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Jan. 3, 2024 |  By: Rudi Keller - Missouri Independent

Appeal delays raises under Missouri highways commission pay plan

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By Rudi Keller - Missouri Independent

Employees of the Missouri Department of Transportation expecting big raises thanks to a Cole County Circuit Court ruling won’t see the money until this summer or later, if at all.

On Friday, Attorney General Andrew Bailey filed notice he will appeal the ruling issued by Circuit Judge Cotton Walker that the Highways and Transportation Commission has constitutional authority to set pay in the department as it sees fit.

The notice triggers a 90-day calendar for preliminary filings with the Western District Court of Appeals. Once that is complete, the parties will be given a schedule for filing briefs and later, a date for oral arguments will be set.

MoDOT would not comment on the decision to appeal, spokeswoman Linda Horn wrote in an email to The Independent.

In his Oct. 31 decision, Walker ruled that ​​Commissioner of Administration Ken Zellers must allow payments approved by the Highways and Transportation Commission “when the request is for a constitutionally authorized purpose and there is sufficient balance in the State Road Fund.”

Walker found that authority in constitutional language that says money in the state road fund shall “stand appropriated without legislative action.” 

The case began in late 2021 when Zellers refused to allow the highways commission to implement a pay raise plan that carried a price tag of $60 million. The highways commission wanted to stem turnover at MoDOT and attract new employees. The “market adjustment” was designed to put 65% of department employees at or above the midpoint in the pay range for their job.

During legislative testimony last month, MoDOT Director Patrick 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. 

Friday was the last day for a notice of appeal. The ruling became final Dec. 19 when Walker rejected a request to change his ruling. In the state’s filing, which likely signals its argument on appeal, Assistant Attorney General Emily Dodge wrote 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.

The only legal use of road fund money absent an appropriation is current payments on bond debt and holding enough cash to make payments due within 12 months, Dodge wrote.

McKenna weathered an initial storm of legislative anger after the lawsuit was filed, including calls for him to be fired. 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.