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HomeMy WebLinkAbout18- Response to Campaign Practices Complaint - City of Bozeman Randy J. Cox Natasha Prinzing Jones John M.Newman BOONE KARLBERG,P.C. P.O. Box 9199 Missoula, MT 59807-9199 Tel.: (406) 543-6646 Fax: (406) 549-6804 rcox@boonekarlberg.com njones@boonekarlberg.com jnewman@boonekarlberg.com Attorneys for City of Bozeman BEFORE THE COMMISSIONER OF POLITICAL PRACTICES OF STATE OF MONTANA IN RE: THE MATTER OF: CITY OF BOZEMAN'S RESPONSE TO CAMPAIGN ROGER KOOPMAN ET AL. v. CITY OF PRACTICES COMPLAINT BOZEMAN ET AL., 2018—CFP-057 INTRODUCTION This case is not about government ethics, improper advocacy, or the sanctity of our elections. This case is about political sour grapes,plain and simple. The City of Bozeman("the City")has a statutory and moral duty to protect the health, safety, and welfare of its citizens and to plan for the future. The City fulfilled that duty on November 6, 201'8,when Bozeman electors, by an overwhelming majority, endorsed the City's issuance of municipal bonds to construct the Bozeman Public Safety Center("BPSC"). The City knows the rules governing bond elections, and it followed those rules with discipline. Now, Bozeman resident and Public Service Commissioner Roger Koopman and Bozeman business owner Paul Johnson, in an obvious political move' designed to obstruct the i See e.g.https://tomegelhoffpodbean.com/e/111718-open-for-business-with-tom-and-shane/; https://www.gofundme.com/help-stop-illegal-activties-by-the-city-of-bozeman - 1 - BPSC project, claim the City, its officials and employees,violated Montana campaign practices law merely by educating the public about the need for the BPSC. There is zero factual basis for these allegations. If there is factual support,the City demands it be produced to the Office of the Commissioner of Political Practices ("COPP") in this proceeding. Koopman does not and cannot claim that the BPSC is unnecessary his lengthy Complaint takes no issue with the facts presented by the City regarding the compelling need for the BPSC. He simply takes issue with any local initiative that raises taxes,regardless of necessity,quality of life, or good governance aimed at improving public safety. Koopman's Complaint—which the City had to self-refer to the COPP—is a dead letter. The undisputable evidence accompanying this response demonstrates: (1)the City, its officials, and employees engaged in lawful,necessary public education regarding the effect of passage or failure of a bond measure pertaining to an essential public safety issue,the BPSC; (2)there was no unlawful coordination between the City and Bozeman Citizens for Safety2, a private political committee, or any other entity; (3) certain City officials exercised their fundamental First Amendment right as citizens to free speech by advocating in favor of the BPSC bond on their own time and using their own resources, in absolute compliance with Montana law; and(4)there is absolutely no basis for voiding the results of the BPSC bond election. Koopman's goal is to defeat the bond, after the fact, by causing delay and increased costs. The clock is ticking for the City's bond counsel to issue an opinion regarding the grade of investment of the BPSC bonds. This Complaint and the corresponding district court action filed by Koopman in Gallatin County deliberately and deceptively frustrate the City's ability to move forward with the bond. If these issues are not resolved quickly,Koopman's unfounded 2 While BCFS is neither affiliated with nor a political committee of the City,as discussed below,the City further contends that BCFS was properly named in accordance with Montana Code Annotated§ 13-37-210. -2- allegations jeopardize issuance of the bonds, heap massive and unnecessary costs on City taxpayers, and threaten the BPSC project—which voters overwhelmingly support—altogether. This is exactly Koopman's intent: to trip up a popular measure because he personally disagrees with it. The COPP should foreclose Koopman's brazen attempt to torpedo a necessary piece of public safety infiastructure, reject his claims, and find in favor of the City in this case as quickly as possible. FACTUAL BACKGROUND The City of Bozeman is growing at a rapid pace. The City's population is projected to reach 50,000 by 2020 and, with an annual growth rate of 4.3%, is projected to double by 2040. With this increase in population comes an increased need for public safety and law enforcement services. The City has seen a 16% increase in police calls since 2008, and a staggering 59% increase in fire calls hi just the last seven years. With increased law enforcement activity comes a corresponding increase in the work load of Bozeman Municipal court,prosecutors, and victim services. At the same time, as these City departments are busier than ever, the physical facilities supporting them are utterly failing. The City leases space for it criminal justice functions in the Gallatin County-owned Law and Justice Center. The Law and Justice Center, located at 615 South 16th Avenue, is a retrofitted sixty-year-old school and lacks: (1) adequate space to house the various functions currently located there, including municipal courts and a rapidly-growing police department; (2) security and safety warning systems; (3) fire sprinklers; (4) secured parking for judges and court staff; (5) adequate space and secure storage for emergency response -3 - vehicles and equipment; (6) secure records and evidence storage; and(7) adequate space to maintain separation between prosecutors/victims