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West Central Missouri Region Lodge #50 of the Fraternal Order of Police v. City of Grandview

Court of Appeals of Missouri, Western District, Fourth Division

January 27, 2015

WEST CENTRAL MISSOURI REGION LODGE #50 OF THE FRATERNAL ORDER OF POLICE, ET AL., Respondents,
v.
THE CITY OF GRANDVIEW, MISSOURI, Appellant

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Sandra Midkiff, Judge.

Jeffrey Place, Kansas City, MO, Counsel for Appellant.

Nicholas Billman, Kansas City, MO, Co-Counsel for Appellant.

Morgan Roach, Kansas City, MO, Counsel for Respondents.

Michael Miller, Kansas City, MO, Co-Counsel for Respondents.

Ivan Schraeder, St. Louis, MO, Counsel for Amicus Curiae, MO. Municipal League.

Sally Barker, St. Louis, MO, Counsel for Amicus Curiae, MO State Order of Police.

Before Division Four: Alok Ahuja, C.J. Presiding, James Edward Welsh, J., and Tracey Mason-White, Sp. J. All concur.

OPINION

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James Edward Welsh, Judge

The City of Grandview appeals the circuit court's grant of summary judgment in favor of West Central Missouri Region Lodge #50 of the Fraternal Order of Police and its members who are current or former police officers, sergeants, and civilian members of the Grandview Police Department.[1] The circuit court determined that the City's ordinance which established the collective bargaining framework for personnel in the Grandview Police Department violated article I, section 29 of the Missouri Constitution.[2]

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In its appeal, the City asserts eight points on appeal. The City contends that the circuit court erred in ruling that: (1) the City may not enact an ordinance requiring a secret ballot election as the designated method for employees to select a collective bargaining representative, (2) the ordinance was invalid because it did not allow supervisory and non-supervisory employees to be members of the same bargaining unit, (3) the ordinance was unconstitutional because it failed to establish a specialized procedural framework for the resolution of conflicts regarding the composition of collective bargaining units, (4) the Constitution requires the City to allow supervisory and non-supervisory employees to be represented by the same collective bargaining agent, (5) the ordinance was unconstitutional because, for the collective bargaining representative to be elected, it had to receive the votes of a majority of all eligible voters rather than the majority of the votes cast, (6) the ordinance was unconstitutional because it provided that the City would not pay any union representative for time spent preparing for or engaging in collective bargaining and would not enter into wage commitments that exceeded one year, (7) the ordinance was unconstitutional because the Board of Alderman retained the right to require the modification of the economic terms of any labor agreement in the event of a budget shortfall, and (8) the ordinance was unconstitutional because it gave the Board of Alderman the ability to modify the terms and conditions of employment for employees in the bargaining unit in the event a collective bargaining representative was decertified.

We reverse the circuit court's grant of summary judgment in regard to the circuit court's determination that the ordinance was unconstitutional for all the points stated above, except we make no determination about the constitutionality of the provision in the ordinance requiring that a collective bargaining representative receive more than 50 percent of votes of all eligible voters. We remand to the circuit court with instructions to enter summary judgment in favor of the City concerning those provisions in the ordinance. We also reverse the circuit court's determination that, as a matter of law, an election was not necessary in this case and that the City must immediately recognize the Fraternal Order of Police as the exclusive bargaining representative of the proposed bargaining unit of police officers and sergeants.

The parties submitted cross-motions for summary judgment to the circuit court in this case. In doing so, they stipulated to the following facts.

