Rules for Missouri Fire Protection Districts - Page 4

III. Officials and Board Operation

Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.

Restrictions on who may serve on board

Section 8 of Article VII of the Missouri Constitution states that no person shall be elected or appointed to any office who is not a citizen of the United States. The Section also generally prohibits office holders who have not resided in this state for one year before their election or appointment. Section 9 of Article VII of the Constitution also says that no person federally employed shall hold any "office of profit" in this state, except for members of the National Guard or of the reserve corps.

No one can qualify as a candidate after pleading to, or being convicted of, a Federal felony or misdemeanor, a Missouri felony, or an offence in another state that is considered a felony in Missouri (RSMo 115.306.1).

A candidate who is a present or past corporate officer of any fee office can be disqualified from participating in an election if delinquent in payment of any State income taxes, personal property taxes, municipal taxes, real property taxes on residence, and/or taxes owed to the State (RSMo 115.306.2). However, once notified of delinquent or owed taxes, the candidate has 30 days to pay the taxes before being disqualified. Certification of this status is filed with the Department of Revenue on an affidavit provided for that purpose. Challenges to this affidavit are lodged with the Department of Revenue. Local officials are not empowered to make the determination. (115.306).

Candidates may not take office or file for subsequent elections until all Missouri Ethics Commission disclosure reports have been filed and assessed fees are paid (130.071).

A person must be over 24 years old to serve on an FPD board of directors (321.130).

A resolution for designating the custodian of records is provided by the Office of the Attorney General

The statutes (321.015) further restrict who may serve on an FPD board. Persons "holding any lucrative office or employment" under the state or any of its political subdivisions are prohibited in some FPDs, but it allows exceptions for FPDs within certain counties outlined in 321.015, and to those who serve in the military and the reserve corps, to public school employees and to notaries public. Other statutes define a political subdivision as any entity with power to levy taxes. Thus, if a sitting board member in one of these counties takes a job with a tax-levying entity, that member must resign and the seat is declared vacant.

Section 321.017 provides that the provisions of 321.015 notwithstanding, no employee of an FPD or ambulance district may serve on any FPD or ambulance district board, unless it is a voluntary district. Further, any FPD board member is ineligible for paid employment by the district served for a period of 12 months after leaving the board.

Roles and responsibilities

Tip
Many school boards have adopted rules for public input — FPD boards could use school board rules as a starting point for the creation of their public input rules.

As the Pledge of Allegiance reminds us, America is a republic, not a democracy, so the public does not have the right to participate in meetings of the FPD board of directors — it is a public meeting of the board, not a meeting of the public. However, it is the responsibility of the Board to solicit and receive public comments by adopting rules that allow public input, if any.

FPDs must first define:
Mission, Critical Issues, Vision, and Strategic Plan

The board must make many decisions about the mission of the FPD, especially understanding why the FPD exists and deciding the scope of services and benefits the FPD will offer. As an FPD’s mission is defined and understood, it is the board’s responsibility to define the FPD’s critical issues. For instance, an FPD with only large tracts of agricultural land may have a slightly different mission than a neighboring FPD with a busy railroad or highway carrying hazardous materials.

Federal Posting Requirements

  • Federal Minimum Wage Act (29 CFR § 516.4)
  • Equal Employment Opportunity Act (29 CFR § 1601.30)
  • Family and Medical Leave Act (29 USC § 2619[a][b])
  • Uniform Services Employment and Reemployment Rights Act (38 USCA § 433[a])
  • Employee Polygraph Protection Act (29 CFR § 801.6)
  • Occupational Safety and Health Act (29 CFR § 1903.2[a][1])

Once the mission and critical issues of an FPD are defined, the board’s responsibility is to develop a vision of what the FPD should be doing. For instance, maybe an FPD only provides first aid now through first responders, but in the future, the FPD board anticipates it may need to provide basic life support through the use of Emergency Medical Technicians (EMTs). The board will need a strategic plan on how to fulfill its mission and achieve its vision.

