By Gloria Lloyd
If a St. Charles judge removes 6th District Councilman Ernie Trakas from office, the local legislator could likely run again in a special election.
St. Charles County Prosecuting Attorney Tim Lohmar last week addressed some of the open questions surrounding the rare quo warranto case Trakas faces that could result in him being forced out of office due to allegedly violating the county Charter.
Lohmar asked for Trakas to be removed for his contract work for three outstate public school districts, which Lohmar said counts as employment for other public governmental entities. The county Charter bans that for council members as a conflict of interest.
The Charter states, “No member of the council shall hold any other office or employment under the United States, the state of Missouri or any municipality or political subdivision thereof. When any member accepts such office or employment, his office as member of the council shall thereby be vacated.”
Lohmar, a Republican, said that as far as he’s aware, nothing in the law prevents Trakas, R-Oakville, from running again if he is removed from office for the alleged Charter violation, which centers on less than $1,000 of legal work that Trakas conducted for the Cape Girardeau, Jefferson City and Sikeston school districts last year.
And although Lohmar said in his petition for quo warranto that the work for public school districts meant that Trakas “immediately” vacated his office, the prosecutor said that any removal from office would not be retroactive. That means Trakas’ past votes on the council would still be legally binding. And even if Trakas is ousted from office, he could appeal to higher courts.
At the case’s first court hearing June 28 in St. Charles County Circuit Court Judge Daniel Pelikan’s courtroom, Trakas’ attorney Jonathan Marks and a St. Charles County assistant prosecutor agreed in a hearing that lasted less than five minutes that there would be no trial in the case and arguments could be made in briefs due back in 30 days.
Outside the courthouse, Lohmar said he wouldn’t be surprised if a ruling isn’t made until September, since court officials take summer vacations in August. The ruling would come in August at the earliest.
The case turns on whether Trakas has a conflict of interest as intended by the drafters of the county Charter, which Trakas contends that he does not.
At a June 14 meeting of the Tesson Ferry Township Republican Club, Trakas said his work as an attorney for school districts is no different than a baker or HVAC contractor because he receives a 1099 form for taxes, not a W-2.
“We’ll see, a judge will decide,” Trakas said. “I think most people in this room and probably in this city would understand that when you’re an attorney representing a client, you’re not employed by that client. That client doesn’t control the terms of your employment…. School districts don’t pay any benefits to me. I’m strictly an attorney working as an independent contractor, no different than if I was a baker who baked cakes for Mehlville for graduation.
“Under Mr. (Prosecuting Attorney Robert) McCulloch’s theory, because I did that, I could not serve on the council. If I was a heating and air-conditioning contractor who happened to do work at Lindbergh, that would preclude me from sitting on the council. It’s as absurd as it sounds, but we’ll see what happens. It’s really more about politics than it is about a legal issue.”
When McCulloch recused himself from the case in December because the council oversees the budget of his office and had recently voted to take back his pension raise, Lohmar took over.
Trakas has accused St. Louis County Executive Steve Stenger of being the mastermind behind both the pending court action and an earlier recall effort, both of which Stenger has denied.
“I’ve been a pinata from day one, and I’ve been a target of Steve Stenger from the start,” Trakas said. “Why? Because I opposed (the trail at) Cliff Cave Park. That was day one, Jan. 3, 2017. First council meeting I was ever at… It went downhill from there. But now the gloves are off, and I’m really OK with that. I don’t lose one wink of sleep over it. Ask my wife (former Mehlville Board of Education member Lori Trakas), she’ll tell you. That’s just the way that politics in the 21st century is.”
So far, Trakas said his campaign has spent more than $10,000 and rising in legal fees to defend the case.
Lohmar said he hasn’t spoken with Stenger in more than a year, and only spoke to McCulloch about how to transport documents from the case from McCulloch’s office to his office in December.
“Do I have any vested interest in the outcome?” Lohmar said. “Absolutely not… Obviously I’m familiar with the political histories that are going on across the river, but once I was appointed the special prosecutor, nobody talked to me.”
As for McCulloch, Trakas told the Tesson Ferry GOP that he loves telling the story of the leadup to McCulloch’s recommendation that a judge look into whether he should be removed from office. The prosecutor said that a television reporter alerted him to the possible violation.
But Trakas links it to the pension vote just days earlier.
“Half a dozen times before that vote, Bob McCulloch called me personally, each time lobbying for that vote,” Trakas said. “In not one of those conversations did he ever raise the question of whether or not I should be on the council. Not once.
“Within 10 days after that vote, he had requested a special prosecutor — you draw your own conclusions. The facts speak for themselves.”
Marks spoke for the first time about Trakas’ case after the hearing and said he believes case law is on his client’s side. Rulings on similar issues have come down on opposite sides in appellate courts across Missouri, he said.
“The one most similar to Ernie’s situation is case law very favorable to his fact pattern,” Marks said.
That case is McCulloch vs. Hoskins, in which McCulloch unsuccessfully petitioned for Berkeley Mayor Ted Hoskins to be removed from office in 1998.
That case has a connection to Trakas’ case beyond just case law: Hoskins’ attorney in that case, Elbert Walton Jr., is the father of Trakas’ ally on the council, Rochelle Walton Gray, D-Black Jack.
“There’s a similar fact pattern here,” Marks said. “It’s a little bit different here because Ernie is an attorney and knows very well the rules of professional conduct and knows not to violate those rules.”