Dear Mr. Dooley . . . .

April 18, 2008
Honorable Charles Dooley
St. Louis County Executive
41 S. Central Avenue
Clayton, MO 63105


Dear Mr. Dooley:

On April 7, 2008, the Office of Attorney General of Missouri (in response to our request for a formal opinion) issued its advisory opinion that the St. Louis County Trash and Collection Recycling program is operating in violation of state statute requiring a two-year waiting period before it can be implemented.

Rather than attempting compliance or cooperation with state law, St. Louis County chief Counsel Redington immediately responded with a letter incorrectly stating that the County program was based soundly on the County’s home rule charter powers and asserted that the following was the finding of the Attorney General:

“What the Attorney General did not say was that the notification requirements of Section 260.217 RSMO applied specifically to St. Louis County in light of our status as a charter county.”
The Attorney General’s opinion was that the St. Louis County Trash Collection and Recycling program is subject to the state statute’s requirements. The charter county argument was simply discussed in Footnote 2, and not fully accepted as the official advisory opinion of the Attorney General.

The governing state statute at issue was adopted by the Missouri Legislature regarding business regulation of the trash industry to ensure that, through a two-year waiting period, any displacement of a competitive trash hauling system by a monopoly was warranted and thoroughly planned. The public outcry rising from St. Louis County’s going forward in imposing this monopoly illustrates the wisdom of the statute’s waiting period.

Instead, your County Counselor responds asserting that the state law does not apply and (inaccurately) that the Attorney General agrees with her position.

The Attorney General’s opinion is only the latest red flag indicating the County Trash District Monopoly and its related guidelines are a mistake. The discriminatory "opt-out” program (allowing only organized subdivisions to opt out of the monopoly districts) featured everchanging and elaborate opt-out standards created by bureaucrats without any basis in law. Yet,about 28,000 households opted-out of your program. This is hardly an indicator of broad popular support.

In South St. Louis, where the bulk of the monopoly districts would be located, nearly every elected political official, including candidates for both state and local office from both parties, have denounced the St. Louis County Trash Collection and Recycling.

From our constituents and from citizens throughout St. Louis County comes rising outrage over the County’s trash plan implementation. People suddenly have huge 64 gallon recycling containers that they neither wanted nor asked for delivered to them at public expense. The mandatory recycling effort moves forward without any concern over its negative impact on voluntary recycling/fund-raising programs for schools, churches, scout troops and other charities.

Even worse, your County Minimum Service Standards are resulting in surging increases of up to 40 percent in trash costs for citizens throughout St. Louis County. Those rate increases are falling most heavily on those least able to pay. (Exhibit – protest from Florissant Mayor)

What St. Louis County bureaucrats have done is to create a de facto county trash tax without the vote of the people by imposing mandatory standards on the haulers. The costs of maintaining these standards are put onto the citizens. This is incredibly poor public policy when County residents are reeling from skyrocketing property tax assessments.

There is still time to allow the people’s elected representatives reason through this issue. You still have the opportunity to turn away from this program. If you choose to discontinue the current program, we will work with you at the state level to move towards an orderly and successful transition.

However, if the County Counselor’s letter represents the final word, then St. Louis County will have set itself on a collision course with state government in ignoring a state statute regulating business in Missouri. Any further actions implementing the St. Louis County Trash Collection and Recycling plan can only move forward by knowingly disregarding state law.

Continuing in this costly, vastly unpopular and unlawful program would smack of governmental arrogance and ratchet-up opposition even further. We ask you to acknowledge the aforementioned concerns without delay to deter any further conflict and controversy.

Yours truly,

SENATOR MICHAEL R. GIBBONS
REPRESENTATIVE JAMES AVERY
REPRESENTATIVE WALT BIVINS
REPRESENTATIVE JAMES W. LEMBKE
REPRESENTATIVE DWIGHT SCHARNHORST
REPRESENTATIVE SUE SCHOEMEL
REPRESENTATIVE MICHAEL VOGT
REPRESENTATIVE PAT YAEGER
.
Dooley's Response:

Home Rule Charter May Pose Problems for Trash Delay

The state law that says local governments must give two years notice before they provide or hire a company to provide trash collection service may not apply to St. Louis County. One question here is that St. Louis County is NOT providing the service as it's coming from independent trash haulers or have they hired a company to provide the service. The County says it has a home-rule charter and this does not apply to them.

St. Louis County Counselor, Patricia Redington told the County Council that the trash collection law definitely does not apply because of the county charter. Ms. Redington has been called to task in the past to interpret the law in favor of the County and has often left out critical parts of the law in her opinions.

Ms. Redington said she was aware of the opinion but did not inform the Council members until it was brought up at the Council meeting by one of the trash haulers.

Paul C. Wilson, a deputy chief of staff for the attorney general sent the opinion to four state legislator who requested the opinion.


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This is the level of dedication expected of all employees.

Confusion Reigns And The Flooding Starts

Residents continue to speak out about the county's trash system and the resulting confusion. The following is a note from a resident.