State Posting Requirements

  • Wages, Hours and Dismissal Rights (RSMo § 290.522)
  • Notice to Workers Concerning Unemployment Benefits (RSMo § 288.130)
  • Workers Compensation (RSMo § 287.127)
  • Discrimination in Employment (8 CSR 60- 3.010[1])
  • Discrimination in Public Accommodations (8 CSR 60-3.010[3])
  • Missouri Minimum Wage Law (RSMo § 290.522)
  • Child Labor (RSMo § 290.060.1)

Sometimes the board will need to take issues to FPD voters. Matters such as whether ambulance service, employee pensions, central dispatching or paramedic services are to be provided are presented as separate ballot questions. Expanding FPD boundaries may also require voter approval. Another example of deciding on the scope of services is whether or not the FPD is going to provide public health information and educational programs (190.200.1).

Additional responsibilities of an FPD board, many of which are discussed in greater detail in this manual, generally include:

  • Ensuring compliance with state and federal laws, statutes, codes, rules and regulations
  • Levying property and sales taxes and setting fees
  • Allocating and being a steward for resources — managing risk too
  • Monitoring progress towards fulfilling the mission and achieving the vision of the FPD, including compliance with laws, rules, statutes, regulations and standards
  • Adopting bylaws, fire protection and prevention ordinances and other rules
  • Ensuring staff are trained, educated and evaluated — investing in them
  • Receiving and acting on petitions
  • Judging appeals
  • Adopting budgets, financial reports, and policies — making sure the Fire Chief adopts Standard Operating Procedures (SOPs) or Guidelines (SOGs)
  • Making prudent purchase
  • Retiring debts and prompt payment of bills
  • Executing agreements and contract
  • Calling for and declaring elections
  • Making decisions and documenting those decisions — minutes
  • Ensuring records are open and accessible
  • Ensuring organizational information is provided
  • Choosing officers and filling vacancies (officers or directors)
  • Meeting regularly with notice and in the open

Oath of office

Oath of Office Article VII § 11
"Before taking office, all civil and military officers in this state shall take and subscribe an oath or affirmation to support the Constitution of the United States and of this state, and to demean themselves faithfully in office."

Example Oath:
I, do solemnly swear (or affirm) that I will uphold the Constitution of the United States, of this state, and demean myself faithfully in office.

Before taking office, all civil and military officers in this state must subscribe an oath or affirmation to support the U.S. and state constitutions, and to demean themselves faithfully in office How soon this is done after declaration of an election is the board’s decision. However, the oath of the director is to be filed within 15 days of election with the circuit clerk, along with proof of issuance of a $1,000 surety bond covering that person or position (321.160; 321.210). The oath of other FPD officers is filed with the FPD.

Outgoing officials retain their authority until the incoming officers are sworn in. The county clerk, a notary public, a certified court reporter, a certified shorthand reporter, court judge, court justice or court clerk can administer the oath (51.140; 486.250; 492.010). This oath is important because it serves to remind the board members elect that they are public officials, subject to the associated legal requirements. Each officer sworn in should receive a written copy of the oath.

Terms and perpetual existence

Although the Missouri Constitution prohibits the term of any officer from being extended (Article VII, Section 13), an FPD has perpetual existence. This means, in practice, that officials serve until successors are "duly elected or appointed, or qualified." Expiration of a term does not relieve the official of FPD duties until a replacement is in place.

Bonding

Filing Bonds
Director bonds must be filed with the Circuit Clerk having jurisdiction. The Treasurer bond must be filed with each County Clerk.

Each member of an FPD board is required to be bonded under a surety bond for at least $1,000 on file with the circuit clerk (321.160; 321.210). The FPD treasurer is required to have a corporate fidelity bond for at least $5,000 on file with the county clerk (321.180). A bond is not intended as protection for the board member or treasurer, but as protection for taxpayers. If the bonded official steals money from the FPD, the bonding company will reimburse the taxpayers, up to the maximum amount of the bond. Each FPD should consider its own situation when bonding board members, for although the minimum bond required for the treasurer is $5,000, that may not be enough to provide adequate protection for most FPDs. FPDs can chose to minimize risk by purchasing a dishonesty insurance policy; however, the treasurer must still have corporate fidelity bond of at least $5,000.

