By Tony Brockmeyer
On February 22, 2005, by a vote of 10-0 the St. Charles City Council, while sitting in Executive session, authorized an investigation into the apparent unauthorized signing of a contract by the Mayor. The City Charter gives the Council authority to conduct investigations and to subpoena.
As reported on February 5, 2005, we were told by our source that Express Scripts, the company the Mayor signed the contract with, was expected to ask for damages in excess of $200,000.
On February 5, 2005, the First Capitol News reported; ..... Recently the St. Charles City Council asked the City Administration to bid the City’s health insurance. Since the polices were due for renewal, the administration informed the City Council there were out clauses and the policies in force would be renewed. The companies would be told the Council was taking bids and would exercise the out clauses provided for in the policies if they were able to obtain better rates.
After appointing a new broker of record and obtaining quotes from several companies, the Council members determined the City could save between $700,000 and $1 million in insurance premiums by changing companies. The City Council members asked the administration to notify the insurance companies the City was exercising their right to cancel the policies.
After the companies were notified, the City was contacted by Express Scripts, who provided prescription drugs to the employees. The City was told there was no out clause in their contract. In fact, their contract had been renewed in June of 2004 and had been signed by Mayor York.
A search of City Hall failed to locate any such contract. The City Clerk, who by state law is the keeper of all city records, could not locate a contract with Express Scripts and claimed no knowledge of it. The City’s legal department was not aware the contract existed and could not locate a copy. Express Scripts provided the City a copy of the contract, which was signed by Mayor York.
Sources say on June 22, 2004, Carrie Caskey, former St. Charles City Human Resources Director, requested and received Mayor Patti York’s signature on a contract with Express Scripts Inc. (ESI). The contract was for a three-year period and was part of the City’s prescription drug benefit plan.
Seabury Smith and Marsh Advantage, who were previously handling the insurance for the City, both recommended this program and documents show Seabury would be paid .35 cents to $1 for each prescription filled by Express Scripts. ESI also promised numerous rebates that would be paid for special prescriptions.
The contract with ESI was signed and dated, yet no record of the contract existed at City Hall. Council President Rory Riddler told the First Capitol News, “It is highly unusual for no one in City Hall to be in possession of the City’s copy of a signed contract. Our City Clerk’s office and City Attorney’s office are both extremely careful about how records are kept and would have a copy on file if it had gone through proper channels.” State Law requires the City Clerk to be the keeper of all records and this contract was never submitted to her office.
Sources within City Hall tell us Caskey did not follow the proper protocol which requires the City’s legal department to review the contract before passing it on to the Mayor. Also, it appears York violated a City Ordinance by executing the contract without the approval of the City Council.
Section 40.23 of the City’s code of ordinances states “No contract for the provision of any services, materials, supplies, or equipment shall be extended for a period in excess of one year without an opportunity for public bidding or a request for proposals, unless the extension is by the Mayor and City Council by ordinances.”
This section also provides for a penalty if any violation occurs, 10.99 of the code of ordinances says, (A) “Whenever in this code or in any ordinance of the city, any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, except where a specific statutory penalty is provided for, the violation of any such provision shall be punished by a fine not exceeding $500 or by imprisonment not exceeding three months, or both such fine and imprisonment, as may be just for any offense, recoverable with cost of suit: provided, however, that, where the city and the state both prescribe the same offense, the penalty for violating the city provision shall be the same. (B) Each act of violation and every day upon which a violation occurs or continues shall constitute a separate offense. (C) The failure of any officer or employee of the city to perform any official duty imposed by this code shall not subject such officer or employee to the penalty imposed by this section unless a penalty is specifically provided.” The ordinance provides the above penalty. City Hall sources said both Mayor York and Caskey could be prosecuted under this section.
If it is determined there was a charter violation by the Mayor, then impeachment proceedings can be initiated. This is allowed for in the City Charter.
A number of our readers have asked how this process develops? So there is no confusion, the Charter outlines the procedure for removal from office and impeachment.
