Effective 29 Jun 2005, see footnote

393.145. Certain utility may be placed under control of receiver — commission determination, procedure — appointment of receiver, bond. — 1. If, after hearing, the commission determines that any sewer or water corporation that regularly provides service to eight thousand or fewer customer connections is unable or unwilling to provide safe and adequate service, has been actually or effectively abandoned by its owners, or has defaulted on a bond, note or loan issued or guaranteed by any department, office, commission, board, authority or other unit of state government, the commission may petition the circuit court for an order attaching the assets of the utility and placing the utility under the control and responsibility of a receiver. The venue of such cases shall, at the option of the commission, be in the circuit court of Cole County or in the circuit court of the county in which the utility company has its principal place of business.

2. If the commission orders its general counsel to petition the circuit court for the appointment of a receiver under subsection 1 of this section, it may in the same order appoint an interim receiver for the sewer or water corporation. The interim receiver shall have the authority generally granted to a receiver under subsection 6 of this section, except that the commission cannot authorize the interim receiver to transfer by sale or liquidate the assets of the utility. The interim receiver shall be compensated in an amount to be determined by the commission. The interim receiver shall serve until a judgment on a petition for writ of review of the commission's order, if any, is final and unappealable, and until the circuit court thereafter determines under subsection 5 of this section whether to grant the commission's petition for appointment of receiver.

3. When the commission files its petition for appointment of receiver in the circuit court, it shall attach to its petition an official copy of its determination under subsection 1 of this section. The commission shall not file such action until its determination under subsection 1 of this section is final and unappealable.

4. The summons and petition for an order attaching the assets of the utility and appointing a receiver shall be served as in other civil cases at least five days before the return date of the summons. In addition to attempted personal service, upon request of the commission, the judge before whom the proceeding is commenced shall make an order directing that the officer or other person empowered to execute the summons shall also serve the same by securely affixing a copy of the summons and petition in a conspicuous place on the utility system in question at least ten days before the return date of the summons, and by also mailing a copy of the summons and petition to the defendant at its last known address by ordinary mail and by certified mail, return receipt requested, deliver to addressee only, at least ten days before the return date. If the officer or other person empowered to execute the summons makes return that personal service cannot be obtained on the defendant, and if proof be made by affidavit of the posting and of the mailing of a copy of the summons and petition, the judge shall, at the request of the commission, proceed to hear the case as if there had been personal service, and judgment shall be rendered and proceedings had as in other cases. If the commission does not request service of the original summons by posting and mailing, and if the officer or other person empowered to execute the summons makes return that personal service cannot be obtained on the defendant, the commission may request the issuance of an alias summons and service of the same by posting and mailing in the time and manner provided in this subsection. Upon proof by affidavit of the posting and of the mailing of a copy of the alias summons and the petition, the judge shall proceed to hear the case as if there had been personal service, and judgment shall be rendered and proceedings had as in other cases.

5. The court, after hearing, may grant the commission's petition for appointment of a receiver. Where the defendant is in default, the court shall mail to the defendant at its last known address by certified mail with a request for return receipt and with directions to deliver to the addressee only, a notice informing the defendant of the judgment and the date it was entered. A receiver appointed pursuant to this section shall be a responsible person, partnership, or corporation knowledgeable in the operation of utilities.

6. The receiver shall give bond, and have the same powers and be subject to all the provisions, as far as they may be applicable, enjoined upon a receiver appointed by virtue of the law providing for suits by attachment. The receiver shall operate the utility so as to preserve the assets of the utility and to serve the best interests of its customers. The receiver shall be compensated from the assets of the utility in an amount to be determined by the court with the assistance of the commission staff. Any receiver or interim receiver appointed under this section shall be immune from personal liability for any civil damages arising from acts performed in his or her official capacity for actions for which the receiver or interim receiver would not otherwise be liable except for his or her affiliation with the utility. This immunity shall not, however, apply to intentional conduct, wanton or willful conduct, or gross negligence. Nothing in this subsection shall be construed to create or abolish an immunity in favor of the utility itself.

7. Control of and responsibility for the utility shall remain in the receiver until the utility can, in the best interests of its customers, be returned to the owners. However, if the commission or another interested party petitions and the court determines, after hearing, that control of and responsibility for the utility should not, in the best interests of its customers, be returned to the owners, the court shall direct the receiver to transfer by sale or liquidate the assets of the utility in the manner provided by law.

8. The appointment of a receiver or an interim receiver shall be in addition to any other remedies provided by law.

9. Notwithstanding the requirement of section 386.600 to the contrary, penalties for violations of the public service commission law or related commission regulations that are collected from a sewer or water corporation that has been placed in receivership under the provisions of this section or for which the commission has appointed an interim receiver under the provisions of this section may, upon the order of the court that imposed the penalties, be used to support the operation of the subject small sewer or water corporation while it is under the control of the receiver.

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(L. 1991 H.B. 299 merged with S.B. 221, A.L. 2005 S.B. 462)

Effective 6-29-05