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HomeMy WebLinkAbout19- Preliminary Written Analysis of Ethics Complaint - Ugrin Alexander Zadick, P.C. (J. Crosby) - R. Koopman Ethics Complaint re Bozeman Public Safety Center OutreachUGRIN ALEXANDER ZADICK, P.C. ATTORNEYS AT LAW #2 RAILROAD SQUARE, SUITE B P.O. BOX 1746 GREAT FALLS, MONTANA 59403-1746 TELEPHONE (406) 771-0007 FAX (406) 452-9360 E-MAIL uazh@uazh.com, Website http://uazh.com January 11, 2019 File No.: BO49-01 Chairperson Melissa Frost Board Member Mary Jane McGarity Board Member Carson Taylor Board of Ethics for the City of Bozeman Via email RE: Koopman December 12, 2018, Ethics Complaint Preliminary Written Analysis Dear Board Members: As you are aware, my firm has been retained to serve as counsel and legal advisor to the Board of Ethics for the City of Bozeman (hereafter “Board”) regarding the December 12, 2018, Ethics Complaint (“Ethics Complaint”) brought by Roger Koopman. Pursuant to Section 2.03.640.D, Bozeman Municipal Code (“BMC”), the following is our preliminary written analysis. I. BACKGROUND A. BOARD PROCEDURE Montana law provides that where, as here, a local government has established a panel to review complaints alleging violations of Title 2, chapter 2, part 1 of the Montana Code Annotated (hereafter “Montana Code of Ethics”), that panel “shall review complaints and may refer to the county attorney complaints that appear substantiated.” See § 2-2-144(5)(a), MCA. The Bozeman Board of ANDREW T. NEWCOMER ROGER T. WITT GARY M. ZADICK JAMES R. ZADICK ________________ NEIL E. UGRIN 1945 - 2007 JORDAN Y. CROSBY CATHY J. LEWIS KEVIN C. MEEK ________________ JOHN D. ALEXANDER (RETIRED) ROBERT F. JAMES (RETIRED) January 11, 2019 Page 2 of 17 Ethics is such a panel and must review complaints alleging that city public officials or public employees violated the Montana Code of Ethics or violated Bozeman’s Code of Ethics (Article 3, Division 4, BMC). See Secs. 2.03.600.A.3 and 2.03.640.E & .M, BMC. Montana law accordingly directs that the City must establish rules and procedures applicable to the Board. See § 2-2-144(5)(a), MCA. The City has done this in Section 2.03.600, BMC, which outlines the Board’s authority, and Section 2.03.640, BMC, which summarizes the procedures for review of complaints. Specifically, following our written preliminary analysis, the Board shall “[a]t the next regular meeting, or within 30 days, whichever is sooner … review and consider the complaint and the city attorney’s analysis.” Sec. 2.03.640.L, BMC. At this meeting, after “giving due consideration” to the complaint, the Board should take the following action(s):  Dismiss the complaint (or portions thereof) based on the following grounds: o Failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics; o Lack of jurisdiction over the matter; o The complainant’s failure to cooperate in the Board’s review and consideration of the complaint; or o Because the complaint is defective in a manner which results in the board being unable to make any sound determination. See Sec. 2.03.640.M.1.a.-d, BMC;  Determine that no violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics has occurred. See Sec. 2.03.640.M.2, BMC;  Determine the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics and schedule and conduct a hearing, within 30 days, to determine whether a violation has occurred. See Sec. 2.06.640.E, .L, & .M.3 and Sec. 2.03.600.A.3, BMC;1 or  Determine that further information must be obtained in order for the Board to decide whether the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics; and 1 The Board must promptly send written notice of such determination to the accused and to the party who made the complaint. Sec. 2.03.640.M.3, BMC. January 11, 2019 Page 3 of 17 o Conduct its own investigation with respect to any alleged violation. See Sec. 2.06.640.M.4.a, BMC; o Schedule the complaint for further review and consideration at a future time certain. See Sec. 2.06.640.M.4.b, BMC;2 o Refer the complaint to any appropriate authorities for criminal investigation. See Sec. 2.06.640.M.4.c, BMC; o Refer the complaint, if it appears to be substantiated, to the county attorney or city attorney for prosecution. See Sec. 2.06.640.M.4.d, BMC; or o Refer the complaint, along with the board’s findings and conclusions, to any appropriate administrative authority for disciplinary action or other suitable remedial action. See Sec. 2.06.640.M.4.e, BMC.3 Once the Board has made its final determination, it shall issue “written findings of