Ways to leave office

Only the FPD board of directors, county prosecuting attorney, Missouri attorney general, or a petitioner authorized to act by one of them may ask the court to remove a board member per Missouri Court of Appeals in Inter City FPD v. DePung 283 S.W.3d 277

A sheriff was removed from office, in part, for failing to file his bond on time through 1994 quo warranto petition in State ex inf Robert L. Fuchs, Special Prosecuting Attorney v. Homer L. Foote, Jr., Sheriff 903 S.W.2d 535

Normally a director of an FPD is replaced by an elected or appointed successor (321.120; 321.687); however, there are other ways to leave office. A director of an FPD can resign or become unqualified — by moving or changing voter registration out of the FPD, for example.

Resigning from being an FPD director requires two steps: The board member offers to resign, and, assuming a quorum is present — not counting the resigning director who is recused — a majority of the board present accepts the resignation. The resigning official is not relieved of responsibility until the board has accepted the resignation. This is how perpetual existence of the FPD is maintained. Should resignations threaten the quorum; replacements must be appointed before more resignations can be accepted.

A director of an FPD could die, be recalled by the voters (see Chapter IV. Initiative, Referendum and Recall for more details) or the circuit court that declared the FPD incorporated may remove any or all board members "for good cause shown upon a petition, notice and hearing" (321.190).

Another way to leave office is through a quo warranto proceeding, a civil action challenging an individual’s right to hold office. Quo warranto is often the only proper legal remedy when someone has usurped a public office or someone who, through abuse or neglect, has forfeited an office to which he or she was entitled. The county prosecutor or Missouri attorney general initiates quo warranto proceedings.

Records to successor

Office holders may not keep records once they leave office (109.010-040). Records pertaining to any public office must be delivered to the FPD or the successor — if necessary, by the executor in the event of the office holder’s death. Failure to deliver records to the FPD or the successor could result in the forfeiture of $100 to $1,000. If necessary, a judge may issue a warrant for the sheriff to seize the records and deliver the records to the FPD or successor.

Vacancies

When a vacancy occurs on an FPD board, either by no one being elected, by the one elected failing to qualify, by relocation, by death or for any other reason except recall, the remaining elected (not appointed) board members appoint someone to fill the vacancy (321.200.2). If fewer than two elected board members remain, the law requires appointments to be made by the circuit court of the county containing most of the FPD. An appointee serves until the next biennial election (held in April of either an odd- or even-numbered year depending on when the FPD normally elects directors), at which time a director will be elected to fill the remaining term, if any, of the vacancy.

Pay for board members

Article VII § 13
Board members are prohibited by the Missouri Constitution from giving themselves raises during the current term of office

By law (321.190; 321.603) every FPD board member may receive an attendance fee of $100 for attending any regular or special board meeting, if the board authorizes such payments. Payments are limited to two meetings per month. In first class charter counties, the members may receive up to $200 per meeting for a maximum of four meetings per month. No board member may receive payment for more than one meeting in a calendar week. The chair receives an additional $50 dollars for each meeting, but the limit is two per month. A board member who also serves as secretary, treasurer or combined secretary/treasurer may receive additional pay as set by the board, limited to $1,000 annually for secretary or treasurer or $2,000 annually for combined secretary/treasurer (321.190).

Internal Revenue Code Subtitle C, Chapter 24, Subchapter A, Section 3401(c):
For purposes of this [Collection of Income Tax at Source on Wages] chapter, the term "employee" includes an officer, employee, or elected official of the United States, a Sate, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing.

The attendance fees should be paid after the meeting, not before, and taxes should be withheld and reported on IRS Form W-2; however, an FPD does not pay state unemployment taxes on the attendance fees.