and defendants. Likewise,the fire department's Fire Station No. 1, built in the 1970's and grossly undersized for today's needs, currently has eleven unmitigated structural seismic deficiencies related to the roof,walls, and floor;nine non-structural deficiencies; and a failing HVAC system. The facility is literally crumbling around the City's first responders. The BPSC is a necessary response to these substantial public safety concerns—a response required of the City pursuant to its obligations to protect public health, safety, and welfare. Proposed for construction on a piece of City-owned property at the intersection of North Rouse Avenue and East Oak Street,the BPSC will house Fire Department personnel and equipment from Fire Station No. 1,the Police Department, the municipal courts, and prosecution and victim services personnel. The BPSC will alleviate the above-described deficiencies without a moment to spare, and will also defer the need to construct a fourth fire station for at least six years. The proposal also makes Fire Station No. 1 available for sale, and the proceeds will help offset the costs of construction of the BPSC. On July 23,2018,the City Commission voted unanimously to adopt a resolution "submitting to the qualified electors of the [City] the question of issuing general obligation bonds for [the BPSC]"in the November 6, 2018 election. One month before then, in light of the City's obligations to protect health, safety, and welfare, and to educate the electorate regarding these issues,the City registered with the State of Montana as an incidental political committee for the 2018 election cycle. Contrary to Koopman's assertions,the City was required by law to do so. Changes to state law under the 2015 Montana Disclose Act require local governments wanting to 3 The City Commission is composed of Mayor Cyndy Andrus,Deputy Mayor Chris Mehl,and Commissioners Jeff Krauss,Terry Cunningham,and I-Ho Pomeroy. -4- distribute educational information pertaining to bonding issues to register and file financial reports if expenditure on those communications will exceed$250.00. See Mont. Code Ann. § 13-1-101(31); Admin. R. Mont. 44.11.605(3)(d). The City's duty to inform and educate—and to expend more than$250.00 doing so—triggered its legal obligation to register as a political committee and make financial disclosures. The purpose of the City's incidental committee, as stated in the Statement of Organization,was to"[i]nform [the] public of[the] impact of passage or failure of[the] Bozeman Public Safety Center ballot issue on City operations." (See City Statement of Organization, attached as Exhibit A to Koopman Complaint.) Beginning in May 2018 and continuing through to the November 6, 2018 election, City officials, including Mayor Cyndy Andrus,Deputy Mayor Chris Mehl, Commissioner Terry Cunningham, Commissioner I-Ho Pomeroy,Fire Chief Josh Waldo,Police Chief Steve Crawford, and City Manager Andrea Surratt, as well as other City employees: (1)arranged and participated in dozens of public meetings to answer questions and educate the public regarding the ballot measure; and (2)distributed informational materials describing the current state of affairs and the need for the BPSC. City officials and employees are trained in and knowledgeable about the critical distinction between education and advocacy in the context of elections. (See Aff. City Attorney Greg Sullivan,¶ 11 (Dec. 6, 2018).) Officials and employees know that when acting in their official capacities representing the City,they may educate and inform the public about a bond measure like the BPSC,but may not expressly advocate for or against the measure. These same officials and employees also know and appreciate that they do not surrender their personal political beliefs upon entering office or accepting a job with the City. To that end,the City continually trains its officials and employees that on personal time, using personal property and - 5 - resources,they are free to express their personal political views publicly. (See Aff. Mayor Cyndy Andrus,¶¶5-7 (Dec. 6,2018);Aff. Deputy Mayor Chris Mehl,¶¶5-7 (Dec. 6, 2018); Aff. Commissioner Jeff Krauss,IT 4-6 (Dec. 6,2018); Aff. Commissioner Terry Cunningham, IT 5-6 (Dec. 6,2018); Aff. Commissioner I-Ho Pomeroy,¶4 (Dec. 6, 2018);Aff. Fire Chief Josh Waldo,¶ 16 (Dec. 4, 2018);Aff. Police Chief Steve Crawford, 113 (Dec. 5, 2018);Aff. City Manager Andrea Surratt,¶¶5, 13 (Dec. 6, 2018), attached collectively as Exhibit A.) The City,its officials, and its employees put their understanding of the above distinctions into disciplined practice with regard to the BPSC bond educational outreach effort. Understanding the need to provide detailed information in a memorable, understandable way , the City developed a messaging and communication plan. With the contracted assistance of Bozeman public relations firm The Nest Collective, LLC, City officials and employees developed various educational materials,placed ads in local publications and on local radio stations,posted information to social media, and gave public presentations at locations around the City. The materials and presentations often included the following elements: i. A logo graphically depicting the four City functions proposed to be housed at the BPSC, along with the words "Bozeman MT"and"Public Safety Center": PO BOZEMANMT PUBLIC SAFETY CENTER 4 The City received significant public feedback critical of its educational efforts pertaining to previous bonding measures and,recognizing its duties to protect safety and educate electors,determined