Several residents have asked questions following the recent discussion about Bellerive Acres’ vacant City Attorney position. Because several different legal concepts came up during that discussion, the Bulletin reviewed the Missouri statutes and Bellerive Acres Municipal Code provisions that address city-attorney appointments, vacancies, and Board meetings.
This post is intended as an informational summary of the publicly available laws and ordinances, not a legal opinion.
What normally happens when a City Attorney is appointed?
Missouri law provides that in a fourth-class city the mayor may appoint a city attorney “with the consent and approval of the majority” of the Board of Aldermen. Bellerive Acres has incorporated essentially the same requirement into its own Municipal Code. (Missouri Revisor of Statutes)
Bellerive Acres Code §115.150 is even more specific to the City Attorney position:
The Mayor, with the advice and consent of the Board of Aldermen, appoints the City Attorney.
The ordinance says that person then holds the office until a successor is appointed and qualified.
What happens when the office suddenly becomes vacant?
This is where Missouri §79.280 relates exactly to the situation the City finds itself in.
For a non-elective office, the statute allows the mayor to appoint a suitable person to perform the duties of the vacant office until the first regular Board meeting following the vacancy. At that meeting, the statute says the vacancy is to be permanently filled. (Missouri Revisor of Statutes)
Bellerive Acres Code §115.070 contains essentially the same language. (eCode360)
In plain language, the provision appears designed to prevent a city office from being unable to function between the time a vacancy occurs and the Board’s next regular meeting.
Does the statute require an “emergency”?
No emergency requirement appears in §79.280 or in Bellerive Acres §115.070.
The authority to temporarily fill a non-elective vacancy is triggered by the existence of the vacancy itself. Neither provision says that the mayor must declare an emergency, establish that an emergency exists, or make a separate emergency finding before temporarily assigning someone to perform the duties. (Missouri Revisor of Statutes)
During the special meeting, the temporary appointment was repeatedly discussed in terms of an “emergency.” That may describe the City’s reasoning for acting quickly, but “emergency appointment” is not the terminology used in the vacancy statute that was cited.
Does the Board need an attorney present in order to meet?
During the discussion, Attorney Gillespie stated that the Board could not conduct a meeting without legal counsel present.
The Bulletin has not located that requirement in the provisions of the Bellerive Acres Municipal Code governing Board meetings.
Section 110.190 defines what constitutes a quorum: a majority of the elected members of the Board of Aldermen. The Mayor or Acting President calls the meeting to order, the Clerk calls the roll, and the meeting may proceed when a quorum is present. The ordinance does not list the City Attorney as part of the quorum or state that counsel must attend. (eCode360)
Similarly, §110.180 allows a special meeting to be called by the Mayor or by any two Aldermen, subject to the City’s meeting-notice requirements. It does not condition a special meeting on the presence of the City Attorney. (eCode360)
Another City ordinance governing meeting decorum applies to the City Attorney when the attorney is “attending a City meeting,” along with the Clerk and other City employees or officers. That provision establishes conduct rules for those attending; it does not state that the attorney’s attendance is required. (eCode360)
This does not mean that having counsel present is not useful or advisable, particularly when complicated legal issues are on the agenda. It means that the meeting provisions reviewed by the Bulletin do not identify an attorney’s presence as a legal prerequisite for the Board to convene or conduct business.
What about special counsel?
Bellerive Acres’ code also provides another mechanism for legal representation during a vacancy.
Under §115.020, the Mayor and Board of Aldermen may by ordinance employ special counsel to represent the City when the City Attorney position is vacant or to assist the City Attorney. Missouri §79.230 contains the same provision. (eCode360)
That is separate from the temporary vacancy appointment authorized by §115.070/§79.280.
So what is still unclear?
The written provisions make several parts of the process relatively straightforward:
A vacancy occurs
The mayor may temporarily appoint someone to perform the duties
That temporary authority runs until the first regular Board meeting following the vacancy
The normal appointment process involves the Board. (Missouri Revisor of Statutes)
The remaining questions concern how that process was applied in this particular situation.
During the special meeting, it was stated that the former City Attorney gave notice of his resignation several weeks before leaving office. It was also explained that the current attorney was temporarily appointed without prior Board consultation and that an ordinance would be presented at the September regular meeting to appoint her on an interim basis while the City conducts an RFP process for permanent counsel.
That leaves several reasonable procedural questions for clarification:
On what date did the former City Attorney’s office officially become vacant?
What was the first regular Board meeting following that vacancy?
If §79.280/§115.070 authorizes a temporary appointment only until that first regular meeting, how was the vacancy addressed at that meeting?
How does the proposed September “interim” appointment fit with the statutory language stating that the vacancy is to be filled at the first regular meeting?
What provision supports the statement that the Board cannot conduct a meeting unless legal counsel is present?
Was the temporary appointment made under §79.280/§115.070, the special-counsel provision of §79.230/§115.020, or some other authority?
These questions do not require residents to take a position on who acted correctly. They are questions about which legal process the City is using and how the steps taken correspond to the written provisions governing that process.
Why does the distinction matter?
Small municipal governments sometimes need to act quickly when an official unexpectedly leaves office. Missouri law appears to anticipate that problem by allowing temporary coverage of a vacant non-elective office.
At the same time, the law preserves a role for the elected Board of Aldermen in appointing the City Attorney.
Understanding which authority is being used — temporary vacancy appointment, regular appointment, or special counsel — helps residents understand who has authority to act, how long that authority lasts, and when Board involvement is required.
The Bulletin will continue to update residents as the City Attorney appointment process moves forward.