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Dec. 18, 2023 |  By: Rudi Keller - Missouri Independent

State asks judge to reverse decision on Missouri highways commission pay raise plan

patrick mckenna

By Rudi Keller - Missouri Independent

The Missouri Highways and Transportation Commission has authority to add workers, increase pay and ignore appropriation bill limits if no changes are made to a court ruling issued in October, Department of Transportation director Patrick McKenna told lawmakers on Wednesday.

Facing  pointed questioning during a hearing of a House appropriations subcommittee, McKenna said the commission would listen to lawmakers but not necessarily abide by their directives.

“If the General Assembly felt strongly about an issue, and, through the process that we go through, came back and said, ‘we don’t agree with what the commission is doing here,’ I believe the commission would take that with a high degree of seriousness before authorizing the department to do anything different,” McKenna said.

In 2021, the commission adopted a plan to raise pay for most of its employees in an attempt to stem massive turnover within the transportation department. The $60 million “market adjustment” was designed to put 65% of department employees are at or above the midpoint in the pay range for their job.

The legislature controls pay rates for state government employees, and since it hadn’t approved the plan the Office of Administration refused to reflect the increases on transportation employee paychecks, leading the commission to file a lawsuit. 

On Oct. 31, Cole County Circuit Judge Cotton Walker ruled the Office of Administration must approve the paychecks, citing a provision of the Missouri Constitution that says money in the state road fund shall “stand appropriated without legislative action.” 

On Monday, Walker will hear arguments on a motion to reconsider that decision. No MoDOT employees have received the increased paychecks because the request to amend the judgment, filed on Nov. 30, means the ruling is not final. It also delayed the date when a decision must be made on whether to appeal the judgment.

In the motion asking Walker to reconsider, Assistant Attorney General Emily Dodge argued that the judgment did not follow the precedent set in a 1975 Missouri Supreme Court ruling that determined only the legislature can set spending amounts for state agencies.

“It also misreads the plain language of the Missouri Constitution,” Dodge wrote.

The “stands appropriated” language applies to only two things – current payments on bond debt and holding enough cash to make payments due within 12 months, Dodge wrote.

She also wrote that “no funds automatically ‘stand appropriated’ for the purpose of paying workers, so the commission can do so only through an actual appropriation.”

Any appeal after Walker rules on the motion to amend his judgment will push a final decision in the case well into next year, with the possibility that it won’t be resolved before lawmakers must finish work on budget bills in May.

McKenna weathered an initial storm of legislative anger, including calls for him to be fired, after the lawsuit was filed. A bill to revise the “stand appropriated” language passed the House last year but stalled in the Senate. 

Two bills have been filed for the upcoming session to give lawmakers veto power over MoDOT spending plans. 

During his Wednesday testimony, McKenna said the department has started rebuilding its workforce, hiring more new employees than departed in the past year. There are still 500 full-time slots open in its workforce authorized to employ about 5,600.

“Once again MODOT will start this winter several hundred employees short to fight a statewide storm lasting more than one shift,” McKenna said. “That means in a 24-hour winter storm, we’ll have trucks parked at buildings with no staff to operate them for the second shift of the day.”

The department wants to add 350 more full-time slots to its authorized strength, 250 to improve daily road maintenance and 100 to supervise an expanding construction program, McKenna said.

The staffing shortage means emergency responses take longer, McKenna said. 

“Other services such as litter removal along the roadways, sign replacements, mowing and animal carcass removal are not completed timely, and they fail to meet the public’s expectations,” he said.

MoDOT has more money than it has ever had to spend on road projects, thanks to a state fuel tax increase passed in 2021 and increased federal aid. Over the next five years, the plan for major improvements anticipates spending $14 billion on more than 1,500 projects, McKenna said.

After questioning whether MoDOT could fill all those open jobs, state Rep. Don Mayhew, R-Crocker, asked McKenna about the Oct. 31 ruling. He wanted to know if the commission would authorize hiring employees the legislature doesn’t include in the budget.

“The ruling isn’t final at this point,” McKenna said. “And so we assume we’re running it through the normal process.”

Mayhew had to ask his question in three different ways to get the definitive answer.

“In your opinion, the commission has the ability to do it without legislative approval, anyway, because I think that’s what the judge was telling us, right?” Mayhew asked finally.

“Potentially, yes,” McKenna answered.