The Mehlville Fire Protection District Board of Directors plans to challenge the constitutionality of legislation recently signed into law by Gov. Matt Blunt.

Blunt recently signed into law Senate Bill 406, which includes a provision creating a five-member board of trustees to administer fire protection district pension plans.

The five-member pension boards will be comprised of a fire district’s three-member board of directors and two plan participants chosen by the board of directors from a pool of three nominees elected by plan members, according to the new law.

During a closed session last week, the Mehlville Fire Protection District Board of Directors voted to file a lawsuit challenging the constitutionality of the pension-board provision of Senate Bill 406.

Board Chairman Aaron Hilmer and board Treasurer Bonnie Stegman voted to file suit, while board Secretary Ed Ryan was absent from the July 25 closed session.

“The Board of Directors voted to pursue a judicial review of the legislation,” Mathew Hoffman, the district’s legal counsel, told the Call. “This matter will be filed in the next several days.”

The suit will ask the court:

• To temporarily restrain the application of the pension-board provision of SB 406 until such time as the issues raised in this lawsuit may be decided.

• Upon declaring that the relevant law is illegal or unconstitutional, to permanently restrain its enforcement as applied to the Mehlville Fire Protection District.

• To award Mehlville’s costs and expenses.

The suit, which names Attorney General Jay Nixon as the defendant, will be filed in Cole County. State statute and court rules require the attorney general be named as the defendant and allowed to be heard in any action where it is alleged that a statute is unconstitutional.

Specifically, the suit will challenge the constitutionality of the pension-board provision, Section 321.800 of the Missouri Revised Statutes, contending, “The state is in error with the passage of Section 321.800 RSMo., which is contrary to existing law.”

The lawsuit notes that fire protection districts are created and guided by Section 321.00 of the Missouri Revised Statutes, which states, “The board, acting as a board, shall exercise all powers of the board, without delegation thereof to any other body or entity or association, and without delegation thereof to less than a quorum of the board.”

Section 321.800 of SB 406 states that the pension board of trustees will “administer” a fire protection district’s pension plan.

“… The term ‘administer” is not clear within the meaning of the proposed legislation and extensively contradicts other portions of 321.00 of the Missouri Revised Statutes,” the district’s suit will contend.

Furthermore, Mehlville’s suit will assert that under state law, residents can elect a five-member board of directors for a fire protection district, “which is inconsistent with the proposed law, which will create a separate five-member board of trustees, consisting of two employee members, to administer the pension plan for every fire protection district within the state.”

During the legislative session, Rep. Walt Bivins, R-Oakville, introduced a proposed amendment to SB 406 that sought to eliminate the creation of a five-member pension board. Bivins’ proposed amendment was defeated 104-54 on May 1.

The amendment introduced by Bivins sought to establish a five-member pension board — including two plan participants — only for contributory plans.

Bivins told the Call at the time that he introduced the amendment because he believes if firefighters contribute part of their pay to their retirement plans instead of solely relying on taxpayer funding for that pension, they should have a voice on the pension board.

While Bivins introduced the amendment to add two plan participants to pension boards only if their plans are contributory, several local representatives voted against the measure, including Jim Avery, R-Crestwood; Jim Lembke, R-Lemay; Sue Schoemehl, D-Oakville; Michael Vogt, D-Affton; and Pat Yaeger, D-Lemay.

Hilmer and Stegman have tried to administer a contributory retirement plan for Mehlville fire district employees, but are prevented by a preliminary injunction from making any changes to the district’s pension plan. The Mehlville fire board’s decision to provide a defined-contribution retirement plan to employees was challenged in a lawsuit filed last year by Local 1889 of the International Association of Fire Fighters.

Hilmer told the Call that the pension-board provision included in SB 406 also was “buried” in several other bills. In fact, Hilmer, Stegman and former Lemay Fire Protection District Board of Directors Chairman Jim Stonebraker testified in opposition to the pension-board provision included in Senate Bill 22. The provision later was removed from that bill.

Because that same provision had been tacked onto so many different bills, Hilmer said he was resigned to the fact it would be adopted by the Legislature.

Asked what prompted the board to challenge the constitutionality of the pension-board provision, Hilmer said, “… This is another example of legislators trying to take away local control from residents and we want to ask the court to see if this is constitutional — to delegate authority away from elected people to non-elected employees of the districts if they can make decisions regarding a pension that the taxpayers are 100 percent funding.

“The other big thing is this doesn’t even address a five-member fire board and there are a lot of five-member fire boards,” he said. “And that shows how hastily drawn together this legislation was … I think this shows what an impact the reform movement has had that we started here in south county after we exposed the $750,000 retirement checks. We exposed the $430,000 disability payments to a former employee who’s working in another district that suddenly the firefighter unions across the state are afraid of their scam being up …

“So what do they do? They scurry to lawmakers in Jeff City … This reminds south county voters of how their lawmakers voted on this. Walt Bivins took a stand for the taxpayers against this. And it also shows how other legislators like Lembke, Avery, Schoemehl and Yaeger stood for a special-interest group and against homeowners being buried by 30-percent reassessments.

“What’s next? When the teachers’ union decides that a 6-percent raise isn’t enough, will this group pass a law that puts unelected teachers on a board to decide salaries? And these actions prove once again that the vast majority of elected officials in south county are for higher property taxes and no amount of words, public forums or cups of coffee will change that,” Hilmer said.