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NewsBook:  Missouri Government News for the Week of November 2, 2015

MoDOT Director Patrick McKenna

After months with an interim director, the Missouri Highways and Transportation Commission announced a permanent replacement Thursday, Nov. 5.

The commission selected Patrick McKenna, the former deputy commissioner for the New Hampshire Department of Transportation, a state roughly seven times smaller than Missouri.

"New Hampshire doesn't compare well," McKenna said. "We probably fit right into one of your districts here in the state of Missouri."

Missouri has over 33,000 miles of roadways and more than 10,000 bridges.

In comparison, McKenna said New Hampshire has about 5,000 miles of roads and 2,500 bridges. 

But Missouri Transportation Commission Chair Stephen Miller said this fiscal experience qualifies McKenna to tackle the department's funding problems.

As deputy commissioner, McKenna was the department's chief financial and operations officer.

McKenna also previously served as the chief financial officer for the Office of the Secretary in the U.S. Senate.

"We do have someone coming in that has the fiscal and financial knowledge and experience of a variety of different forms, and he's going to meld with what we're doing with our own 'road to tomorrow' effort in terms of finding innovative and creative ways to fund transportation going forward," Miller said. 

Missouri's Transportation Department repeatedly has warned that it is facing a financial crisis with insufficient revenues to fully maintain the entire state highway system.

According to MoDOT's website, the department's budget was $1.3 billion in 2009, but as of 2014 the budget was only $700 million. In January, MoDOT announced it only has the resources to focus full maintenance an repair on 8,000 miles of Missouri's highway system.

McKenna said New Hampshire faced similar problems. McKenna said New Hampshire's transportation system nearly went bankrupt a decade ago, and the state had not passed a revenue increase in 20 years before a toll rate increase finally passed two years ago. 

"Many of the same problems are faced in New Hampshire as they are in Missouri with regard to the infrastructure," McKenna said. "Not enough money for routine maintenance and upkeep has lead to a declining condition of that very infrastructure that we all count on every day."

McKenna said he doesn't have an answer yet about how he is going to address funding for Missouri's system.

McKenna's first official day will be December 7.

Former Legislative Intern Taylor Hirth testifying to the House Administration Committee

Months after reports of inappropriate activities with college interns led to the resignation of two legislators, tougher policies governing behavior of representatives and House staff was adopted by the House Administration Committee.

But one of the committee's provisions came under attack from one of the few former interns who has gone public about unwanted sexual advances by legislators.

The new House standards, approved Thursday, Nov. 5, require hiring an outside lawyer to investigate a sexual harassment complaint against a representative, mandates annual training of both House staff and members on sexual harassment and prohibits "amorous or romantic relationships" between House staffers or between a House member and a House staffer.

Rep. Michele Kratky, D-St. Louis, cast the only dissenting votes on the three provisions approved by the committee.

Kratky said the standards had not been fully worked through when it came to enforcement mechanisms, the chain of command for reporting incidents and subsequent punishments for wrongdoing.

"We can say 'oh yeah...well it looks good to the public.' Well, no. We need to make sure there is enforcement in it and accountability," she said to reporters after the committee session.

The committee chair, Rep. Mike Leara, R-St. Louis County, said he would hold another committee session before the legislative session to consider changes. But he said it was important to move forward.

The provision criticized by the only former intern to testify to the committee requires that a legislator or staffer immediately report any complaint of sexual harassment to the House official responsible for processing complaints.

Taylor Hirth said she would not have felt comfortable approaching a mandatory reporter about her experiences with sexual harassment in 2010.

Hirth had been an intern for Sen. Paul LeVota, D-Independence, who resigned earlier this year after another of his interns complained of unwelcome sexual advances by the legislator.

"As an intern with experience of unwanted sexual attention from a legislator, I have no desire to talk to anybody who might take our private conversation to anybody else without my consent," she told the committee.

In an interview after the committee hearing, she said the committee was "definitely" out of touch when it came to developing sexual harassment protections for interns.

"I don't think they reached out to any victims when proposing, or when developing their proposals," Hirth said.

Others, however, argued that the House could not allow a situation in which nothing was done when a member or a staffer knew about a sexual harassment complaint.

"The goal of this policy is to ensure that the House takes all complaints seriously," said Rep. Jay Barnes, R-Jefferson City. Barnes, who is not a member of the Administration Committee, testified as a witness after Hirth spoke.

"I think the goal is to make sure that if a House employee knows something bad is going on, that they report it forward," Barnes said. "And if we set up a situation where there's a House employee is not a mandated reporter, we're undercutting the very goal."

Barnes' argument was echoed by the House chief clerk, Adam Crumbliss. He warned that allowing a House staffer to keep a sexual harassment complaint secret would create an appearance that the House was not taking the issue seriously.

Barnes suggested that non-legislative organizations could establish contacts not covered by the new House mandated reporting rule who could maintain confidentiality for interns seeking advice about complaints.

Crumbliss said private organizations already were working on establishing such a "safe-harbor" network outside of the House organization.

Hirth said after the committee session she planned to help in those efforts.

The new House policies were proposed by House Speaker Todd Richardson, R-Poplar Bluff, based on the recommendations of a task force he established shortly after his election as speaker this spring.

Richardson replaced John Diehl, R-St. Louis County, who resigned after reports of sexually-charged texting with a college intern. 

LeVota resigned this summer after his 2015 intern charged he had subjected her to unwelcome sexual advances and Hirth subsequently went public with reports of similar advances by LeVota when she was his intern in 2010.