Board members who do not receive the state-mandated training are ineligible to receive pay (see the Training section in this chapter).

With appropriate documentation, board members may be reimbursed for actual expenditures on behalf of the FPD, including the cost of the surety bonds (321.190).

Board members may not give themselves raises while in office.

Meetings

In addition to the Missouri Sunshine Law (see Chapter IX. Meetings, Records and Votes), the board must follow meeting laws specific to FPDs (321.200.1). The board must meet at least monthly at a building designated by the board that is within the FPD, with notice of the regular meeting times and location continuously posted at the firehouse or firehouses. When special meetings are necessary, each board member must be formally notified. Minutes of every board meeting must be available to any member of the public.

The chair of the FPD board is responsible for ensuring proper decorum is maintained during board meetings. Because the board has important business to discuss and decide at its meetings, disorderly conduct such as interruptions, cursing, etc. should not be allowed — after all, disorderly conduct is a misdemeanor. The chair can have disorderly members of the board or public removed from the meeting by local law enforcement.

Quorum

5-Member FPD Board
If four or five members attend, a majority of three is needed to act. If only three members attend, a majority of two is needed to act

"A majority of the members of the board shall constitute a quorum," and no business may be transacted until a majority is present (321.200.1). In a three-director FPD, at least two officials must be present for a meeting. In a five-director FPD, at least three must be present.

Majority voting

Voting Terms:
Absentee Voting: Voting without being present except by audio or video conferencing

Proxy Voting: Power given by one person to another to vote in his/her place

Recusal: Can’t vote

Abstention: Doesn’t want to vote (dereliction of duty?)

It takes a majority vote of those present for the FPD board to decide to do something. A tied vote is not a majority vote. The chair is expected to vote. Proxy is not allowed and absentee voting is limited (610.015).

Recusal

There are times when a board member must recuse oneself from voting, but these should be kept to a minimum. Each member has made a commitment, under oath, to represent the FPD on all questions. Unless voting would create a conflict of interest or constitute nepotism, all members should vote on all issues. If recusing oneself, the member should leave the room and not participate in the discussion before the vote. Recused board members cannot be included to establish or maintain a quorum — it is as if the board member temporarily is not in attendance.

Abstention and recusal are not the same; abstention is when a board member just does not want to vote and is potentially a dereliction of duty.

Rules of procedure

When not in conflict with law, the FPD board may adopt parliamentary rules, such as the current edition of Robert’s Rules of Order. The public library likely has a copy.

Robert’s Rules of Order is typically written for large organizations; however, there is a section for small boards that could be very helpful to FPD boards, for example, motions do not have to be seconded; the chair can make motions; and consensus motions may result in shorter meetings.

As a public governmental body, the board must comply with Missouri’s Sunshine Law regarding meetings, records and votes (see Chapter IX. Meetings, Records and Votes). Each public body must, however, adopt a written sunshine law procedure and designate a custodian of records (610.023.1 and 610.028.2)

In addition, the board should consider adopting and publishing its own rules of procedure that define the regular time, date and place of meetings: the order in which business will be conducted, whether members of the public attending meetings will be permitted to speak and under what limitations, and other housekeeping matters (321.220.12 or 321.600.12). Establishing such procedures and using them consistently can help the board operate in a fair and orderly way. Having procedures in place before an issue draws a large number of attendees who might be upset will smooth operations considerably.

Special rules

The state has special rules for possible public redress of FPD actions. These rules are nearly alone among the multiple types of political subdivisions in Missouri. With few exceptions, such as ambulance districts, and cities that have adopted similar charter provisions, only FPDs have the options for initiative, referendum and recall actions included in their generic statutory charter. Although these rules are rarely applied, all FPD officials should understand them (see Chapter IV. Initiative, Referendum and Recall).

Training

Tip
Certified Fire District Board Training course offered by the University of Missouri Fire & Rescue Training Institute (https://extension2.missouri.edu/programs/mu-fire-and-rescue-training-institute) satisfies the training requirement.

