Ozark Fire push for same-sex benefits gets legal kibosh

About a week after the Ozark Fire Department appeared poised to extend benefits to employees in same-sex marriages, an opinion from the department's attorney has stopped the movement in its tracks — at least for now.

A female captain, Andi Mooneyham, who is married to a woman, brought the proposed change before the board.

"It's our opinion that it's still a right we legally deserve," Mooneyham said Wednesday. "Others are (offering same-sex benefits in Missouri), so it's not a legal issue in my opinion."

Attorney Todd Johnson wrote a letter to the board saying Missouri's Constitution doesn't allow the board to make the change.

"It is my opinion that the board does not have the authority to make the proposed policy change to redefine the term 'spouse' to include persons of the same sex," he wrote. "The board also does not have the authority to grant health benefits to a same sex spouse of an employee of the district."

Johnson cited state law that defines marriage as between a man and a woman, and that fire boards in Missouri are governed by certain statutes that restrict what decisions they can make about benefits.

He said state law specifically says a fire board can provide benefits for "salaried members of its organized fire department of the district and such other benefits for their spouses and eligible unemancipated children."

Mooneyham said she's looking into getting her own legal opinion. She said others, such as Missouri State University, offer such benefits, and that tells her the issue is not cut-and-dried. Last fall, MSU added "domestic partnership" benefits for employees, despite the Missouri Constitution's definition of marriage.

Johnson said entities besides fire boards would have different restrictions.

Last year, the U.S. Supreme Court struck down parts of the Defense of Marriage Act, which has led to changes in how states write policy in regard to same-sex marriages. A group of 10 same-sex couples are part of a lawsuit filed by the American Civil Liberties Union pushing for marriage recognition in Missouri.

Jay Johnson, a fire board member who helped write the proposal and supported it last week, said it appears the board's hands are tied, and that even the motion to approve the change was "illegal."

"Overall, I think the board would have liked to be able to do this for our employee to make all things equal, but until Missouri changes or something changes in law, we can't do anything," he said.

Board member Anthony Appleton said every member of the board has a copy of the legal opinion.

Appleton, who previously said he would oppose adding same-sex benefits based on community views, said he's received many phone calls and emails, all of which have been opposed to same-sex marriages being recognized through the department's benefits.

"I don't know about the other board members, but certainly that's been my experience," he said.

As he did at the meeting last week, he said he didn't want the decision to reflect on Mooneyham.

"One thing we want to make sure Andi knows is that, for me, this is a legal issue and a taxpayer issue," he said. "I just want to reiterate that she is a model employee. This is certainly not about her. It's about the law."

The law is something Jay Johnson and Mooneyham have been checking on for several years.

Jay Johnson said Mooneyham came to him three years ago and asked about getting benefits, but the insurance company wouldn't allow it. It was the same two years ago. But this year, that changed.

"All of a sudden, the insurance company said yes," he said. "This changes the ballgame."

That's what led to the creation of a resolution extending benefits.

The motion put before the fire board by Mooneyham would change the definition of the term spouse to say, "any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who are legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages."

The board is scheduled to meet Tuesday at 7 p.m. at the Ozark Community Center, Appleton said. He said Todd Johnson will attend to help explain the legal issue.

But beyond the legal issue, Jay Johnson stressed the possible divisive impact on firefighters.

"Everyone on the board tries to look at all of us as the Ozark Fire Department family," Jay Johnson said. "We want, No. 1, to be a good employer, and that our employees are happy and getting what they deserve.

"The guys and gals are putting their life on the line every time they leave the station."

Closed meeting

Board members held a special meeting Tuesday morning that went into closed session for legal matters.

Board members met with attorney Todd Johnson to discuss an upcoming motion that would ultimately provide benefits to spouses and dependents of employees in same-sex marriages.

Missouri law allows for meetings to be closed in certain situations, including "legal actions, causes of action or litigation involving a public governmental body and any confidential or privileged communications between a public governmental body or its representatives and its attorney."