The Fraternal Order of Police is an incorporated fraternal organization located in Raytown, Missouri, and represents law enforcement officers collectively in matters of employment. Cody Allen, Beau D. Bailey, Brian Bradley, Mike E. Bridges, Paul A. Brooks, Thomas Byrd, Roger L. Denton, Matthew C. Earnest, Bradley Edwards, Scott L. Evans, Gabriel H. Gilbert, Scott Graef, Brandon Grantham, Jacob Gross, David Gutierrez, Mark Hermelink, Richard W. Jones, Gary Kerley, Tiffani Kendrick, Stephen King, Daniel C. Matthews, Gregory J. McCord, Jacob S. Mueller, Jonathan Nicholas, Mary Oliver,

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Lonnie Pfeifer, Travis Richardson, Will Ridnour, Justin M. Rigot, Greg Smith, Michael D. Spano, Martin Studdard, Douglas Thacker, Ricky Van Sickle, and Alan Walker are current or former police officers of the City of Grandview Police Department. Kris A. Cochran, Danielle Killion, Collier Lunn, Traci Mahlan, and Paula J. Pritchett are current or former civilian members of the City of Grandview Police Department. Henry R. Ellis, Larry Godfrey, Jonathan Going, James Innes, Matthew L. McCall, Gregory Pruitt, Ryan Sharp, and Lorrie Whitehead are current or former police sergeants of the City of Grandview Police Department. All of the above mentioned individuals are currently members of the Fraternal Order of Police, even though the Fraternal Order of Police is not currently recognized as their exclusive bargaining representative for purposes of collective bargaining under the Missouri Constitution. While the duration of their Fraternal Order of Police membership varies, many of the officers, civilian members, and sergeants have been members for over ten years.

The City of Grandview is a fourth-class city in Jackson County duly existing under the laws of the State of Missouri. The City is governed by the Board of Aldermen, whose members are elected by citizens of the City and are tasked with, among other responsibilities, " pass[ing] such laws and ordinances from time to time as shall be deemed necessary and which shall not conflict with the laws of the state[.]" Grandview Municipal Code § 2.20. The City operates a police department, which employs or formerly employed each of the named individuals listed above.

On July 9, 2010, the Fraternal Order of Police demanded to be recognized as the exclusive bargaining agent of all police officers, police sergeants, and police communication officers employed by the City.[3] In response to the Fraternal Order of Police's request for collective bargaining, the City prepared a draft ordinance to establish the collective bargaining framework for personnel in the City's police department. On September 23, 2010, the City provided a draft of the proposed ordinance to the Fraternal Order of Police for review and comment. On October 11, 2010, the Fraternal Order of Police responded, raising several specific objections or concerns about the proposed ordinance. In a letter dated October 11, 2010, the Fraternal Order of Police requested " an opportunity to address the City in closed or open session to discuss these issues and answer any questions." On November 5, 2010, the City provided a revised draft of the proposed

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ordinance to the Fraternal Order of Police and stated that the draft would be presented to the Board of Alderman on November 9, 2010.

On November 9, 2010, the City presented the proposed ordinance to the Board of Alderman. A representative of the Fraternal Order of Police, counsel for the Fraternal Order of Police, and a Grandview Police Department employee representative for the Fraternal Order of Police attended the meeting. Although the City did not designate a speaking opportunity for the Fraternal Order of Police's representatives on the meeting's official agenda, the City did offer a general public comment session open to anyone present at the meeting. Prior to beginning the public comment session, the City announced that such comments were limited to approximately five minutes. The representative of the Fraternal Order of Police, Rick Inglima, spoke during the public comment session and primarily commented on the police sergeants' joint representation with police officers and the proposed ordinance's language requiring a labor organization to receive more than fifty percent of the votes of all eligible voters to be recognized as the exclusive bargaining representative for the bargaining unit. Inglima also voiced opposition to the lack of a public hearing before voting on the ordinance. Thereafter, the Board of Alderman, by a vote of five to one, adopted the proposed ordinance as Ordinance No. 6411. The Board of Alderman did not hold an evidentiary hearing or any other type of hearing before voting on the proposed ordinance.

