MoDOT seeks ruling to free state road fund from lawmakers’ control

Judge hears arguments over power given highways commission in Missouri Constitution

By: - February 10, 2022 3:25 pm

The Cole County Courthouse in Jefferson City (Tessa Weinberg/Missouri Independent).

State lawmakers have no authority over how the Missouri Department of Transportation spends the state road fund, as long as it is within constitutional limits, an attorney told Cole County Circuit Judge Cotton Walker during a Thursday hearing.

Because the Missouri Constitution says the road fund “stands appropriated without legislative action” at the “sole discretion” of the Highways and Transportation Commission, the department can give raises and purchase vehicles without limits set in annual appropriation bills, attorney James Layton argued on behalf of the Highways and Transportation Commission.

“That means the commission, not the legislature, gets to decide how much to spend on what,” Layton said.

That’s not correct, assistant attorney general Emily Dodge responded. The “stands appropriated” language only applies to the department’s debt from bonds issued for road construction, she told Walker.

“It doesn’t stand appropriated for these other purposes,” Dodge said.

Walker heard arguments in a lawsuit filed by the Highways and Transportation Commission against Commissioner of Administration Ken Zellers, who refused to issue paychecks with raises that would exceed the appropriations set by lawmakers for the current year. At the end of Thursday’s hearing, Walker gave both sides until Feb. 22 to file draft orders for him to consider.

To combat increasing turnover in the department’s 5,000-person workforce, the commission wants to give raises as part of a “market adjustment” plan. The goal is to get 65% or more of its employees at or above the midpoint in the pay range for their job. 

During the fiscal year that ended June 30, almost 92% of department employees were below the midpoint. To cover the cost of the raises, the department intends to spend $37 million on salaries and wages and $22.4 million for increased benefit costs, mainly to cover higher pensions when those employees retire.

The department asked for Gov. Mike Parson to include the request in his budget proposal for the coming fiscal year, but he declined to do so. Instead, he recommended the same pay plan he proposed for all state agencies, a 5.5% raise for every employee and a $15 base wage.

For a full year, Parson’s plan would cost $24.2 million, with $15.1 million for raises and $9.1 million for benefits.

In the hearing, which lasted about a half-hour, Layton noted that Walker last year ruled that lawmakers cannot limit how the state Conservation Commission spends money, as long as the expense is allowed by the constitution and does not exceed appropriations.

That ruling is now on appeal to the Missouri Supreme Court, which has not issued its decision.

The “stands appropriated” language is even stronger than the authority given the Conservation Commission, Layton said. It means that as long as the road fund has sufficient money, Zellers must issue the payments ordered by the Highways and Transportation Commission.

“The effort in that section is to prevent the legislature from using whatever criterion  they wish to use to decide how to fund highways, transportation in the state of Missouri, at least from the state road fund portion,” Layton said.

While the courts are deciding the legal issue, the political fallout has soured the relationship between MoDOT and some lawmakers. A group of six Republican state senators wrote to the Highway and Transportation Commission in January, demanding it fire department Director Patrick McKenna.

And on Tuesday, both McKenna and commission Chairman Bob Brinkmann were told the lawsuit and raises broke faith with legislators who supported an increase in the state gas tax.

The tax increased 2.5 cents a gallon on Oct. 1 and will increase another 2.5 cents per gallon each year on July 1 until the total tax reaches 29.9 cents per gallon on July 1, 2025. 

The House Special Committee on Government Oversight heard a bill filed by state Rep. Sara Walsh, R-Ashland, to repeal the tax.

“Last session, again, the legislature, as a whole did pass that bill, but then just to turn around and have the department you know, again, suing is basically kind of a slap in the face there,” Walsh said.

Chairman Jered Taylor, R-Republic, said the commission, even if it believes it has the authority to use the road fund as it sees fit, should defer to lawmakers.

“It should come before the legislature in an appropriation process and get the appropriate funds rather than suing the state to get funds that we literally just passed, again, deceptively forcing the state of Missouri citizens to pay more taxes in order to to pay for that,” he said. “It’s appalling.”

In his testimony against the repeal, Brinkmann said that legislators have put too many limits on how the department spends available funds. A few years ago, lawmakers removed notations in budget bills for estimated appropriations in an effort to gain more control over spending.

“I can’t buy a truck if I need a truck,” Brinkmann said. “Our trucks have 200,000 or 300,000 miles on it. I’ve told them to quit washing them because it looks so damn good. But well, my main thing, it’s that way across the board.”

The department is losing employees to private industry and other state transportation agencies, McKenna told the committee.

“We lost over 8,000 years of experience that walked out the door last year,” he said. “Even solving this problem today is going to take us a decade to recover from and we’re struggling to manage that and manage through it and still get the job done for the citizens.”

The department for several years has been asking for authority to give raises beyond those allowed for state government generally, Brinkmann said. Over the past five years, he said, the department has experienced turnover of 80%.

During last week’s winter storm, the turnover and shortage of staff with commercial drivers’ licenses slowed the process of clearing ice and snow from highways, he noted.

“This didn’t start this year,” Brinkmann said. “We’ve lost 80% of our people. Do you want us to go and lose 100% of them so we don’t have anybody to drive the trucks?”

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Rudi Keller
Rudi Keller

Rudi Keller covers the state budget and the legislature. A graduate of the University of Missouri School of Journalism, he spent 22 of his 32 years in journalism covering Missouri government and politics for the Columbia Daily Tribune, where he won awards for spot news and investigative reporting.