to do things differently with the BPSC bond in response to that criticism. (See Aff.Andrus,14.) s(See Professional Services Agreement,attached as Exhibit A to Aff. Surratt,110.) -6 - ii. The words "Keep Bozeman Safe" or"Bozeman is Safe. Let's Keep it that Way." iii. Factual material concerning the City's rate of growth, its police and fire reporting statistics,the state of existing City infrastructure, and cost of constructing the proposed Center. iv. A text block providing the date of the election, a website to visit for additional information, and attribution for the material: voiceMake sure your - . r VOTE an November 6. Visit ro for more information. '. . for by the City of Bozeman, Brian . Treasurer, '1 Box 1230,Bozeman, ' (See Informational Materials, attached as Exhibit B.) The City placed informational materials in public places around Bozeman, and used and distributed these materials when making public educational presentations. In total, between presentations, event tabling, open houses, and town hall meetings,the City participated in sixty- eight scheduled events between May 24 and October 31, 2018. (See Scheduled Event List, attached as Exhibit C.) City officials and employees spent approximately 566.2 hours of on- duty time preparing for and engaging in educational outreach activities related to the BPSC. As required by law, the City reported this time as in-kind contributions to the City of Bozeman incidental political committee, with a total value of$33,955.52. The individual officials and employees,the nature of every one of their activities, and the time spent on those activities are documented in the reports submitted to the State of Montana. (See Finance Reports, (Aug. 8, 2018; Oct. 2, 2018; Oct. 25, 2018; Nov. 21, 2018), available at https://campaignrepoit.mt.gov/.) - 7 - The BPSC addresses critical deficiencies in City public safety infrastructure, and the City took its educational obligation surrounding this bond issue seriously, as it should. City officials and employees did not, however, cross the line from educating to advocating while on City time,using City property and resources. Indeed, as numerous individuals attest, at no point did any City official or employee witness any other official or employee inappropriately advocate for or against the bond measure while in their official capacity representing the City. (See e.g. Aff. Andrus, ¶ 13; Aff. Cunningham, ¶ 13; Aff. Crawford, ¶ 16; Aff. Waldo,¶23.) Not only were officials and employees knowledgeable and trained as described above, but included with the materials accompanying public presenters to every scheduled event was a"do's and don'ts" list outlining the distinction between education and advocacy. (See Presentation Instruction Sheet, attached Exhibit D.) Again, if Koopman or his lawyer have evidence supporting their allegations, the City demands it be submitted in this proceeding. In their personal, individual capacities—off City time, off City property, without using City resources—City officials and employees were free to express their political views, and did at times. Chris Mehl, along with Terry Cunningham and former Bozeman Mayor Carson Taylor, formed Bozeman Citizens for Safety("BCFS") and registered the committee with the State of Montana. (See BCFS Statement of Organization, attached as Exhibit B to Koopman Complaint.) Chris Mehl and Terry Cunningham chose the name "Bozeman Citizens for Safety" because they were conscious of their roles as citizens in forming the committee; were personally, privately interested in public safety and the BPSC; and hoped to attract contributions and interest from other private Bozeman citizens with similar concerns. (Aff. Cunningham, ¶ 10.) BCFS received an$800 loan from Chris Mehl (which was repaid); a $400 contribution from the Bozeman Police - 8 - Protective Association; $150 contributions from Terry Cunningham, Travis Barton, and Andrea Surratt; and$100 contributions from I-Ho Pomeroy, Carson Taylor, Jeff Krauss, Cyndy Andrus, and Assistant City Manager Chuck Winn. (See BCFS Finance Reports (Oct. 1,2018; Oct. 24, 2018;Nov. 16, 2018), available at https://campaignreport.mt.gov/.) BCFS officers and contributors listed their home addresses for reference in financial filings, and made contributions using private funds. (Id.) The committee,which was unaffiliated with the City,performed two tasks: (1)BCFS purchased 150 yard signs; and(2)BCFS produced a radio spot which ran the week of October 16-23, 2018. (See Aff. Cunningham,¶ 11.) Because the BPSC logo shown above was public property and not copyrighted, after informing Bozeman City Attorney Greg Sullivan,BCFS used the City's logo on its yard sign. (See Exhibit C to Koopman Complaint;see also Aff. Mehl, ¶ 13.) However, because the signs constituted private political speech, BCFS expressly advocated a"yes"vote on the bond on its signs. (Id.) BCFS independently hired and paid The Nest Collective, LLC to design its yard sign. (See Aff. Mehl,¶ 12.) Chris Mehl initially distributed yard signs. (See Aff. Andrus,19.) Cyndy Andrus received yard signs from Chris Mehl, and Terry Cunningham distributed signs himself after receiving them. (See Aff. Andrus, ¶9;Aff. Cunningham,¶ 11.) BCFS did not store signs on City property or at Headwaters Economics, Chris Mehl's employer. (See Aff. Mehl,¶ 12.) Chris Mehl, Cyndy Andrus, and Terry Cunningham knew the signs represented advocacy, and knew where the line was. Other officials exercised their protected First Amendment rights in other ways. Jeff Krauss,who has a weekly radio show on