fact and conclusions and may issue any additional reports, opinions and recommendations as it deems advisable under the circumstances.” Sec. 2.06.640.M.5, BMC. All reports should be reviewed by our office prior to issuance. Id. B. MR. KOOPMAN’S COMPLAINT Mr. Koopman submits his formal Ethics Complaint pursuant to § 2-2-144, MCA. In it, he alleges violations of § 2-2-121(3), MCA, by the “City, city commissioners, and at their direction, or with their approval, numerous public employees.” Ethics Compl., p. 1. He adopts in support of his Ethics Complaint, a lengthy civil “Complaint for Declaratory Judgment, Statutory Relief, and Attorneys [sic] Fees” filed in DV-16-2018-1215C (hereafter “Civil Complaint”), which he has filed before the Montana Eighteenth Judicial District Court, Gallatin County. Id. Mr. Koopman states that “[t]he underlying civil action contains my assertion that these individuals violated MCA Sec. 2-2-121(3) while engaging in acts connected to the recently concluded bond issue election.” Id. 2 The Board must promptly send written notice of such determination to the accused and to the party who made the complaint. Sec. 2.03.640.M.4.b, BMC. 3 While the Board has no independent administrative authority (Sec. 2.06.590.A.1, BMC) it may make “any recommendation to any city administrator at any level of supervision” if the Board finds the recommendation advances the objectives of the Bozeman Code of Ethics. If it is determined that misconduct or malfeasance has occurred, the Board shall refer the matter to the city manager, city attorney or to the city commission, as warranted. Sec. 2.06.640.M.4.e, BMC. January 11, 2019 Page 4 of 17 Mr. Koopman argues that the Board is not in a position to review his complaint because it implicates City Commissioners and the City Manager, and because “these individuals play vital roles in how” the Board exercises its authority, and thus it would not be proper for the Board to act. Id., p. 2. Additionally, he questions the City Attorney’s involvement in the process because he contends the City Attorney provided underlying legal advice on the topics at issue in his complaint and thus cannot also serve as advisor to the Board. Id. He contends that because all of these individuals have conflicts of interest, this severely limits the Board’s authority in this matter. Id. Mr. Koopman further alleges that one of the Board’s own members has a conflict in such review and the Board’s procedures have “no method for replacing a recused member”. Id., p. 2. He contends that because the Board is appointed by the accused (i.e. the city commissioners) such “scenario creates a conflict of interest.” Id., pp. 2-3. Additionally, Mr. Koopman’s Civil Complaint alleges violations of three particular sections of Montana law: § 2-2-121, MCA; § 13-35-226, MCA; and § 13-37-210, MCA. See Civil Compl., ¶ 1. In summary, Mr. Koopman contends that § 2-2-121(3), MCA, was violated by City officials and employees improperly using City time, resources, and facilities to advocate in support of the City of Bozeman public safety bond on the November 6, 2018, ballot. Mr. Koopman’s allegations under § 13-35-226, MCA, are essentially similar to the allegations above regarding an allegedly improper use of City resources to advocate in support of the bond. Finally, the allegations made under § 13-37-210, MCA, claim that the Bozeman Citizens for Safety (“BCFS”) political committee was improperly named because it didn’t identify the City as a common employer of the contributors to BCFS. In requesting relief of his Ethics Complaint, Mr. Koopman asks that the Board “refuse to accept my complaint or refer it elsewhere[.]” Ethics Compl., p. 2. He specifically suggests that the Board directly refer the complaint to the Gallatin County Attorney or, if other alternatives must be exhausted, to have the “ethics determination be made in conjunction with the campaign finance issues.” Id., p. 3. II. ANALYSIS A. CONFLICT OF INTEREST 1. City Attorney Mr. Koopman’s arguments regarding the City Attorney’s alleged conflict of interest in serving as the Board’s legal advisor are moot and have already been addressed by the retention of this firm to serve as the Board’s legal counsel. January 11, 2019 Page 5 of 17 2. Board Members a. Generally Mr. Koopman’s Ethics Complaint generally asserts that: .