Poplar Bluff city attorney seeks judgment against ex-city manager

POPLAR BLUFF, Mo. -- City attorney Robert Smith on Monday filed a new motion for a summary judgment against former Poplar Bluff city manager Doug Bagby in Butler County Circuit Court.

Smith alleges the contract agreement Bagby had with the city "was at all times illegal and void as a matter of law from its inception."

He contends the Poplar Bluff City Council "never passed an ordinance or resolution appointing Bagby as city manager, nor did the City Council pass an ordinance or resolution authorizing the mayor of the city to enter into an agreement."

Bagby maintains the contract agreement he signed Aug. 26, 2003, is valid. The initial term of the agreement was for three years, beginning Sept. 1, 2003. The three-year term renewed automatically each year Sept. 1, according to the agreement.

Smith argued the agreement violated city ordinances, state law and the Missouri Constitution when it was drawn up.

He said the city manager is an at-will employee and can work under an agreement for only one year at a time. His employment could be terminated at any time without recourse or damages, Smith said.

Bagby, who was fired May 5, claims he has two years and four months left on his contract, and the city should continue paying him.

If a judge rules in Bagby's favor, he could receive nearly $278,000. If the judge rules Bagby's agreement is invalid, the city would not have to pay Bagby.

Smith is seeking a court order, declaring the agreement null and void.

He also filed a motion to dismiss Bagby's affirmative defense for failure to state a cause upon which relief may be granted.

Smith maintains equitable defenses are not allowed against a municipality. He contends Bagby had a duty not to enter into the agreement because he had the affirmative duty to enforce the city ordinances, "which he violated by attempting to enter into an illegal agreement."

He also maintains Scott Faughn, the mayor in August 2003, did not have any statutory authority to enter into the agreement.

Former city clerk William Pettet also signed the agreement, attesting to the signatures of Faughn and Bagby.

Smith also filed a motion for a protective order so Mayor Angela Pearson and Councilmen Peter Tinsley, David Johnson and Johnny Brannum will not have to give depositions as requested by Bagby's lawyer, Daniel Moore of Poplar Bluff.

An affidavit signed by City Clerk Pamela Kearbey indicates she searched city records and could not find a city ordinance authorizing Faughn to execute a contract with Bagby.

Judge Kelly Parker of the 42nd Judicial Circuit, which includes Wayne County, has been assigned to hear the case.

Smith wants the case moved to Wayne County, but Moore has filed an objection and wants the case to be heard in Butler County.

No hearing date has been set.