The City Council, may remove from office, for cause shown, any elective officer of the city, such officer being first given opportunity, together with his witnesses, to be heard before the Council sitting as a court of impeachment. Any elective officer may, in like manner, for cause shown, be removed from office by a two-thirds vote of all the members elected to the City Council.
Section 3.13 of the Charter reads:
Investigations. The council may make investigations into the affairs of the city and the conduct of any city department office or agency and for this purpose may subpoena witnesses, administer oaths, take testimony and require th production of evidence. Any person who fails or refuses to obey a lawful order issued in the exercise of these powers by the council shall be guilty of a misdemeanor and punished as may be prescribed by ordinance.
I,f after holding hearings and questioning witnesses, the City Council determines a violation has occurred and the Mayor should be impeached, the Charter outlines the procedure they are required to follow.
(A) The suspension of an elective officer shall be effected by a written order to that effect, signed by the President of the City Council and filed by him in the office of the City Clerk. Such order shall be accompanied by a written specification of the charges on which such order is founded, formulated in such manner and with such reasonable precision and detail as shall fully apprise the accused of the particular charges she is to defend against and signed by the Council President, a certified copy of which order and specifications of charges shall be forthwith made by the Clerk, under the seal of the city, and delivered to the Chief of Police, who shall forthwith deliver the same to the officer suspended, or leave the same at the usual place of abode of such suspended officer, or with a member of her family over the age of 15 years. Upon the filing by the President of the City Council of such order of suspension and such specification of charges and service of the same on the accused as herein directed, such accused officer shall stand suspended from office until reinstated as provided by § 31.27. ('81 Code, § 2-94)
§ 31.23 TRIAL OF SUSPENDED OFFICER.
Whenever any elective officer has been suspended, the City Council President shall lay the specification of charges filed by him with the City Clerk before the City Council at the first regular meeting thereafter, or at a special meeting of the Council called for that purpose, and the Council shall, without unnecessary delay, proceed to investigate the charges upon a day fixed by them. Such day shall be fixed by resolution of the Council entered upon the journal, whereupon the City Clerk shall forthwith make out a certified copy of the resolution as well as another certified copy of such specifications of charges, all under the seal of the city, and deliver the same to the Chief of Police, who shall forthwith deliver the same to the officer suspended, or leave the same at the usual place of abode of such suspended officer with a member of his family over the age of 15 years, and the officer serving the same shall make his written return of such service opposite such resolution, on the margin of the journal of the Council, how, when and where he served the same and subscribe his name thereto.
TRIALS PROCEDURES.
(A) Procedure generally. At the time set for the hearing, the Council shall meet, and proceed, according to such rules as they may adopt and as provided by this division, to hear the evidence against and in favor of the accused, and may adjourn from time to time, if necessary, until all the evidence is heard. The City Council shall determine all questions of law arising during the trial upon the admission of evidence, the competency of evidence and otherwise.
(B) Failure of accused to appear. If the accused shall have been notified as provided in § 31.23, but shall not appear or, appearing, shall fail or refuse to make defense to the charges preferred against him, the Council may proceed ex parte.
(C) Oath to be administered. At the time and place appointed for the trial, and before proceeding therewith, the President pro tem of the Council, shall administer to the members of the Council there present, and the Municipal Judge shall, at the same time, administer to the President pro tem of the Council, an oath or affirmation, impartially to try and determine the charges and do justice according to law and the evidence.
(D) Depositions. Depositions of witnesses beyond the jurisdiction of the Council, or prevented by sickness, or other sufficient cause from attendance, may be read at the trial and investigation, if taken in conformity with the laws of this state. The notice of the taking thereof, when taken on behalf of the accused, shall be served upon the City Attorney or President of the Council.
(E) Issuance and service of subpoenas. Subpoenas for witnesses to testify at any trial provided for by this division may be issued by the President pro tem of the Council and shall be served and returned by the Chief of Police or any police officer of this city in the same manner as if issued by the Municipal Judge.
(F) Attendance of witnesses and production of papers. The Council shall have power by a two-thirds vote of its members to compel the attendance of witnesses and the production of papers relating to any subject under consideration in which the interests of the City are involved, or for the purpose of such investigation, and shall have a right to issue an attachment and call on the proper officer of the City, or any sheriff, or constable in the County, to execute such process. The President pro tem of the Council, shall have power to administer oaths to witnesses in all proceedings before the Council under this division.