KMMS 1450 in Bozeman, advocated in favor of the BPSC bond on his show prior to the election. (Aff. Krauss,¶ 11.) Cyndy Andrus, Terry Cunningham, and Josh Waldo went door-to-door in neighborhoods around Bozeman, sometimes -9- simply dropping off City educational literature without speaking to residents, and other times engaging in conversations and, at times, advocating for passage of the bond. Each understood the distinction between their public and private roles. (See Aff. Andrus,¶¶5-8;Aff. Cunningham,¶¶5-8;Aff. Waldo,¶¶ 16-17, 24.) Cyndy Andrus and Terry Cunningham wrote op-ed/letters published in the Bozeman Daily Chronicle advocating a"yes"vote. (See Aff. Andrus,¶¶ 11-12;Aff. Cunningham,¶ 8.) Ultimately, City officials and employees understood that while out and about in Bozeman—in grocery and hardware stores, walking downtown, relaxing in their own backyards,on their own time and living their own private lives—they were free, as citizens,to express support for the BPSC bond. On November 6,2018,the BPSC bond measure passed by a margin of 60%to 40%,with 13,580 ballots cast in favor and 9,134 ballots cast against authorizing the City to issue general obligation bonds in the amount of$36,900,000 to construct the BPSC. The next phase of the project for the City is to develop build plans and coordinate building contractors. The City hopes to being preparing the site in the summer of 2019, and begin construction after design and engineering are complete sometime in later 2019 or early 2020. Time is very much of the essence for the City with regard to issuing the voter-approved general obligation bonds and moving forward with construction of the BPSC as planned. The pendency of this action means bond counsel is unable to issue an unqualified legal opinion, negatively affecting the City's ability to sell bonds to finance the construction. (See Aff. Anna Rosenberry,passim(Dec. 6, 2018).) As a result,the City either will be unable to acquire funds for the project altogether, or will be subject to a higher interest rate and other increased costs. (Id.) If the City is unable to acquire funding or waits to issue the bonds until this matter is - 10 - resolved,the City anticipates substantial increases in construction costs as materials prices climb daily. Koopman's unfounded political attack should not be allowed to delay or prevent the City from constructing a facility critical to public safety and approved by 60%of City voters. (See Aff. Waldo,passim;Aff. Crawford,passim.) PROCEDURAL BACKGROUND The Friday before the election,on the same day he discussed the BPSC bond with Deputy Mayor Chris Mehl at a scheduled City educational event,Koopman filed a complaint in the Montana Eighteenth Judicial District Court, Gallatin County. Koopman made no mention of the lawsuit to Chris Mehl that day, and did not discuss any of the allegations in the pleading. (See Aff. Mehl,¶ 14.) Koopman dismissed his initial lawsuit for unknown reasons, and refiled essentially the same complaint on November 19, 2018. The November 19th pleading is attached to the City's COPP Complaint and incorporated therein. Koopman claims the City, its officials, and its employees engaged in improper advocacy with regard to the BPSC bond measure, in violation of Montana Code Annotated §§ 2 2-121(3) and 13-35-226(4). He also claims that BCFS is improperly named, in violation of§ 13-37-210. Among other forms of relief, Koopman seeks: (1) "a judgment declaring that the Defendants incorrectly interpreted Montana law and violated the [above-cited statutes] and engaged in advocacy to support the bond issue"; and(2) "a court order voiding the bond election results." (Compl.,Request for Relief,¶¶A—C, E(Nov. 19, 2018).) Koopman's attorney is no stranger to election law cases and to the statutes for which the COPP has investigative and enforcement authority. He is aware that the COPP enforces §§ 2-2- 121(3), 13-35-226(4), and 13-37-210 initially, and that a district court action is available, if at - 11 - all, only after the COPP has reviewed and ruled on a campaign practices complaint. Yet,he filed Koopman's claims in state district court as a declaratory judgment action. The City assumed that by doing so,Koopman either misunderstood the statutes cited in his complaint, or was intentionally trying to circumvent COPP investigation and review of his allegations. The City therefore self-referred Koopman's complaint against it to the COPP so that the procedural steps mandated by Montana law are followed and the COPP can make the decisions reserved to him by law. The parties have agreed to stay the district court action pending the COPP's ruling, and will file a stipulation to that effect before Judge John Brown in Bozeman. LEGAL FRAMEWORK Montana law grants municipalities the power to protect public health, safety, and welfare, and requires the provision of police, fire, and justice court services. Mont. Code Ann. §§ 7-1- 4123, 7-1-4124(24), 7-5-4101, 7-14-4101, 7-32-4101,7-33-4101, 3-6-101 et seq.; 23 C.F.R. §§ 450.200 et seq., 450.300 et seq. Likewise,upon a jurisdiction's adoption of a growth policy under Montana Code Annotated § 76-1-601, the jurisdiction"must be guided by and give consideration to the general policy and pattern of development set out in the growth policy in the . . . authorization,construction, alteration, or abandonment of public ways,public places,public structures, or public utilities." Mont. Code Ann. § 76-1-605(1)(a). Specific to Bozeman, § 5.07 of the City's Charter mandates that the City identify long-term goals regarding capital