Ordinance No. 6411, entitled as " Provisions for Collective Bargaining with Law Enforcement Personnel," states that its purpose is to provide " a framework within which law enforcement personnel employed by the City of Grandview can exercise their right under Article I, Section 29 of the Constitution of the State of Missouri to bargain collectively with the City, through representatives of their own choosing." Ordinance No. 6411, art. 1, § 1.1. The key provisions of the ordinance in dispute in this appeal provide:

(1) " To avoid the division of loyalties and conflicts of interest, supervisory personnel shall not be included within the same bargaining unit as employees they supervise. Further, the same labor organization shall not represent both non-supervisory and supervisory employees within the Police Department. For the purposes of this subsection, Sergeants, Captains, Majors, the Chief of Police, and the Records Unit Supervisor shall be considered supervisory employees." Ordinance No. 6411, art. 2, § 2.2.1.
(2) " The election [of the exclusive bargaining representative] shall be conducted by secret ballot, using such procedure as the Director of Human Resources shall determine are appropriate for ensuring the privacy and security of each employee's vote. Once the poll is closed, the Director of Human Resources shall oversee the counting of the ballots." Ordinance No. 6411, art. 3, § 3.5.
(3) " Any labor organization receiving more than fifty percent (50%) of the votes of all eligible voters shall be designated and recognized by the City as the exclusive bargaining representative for all employees in the bargaining unit." Ordinance No. 6411, art. 3, § 3.5.3.
(4) " The City shall not pay any union representative for time spent participating in collective bargaining or preparing for collective bargaining, except to the extent the person in question is an employee of the City and elects to use accrued paid time off to cover the time

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so spent." Ordinance No. 6411, art.4, § 4.3.
(5) " After the first agreement between the City and the labor organization is adopted, bargaining for renewal agreements shall take place annually. . . . The parties may elect to bargain non-economic terms for longer periods (e.g. three years or five years), but all economic provisions of the agreement shall be adopted on a year-to-year basis only." Ordinance No. 6411, art. 4, § 4.5.
(6) " In the event of the decertification of the exclusive bargaining representative of the employees in any bargaining unit within the Police Department, all terms and conditions of employment existing at the time of decertification shall remain in place until such time as those terms or conditions of employment are altered by the City's Board of Aldermen." Ordinance No. 6411, art. 3, § 3.6.3.
(7) " In the event of a budget shortfall, the Board of Aldermen shall have the right to require the modification of the economic terms of any labor agreement." Ordinance No. 6411, art. 6, § 6.1.

On dates ranging from March 4, 2011, to March 23, 2011, the police officers, civilian members, and sergeants signed representation cards requesting the City to recognize the Fraternal Order of Police as their " chosen exclusive bargaining representative for the purpose of collective bargaining[.]" The representation cards further stated:

Despite provisions of City Ordinance No. 6411 to the contrary, I direct the City to recognize a single bargaining unit of police officers and police sergeants or, alternatively, to recognize the [Fraternal Order of Police] as the representative of a bargaining unit of police officers of my same rank even if the [Fraternal Order of Police] represents--or is preparing to represent--a bargaining unit of police officers holding a different rank.

Upon the Fraternal Order of Police's presentation of the representation cards, the City refused to proceed with an election under those conditions.

Thereafter, the Fraternal Order of Police filed a second amended petition for declaratory judgment and injunctive relief challenging the constitutionality of the City's Ordinance No. 6411. The parties filed cross-motions for summary judgment, and the circuit court granted summary judgment in favor of the Fraternal Order of Police and denied the City of Grandview's motion for summary judgment. Specifically, the circuit concluded that the collective bargaining framework established by the City in Ordinance No. 6411 violated article I, sections 10 and 29 of the Missouri Constitution by:

1. [S]ummarily declaring that Plaintiff Sergeants are supervisory employees and are prohibited from being in the same bargaining unit as Plaintiff Police Officers [and] by failing to provide a fair and impartial forum for full and fair consideration and resolution of conflicts including the summary exclusion of sergeants from the same bargaining unit as police officers.
2. [R]equiring that a collective bargaining representative be required to receive more than fifty percent (50%) of votes of all eligible voters, as opposed to more than fifty (50%) of the votes cast.[4]

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3. [P]rohibiting Plaintiff Sergeants and Plaintiff Police Officers from being represented by the same organization in separate bargaining units.
4. [S]ummarily prohibiting collective bargaining representatives employed by [the City] from receiving pay from [the City] for time spent preparing for, and participating in, collective bargaining with [the City].
5. [S]ummarily limiting to a maximum of one year the duration of economic provisions of any labor agreement ...

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