(G) Accused entitled to counsel. Upon any trial for removal from elective office, the accused shall be entitled to be heard, whether in person or by counsel, in his or her defense.
(H) City Attorney to prosecute. It shall be the duty of the City Attorney to manage and prosecute all trials on behalf of the city for the removal of any elective city officer, unless he is the accused, in which event the Council shall appoint a competent attorney, a qualified voter of such city, to act in his stead during the trial proceedings.
Since City Attorney Mike Valenti was acting as City Administrator during the period this act was allegedly committed it is believed he will be excused and another attorney would act as prosecutor during the hearing.
(I) Proceedings to be entered on Council journal. The City Clerk shall cause to be recorded the proceedings of the Council in all cases for the removal of any elective city officer.
(J) Determination of guilty. As soon as all the evidence has been taken, and the case submitted, the Council shall vote by “yeas” and “nays” upon the charges separately. The question upon each charge shall be “Is the accused guilty?” If the Council, by a majority vote of all the members elected to the City Council, and who heard all the evidence, find the accused guilty of either of the charges, the President of the City Council, if a majority of all the members elected to the City Council by resolution concur in the same, remove the accused from office, and declare his or her office vacant.
(K) Accused not to take part in proceedings. Should any charges, under this division, be preferred against the Mayor, or any other elective city officer, such accused officer shall not participate as such officer in the trial proceedings or issue, or serve any process in relation thereto, and if the Mayor be the accused, the president pro tem of the Council shall preside and discharge the duties of the Mayor under this chapter.
§ 31.25 ACTION AGAINST ELECTIVE OFFICERS.
The City Council, by a resolution adopted by a two-thirds vote of all the members elected to the Council, may prefer any one or more of the charges authorizing removal, against any elective officer of this city. Such resolution shall specify the charges with the same particularity and detail and shall specify the time when such charges will be investigated by the Council and shall be spread at large upon the journal of the Council. The City Clerk shall, without delay, make out a certified copy of such resolution, under the seal of the city, and deliver the same to the Chief of Police, who shall forthwith deliver the same to the accused, or leave the same at his usual place of abode, with a member of his family over the age of 15 years. The officer serving such resolution shall certify in writing, opposite the same on the margin of the journal of the Council, how, when and where he served the resolution and subscribe his name thereto. From the time of such service on him of such resolution, such accused officer shall stand suspended from office until reinstated as provided in § 31.27. The conduct and proceedings pertaining to an investigation under this section shall be carried on in the same manner as is provided by this division for investigation of charges preferred by the Mayor. As soon as all the evidence has been taken on charges preferred by the Council and the case submitted, the Council shall vote by “yeas” and “nays” upon the charges separately. The question upon each charge shall be: “Is the accused guilty?” If the Council, by a two-thirds vote of all the members elected to the City Council, and who hear all of the evidence, find the accused guilty, such Council may then, by resolution of a two-thirds vote of all the members elected to the Council, remove the accused from office and declare his or her office vacant.
§ 31.26 SUSPENDED OR REMOVED OFFICERS PROHIBITED FROM PERFORMING OFFICIAL DUTIES.
(A) It shall be unlawful for any officer of the City, during a suspension from office, to perform or attempt to perform any official duty. (B) Every elective or appointive officer of this city, after being removed from office, shall be notified of such fact in writing, by the President pro tem of the Council, in case the Mayor is the accused, and it shall be unlawful for any such officer, after having been legally removed from office, and having notice of such removal, to perform any official act, or attempt to perform any official act, as such officer.
REINSTATEMENT.
If the accused shall be found not guilty, or shall not be removed from office, as provided by this section, he or she shall be reinstated by the Council. If the Council brings charges against the Mayor she will be suspended from office until the hearings have been completed and a determination on guilt or innocence is determined by the Council.
If found guilty the Mayor will be impreached. During the time she would be suspended from office the President of the City Council would act as Mayor.
A hearing is expected to start soon.
