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Appeals court sides with commission in sheriff's challenge

For the second time in 13 months, a Missouri court has sided with the Cole County Commission in Sheriff Greg White’s challenge to the commission’s use of the “Law Enforcement Sales Tax” fund to help pay some of the sheriff’s operating expenses.

A three-judge panel of the appeals court’s Kansas City district on Tuesday rejected all five of White’s appeals points, ruling that Gasconade County Associate Circuit Judge John B. Berkemeyer made no mistakes in ruling that the three commissioners had “the authority to use a portion of Tax funds to pay the ‘operating costs’ of the Sheriff’s department.”

The state Supreme Court appointed Berkemeyer as a special judge to hear the case.

Presiding Commissioner Marc Ellinger told the News Tribune: “It indicates the law enforcement fund is for law enforcement purposes. That’s more than just operational costs of the jail, it’s for computer service and other operating items for law enforcement.

“The sheriff has been a gentleman throughout this and we’re all good with this,” Ellinger said.

And Sheriff Greg White said, “We’ve let it run its course. The court’s opinion stands, and we support the courts.”

After voters in August 2007 created the fund, mainly to pay for building a new jail and sheriff’s office, the county began collecting an additional 1-cent sales tax in January 2008.

Figures used in the appeals court ruling showed the sales tax generated $1,882,296 for the fund in 2008, $2,040,000 in 2009, and $2,040,000 in 2010 — and that more than $1 million was added to the fund each year from other fees generated by the sheriff’s department, including the fees received for serving civil documents.

The court’s ruling also showed that commissioners since 1988 had used the Maximus consulting firm to do a cost-allocation study each year, to determine which county expenses actually were “shared expenses” among the various county departments and elected officials’ offices, based on resource usage and proportional costs.

“These ‘shared expenses’ included items such as information technology, workers’ compensation, health insurance, liability insurance, auditing, postage, payroll, accounts payable, employment security payments, budgeting, supply administration and services provided to other departments and offices by the (county) auditor, county clerk, treasurer and commission,” Judge Gary Witt said in the 16-page opinion he wrote for the three-judge panel.

After the commission billed the Law Enforcement Sales Tax fund to cover the sheriff’s share of those “shared expenses,” White sued in 2010, arguing that the commissioners didn’t have the legal authority to “obtain, divert or cause to be diverted, request, receive or use” money taken or obtained from the fund for any purpose other than law enforcement.

White had paid the administrative fees in 2008 and 2009 before refusing to pay in 2010 and filing the lawsuit.

In his initial suit, White’s attorney, Clifford Cornell, argued that taking the money from the Law Enforcement Sales Tax fund would prevent the sheriff from being able to operate the new jail when it opened in 2011.

The commission’s attorney, Jill LaHue, asked Berkemeyer to grant the commission a “summary judgment” — a ruling that means there is no “genuine dispute” of the facts in the case, and that the party winning the judgment is entitled to it “as a matter of law.”

Berkemeyer approved the commissioners’ motion on Feb. 27, 2013.

White appealed last April 8.

White’s appeal argued the commissioners used the wrong state law as justification for taking the money from the sales tax fund.

But the appeals court said the law used to authorize the sales tax says “expenditures may be made from the fund for any law enforcement functions authorized in the ordinance or order adopted by the governing body submitting the law enforcement tax to the voters.”

And, Witt wrote, the commission’s ordinance approving the August 2007 vote and the ballot language voters approved both said the tax would be used for “providing law enforcement services in the County, including without limitation the acquisition, construction, furnishing, operation, and maintenance of law enforcement facilities and providing funds for facility and law enforcement operating expenses …”

White argued there was a legal dispute that Berkemeyer should have heard about using the sales tax funds or general revenue funds to pay for the sheriff’s share of county expenses — but the judges said it didn’t make a difference since the commission had the authority to use the sales tax funds.

And, White argued, the shared expenses commissioners were covering with the payments weren’t included in the public’s understanding of “operating expenses.”

The court disagreed.

“‘Law enforcement operating expenses’ does not exclude anything that is related to the Sheriff’s department; rather, it is broad by design,” Witt wrote, adding: “Contrary to White’s perception of Cole County voters, we think that a voter would not be shocked to learn that the computers in squad cars or those that are used to create police reports are paid for and maintained by the Tax, or that ‘operating costs’ would include paying bills incurred by law enforcement, including the required workers’ compensation and employment security payments required to hire a deputy.

“Thus, we do not find White’s argument, based on his lack of respect for the intelligence of local voters, to be persuasive.”

The court also found that White was complaining about paying the commissioners’ bill for “shared services” — a total of $863,814 for the 2008-10 period — when “basic mathematics confirm that the general revenue funds allotted to the Sheriff’s department by the County far exceed that for which the department is invoiced for the shared services.”

The Maximus analysis said the sheriff’s office owed $1,385,006 in shared expenses, but commissioners only billed the smaller amount.

White sued as both the sheriff and as an individual taxpayer. The court said White, the individual, should pay for the costs of the appeal.

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