Republican gubernatorial candidates at the debate sponsored by Cole County Republicans. Sen. Bob Dixon, Eric Greitens, Lt. Gov. Peter Kinder, John Brunner and former House Speaker Catherine Hannaway with Sen. Mike Kehoe in the center as moderator.
Republican gubernatorial candidates champion strengths while avoiding attacks at GOP debate. 11/03/2015

Republican candidates for Missouri governor emphasized their own strengths rather than attack their opponents in a debate organized by Cole County Republicans.

Most attacks were reserved for Chris Koster, the leading Democratic gubernatorial candidate. The formal rules for the Tuesday, Nov. 3, discussion prohibited the candidates from making negative attacks against each other.

Former Missouri House Speaker Catherine Hanaway criticized Koster's inaction after the unrest in Ferguson last summer. 

"All the while, our state attorney general, Chris Koster, sat idly by, prosecuting no one for looting, for arson, for rioting."

Two candidates, former businessperson and CEO John Brunner and former Navy SEAL Eric Greitens, emphasized their status as political outsiders who are committed to bringing change to Jefferson City. 

"If you believe that career politicians and political insiders in Jefferson City have failed you and your family and your neighbors, then you have a choice," Greitens said. "You can shut up and take it, or you can decide to do something about it." 

John Brunner emphasized his experience as a business leader.

"The problem about government here is that that they are not subject to competition," Brunner said. "You need to bring somebody who understands competition, efficiency, productivity into government who has that mindset."

But the other three candidates argued their governmental experiences were an advantage.

"The dome at our state Capitol is sort of like a fishbowl and a pressure cooker. With me, you know what you're getting. I've been dome tested. That's where character or corruption are revealed." said  Sen. Bob Dixon, R-Springfield.

Hanaway talked about the experience and knowledge she has gained both as House speaker and later as the U.S. attorney for eastern Missouri.

Lt. Governor Peter Kinder argued that his statewide electoral successes demonstrated he can win elections for Republicans.

Kinder noted the absence of another person from the panel of GOP candidates -- the late State Auditor Tom Schweich. He died of a self-inflicted gun shot to the head after he charged he had been subjected to a whispering campaign and after attack ad mocking his appearance.

"I join him in his call that it is time to end the politics of personal destruction in our state, the idea that you get a bucket of slim to dump on the head of your opponent," Kinder said. "I call on the other candidates to join me and to conduct a campaign that lays facts and fair argument on the table and discusses the issues candidly and honestly and lets the people decide."

The other four candidates did not directly respond to Kinder's challenge.

On policy issues, the candidates cited traditional conservative positions including passage of Right to Work, easing government regulation, liability lawsuit limits and repealing Obamacare.

Missouri ended the first third of the budget year below the revenue growth upon which the legislature and governor had based the budget passed this spring.

The budget was based on a 3.6 percent projected revenue growth.

But figures released by the governor's budget office Tuesday, Nov. 3, found that revenues had grown only 3.05 percent for the first four months of the 2016 fiscal year that began July 1.

In October, revenue collections grew just 0.98 percent compared to October of 2014.

Sales and corporate taxes fell while individual income tax collections rose.

The latest revenue figures come just a few weeks after Gov. Jay Nixon had imposed $48 million in spending cuts citing a court decision that would cost the state $50 million less than the administration had expected in lawsuit settlement payments by the tobacco industry.

A case heard by the Missouri Supreme Court could determine if Missouri's new gun-rights constitutional amendment grants felons the right to carry concealed weapons.

The case heard by the court on Tuesday, Nov. 3, involves a Jefferson County man who had been convicted of felony forgery in 1973, completed probation and subsequently sought to obtain a permit to carry a concealed weapon.

In oral arguments before the state high court, William Hill's attorney limited his presentation to a technical issue that would apply only to a limited number of felons. But the written brief submitted to the court includes an argument that would apply to a large number of Missouri felons.

In Hill's case, after successfully completing his probation period in 1975, he was issued a certificate indicating he had, "all the rights and privileges of citizenship."

When Hill applied for a concealed weapon permit in March 2013, his application was denied because of his guilty plea to the felony charge. 

Hill's lawyer argued that the grant of "all the rights" of citizenship includes the right to apply and get a concealed weapons permit. 

That argument would not apply to any probation completed in later years because the law granting full citizenship rights after probation was repealed.

But Hill's lawyer included in the written brief a one-paragraph argument suggesting that the 2014 constitutional amendment may have granted a right to carry concealed weapons to all Missourians, whether convicted of a felony or not.

The amendment removed the phrase in the earlier provision in the Constitution that the right to bear arms did "not justify the wearing of concealed weapons."

"Logically, if inclusion of the phrase denied to a citizen a constitutional right to bear concealed firearms, then removal of the same phrase must now 'grant' to a citizen a constitutional right to bear concealed firearms," Hill's attorney wrote in his brief submitted to the state high court before oral arguments.

"Article I, Section 23, therefore, now appears to declare the existence of a 'new' substantive constitutional right not previously permitted to the citizens of Missouri, to wit: the right to bear concealed firearms," Kevin Whiteley concluded.

However, Whiteley did not raise that argument in his oral arguments to the state Supreme Court nor was he questioned on that point by the judges.

In response to a related question, Jefferson County's attorney said the county did not have a position on the constitutional issues raised concerning the gun-rights constitutional amendment approved by voters last November. 

One week before Hill's case was argued before the state high court, the court heard three other cases concerning whether non-violent felons now have a right to possess weapons because of the constitutional amendment. 

Last Week

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.