By Phyllis Schaltenbrand
A document dated January 29, 2004 has been discovered at City Hall that proves Mark Brown owed nothing additional for sewer tap on fees for his home on Pearl Ridge despite claims by City Administrator Allan Williams and others.
The First Capitol News reported in earlier editions the City Administration was claiming that Brown owed money and did not have an occupancy permit for his home and was therefore ineligible to hold office as a City Councilman. Brown disputed those claims in our earlier edition and presented proof that the money was not owed. He also showed that some documents offered by the City had apparently been altered and others were missing from the file.
The St. Charles County Sheriff’s office has began an investigation to determine if the documents were altered and if so by whom.
The missing document from then assistant City Attorney Robert Hoeynck and dated January 29, 2004 was discovered on the hard drive of a computer at City Hall (see document on page 13). In the document addressed to Tom Ashburn (Director of Community Development) Hoeynck wrote, Mr. Brown should only have been charged the $500 he actually paid for sewer tap on fees in conjunction with building permit #1083. Attempting to charge him the additional $225 was improper, and any efforts to collect the $225 should cease. Additionally, I have been informed that Mr. Brown still has not received his final inspection on the permit due to the $225 “debt.” that final inspection should be performed.
City Administrator Williams and others were claiming that Brown owed the money and was not eligible to hold office as a City Councilman. They went so far as to present their evidence to St. Charles County Prosecuting Attorney Jack Banas and Missouri Attorney General Jay Nixon requesting that action be taken to remove Brown from office. Their request was denied.
Even though former City Attorney Robert Hoeynck, Current City Council’s lawyer, Eric Tolen and former City Adminstrator and current City Attorney Mike Valenti disagrees, Williams said it was his opinion Brown was wrong and Williams then presented a package of information to the City Council members giving his contrary opinion Williams does not have a law degree.
At the City Council meeting Tuesday evening City Council President Rory Riddler presented his opinion to the Council:
RE: Pearl Ridge Sewer Tap On Fee
The City Administrator recently distributed what he called a SUMMARY OF FINDINGS with regard to an alleged amount owed the City by City Councilman Mark Brown. Having reviewed the material in-depth, I have reached the opposite conclusion of Dr. Williams.
I felt it necessary to respond in memo form myself, as there was an omission of key information which I feel helps clear this matter up.
Assistant City Attorney Findings
My findings concur with those of the former Assistant City Attorney Robert Hoeynck who concluded on January 29, 2004 that:
“I have reviewed the documents on this and conclude that the City had no authority to charge Mr. Brown the $225 back in July 2000. Therefore he is not in arrears to the City for $225, and no further action should be undertaken to collect this sum.”
Mr. Hoeynck's memo goes on to describe attempting to charge Mr. Brown the additional $225 as “improper” and recommended that “any efforts to collect the $225 should cease”.
This memo was sent to several persons in the Public Works Department and to Mike Valenti who was both City Attorney and Acting City Administrator at the time. It was not forwarded on to Mr. Brown who was a candidate for office at the time. No one at the time disagreed with the memo and all collection efforts ceased for the next nineteen months!
Interpretation Of 52.55 As Modified By 33.158
City Ordinance 52.55 does say that the Board of Public Works shall have authority to assess tap-on fees, user charges, and surcharges. But that power is modified by the language in the previous paragraph which states:
“Rates and charges for the use and services of the sanitary sewer system of the City are to be established by the Board of Public Works, pursuant to 33.158.” Section 33.158 says that the authority to set rates is subject to approval of the City Council.
What Action Did Board Take?
Also open to interpretation is what action the Board took relative to these rates and when.
January 10, 2000 Memo From Debra Aylsworth, Assistant City Engineer states that on December 18, 1996 the Board agreed for the City “to enter into” a recoupment agreement. It does not say they did.
Those early minutes say such an agreement should be “drafted” and a motion then carried to enter into such an agreement. There was no agreement to approve because it was not drafted and their action set no rate.
The January 10, 2000 memo goes on to say: “Attached is a revised recoupment agreement for your approval...” That attached agreement says the sewer rate should be $1,092.
The Board of Public Works Minutes of January 10, 2000 includes a motion saying the charge should be the same for all 64 lots. It does not say in the motion what that charge should be, nor does it approve the language of the revised recoupment agreement provided by staff to the Board.
I do not believe you can set a rate for which there is no agreement or legal basis.
Use Of Words “Recommend Approval”
The March 13, 2000 Memo from Debra Aylsworth says the sewer agreements are attached for the review and approval of the Board of Public Works. The Board then voted to “recommend approval”. The official minutes do not say the agreement is executed by the Board’s action, it says they “recommend” approval.
Which leads us to ask, recommend to whom? Obviously to the City Council and Mayor. In this draft agreement is the first reference to the rate being $725. There is no motion of the Board saying they have set this rate.
When Was Agreement Executed?
The agreement as recommended by the Board of Public Works was passed by the Council and signed by the Mayor on 11/27/2000 and by Mr. Wade on 12/11/2000. That is when the agreement between the two parties was in force.
Mr. Brown’s permit was in July of 2000. The fee and the agreement were not in effect.
How do you charge someone a rate for an agreement that doesn’t exist?
Other Evidence
I was somewhat surprised the RCA for the 11/14/00 meeting of the City Council was omitted from the research provided by the City Administrator. Here is the relevant 3rd paragraph which reads as follows:
“The attached revised recoupment agreement sets the sewer tap fees for the properties described in the attachment as $725 per residence, which prorates the increased cost of the lift station to those properties receiving the benefit. The City, in turn, agrees to pay the Developer quarterly an amount equal to tap fees collected not to exceed $46,447.50, which was actual cost of the lift station upgrade.”
Our own RCA, prepared by the Public Works staff, told the City Council on that date the agreement before us for approval “sets the sewer tap fees” for the properties described.
Role Of City Clerk
By law, the City Clerk determines if a Councilman elect is in arrears for any unpaid city fees prior to his or her swearing in. The City Clerk checked on Councilman Mark Brown in April of 2004 and declared that he was not in arrears.
Role Of The Finance Director
Ordinance 150.077 puts responsibility on the City Collector for maintaining a list of persons in arrears for certain fees and permits. Under the Charter the Finance Director is also the City Collector. It was this office that was consulted by the City Clerk and determined that Councilman Brown was not in arrears for any city fees or taxes.
The Clerk and the Finance Director have these responsibilities by law. While the Administrator may have an opinion that Mr. Brown owes this fee, I do not see it borne out by any of the evidence we were presented and that position was further weakened by the evidence which wasn’t presented.
I feel that further debate beyond the presentation of these documents is better left to press conferences and should not impede any further on the time we have to do the public’s business.
The First Capitol News contacted Mark Brown and asked why he thought the City Administrator, Williams, would continue to say you owe this bill, knowing that the former City Attorney, Current City Attorney/former City Administrator and the current City Council Eric Tolen disagrees?
Mark Brown replied, “It is a known fact that Williams is a close ally of Mayor York and has been acting as her campaign manager. He is closely tied to the developers and he is extremely upset with me for questioning his expense account.” We asked Brown what further action he thought would be taken concerning this matter. Brown said, “I know Williams has brought in the Sheriff’s department. Detective Sgt. Copeland informed Brown as we were going to press that he had located additional receipts which showed I paid the $225 that was in question. At this point the City now owes me a refund of $475 for funds they collected from me that I now find out I never owed. I planned to seek a refund. ttt