expenditures, including a statement of the need for the expenditure and detailed description of cost and means of financing. In short,federal, state, and local laws obligate the City to protect public health, safety, and welfare, and to conduct the planning necessary to afford such protection into the future. - 12 - One such method of financing capital improvements and other initiatives is municipal bonding, a power extended to local governments by the Montana Constitution and statute. Mont. Const. art. XI,part XI, § 8; Mont. Code Ann. § 7-1-4124. However, Montana law restrains the conduct of public officials and employees in the context of elections pertaining to ballot issues, including bonding: 2 2-121. Rules of conduct for public officers and public employees. (3)(a) Except as provided in subsection(3)(b), a public officer or public employee may not use public time, facilities, equipment, supplies,personnel, or funds to solicit support for or opposition to any political committee, the nomination or election of any person to public office, or the passage of a ballot issue unless the use is: (i) authorized by law; or (ii) properly incidental to another activity required or authorized by law, such as the function of an elected public officer,the officer's staff, or the legislative staff in the normal course of duties. (b) As used in this subsection(3), "properly incidental to another activity required or authorized by law" does not include any activities related to solicitation of support for or opposition to the nomination or election of a person to public office or political committees organized to support or oppose a candidate or candidates for public office. With respect to ballot issues,properly incidental activities are restricted to: (i) the activities of a public officer,the public officer's staff, or legislative staff related to determining the impact of passage or failure of a ballot issue on state or local government operations; (c) This subsection(3)is not intended to restrict the right of a public officer or public employee to express personal political views. - 13 - 13-35-226. Unlawful acts of employers and employees. (4) A public employee may not solicit support for or opposition to any political committee,the nomination or election of any person to public office, or the passage of a ballot issue while on the job or at the place of employment. However, subject to 2-2-121,this section does not restrict the right of a public employee to perform activities properly incidental to another activity required or authorized by law or to express personal political views. Mont. Code Ann. §§ 2-2-121(3); 13-35 226(4). Taken together,while public officials and employees "may not use public time, facilities, equipment, supplies,personnel, or funds"to advocate for or against a bonding-related ballot issue"while on the job or at the place of employment,"they: (1)may use those facilities, resources, and time for the purpose of "determining the impact of passage or failure of a ballot issue on state or local government operations"; and(2) cannot be prevented from expressing their"personal political views"while on their own time. Simply put, "[a] public officer or public employee can present neutral facts and information to electors related to a ballot issue or candidate." Juve v. Roosevelt County Commissioners, COPP 2014—CFP-063 at 5 (Dec. 8,2014) (citing § 2-2-121(3)(a)(ii)). The COPP, interpreting United States Supreme Court case law, has developed a framework for determining when speech constitutes advocacy. In the electioneering context, "general discussions of issues are distinguishable from more pointed exhortations to vote for or against [a] particular [issue]." In the Matter of the Complaint Against Eric Griffin and Lewis and Clark County, 8 (COPP Nov. 19, 2009) (citing Buckley v. Valeo, 424 U.S. 1, 39-45 (1976)). "[E]xpress advocacy requires words such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject,"' Yamada v. Snipes, 786 F.3d 1182, 1189 (9th Cir. 2015)(citing Buckley, 424 U.S. at 44 n.52). While activities and/or publications - 14- pertaining to an election issue which do not expressly advocate for or against a particular issue may, under certain circumstances,be considered"the functional equivalent of express advocacy,"this is true"only if[the activities and/or publications] susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Id. (citing McConnell v. FEC, 540 U.S. 93, 193-94,206 (2003);FEC v. Wisconsin Right to Life, 551 U.S. 449, 470 (2007)) (emphasis added);see also Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990, 1014-16 (9th Cir. 2010). With regard to political committees,Montana Code Annotated § 13-37-210(1)(a) provides that any committee required to register under Title 13 must"name and identify itself in its organizational statement using a name or phrase: (i)that clearly identifies the economic or other special interest,if identifiable, of a majority of its contributors; and(ii) if a majority of its contributors share a common employer,that identifies the employer." With the underlying, governing law in mind,the City turns to Koopman's individual claims. ARGUMENT The City's BPSC bond educational effort is a blueprint, a playbook, for other municipalities—not a source of legal liability, and certainly not a ground for overturning a duly- conducted, fair election. The facts described above, and the informational materials and affidavits underlying it, is the story of a city doing things right and by the book. The City, its officials, and its employees knew the