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NewsBook:  Missouri Government News for the Week of October 26, 2015

In a split decision, the Missouri Western District Court of Appeals held that Missouri's law prohibiting discrimination in the workplace does not cover sexual orientation.

In a 2-1 decision, the court held the law is limited to workplace discrimination based on gender because the statute does not contain the word orientation or any other reference to sexual preference.

The case was brought a gay male, James Pittman, who alleged a hostile and abusive work environment because of his sexual orientation.

He charged that the company, Cook Paper Recycling Corporation in Kansas City, failed to he was he suffered from a hostile environment at his employment, Cook Paper Recycling, and ultimately was dismissed in 2011 because of his sexual orientation.

He accused the company president of using abusive language in referring to his sexual preference.

The Appeals Court, however, found that the Human Rights Act of Missouri does not cover sexual orientation. The law makes it an unlawful for employer to discriminate or fire a worker "because of the race, color, religion, national origin, sex, ancestry, age or disability of the individual."

In the majority opinion issued Tuesday, Oct. 27, Judge James Welsh wrote the law "has nothing to do with sexual orientation."

Welsh wrote that the failure of the legislature to include a phrase like sexual orientation demonstrated the clear intent of the legislature to not cover sexual preferences.

"If the Missouri legislature had desired to include sexual orientation in the Missouri Human Rights protections, it could have done so. No matter how compelling Pittman's argument may be and no matter how sympathetic this court or the trial court may be to Pittman's situation, we are bound by the state of the law as it currently exists," Welsh wrote.

In a dissenting opinion, Judge Anthony Gabbert wrote that the the word "sex" covers more than just gender.

"Even a cursory look in a dictionary by the majority would have led them to determine that, in fact, sex does not include only gender," Gabbert wrote.

He went on to cite the language Webster's 1993 dictionary that included "the phenomena of sexual instincts and their manifestations" in the definition of sex.

For the last several years, proposals to expand Missouri's Human Rights Act to include sexual orientation have made little progress in the state legislature.

In the last session, a measure sponsored by all nine Democrats of the Senate failed to come out of the Senate committee to which it had been assigned.  A similar bill in the House also died in committee.

The House measure died in the House Civil and Criminal Proceedings Committee without a vote taken. The Senate bill won approval by the Senate Progress Committee, the only committee with Democrats holding a majority. However, the bill was not reported to the full Senate for debate.

The closest the Missouri legislature has come in dealing with sexual orientation came in 1999 when lawmakers passed and the governor signed into law a measure to expand the state's hate-crimes law to include a crime against a person based on sexual orientation.

Two days after the state appeals court decision, Attorney General Chris Koster called on the legislature to expand the state's discrimination law to include sexual orientation. His statement was issued through his campaign for the Democratic nomination for governor.

Missouri's Transportation Department announced that they will conduct a statewide drill Wednesday, Nov. 4, to prepare for the winter season.

The department said the annual drill will simulate the forecast for a significant amount of snow across the entire state.

"one of the most valuable parts of the drill is to measure our snowplow circuits by driving routes we have modified since the previous winter season, said State Maintenance Engineer Becky Allmeroth.

"It also allows our news snow fighters the opportunity to drive a snowplow over some of their proposed routes so they are aware of obstacles and obstructions that might be hidden in a storm by snow or ice, such as curbs and raised islands," she said.

The drill will begin after 8 a.m. in rural areas and after 9 a.m. in urban areas. The drill will conclude by 3 p.m.

State Auditor Nicole Galloway continued her campaign for stronger computer security policies in government with a report listing five of the most common mistakes her office has found.

The list was compiled based on audits of both state and local governments her office has issued this year.

"Despite the increasing awareness of threats to data security across all levels of government, my review found there are still some very basic security measures that have not been implemented," Galloway said.

  1. Passwords: Passwords were shared among workers or did not have to regularly change their passwords

  2. Access: Employees were given access to data that was not necessary to to perform their jobs

  3. System locks: Access to computers were not locked for a period of time after repeated incorrect passwords were entered

  4. Backups: Data were not backed regularly nor stored in an off-site locations

  5. User restrictions: Protections did not exist to prevent inappropriate system changes by users nor tracking who made system changes

When the Democratic auditor was sworn in to replace the deceased Republican auditor, Tom Schweich, Galloway said cyber-security would be a major focus.

Since her appointment in April of this year, Galloway has announced special cyber-security audits of five school districts and issued an audit critical of the security of a database on students maintained by the state Education Department.

The issue of transgender students playing on high school sports teams came before the House Committee on athletics Thursday, Oct. 29.

Missouri State High School Executive Sports Director Kerwin Urhahn told legislators transgender females are allowed to compete on a female sports team as long as they have taken hormone therapy for at least on full year.

