CITY COUNCIL FACES LEGAL QUESTIONS ON ZONE ELECTION ISSUE

Action this week to speed the implementation of ward-style council elections in Cape Girardeau could result in violations of state law.

According to the Missouri revised statutes, city council members can not be voted out of office until their terms expire.

After extended debate Monday in which Mayor Gene Rhodes pressed to have spring city council elections, the council agreed to try to hold the ward or "zone" elections within a year.

The council agreed to appoint a task force to work with City Attorney Warren Wells to iron out several legal concerns with the election measure, which Cape Girardeau voters approved overwhelmingly Nov. 3.

The group then would present its work to the council to place a "cleaned up" version of the zone election issue before voters in the spring, with plans for implementing the plan in a general election by next fall.

But two Missouri laws seem to prohibit a council election until 1994 the next scheduled election as set out by the City Charter.

That's when the terms of Mayor Gene Rhodes and Councilmen David Limbaugh, Mary Wulfers and Doug Richards expire.

If zone elections are held then, state law appears to prohibit the inclusion of Councilmen Al Spradling III, Melvin Kasten and Melvin Gateley, who were all elected this year to four-year terms.

Section 82.160 of Missouri revised statutes reads: "Whenever... new wards shall be established, there shall be no election of a representative to the municipal legislation for such ward until the general election for corporation officers."

In Cape Girardeau's case, general city elections are held each even-numbered year, putting the next general election in April 1994.

Section 82.170 provides that newly formed wards not affect the terms of incumbents.

The law reads: "Nothing in this chapter contained shall be construed to limit or abridge the term of office which any representative in the municipal legislature of such city shall be elected to fill.

"(B)ut every such representative shall be deemed and taken, for the residue of the term for which he may have been elected, a representative of that ward in which his actual residence ... may be at the time of any division of such city into wards, creation of any new ward or wards, or change in the boundaries of any ward or wards."

Limbaugh stated at Monday's meeting that the charter clearly sets out elections in even-numbered years.

But Rhodes said the city should implement ward elections as quickly as possible because the "people have spoken."

Limbaugh pointed out that the ward measure passed by voters specifically referred to Section 7 of the charter, which provides that the elections will be held on even-numbered years. In other words, the voters were the ones who approved the election in 1994, he said.

The councilman said it might be possible to have a special election prior to February 1994 but not without voters, by yet another election calling for one.

Limbaugh suggested a commission be appointed, comprised of members of the "Elect a Neighbor" committee that campaigned on behalf of the zone measure, to work through the technical hurdles and other legal issues.

When the council seemed to reach a consensus to appoint such a commission, Rhodes again pressed to move the procedure forward as soon as possible. He then appointed a seven-member commission made up of audience members at the council meeting.

But the council voted to allow other candidates to apply for a seat on the commission prior to the Dec. 7 council meeting, when a full commission is expected to be named.

The confusion is just the latest of several problems with the ward election measure, which was placed on the ballot through a petition initiative.

St. Joseph, also a home-rule city governed by charter, went through a similar transition in 1989 when voters approved a measure to switch from at-large council members to a combination of at-large and ward representation.

John Boeh, St. Joseph's city attorney since 1988, said Thursday the transition there went smoothly primarily because the legal and technical concerns were worked out before the issue was placed on the ballot.

"When we placed it on the ballot in 1989, our regular elections were the next year so we went into our new system the next year," Boeh said. "I think that's the easiest way to do it.

"It's just a lot easier to get everything in line for the transition first if you do it with the idea of implementing it at the next election."

Boeh said council members in St. Joseph did not serve staggered terms like they do in Cape Girardeau, which also made for an easier transition.

"We had all six of them up for re-election anyway, so we were able to implement the new system pretty smoothly," he said. "You've got a lot bigger problem with staggered terms, because you'd have some of them in the middle of a term."

Boeh said state law requires that the council members must be able to serve the full terms to which they were elected.

It's uncertain how the city will proceed. City Attorney Warren Wells declined to comment on the issues until he has an opportunity to discuss them first with the council.

He did say the commission will try to iron out the problems and present a legal ward election proposal to the voters.