MoDOT accountability measure has potential constitutional flaw

Sunday, December 14, 2003

JEFFERSON CITY, Mo. -- While a new state law lengthened the current terms for five of the six members of the State Highways and Transportation Commission, the Missouri Constitution generally forbids extending the terms of public officers.

The extensions resulted from a last-minute overhaul of legislation intended to improve accountability at the Department of Transportation.

Lawmakers who worked on the bill said the potential constitutional problem never came up during the push for passage in May. The issue likewise went unnoticed during the customary review process before Gov. Bob Holden signed the measure into law in July.

After examining the matter last week, Jake Zimmerman, Holden's chief deputy counsel, said the law appears to pass constitutional muster, though he acknowledged his assessment isn't conclusive.

"I think it is an interesting legal question," Zimmerman said. "It certainly is not an open-and-shut question."

Could be fixed next session

The bill's House sponsor said any constitutional conflict was inadvertent and could be fixed when the next legislative session begins Jan. 7.

"If we have to, we'll run a cleanup bill," said state Rep. Larry Crawford, R-California.

Members of the commission, MoDOT's independent governing board, are appointed by the governor to six-year terms. Under the old law, however, membership turnover did not occur at regular intervals.

The accountability measure includes a provision that staggers commission terms so two members -- one Democrat and one Republican -- will be replaced or reappointed every two years. To achieve that end, however, the final version of the bill extended the terms of all but one commissioner.

The extensions range from three months to 16 1/2 months. Two members whose tenures were to end in 2007 will now stay on until 2009.

The law trimmed 7 1/2 months from the term of Bill McKenna of Crystal City.

"The others, I thought, would serve their original terms and have to be reappointed," said Crawford, the House transportation chairman. "I didn't know we were extending anyone's term until 2009."

Article VII, Section 13 of the Missouri Constitution says: "The compensation of state, county and municipal officers shall not be increased during the term of office; nor shall the term of any officer be extended."

General vs. specific

That highway commissioners are state officers within the meaning of the provision isn't disputed.

Zimmerman said that general prohibition seems to be superseded by more specific language in Article IV, Section 29, which establishes the highways commission. That provision says "terms of members of the highways and transportation commission shall be fixed by law."

Zimmerman said specific provisions typically control over general ones, a position echoed by MoDOT attorneys. However, if the law were challenged, Zimmerman said, the Missouri Supreme Court could interpret the Article VII restriction as taking precedence.

But intent also is a factor. Zimmerman said that section, which dates to 1875, was meant as a safeguard against officials serving indefinitely without reappointment or re-election and not to prevent the sort of benign purpose sought by the accountability law.

The law will have little immediate impact since Holden will still appoint successors to a pair of commissioners whose terms were to end Dec. 1 but extended to March 1. However, those replacements will serve only one-year terms to bring them in line with the two-year turnover cycle.

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