bright line between education and advocacy, and did not cross it on City time or using City resources. When some officials and employees took a position on the BPSC bond at limited times,they did so as private citizens exercising their fundamental democratic rights of free speech and association. These actions are entirely - 15 - consistent with Montana Code Annotated §§ 2-2-121(3), 13-35-226(4), and 13-37-210, and Koopman's claims under these statutes fail on the merits.6 Consequently, absent a Title 13 violation,there is no basis in law or in fact for overturning the BPSC bond election under § 13- 35-107(l)(a). A. The City's educational effort regarding the BPSC bond was in compliance with §§2-2-121(3) and 13-35-226(4). The City recognized its duty to educate the voting public on the need for and specific details pertaining to the BPSC. The City had been criticized for failing to adequately inform electors about past bond issues, and determined to do things differently with the BPSC. (See Aff.Andrus,¶4;Aff. Surratt,¶9.) The facts surrounding the project—including rapidly- increasing demands for police,fire, and justice services, and the state of accelerated decay of the associated City facilities—were dire and compelling, and drove the outcome of the bond election. Bozeman citizens passed the bond because they saw it was necessary for public safety, not because the City, its officials, and its employees broke the law by advocating. The COPP should reject Koopman's claims. 1. The City's educational effort was neither express advocacy nor its functional equivalent. The City registered as an incidental political committee as required by law,not for the purpose of taking a position on the BPSC bond. Through printed materials, media, and public presentations,the City presented factual information outlining the current state of public safety facilities in Bozeman, and describing how the BPSC related to issues pertaining to those facilities. Officials and employees were trained to educate the public and to refrain from advocating for or against the BPSC bond. Their training was ongoing, and a reference sheet 6 Koopman,a PSC Commissioner publicly opposing approval of the bonds,presumably is acting as a private citizen, not in his elected capacity. - 16- reminding them of the distinction between education and advocacy accompanied the City's presentation kit. The City meticulously logged and reported as in-kind contributions the time spent by officials and employees, in their capacities as City representatives, educating the public. These were all "properly incidental activities . . . related to determining the impact of passage or failure of[the BPSC bond on] local govermnent operations"—not unlawful advocacy. Mont. Code Ann. §§ 2-2-121(3)(a), 13-35-226(4);Juve, COPP 2014—CFP-063 at 5. Likewise,the printed materials designed and produced by the City,with the independently-contracted assistance of The Nest Collective, were neither express advocacy nor its functional equivalent. No City postcard,poster, mailing insert, banner, or advertisement expressly urged electors to vote in favor of the bonddeliberately, none of the materials contained any of the "magic words"listed in Yamada and Buckley. Moreover, similar to the COPP's decision in In the Matter of the Complaint Against Eric Griffin and Lewis and Clark County(COPP Nov. 19, 2009),the information contained in the materials is susceptible to more than one interpretation, and therefore is not the functional equivalent of express advocacy. The Griffin case involved a mill levy for road construction in Lewis & Clark County. In the week prior to the election, County Public Works Director Eric Griffin published two separate ads in two separate newspapers containing the following: (1)the amount of the proposed levy; (2) what the funds would be used for; (3) the "deteriorating" conditions of roads in the county and the resulting effects on law enforcement, fire, snail delivery, and commerce; (4)the amount the levy would cost individual taxpayers; (5) a website and contacts for learning more information; and (6) the phrase "Your Vote is Your Voice! Vote November 7, 2006." Id. at 2-3. The COPP, reviewing a complaint alleging, in part, a violation of§ 13-35-226(4), concluded that: - 17 - Although these facts may well have been set forth to convince the reader that the mill levy was a reasonable and justifiable request for money to improve the road system, a reader may just as well have believed, after reviewing the information,that the county roads were in good shape, or that the cost of the mill levy was prohibitive,or may have disagreed with the uses to which the money would be put. Importantly,neither ad urged the reader to vote one way or another on the mill levy,but instead simply advised them to vote on Election Day. Id. at 9. The COPP ultimately found no violation of§ 13-35-226(4) on the facts presented in the complaint. The circumstances here are the same. The City's educational effort focused on the facts demonstrating the need for the BPSC, why upgrading public safety facilities is important, and what the BPSC would cost the average property owner. Given these facts as presented by the City, Bozeman electors could just as readily have interpreted the City's information and materials not as supportive of the proposed project,but as describing a proposal that is too expensive,unwarranted, or inadequate to address the needs of public safety.7 The results of the election are prime evidence on this point-9,134 people voted against the BPSC bond issue, in spite