State ex rel. Vescovo v. Clay County

• Citation: 589 S.W.3d 575
• Decision Date: 05 December 2019
• Docket Number: WD 83130 CONSOL. WITH: WD 83172,WD 83196
• Parties: STATE of Missouri EX REL. Sheriff Paul VESCOVO, III, Appellant-Respondent, v. CLAY COUNTY, Missouri, et al., Respondents-Appellants.
• Court: Court of Appeal of Missouri (US)

589 S.W.3d 575

STATE of Missouri EX REL. Sheriff Paul VESCOVO, III, Appellant-Respondent,

v.CLAY COUNTY, Missouri, et al., Respondents-Appellants.

WD 83130 CONSOL. WITH: WD 83172

WD 83196

Missouri Court of Appeals, Western District.

OPINION FILED: DECEMBER 5, 2019

Frederick H. Riesmeyer II, Kansas City, MO, Christopher Charles Tillery, Seigfreid Bingham, PC, Kansas City, MO, Counsel for Appellant-Respondent.

Lowell D. Pearson, Courtney Steelman, Jefferson City, MO, Counsel for Respondent-Appellants John B. Reddoch, II, Liberty, MO, Counsel for Respondent.

Before Special Division: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge, Anthony Rex Gabbert, Judge

Anthony Rex Gabbert, Judge

INTRODUCTION

In this consolidated appeal, we consider the cross-appeals of Appellant-Respondent Sheriff Paul Vescovo, III and Respondent-Appellants Clay County, Missouri and Clay County, Missouri Commissioners Gene Owen and Luann Ridgeway (the "County"). Respondent Jerry Nolte, also a Clay County, Missouri Commissioner, appeared as a defendant below and appears before us now solely as a respondent.¹ This appeal arises from an action before the Circuit Court of Clay County, Missouri where Sheriff Vescovo sought a writ of mandamus, declaratory relief, and attorney’s fees. Sheriff Vescovo raises one point on appeal, claiming the circuit court erred in not awarding him attorney’s fees. The County raises one point on appeal, claiming the circuit court erred in issuing its writ of mandamus. We affirm the issuance of the writ of mandamus, reverse the denial of attorney’s fees by the trial court but deny the Sheriff’s motion for attorney’s fees for the appeal, and remand for further proceedings.

BACKGROUND

The facts, in the light most favorable to the judgment, are as follows. Sheriff Vescovo is the duly elected Sheriff of Clay County, Missouri. Clay County, Missouri, a first class county under state law, is a political subdivision of the State of Missouri. The Clay County Commission is the governing authority of Clay County, and it is comprised of three elected commissioners: Jerry Nolte, Luanne Ridgeway, and Gene Owen. Commissioners Nolte, Ridgeway, and Owen were sued in their official capacities. Laurene Portwood, who is not a party to this appeal but figures prominently in the relevant events, is both the Chief Budget Officer of Clay County and the Assistant County Administrator.

Sheriff Vescovo has many legal duties, largely prescribed by statute, which include the duty to be the "jailer" for Clay County. As jailer, he is responsible for the custody and humane care of all inmates and prisoners. He is also charged with keeping the peace, patrolling and policing county roads and highways, committing offenders to jail, enforcing public safety laws, providing courthouse security, and serving process. Although he is a separately elected official, and he presides over a separate office and department, his budget is explicitly set and controlled by the Clay County Commission, pursuant to state law.

As part of the budgeting process, Sheriff Vescovo’s office, along with other county departments, presents a proposed department budget to the County’s Chief Budget Officer, Laurene Portwood. Portwood then compiles and presents the various proposed budgets to the Commissioners as a proposed budget for the county as a whole, making adjustments as deemed necessary in light of the needs of the County. The Sheriff’s budget includes an operating budget, which is separate from the budget used to pay personnel. The Sheriff’s operating budget for the years 2016 and 2017 was approximately $2.5 million. His operating budget in 2018, which was cut for reasons discussed below, was $2.1 million. In 2019, he requested $3.1 million. This proposed operating budget was based on estimated expenditures calculated in part from historical information regarding prior years’ actual expenditures. Throughout these years, the County’s revenues increased each year.

A sizable portion of the Sheriff’s proposed operating budget for 2019 was for operation of the county jail, including monies to fulfill contractual obligations with vendors providing inmate food, healthcare, and other commodities. The contracts establish term and supply pricing and estimates of the expenditures the County should expect to make under the contracts. The contract for inmate food sets forth a per meal price. The healthcare contract includes fixed fees for onsite medical personnel. As required by state law, vendor contracts were entered into and approved by the Commission. Chief Budget Officer Portwood, pursuant to authority granted to her by the Commission, personally signs many of the County’s contracts, including the contract for inmate food. Sheriff Vescovo possesses no authority to enter into contracts on behalf of the County or his department.

