same notice shall be given, as when depositions are taken in circuit court.
106.331. If the accused shall not appear after being notified, or, after appearing shall fail to answer, the governing body may proceed ex parte and enter a default judgment.
106.333. Upon being sworn, the governing body shall proceed to hear, try, and determine such impeachment, and may adjourn the trial to any other time. The governing body shall determine all questions of law arising during the trial upon the admissibility of evidence, the competency of witnesses, or otherwise, and may punish any person for contempt committed toward it, or for obstructing the administration of justice on such trial, in as full a manner as any administrative tribunal of record could do for like contempt toward such administrative tribunal. The rules of evidence and procedure applicable in administrative actions before administrative tribunals pursuant to chapter 536, RSMo, shall be followed in all trials of impeachment before a governing body.
106.335. The special prosecutor shall be allowed reasonable compensation for services rendered and actual and
necessary expenses incurred in the performance of his or her duties.
Missouri House of Representatives