of the City's educational effort. But this was the point. The City was not trying to persuade people to vote for or against the bond issue. The City was presenting information in fulfillment of its obligation to educate voters. That the set of facts delivered by the City led a majority of Bozeman electors to arrive at a particular conclusion does not transform the City's delivery of those facts into advocacy. Moreover,the City has no obligation to present an alternative set of oppositional facts— i.e. that it is unnecessary or too expensive—while educating the community. It is up to electors 7 Indeed,both the Gallatin County Attorney and Gallatin County Sheriff did not support the BPSC bond,and expressed so publicly. - 18 - to interpret the single set of facts, not to be provided two competing narratives and decide which one they agree with. City officials and employees used public resources to meet their obligation to educate the public on the"impact of passage or failure of[the BPSC bond on] local government operations," and did so without improperly advocating for the bond. See Nelson v. City of Billings, COPP-2014—CFP-052 at 8 (Dec. 9, 2014) (noting". . . the officers and employees involved with providing safety to the residents of the City of Billings have an implied duty to present information and observations as to the policy or infrastructure improvements involved in providing safety to City residents."). 2. City officials and employees at limited times expressed their personal political views on their own personal time, using their own personal property and resources. Montana law clearly recognizes and does not tread on public officials' and employees' protected First Amendment rights to free speech and association. See Mont. Code Ann. §§ 2-2— 121(3)(c), 13-35-226(4). As demonstrated by the testimony attached hereto,to the extent they advocated at all, City officials and employees did so on their own time,using their own personal property and resources, and with full knowledge of the rules governing their conduct. (See Aff Andrus,passim; Aff. Mehl, passim; Aff. Cunningham,passim; Aff. Waldo,passim; Aff. Surratt, passim.) Off City time, off City property, and without City resources, officials expressed their personal support for the BPSC bond through conversations and discussions, both public and private, as they are allowed by law. The most Koopman can point to is the inadvertent use of City email. (See Aff. Andrus, ¶ 12.) However, the COPP has ruled that the act of sending an email to a recipient who is not the target of advocacy is not, itself, advocacy. See Monforton v. Laslovich, COPP-2016—CFP- 002(A) at 7-11 (Mar. 6, 2016). There is no factual or legal support for this claim. - 19 - 3. There was no coordination between the City and BCFS. Koopman alleges the City and BCFS coordinated efforts such that BCFS's express advocacy is imputed to the City. This claim is dispelled by the facts,particularly the testimony of Andrea Surrat, as well as Chris Mehl and Terry Cunningham,who were involved with the conception and formation of BCFS. (See Aff. Surratt,¶ 14 ;Aff. Mehl,¶¶ 10-13;Aff. Cunningham,¶¶ 10-13.) While there are facts demonstrating certain City officials engaged in advocacy,they did so carefully and entirely within the"personal political view" space allowed under Montana law. By intent and practice,these personal,political actions were carried out solely by individuals volunteering their time spent in advocating a"yes"vote on the bond. Volunteer time (i.e., services)is specifically exempted as a contribution or expenditure under Montana law. Mont. Code Ann. § 13-1-101(9)(b),—10 1(1 7)(b)(i). The COPP has noted that"the US Supreme Court has directed a liberal application of this volunteer exemption." Nelson v. City of Billings, COPP-2014—CFP-052 at 8 (Dec. 9, 2014). As noted in Nelson, a volunteer election activity "was not an expenditure and therefore triggered no reporting obligation nor any coordination issues." Id. This leaves the funds BCFS spent on yard signs and radio ads advocating a"yes"vote as the only possible expenditure susceptible to a coordination analysis as an illegal expenditure by the City. The COPP likewise addressed this issue in Nelson. Because the rationale for the bond is based on public information,there will be shared use of data between those simply providing information and those using the information to advocate. See Nelson at 9. But that does not,by itself, constitute coordination. Instead,there must be some factual showing or an act of coordination. Except for one mistaken allegation regarding BCFS's use of the City's logo, -20 - Koopman offers no evidence of coordination. BCFS appropriation and use of the ballot issue logo developed by the City of Bozeman cannot show coordination because the logo was in the public domain. As un-copyrighted,public property,BCFS or any other party was free to use the logo. Indeed,opponents were free to use the logo as the target of the universal "not" sign—the logo circled with a red slash across it. And as a private citizens,BCFS contributors were free to donate their own money. As was the case in Nelson,the people involved with BCFS acted with rigorous independence from the City. The COPP should be reluctant,without proof of coordination,to "cast aspersions on the volunteer exception to Montana's contribution law and make the difficult [1]evy task of public officers that much harder." Nelson at 9. City officials and employees are afforded the same rights as any other citizen to freely use their personal volunteer