Urhahn says the one year of hormone therapy rule is based upon extensive research done by the NCAA.

"The studies that we looked at were what the NCAA had put out from all their doctors and their research they have. it's about a 90 page booklet that talks about all the different physiological changes that can occur and why they believe that one year is a sufficient amount of time," Urhahn said.

The NCAA states one full year of hormone therapy in male to female students is an appropriate amount of time to allow muscle mass to reduce.

Female-to-male students do not have to take hormone treatments to participate on a male team.

Urhahn said MSHSAA is looking into the one year rule to make sure it is fair.

"This is something that's not just here in Missouri. It's nationwide and I will tell you there are states that have other lenient policies. It's basically just however they identify them self that day is what they can represent. We struggle with that because we believe part of the responsibility is to protect those young ladies [on teams]," Urhahn said.

Lawyers for the St. Louis Circuit Attorney's office urged the Missouri Supreme Court to let them continue prosecution of three persons for violating state law by possessing firearms despite having prior felony convictions.

The cases before the Missouri Supreme Court involve whether a voter-approved constitutional amendment gives a right to possess firearms to persons convicted of non-violent criminal offenses.

Missouri law bans any felon from possessing a weapon.

But in August 2014, Missouri voters approved an amendment that limits the legislature's authority to restrict gun rights of criminals to those convicted of violent felonies.

Before the state Supreme Court are three cases persons charged with illegal firearm possession because of prior, non-violent felony offenses. All three charges were tossed out by St. Louis circuit courts based on the constitutional amendment.

St. Louis Assistant Circuit Attorney Veronica Harwin argued before the Supreme Court that the voter-approved change to the state Constitution did not absolutely prohibit prosecution.

"Throughout the country we've seen an epidemic of gun violence, lately, and this shows just how compelling the state interest is in protecting public safety from firearm violence," she argued.

Another attorney for the St. Louis City Circuit Attorney's office, Aaron Levinson, argued that the description of the constitutional amendment on the ballot was misleading to voters because it did not clearly state there would be a change in the rights of convicted criminals to possess firearms.

"There was nothing in the ballot title or way Amendment Five was presented which would have alerted," Levison began to argue before interrupted by Judge Richard Teitelman who asked "How do you know what the voters were thinking."

Teitelman continued, "So, should we just ignore the actual constitutional amendment?"

The constitutional amendment declares the "right of every citizen to keep and bear arms, ammunition, an accessories typical to the normal function of such arms," which the amendment defines as "unalienable."

The sentence in question is the amendment's last: "Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as a result of mental disorder or mental infirmity."

Before the court is the question as to whether that one sentence prohibits any ban on a non-violent felon from possessing a firearm.

Or, must there be some proof that a non-violent offender presents such a risk to public safety that a firearm ban is warranted?

On one side, a lawyer for the circuit attorney's office a prior felony conviction, even a non-violent felony, made it more possible the person more likely to commit a future crime.

But Judge Teitleman questioned restricting gun rights for someone convicted of an offense like possessing more than a small amount of marijuana.

"They wouldn't be able to go hunting and kill Bambi or...go target shooting or anything like that, which is our God-given right under the Second'd take their constitutional right away from killing Bambie."

Gov. Jay Nixon unveiled a broad package of proposals to deal with a variety of ethical issues that have arisen in Missouri's legislature last year.

"Missouri's ethics laws are the weakest in the nation," Nixon argued in an editorial.

"When legislators return to the capital in January, few issues are more important than restoring the public's trust," the Democratic governor wrote.

His proposals are:

Nixon's proposals for protecting interns are similar to the recommendations made by House Speaker Todd Richardson, R-Poplar Bluff, the week before.

The governor's recommendations include mandated sexual harassment training for office holders an an ombudsman to oversee the internship program.

Nixon called Missouri's current ethics laws "the weakest in the nation.

Missouri is the only state with no limit both campaign contributions and how much a legislator lobbyist can give to a legislator.

Absent this year in Nixon's proposals, however, is restoring the voter-approved limits on the total amount of contributions any one source could give to a political candidate.

That idea had met with stiff opposition from many Republican legislators who have argued that because special interests can find ways around contribution limits, a more effective approach is stronger laws requiring disclosure of contributions.

Republican legislative leaders have called for several of the ethics issues raised by the governor. But the measures have become bogged down in disputes over what to include in any ethics package.

Gov. Jay Nixon issued a statement Monday, Oct. 26, that Missouri led the nation in new business creation according to a federal Census Bureau report.

The report, covering the growth for the year 2013 reported that Missouri had a 16.66 percent growth in new businesses -- far higher than any other state in the nation.

The next highest was Kentucky with a 6.08 percent growth rate.

But the same agency reported that the number of new jobs created actually trailed the national average.

