by Ivan Foley
Another courtroom loss for Rita Rhoads, former mayor of Tracy.
On Tuesday, the Missouri Western District Court of Appeals announced it upholds a decision made by Platte County Circuit Judge Lee Hull.
Last July, Hull ordered Rhoads removed from her post as Tracy mayor for committing an act of nepotism. Rhoads had hired her son-in-law to repair a city-owned sign.
The ouster petition was brought by Platte County Prosecutor Eric Zahnd last summer. Hull, after a two-hour hearing, determined that Rhoads violated Article VII, Section 6 of the Missouri Constitution, which states that a public officer forfeits his or her office if he or she appoints to “employment any relative within the fourth degree.”
Rhoads’ attorney, Keith Hicklin of Platte City, contended that because Rhoads’ son-in-law was hired as an independent contractor she did not appoint him to employment.
In its ruling, the appeals court, in an opinion written by Judge James Edward Welsh, stated: “Given that we give constitutional provisions a broader construction due to their more permanent character, we conclude that the work of an independent contractor falls within the definition of ‘employment’ as that term is used in the constitution.
“The circuit court, therefore, did not err when it determined that Rhoads, acting as mayor of Tracy, violated Article VII Section 6 of the Missouri Constitution when she appointed to employment her son-in-law, who was a relative in the fourth degree.”
Reached at her home Tuesday, Rhoads told The Landmark she was “not interested” in making a comment on the latest decision.
In a bizarre twist, about two weeks after she had been removed as mayor and board of aldermen president Julie Thomas took over, Rhoads was appointed by the board to the seat that was opened when Thomas slid into the mayor’s chair.
Then in April of this year, Rhoads ran uncontested for reelection to that alderman seat and continues to serve in that capacity.
Because she almost immediately was back in service at the city as an alderman, many observers were surprised that Rhoads appealed the judge’s ruling to continue a legal battle.
Testimony at the July 13, 2012 trial in Hull’s courtroom indicated Rhoads was warned in advance that hiring Spores is prohibited by law. The park sign was repaired by Spores but still has not been reinstalled, which was to be part of the work performed, according to testimony.
Hicklin’s primary argument was that Spores was hired as “contract labor” and therefore the act did not qualify as “employment.”
Joe Vanover, an assistant prosecutor for Platte County, argued that “employment” includes being defined as “the act of doing work.”
The initial check for payment to Spores was made out to MDS Construction, a business name that Spores had not used in years. When the bank would not cash that check because the business was no longer active, Rhoads hand wrote a check made out to Spores directly rather than to his non-existent business.
Cindy Erich, city clerk, testified that she had a conversation with Rhoads at the time the mayor hired Spores to perform the work. Erich said she questioned Rhodes about hiring her son-in-law.
“She said that she has done this before and wrote a check with MDS on it and that nobody would know,” Erich told the court.
Erich testified that she reminded Rhoads that the city attorney had advised Rhoads not to hire her son-in-law.
Hicklin tried to discredit the clerk’s testimony by painting a picture of a “turf war” between the clerk and the mayor over whether the mayor or the city clerk is to issue building permits.
Erich denied there was a “turf war,” saying she had gone to the city attorney not to complain about the mayor but to find out the proper procedure in regard to issuing building permits.
“I’d never been a city clerk before,” said Erich, who at the time of that trial had been on the job about seven months.
Spores, the son-in-law, was the second witness called to the stand by the state. Dressed in shorts and a t-shirt that had the word “Batman” across the front, Spores confirmed that Rhoads had hired him to repair the sign.
Spores confirmed for the court that he is married to Rhoads’ daughter. Spores also said he had previously performed work for the city at the request of Rhoads on other occasions, including fixing a water heater and repairing a garage door.
In her testimony, Rhoads said after her son-in-law could not cash the first check, she wrote the second one directly to him. It had not been approved by aldermen, she said, “but I had talked to my treasurer and she told me to go ahead.”
Vanover asked her if she had any training on nepotism, to which she replied she did not. He asked if she knows what nepotism is.
“You’re not supposed to employ or appoint your family and as mayor I don’t have that authority,” Rhoads stated on the stand.
Rhoads said she did not try to cover up who was receiving the money for the sign repair, though she did not dispute that she approved an invoice to a defunct business that her son-in-law used to have.
Hicklin had no questions for Rhoads and at that time asked the court to dismiss the petition on the grounds Spores was hired on a contract basis.
“That is not employment,” Hicklin said.
Vanover told the court: “The state believes a public official cannot hire an employee, even for contract work.”
The judge denied the motion to dismiss, and after a 10 minute recess, testimony resumed with board of aldermen president Julie Thomas taking the stand.
Thomas said she saw the initial check to MDS while at a board meeting and asked Rhoads who MDS Construction was, and Rhoads told her. Thomas said to her knowledge there was no written contract for the work.
“I don’t think it was contracted work. I don’t think it was work that would require a contract,” she said in reply to questioning from Vanover.
Rhoads was called back to the stand by Hicklin. He asked her to explain her duties as mayor. Rhoads talked about her volunteer work, such as picking up trash in the parks and “checking on my residents” in the heat.
Compensation for the mayor of Tracy position recently was increased from $50 to $100 per month.
In announcing his determination, Judge Hull said:
“I don’t doubt for one minute what Mrs. Rhoads said about her duties,” before continuing that it had been proven Rhoads violated the nepotism clause in the constitution.
Hull in detailing his ruling and ordering the removal of Rhoads from office, remarked that the constitution “can be draconian in its application,” but pointed out that the court is “not empowered to amend it or change it.”
Rhoads declined comment after the hearing, as did Lisa Rehard, the city attorney for Tracy, and Spores.
Zahnd said in a news release issued later that same day that “evidence at trial showed that Ms. Rhoads hired her son-in-law, even though she knew it was wrong. Under those circumstances, it is even more important to ensure that the constitution’s absolute ban on nepotism is enforced.”