All FPD board members elected after Jan. 1, 2008, must undergo training that has been approved by the state fire marshal (321.162.1). An untrained director cannot receive compensation for attending meetings (321.162.2).

NIMS Training
Type “NIMS” in search box on FEMA website, or U.S. Fire Administration website.The Missouri Fire & Rescue Training Institute offers NIMS training.

In addition, the federal government requires training for all board members in the National Incident Management System (NIMS): course #100, Introduction to NIMS. After Hurricane Katrina, the Federal Emergency Management Agency (FEMA) established requirements for this training to improve communication between federal and local government officials. Failure to participate in the required training makes an FPD ineligible for reimbursement for emergency response costs and for federal grants.

Individual liability

Individual FPD board members are generally not civilly liable for reasonable mistakes made while performing their official duties — as long as their obligations were not clear. This concept is known as "qualified immunity." However, if a law is clear and an FPD board member violates the law, then there could be individual liability — even if the FPD board member was not actually aware that what was done or not done was wrong.

If an FPD board member purposefully violates or ignores a law, most "Errors and Omissions" insurance policies will not compensate or defend the FPD, FPD board member, or FPD board in any resulting lawsuit.

Officers

By law (321.170), the first duty of a new FPD board is to elect a director to be both the chair of the board and president of the FPD. Then the board elects a secretary and a treasurer, appoints a custodian of records (610.23.1) and designates a budget officer (67.20). The latter positions may be combined, and none except the chair and president has to be a board member, though they may be. Keep in mind, however, that Missouri has a common law restriction on public officers holding inconsistent positions. The duties assigned by the bylaws might make certain combinations of offices improper. A president that must approve bills for payment and sign checks, for example, could not also hold the position responsible for signing the checks the second time and disbursing the funds. For more information about the biennial reorganization of an FPD board, see Chapter XVIII. Elections.

Required Officers:
Board Chair/FPD President, Secretary, Custodian of Records, Treasurer, and Budget Officer

Separate chapters in this manual cover the duties of the secretary and treasurer. The only stated duty for the chair is to preside over meetings. The chair also has the power to vote as a member of the board and should always do so.

Sometimes the bylaws, rules or policies of an FPD will assign other duties to the president. These duties might entail authorizing expenditures beyond the authority given to the fire chief or suspending, pending the next board meeting, an employee or volunteer from his or her job. The bylaws or rules of an FPD might also have additional officers such as a Vice Chair or Vice President.

Consult with the FPD’s attorney-
What is not yet determined is whether 321.800 creates a power in the board of trustees that overrides the FPD directors’ statutory power. For now, the power 321.800 grants the pension trustees he power to “administer” the plan, which does not appear to supersede the power granted to FPD directors to establish a pension plan (321.220[15]; 321.220[17]; 321.600[15]; 321.600[16])

To ensure an FPD has lawfully serving officers, the FPD board should ensure constitutional restrictions are followed on who may serve as officers and that officers are sworn in and bonded, as well as following any other legal requirements.

Pension board of trustees

In 2007, the Missouri Legislature established by statute (321.800) a requirement to create a pension board for some FPDs. The law says that an FPD that has a "retirement plan or other benefits-related plan" must "administer" its plan through a separate five-member pension board of trustees.

Whether the "benefits" mentioned in the statute relate to health insurance, disability insurance, etc., in addition to the FPD’s pension plan is unclear. The composition of the pension board, however, is clear: three members of the FPD board of directors and two "participants" in the pension plan. These participants could include retirees. The pension plan participants elect three of their members and submit the names to the FPD board of directors. The directors then select two of the three to serve on the five-member pension board. An FPD with a pension plan should establish a pension board of trustees as soon as possible.

Pension Board Training
Several private organizations offer pension board training.

Another new law (105.666) requires the pension board members to attend six hours of education classes within six months of becoming a trustee and establishes the curriculum for those classes.