County officials, state legislators clash over trash-district program

County Counselor Redington disputes view of Bivins, Gibbons, Lembke on notice requirement

By MIKE ANTHONY

County officials clashed with state legislators during a public hearing last week over whether a state law requires St. Louis County to issue a two-year notice to waste haulers before establishing trash districts in unincorporated areas.

County officials and state legislators also offered differing interpretations of a recent opinion issued by the Missouri Attorney General’s Office regarding the notification statute, which was amended last year by the Legislature.

State legislators contend that statute requires the county to issue a two-year notice by certified mail to waste haulers before establishing trash districts in unincorporated areas.

But county officials counter that the notification requirement does not apply to St. Louis County because it is a charter county.

Roughly 300 people packed into the gymnasium at Bayless High School for the May 1 public hearing, which was called by Senate President Pro Tem Michael Gibbons, R-Kirkwood, and several state legislators, including Rep. Michael Vogt, D-Affton; Rep. Jim Lembke, R-Lemay; Rep. Dwight Scharnhorst, R-Manchester; Rep. Jim Avery, R-Crestwood; Rep. Pat Yaeger, D-Lemay; Rep. Walt Bivins, R-Oakville; and Rep. Sue Schoemehl, D-Oakville.

With the backing of Gibbons, Lembke, Avery and Bivins asked Attorney General Jay Nixon in February to render an opinion on whether the notification requirement applies to the county’s trash-district plan.

The opinion issued April 7 by Paul C. Wilson, the attorney general’s deputy chief of staff for litigation, stated, in part, “Based upon the facts submitted in your request, and those we have gathered independently, it appears that the General Assembly’s 2007 amendment to the two-year notice provision of (Section) 260.247, which extended that requirement to all ‘political subdivisions,’ does apply to the activities now being pursued by the county.”

During the hearing, Gibbons asked county officials, including Chief Operating Officer Garry Earls and County Counselor Pat Redington, about the notification requirement. Earls referred Gibbons’ question to Redington.

Gibbons said, “… My initial question was whether notice by certified mail was provided to the private haulers in the affected areas?”

Redington said, “No. As Mr. Earls pointed out, we had them (haulers) involved in the process since the beginning and everybody has had notice and then working with and providing their input to the county. But as for that late notice requirement that the Legislature passed, that’s something that the county has the authority, and, in fact, the responsibility to enact local legislation, and we do that by virtue of the Constitution, and we do that because …”

People started voicing their disapproval of Redington’s remarks and Gibbons admonished the crowd to control their outbursts as a man yelled, “Then tell them not to lie to you.”

Redington said, “I haven’t lied. I’m sorry — I’m sorry if you disagree with what the law is. I have been doing it for 25 years and I feel that I have a pretty good understanding of what a county charter is and why it is and St. Louis County has this responsibility. I’m not sure how the notice provision is something that the residents are concerned about. It was enacted I believe or it talks about giving haulers notice so they have time to adjust their schedules. That’s why for the last two — or more than two years, we have been working with the haulers.

“Some may like it. Some don’t. But as far as giving notice, I can’t imagine any hauler standing up and telling you this has caught them by surprise or that the county — that they haven’t known for well over two years that this was going on,” she said.

Lembke later asked Redington, “Are you of the position that a charter county is not subject to state law?”

Redington replied, “In certain matters, the county charter supersedes state statutes and the courts have said that for years and years. I don’t think that’s a surprise to any lawyer …”

Lembke interjected, “Well, it’s a surprise to the attorney general of the state.”

Redington replied, “That’s not what he tells me. Apparently, it’s not a surprise to him or he would have said in his opinion that the notice provisions applied and were enforceable against the county …”

Lembke said, “No. That’s not what he said …”

Redington continued, “In fact, that’s not what he said. And I’ve spoken with the attorney who wrote it, so I’m pretty sure that I understood what he said. Even if I hadn’t understood it from reading it, which I did …”

Lembke asked Redington to address the legislators and not the audience.

Redington continued, “… That’s fine. Then I will tell you that that’s what the attorney general’s opinion said. It didn’t say that this was applicable …”

Lembke said, “… That’s not what he said. In a footnote, he said that it may be challenged, it could be challenged in court — that it may be questioned, but that could go either way. My question to you and the county is: Why are you not following state law that says you have to give two-year written notice to the haulers if you decide to enter into the trash-hauling business?

“Any political subdivision, which includes St. Louis County — you are a political subdivision?”

Redington said, “St. Louis County is a political subdivision, that’s correct. But it does seem odd to hear you get up here and talk about notice provisions when the county had implemented its provisions, implemented its whole statute, the whole scheme and was working on implementation when suddenly Jeff City got interested and decided to tell local government how to run its trash districts.”

Lembke said, “…. You had entered into an ordinance, a shell of a scheme, but there is no implementation of that scheme and the Legislature on behalf of the people said that counties, political subdivisions, are subject to that two-year notice so that it can be fair to the residents in those areas and to those who are doing business in those areas …”

Lembke’s comments were greeted with applause and Redington said, “Clearly, the crowd favors your legal opinion over mine, Mr. Lembke.”

Bivins later asked Redington about a footnote in the attorney general’s opinion, which states, in part, “… If Section 260.247 is viewed not as an element of solid-waste regulation, but, instead, as a regulation on how and when political subdivisions may impact private participants in the free market, Section 260.247 would appear to be more of a matter of statewide policy, which may be given effect in a charter county notwithstanding its ‘home-rule’ authority.”

Redington replied, “I don’t know why it isn’t clear to you, but I’m just looking at the footnote — I guess you mean the second footnote because as soon as he started his letter, he started off by saying he didn’t know if that applied against the county — and he told me that that was going to be his opinion was that the courts would have to decide. So I don’t know how you get to this, insisting that he says that, but if you want to look at the footnote, it does say if this is ‘part of (the) regulation of solid-waste collection and disposal, in which case it would seem to fall within the police powers that charter counties ordinarily may legislate freely.’ So I don’t know why we’re talking.

“Instead of talking, I understand people have issues and I think want to make comments about trash collection. So I’m not sure why we’re arguing about the difference between state and county law because the bottom line is the attorney general didn’t answer the question the way you’d like to see it answered and you’re waving it around and misleading people into thinking that he did and I guess if people want to hear that, that’s fine. But that’s not what the opinion said.’