time in the manner they choose. Indeed,that appears to be precisely what PSC Commissioner Roger Koopman was doing. B. The political committee name "Bozeman Citizens for Safety" does not violate § 13- 37-210(1). Koopman alleges BCFS was improperly named. Even though this was an act by BCFS, not the City,the allegations are nonsense and requires a response. Under Montana law a ballot committee shall name and identify itself"using a name or phrase...that clearly identifies the economic or other special interest, if identifiable, of a majority of contributors..." Mont. Code Ann. § 13-37-210. The COPP has,in the past, considered naming and labeling complaints against political committees, most recently finding that a political committee whose funding came from lawyers had to include the word"lawyers"in its name. See Eaton v. Montanans for Experienced Judges, COPP-2016—CFP-035. The Eaton decision and those cited therein present a straightforward -21 - measure of whether ballot committee contributors come with special interests which must be accounted for in the committee name. The majority of donors to BCFS,however,do not present such a straightforward measure of interest. COPP records show eleven donors to BCFS, consisting of ten individuals and one political committee (the Bozeman Police Protective Association). The ten individual donors include two current City employees and eight past or present City elected officials. Two current and one former City official—Chris Mehl,Terry Cunningham, and Carson Taylor—formed the BCFS. As a matter of fact and statutory law,the identifiable interest of the eight current and former City officials (the majority of contributors) determines whether BCFS was properly named and labeled. The interest of a City official is a dual interest illustrated by the"bright line" instructions provided each official by the Bozeman City Attorney and others. (See Aff. Sullivan, ¶ 11.) Those instructions were that Montana law, based on public funds concerns, did not allow a Bozeman city official to advocate for a"yes"vote,but did allow the city official to educate using facts and information. At the same time,those instructions, as they must,recognized that under § 2 2-121(3)(c), a City official retained his or her private right as a citizen to express personal political views. (See Exhibit D;Aff. Cunningham,110 ("Part of the reason for using the term `citizens' was to distinguish between roles as elected officials and as private citizens".).) The City officials who formed and funded BCFS clearly understood this dual role, that was unique to each of them as a City official and citizen. (See Aff. Mehl,¶ 10; Cunningham, ¶ 10.) They just clearly understood that BCFS was a means by which they were expressing then personal political views as citizen. Based on that understanding,they named the ballot committee Bozeman Citizens for Safety. Given the distinctly different roles of a City official -22- and citizen(education vs. advocacy), it was a correct to identify their citizen interest as the special interest underlying BCFS the committee was acting as an advocate and therefore could not align itself with the City or with the officials' public role. The name is an expression of their special citizen interest, as opposed to their City official interest. The name was therefore entirely proper and in compliance with§ 13-37-210. C. There is no basis in law or in fact for overturning the BPSC bond election under § 13-35-107(1)(a). Section 13-35-107(l)(a) provides"[i]f a court finds that the violation of any provision of this title by any person probably affected the outcome of any election, the result of that election may be held void." In light of the above,there is no basis for voiding the BPSC bond election— neither the City, its officials, and employees,in their official or personal capacities, nor BCFS, violated any provision under Title 13. However,even if the COPP did find a violation under the facts stated above,any violation was the result of excusable neglect and mistake, and therefore warrants the application of de minimis principles. See Juve, COPP 2014—CFP-063 at 9-13;In re Matter of Vincent Complaint, COPP 2013—CFP-006,—009 at 3-7(June 26, 2013). As the COPP determined in Hansen v. Billings School District No. 2, COPP-2013—CFP-030 at 7 (Dec. 24, 2013), "there is no basis for an action to void [the] bond issue under § 13-37-107(2)." Voiding the November 6, 2018 bond election is a drastic remedy, and is wholly unwarranted here. CONCLUSION City officials and employees knew the difference between education and advocacy regarding the BPSC bond, and knew they were required to maintain separation between the two. They did so, and consequently complied with Montana law. As a matter of law,there was no coordination between the City and BCFS,which was itself appropriately named under § 13-37- -23 - 210. Absent a violation of any sort,there is no basis in law or fact to overturn the BPSC bond election. Koopman's complaint should be dismissed in its entirety. DATED this 6th day of December,2018. BOONE KARLBERG,P.C. andy J. Cox Natasha Prinzing Jones John M.Newman Attorneys for City of Bozeman -24- CERTIFICATE OF SERVICE This is to certify that the foregoing document was duly served upon the following counsel of record by the means designated below: [X] U.S. Mail Chris J. Gallus [ ] Certified Mail Attorney at Law [ ] FedEx/UPS 1423 Otter Road [ ] Hand-Delivery Helena,Montana 59602 [ ] Fax [X] E-Mail Attorney for Plaintiffs DATED this day of December,2018. BOONE KARLBERG P.C. Tina Sunderland -25 -