Nationwide, the Census Bureau reported employment grew by 2.0 percent.

But Missouri's employment showed only a 1.5 percent growth.

The figures cover private, non-farm employment.

Last Week

House Speaker Todd Richardson unveiled Friday, Oct. 23, a set of policy recommendations to address issues raised by the resignations of two legislators after reports of inappropriate conduct with female students.

Richard proposes mandatory training for House members on ethics and sexual harassment policies.

He also proposes a ban on "romantic fraternization" between members, staff and interns.

In addition, he proposes that an outside counsel investigate any sexual harassment complaint involving a House member of the House chief clerk.

His list of recommendations provides that the policy would cover "the unwelcome interaction of members and employees both in and away from the Capitol complex."

In addition to imposing restrictions on legislators, the proposal also would impose protections of House members and staff.

"The House will take such action as is available to protect House members and employees in the course of their work from unwelcome sexual conduct and communications by lobbyists, members of the press, visitors, constituents, service personnel, state employees employed by other agencies, or other persons."

Richardson's proposal does not include provisions as to how the restrictions would be enforced on legislators nor on persons outside of government.

In a statement issued with release of the proposals, Richardson acknowledged "these proposed policy changes are not a cure-all, but they do take significant, substantive steps toward improving the work environment in the Capitol so that interns, staff, and members can have a workplace where they are treated with respect and free from harassment," Richardson was quoted as saying in a statement released by his office.

Richardson's release came after House Democratic leaders renewed their call for public hearings to deal with the issues raised by the resignations of two legislators following charges of inappropriate conduct with female college interns.

In one case, House Speaker John Diehl resigned this spring after reports of sexual suggestive text messages with an intern.

Later in the summer, Sen. Paul LeVota, D-Independence, resigned after reports that a female intern had complained of inappropriate sexual advances.

For a second year in a row, the number of schools in the Education Department's highest performance ranking continued to grow.

The figures come from the Annual Performance Report that grades schools on the basis of student tests and other factors such as attendance and graduation rates.

In 2013, the first year the new Performance Review Report evaluation standard was used, 238 schools scored high enough achieve the highest ranking to be worth of accreditation with distinction.

The following year, that number rose to 280. In the latest report issued Friday, Oct. 23, the number rose to 356 of the 521 public school districts evaluated -- 68 percent of all the districts.

"I want to applaud the educators, administrators and teachers who are helping more of our students graduate high schools prepared for post-secondary success," said Education Commissioner Margaret Vandeven.

During the same period, the number of troubled districts failed. The number of districts that were ranked as scoring below an accreditation fell from five to just one -- St. Louis County's Normandy School District that was taken over by the State Education Department.

At a news conference discussing the report, Vandeven stressed that accreditation decisions are made by the State Board of Education and are based on more than just one year's performance.

The board will take up any changes in school accreditation at its December meeting.

The performance rankings are based on the percentage of possible points that could be earned in various categories of measurement. Scores of 90 percent or higher rank a school as being eligible for "Accreditation with Distinction."

However, the proposed accreditation category has not yet been implemented nor has the Education Board established additional criteria for which "Accredited with Distinction"  would be awarded to a district.

Annual Performance Reporting
Ranking Descriptions

Accredited Provisional
Unaccredited Total
2013 238 255 24 4 521
2014 280 225 11 5 521
2015 356 157 7 1 521

House Democratic Leader Jake Hummel, D-St. Louis, along with eight other Democrats sent a letter to House Speaker Todd Richardson demanding an interim committee be appointed to develop policies addressing interns working for the legislature.

"Other than a vague outline of possible policy changes informally distributed a couple of months ago, no action has been taken on this matter," Hummel charged in his letter, released Wednesday, Oct. 21.

Hummel noted Richardson had promised to take steps to address the issue after he was selected to replace former House Speaker John Diehl who resigned in response to reports of sexually suggestive text messages with a female college intern.

Diehl's resignation was followed later in the summer by the resignation of Sen. Paul LeVota, D-Independence, after allegations of sexual harassment by a female intern who had worked for him.

"The Missouri House of Representatives is obligated to ensure inerns who come to the Capitol to learn and work are protected from inappropriate sexual advances and harassment," Hummel wrote.

Hours after release of Hummel's letter, that had been sent one week earlier, Richard issued a one-paragraph statement responding that a task force he had appointed had been working on the issue.

"We are now in the final stages of preparing our recommendations," Richard was quoted in the statement as saying.

Richardson statement said the task force had worked with House attorneys and consulted with university officials to develop recommendations.

"From that point, my office engaged in a thorough review process that resulted in additional recommendations that will revise not only intern policy, but also sexual harassment policy for all House members and staff."

