The Joplin Globe, Joplin, MO

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May 9, 2012

Neosho files lawsuit in attempt to force TDD board election

NEOSHO, Mo. — The city of Neosho filed a petition Wednesday in Newton County Circuit Court in an effort to compel the Neosho Transportation Development District to hold its annual election of board members before May 30.

Questions about the annual TDD board election surfaced during a TDD board meeting on May 2.

Councilman Steve Hart, who was representing the city at the meeting, asked the attorney for the TDD, Chris Williams, when the district planned to hold its election. The last election was held April 5, 2011.

“There is a board member (who) has been on this board for 13 months, and I want to voice our objection to anything being done before you have that election first,” Hart said at the meeting.

Williams, of the Kansas City firm Williams and Campo, replied that while state law and the TDD’s own bylaws call for an annual election, they do not specify when it is to be held.

“Ideally, you would have an annual meeting in April to elect a new board member, but this is less than the ideal situation,” he said. “We’ve got issues to resolve, and the fact is that at this point in time questions have been raised about the voters in the district, and we need to get that resolved before we take that step.”

The city, with 250 of the TDD’s 527 acres, is the largest landowner in the district.

The city’s petition calls the decision not to set an election “manipulation” and a “slap in the face” to taxpayers.

“As a taxing entity, the (TDD) should be held to the strictest of election guidelines,” the petition says. “The legislative intent clearly was not for such a taxing entity to hold its election when convenient for it to do so. ... If this court was to allow the (TDD) to call its election when it desired so long as it was ‘annual’ would allow for the bastardization of the board itself.”

Calls to Mayor Richard Davidson and to Williams, the TDD attorney, were not returned Wednesday. TDD chairman Gene Schwartz declined to comment on the petition.

Although the city is the largest single landowner in the TDD, it did not participate in the initial board election in April 2011. Because of that, it has not had a voice in subsequent votes, including the decision last year to impose a half-cent sales tax within the district. The tax is intended to fund road improvements.

City Attorney Steve Hays earlier this year acknowledged that he had deferred to a legal opinion indicating that nonprofits — including the city — were not allowed to vote when the first TDD board election was held. He said that after further study of state statutes, he now believes that opinion was wrong and that the city can participate. But because of that earlier decision, the city was left without any official representation on the board.

Hays and Davidson have said the city will participate in all future elections of board members. One seat on the TDD board is to be open this year.

More questions were raised last month after it was learned that Rick Mitchell, owner of the Neosho Inn, was residing at his motel within the district at the time of the April board election as well as the board’s September vote on the sales tax.

State law grants primary voting rights within TDDs to residents. If there are none, voting rights fall to landowners, with each landowner receiving one vote for each acre of land owned in the district. Mitchell has said he did not participate in past elections either as a landowner or as a resident.

Hays believes that raises questions about the legitimacy of past TDD votes.

Schwartz has said everything the board is doing is on hold until Williams can offer an opinion as to the status of past actions.

Williams has told the TDD board that he would provide an opinion in a few weeks.

Until then, he said at the May 2 board meeting, “There is no sense in calling a meeting of the landowners to elect a director when we don’t know at this time whether the property owners are the proper voters to elect a new director.”

Williams told Hart: “There are a number of TDDs that I’ve seen where people served well beyond their term because no one bothered to call a meeting and have an election. I’m not saying that’s what we’re doing. I think we have a valid reason for taking that position.”

The city, in its filing with the court, said that even though there are questions, “to ignore fundamental Constitutional rights in doing so simply cannot be tolerated.”

Case pending

CITY ATTORNEY STEVE HAYS said Wednesday that no hearing has been scheduled yet on the city’s petition.

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