"Below is a portion of the public forum from the Apr. 8,2008 St. Louis County Council meeting.
I thought it was quite interesting that Pat Redington seems to think that County laws out rule State. I was taught in college that State Statutes over ride all - with the exception of Federal.

From what I understand, this Pat Redington seems to leave out key information when referring to laws. I guess she wants it to read the way she thinks it should read which is, of course, in favor of the County.

"Mr. Chuck (Charles) Barcom, representing Meridian Waste, addressed the County Council and questioned if the Council was aware of information recently sent out by the Attorney General's Office. Mr. Barcom related the Attorney General's Office had stated that there should have been a two-year notification regarding the Trash Districts.Public Forum. Chair Burkett responded that she had not seen the information Mr. Barcom referenced. She then referred to County Counselor Pat Redington.

County Counselor Redington related that she was aware of the information Mr. Barcom referenced. However, she pointed out that this information was not applicable to St. Louis County, stating that St. Louis County is a Charter County with its own provisions for dealing with trash as authorized by the State Constitution and St. Louis County's Charter".

Added comments:

It's surprising the County Council was not aware of the ruling from the Attorney General's office. Lack of communications between Ms. Redington's office and the Council has been an on-going problem for some time, dating back before Ms. Redington approved the trash sub-station in South County without advising the Council.

A Council member learned of the Council's special meeting set for April 22 from an attendee at the trash sub-station meeting on April 10. He was not aware of the meeting or the article in the newspaper. It's a shame that Council members must learn of scheduled meetings from residents and other sources of an un-official nature.

State Attorney General's Office says St. Louis County Must Provide 2-Year Notice for Trash Districts

The Missouri Attorney General's Office issued an opinion on Monday, April 7 concluding that because of a state statute passed last year by the state Legislature that requires a two-year notice to waste haulers before establishing trash districts, St. Louis County must follow suit before it implements eight trash districts planned to be established this year in unincorporated areas.

With the backing of Senate President Pro Tem Michael Gibbons, R-Kirkwood, three state representatives from south county asked Attorney General Jay Nixon in February to determine the legality of the trash districts' implementation.

Because of a state statute that went into effect Jan. 1 that requires a political subdivision to issue a two-year notice to waste haulers before establishing trash districts, the elected officials contend that the county's trash-district program is unconstitutional.Rep. Jim Lembke, R-Lemay, Rep. Walt Bivins, R-Oakville, Rep. Jim Avery, R-Crestwood and Gibbons say that Section 260.247(2) of the Missouri Revised Statutes prevents St. Louis County from establishing trash districts in 2008.

The statute, approved in 2007, states:

"A city or political subdivision shall not commence solid-waste collection in such area for at least two years from the effective date of the annexation or at least two years from the effective date of the notice that the city or political subdivision intends to enter into the business of solid waste collection or to expand existing solid waste collection services into the area, unless the city or political subdivision contracts with the private entity or entities to continue such services for that period."

If for any reason the city or political subdivision does not exercise its option to provide for or contract for the provision of services within an affected area within three years from the effective date of the notice, then the city or political subdivision shall renotify.

"On Monday, a conclusion issued by Paul C. Wilson, the Attorney General's Office's Deputy Chief of Staff for Litigation, said that the law applies to St. Louis County.

The opinion begins:

"Dear Senator Gibbons: On February 25, 2008, you, together with Representatives Lembke, Bivins and Avery, requested an opinion regarding 'whether (Section) 360.247 (2) RSMo (2008) already mandates a two-year waiting period where St. Louis County is intending to commence a franchised monopoly displacement of existing haulers later in 2008.'

"Based upon the facts submitted in your request, and those we have gathered independently, it appears that the General Assembly's 2007 amendment to the two-year notice provision of (Section) 260.247, which extended that requirement to all 'political subdivisions,' does apply to the activities now being pursued by the County."

The opinion concludes: "On the basis of the facts presented to us, as set forth above, we conclude that, with the adoption of Ordinances 607.1300 and 607.1310, St. Louis County has decided to 'enter into' solid waste collection services for purposes of Section 260.247. Therefore, the two-year notice requirement imposed by Section 260.247 — as amended by the General Assembly in 2007 — extends to the activities now being contemplated by St. Louis County under Ordinance 607.1310."

The county already has already taken bids for one of eight trash districts planned to implemented in July as a "pilot district" in the 2nd County Council District represented by Council Chair Kathleen Burkett, D-Overland, who has been a vocal proponent of trash districts.

As for the seven remaining trash districts, county officials could begin bidding for those as early as May.

6th District County Councilman John Campisi, R-south county, requested last week that the County Counselor's office prepare a bill that would not only repeal trash districts, but also allow county residents to be exempt from recycling charges if those residents meet any of the following conditions:

• They generate less than 35 gallons of recyclable material during a seven-day period.
• They take recyclables to "a school, church, or other charitable organization" or take recyclables "to a licensed waste processing facility."

Campisi's request for a bill also would remove the county's new minimum standard that waste haulers provide two bulk-waste pickups per year and instead be allowed to offer that service "at a reasonable fee." Campisi has also opposed trash districts and planned to testify today to the committee.

More information is available at the Call Newspapers at http://www.callnewspapers.com/