Richardson's statement did not indicate what either he or his task force had recommended, but said the House Administration Committee would hold public hearings on the issue.

Richardson, R-Poplar Bluff, was not available for immediate comment.

Nicole Galloway at the news conference announcing the education data audit.

State Auditor Nicole Galloway issued an audit raising questions about the security of information held by the state Education Department about both current and past students.

The audit involves an Education Department database created in 2008 that holds information about individual students provided to the department by local school districts.

The database contains information about both current students as well as past students.

Her audit recommended the Education Department cease asking local schools for the Social Security numbers of students.

"We know that transmitting, that anytime you collect, transmit and maintain Social Security numbers, it creates the opportunity for a data breach or for that information to fall into the wrong hands", Galloway said at news conference announcing the audit.

In response to the audit, the Education Department promised it would remove Social Security number information from its database by June 2016.

As to why the Education Department maintains a database of past students, a spokesperson for the department said it helped assess the outcomes of Missouri school students.

The audit recommended the department adopt policies to address how to handle when it becomes aware of a breach of data concerning student information. It also recommended ceasing a practice by which Education Department employees shared IDs and passwords to access student data.

Republican conservative Kurt Bahr challenged the Education Department on their need for federal funds for Disability Determinations during a house committee hearing.

21 million dollars of federal funding have been allocated for Disability Determinations this year.

"We're dealing with education dollars and this is just kind of an out lier that sits in the budget," said Bahr. "I get it's only federal dollars and it's not state, it's just an anomaly in our House Bill two."

The department's deputy commissioner said they does not have a choice in where the program resides, however, it has been efficient and effective.

Bahr questioned the purpose of having this program in the Department of Education rather than having it in a social welfare agency.

"So I guess the question is, is this a Fed requirement that must go through this department or can we as a state say 'hey, let's just move it over to a different department because it seems to make more sense for us,'" said Bahr.

An Education Department representative Rick Longley says moving the funding could be possible, it would just take legislation to do so.

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Attorney General Chris Koster announced Monday, Oct. 19, settlement with Farmers Insurance for violation of the state's telemarketing laws.

The $575,000 is the largest payment for violating the state's no-call law.

The attorney general's office reported they had received more than 275 complains during a four-year period.

Money from the settlement will be used for consumer advocacy and enforcement by the attorney general's office.

Missouri's law prohibits, with some exceptions telemarketing calls to phone numbers after the person having the number has placed the phone number on the no-call list maintained by the attorney general.

The law was adopted in 2000. Originally limited to land lines, the law was expanded three years ago to include cell phones. There now are 4.5 million numbers that have been registered on the no-call the list.

On the same day the Farmers Insurance settlement was announced, Koster's office announced a lawsuit had been filed against the cable firm Charter Communications for violating the telemarketing restrictions.

The attorney general's office reported 350 complaints about calls to market Charter's cable, Internet and phone services.

The website to register a phone on the state's no-call list is A complaint for violation can be filed online at

Gov. Jay Nixon imposed a series of restrictions in the budget passed by the legislature totaling $46 million.

Nixon said the budget withholding was necessary because of an appeals court decision that lowered by $50 million the amount of money the state administration predicted the state would collect from a settlement agreement with the tobacco industry.

"This unexpected loss of funds must be accounted for through spending restrictions to keep the budget in balance and our AAA credit rating intact," Nixon was quoted as saying in a news release issued by his office Monday, Oct. 19.

Hardest hit by the governor's spending restrictions were health and social services programs. More than $35 million of the cuts came from three departments:

Nixon's written statement stressed that he sought to minimize the impact by "reducing spending from new programs yet to get underway and funding increases that would grow the size of the budget."

Republican Lt. Gov. Peter Kinder promptly attacked the governor's action.

"It is troubling that Gov. Nixon has decided to cut funding for children, law enforcement, the mentally ill, the disabled and other needed programs," Kinder was quoted as saying in a news release.

Kinder argued that the budget cuts were not necessary because state revenues have grown in the first three months of the budget year and the state has what Kinder described as a $325 million in an unspent surplus.

The tobacco money comes from a national settlement agreement between the tobacco industry and the nation's states, many of whom had filed suits against the major tobacco companies claiming diseases caused by smoking had expanded their Medicaid spending.

Under the settlement, the states agreed to impose higher taxes on tobacco companies that were not part of the settlement and, thus, did not have to pay the states.

Missouri, however, was accused of not fully complying with that provision of the agreement. An arbitration panel ultimately ordered a cut in tobacco payments to the state, but a state circuit court subsequently lowered the penalty by $50 million.

Last month, that court decision was overturned by the Eastern Missouri Court of Appeals.

Nixon said the state attorney general was planning an appeal, but a decision was not expected until after the the budget year that concludes June 30, 2016.