During the 2019 budgeting process, Sheriff Vescovo presented his proposed operating budget to Chief Budget Officer Portwood in late-July, 2018. In August of 2018, representatives of the Sheriff's office met with Portwood to discuss the proposed budget and address any concerns. When she compiled and made her proposed budget for the County available for departments to review in November of 2018, Portwood had unilaterally reduced the Sheriff’s proposed operating budget, including by significantly reducing portions of the budget dealing with vendor contracts for operation of the jail including for inmate food and healthcare. In addition to reducing Sheriff Vescovo’s operating budget, Portwood also reorganized his budget into five line-items or "silos", a change from how his budget was organized in previous years. These silos included Field Operations, Civil Process & Court Security, Detention, Administration, and 911 Emergency Management. In reducing his proposed budget, Portwood did not contact Sheriff Vescovo directly to provide notice of her reductions or give his office any opportunity to discuss the proposed reductions with her or with the Commission.² Sheriff Vescovo’s office first learned of the reductions when the 2019 County Proposed Budget was posted online for officeholders to review.

Sheriff Vescovo’s own budget officer, Captain Siercks, emailed Portwood on December 5, 2018 to express his concerns that the 2019 budget did not sufficiently fund, among other things, the operation of the jail. Portwood responded with the recommendation that the Sheriff "be prepared to discuss with the Commission where other funds may be reallocated within law enforcement funds." Sheriff Vescovo followed up with a letter on December 6, 2018, which again stated that the 2019 budget was grossly insufficient to fund the jail’s biggest expenses: inmate food and healthcare. Commissioner Ridgeway was also emailed by Sheriff Vescovo’s office and given notice that the 2019 budget did not adequately fund the contracts for inmate food and healthcare. Neither Sheriff Vescovo’s letter nor the email to Commissioner Ridgeway received responses.

On January 28, 2019, consistent with the Budget Officer’s recommendations, the Commission adopted a 2019 Operating Budget giving the Sheriff $1,788,829, over $1.3 million less than the $3,177,273 he requested.³ Commissioners Owen and Ridgeway voted in favor of the budget. Commissioner Nolte voted against the budget. The appropriations ordinance approving the budget also adopted line items, similar to the silos present in Portwood’s proposed budget, and it contained the following language: "Limits on Expenditure Authority. Each Expenditure Authority is not authorized to expend sums in excess of the amounts of each expense line item shown in 2019 – ORD-01 for that particular purpose and object." This language prevented the Sheriff from moving funds between expense line items in his budget. This prohibited him from transferring funds to address critical shortfalls in the areas of inmate food and healthcare. The adopted budget left a budget shortage of $755,152 for inmate food and healthcare, roughly 60% less than required to satisfy the historical amounts necessary to cover these vendor contracts.⁴

Sheriff Vescovo filed a Petition for Writ of Mandamus, Declaratory Judgment, and Attorney’s Fees in the Clay County Circuit Court on April 19, 2019. He requested both a preliminary and permanent writ ordering the County to provide an additional $1,754,307 to allow his department to cover various contractual obligations, including payments to vendors for inmate food and healthcare. His second claim requested a declaratory judgment that the under-funding of his office in 2018 was illegal and damaging to his office, and restitution of the reduced amounts and attorney’s fees. His third claim requested reimbursement of his attorney’s fees.

A hearing was held on June 10, 2019 where the parties argued a motion to dismiss filed by the County and the Sheriff’s request for a preliminary writ. At the hearing, the County argued that the Sheriff had not exhausted all administrative remedies prior to filing suit, namely, he had failed to properly bring the matter before the Commission with a request that they amend his budget. The court declined to enter the preliminary writ, noting that the vendor contracts for the jail were not yet in arrears and that the Sheriff still had alternative remedies available to him as suggested by the County. Nonetheless, the motion to dismiss was denied, the matter was set for a bench trial beginning in August, and discovery commenced on an expedited schedule.

In light of the County’s defense that the Sheriff had not brought the matter before the Commission, a request was promptly made. On June 14, 2019, the Sheriff’s office informed the Commission that because his budget for the jail was inadequately funded, additional funds were needed to satisfy vendor contracts for inmate food and healthcare. He requested that the matter be placed on the agenda for the next County Commission meeting, and he included a request for official action transferring...