… [Y]our system is clearly not designed to handle a complaint implicating more than a majority of the city commissioners and involves the City Manager and the City Attorney who quite probably provided them legal advice…. All these individuals play vital roles in how you exercise your authority. All of them have conflicts of interest pursuant to BMC Sec. 2.03.520 and other sections of law…. It is also objectionable and problematic when all members are appointed, and perhaps reappointed, by the accused[.]… An ordinary person, acting reasonably and objectively, would clearly see that this scenario creates a conflict of interest. Ethics Compl., pp. 2-3. Respectfully, Mr. Koopman’s claims are inaccurate. Montana law specifically empowers the Board to hear ethical complaints regarding City officials and employees. See § 2-2- 144(5), MCA. Montana law provides for separation between the Board and City government by mandating that “[t]he members of the panel may not be officers or employees of the local government.” Id. Montana law likewise mandates that ethics complaints against City officers or employees first be made to the Board. Id. We must presume that the Montana Legislature is acquainted with the law. See Sampson v. Nat'l Farmers Union Prop. & Cas. Co., 2006 MT 241, ¶ 20, 333 Mont. 541, 547, 144 P.3d 797, 801. The intention of the Montana Legislature, as determined from the plain language of a statute, controls. The Clark Fork Coal. v. Tubbs, 2016 MT 229, ¶ 20, 384 Mont. 503, 511, 380 P.3d 771, 777. When interpreting a statute, it is improper to insert what is omitted or omit what has been inserted. Id. Here, the Montana Legislature clearly knew how to make provisions for potential conflicts, as it did so to address complaints made against the county attorney being filed with the Commissioner of Political Practices. See § 2-2-144(6), MCA. Conversely, when interpreting that same section of Montana law, we cannot insert or create an ability to refer the Ethics Complaint elsewhere where the Legislature has not granted the Board that power. Mr. Koopman also generally, without any further factual support, references potential conflicts of the remaining two board members. Specifically, he contends that “further investigation might reveal the involvement or support of other board members, though I am uncertain of that.” Ethics Compl., p. 2. We have spoken individually with the two remaining board members and neither member was able to provide or recall any potential basis for a conflict of interest. As a result, and without further factual support, it would be improper for us to provide any further analysis on this point. January 11, 2019 Page 6 of 17 b. Specific Mr. Koopman’s Ethics Complaint alleges that “a member of your own board is factually implicated in my complaint, and further investigation might reveal the involvement or support of other board members, though I am uncertain of that.” Mr. Taylor was involved with BCFS, a political committee registered with the State of Montana. Mr. Taylor is listed as the treasurer of BCFS on the committee’s registration, which is attached as Exhibit B to the Civil Complaint. Mr. Koopman’s Civil Complaint generally alleges that the City of Bozeman, Bozeman public officials, and Bozeman public employees illegally coordinated with BCFS. See, generally, Civil Compl., p. 3 & ¶¶ 20-27, 87-91, 108- 111, 124-127, 129-135, 139-154. Specifically, Mr. Koopman implicates Board Member Carson Taylor in these claims. See Civil Compl., ¶ 88. Because of his involvement with BCFS and the allegations regarding BCFS, Mr. Taylor has suggested recusal of himself from the Board’s consideration of the complaint. We agree such action would be appropriate to prevent any appearance of a potential conflict of interest. This recusal, however, should be guided by the City’s policies and procedures regarding potential conflicts of interest and relevant Montana statutes. While there is not a specific policy for the Board regarding conflicts of interest, other City codes offer guidance. Specifically, Section 2.02.100.E, BMC, states: Conflict of interest. A commissioner may rely upon the advice of the city attorney as to whether the commissioner has a conflict of interest pursuant to law. If the commissioner is advised there is a conflict of interest, the commissioner shall recuse himself or herself, step off the dais, and refrain from discussion and vote except when the commissioner’s participation is necessary to obtain a quorum or otherwise enable the commission to act. In such a case, the commissioner shall disclose the interest creating the appearance of impropriety and comply with the disclosure requirements of MCA 2-2- 101 et seq., prior to performing the official act. Thus, pursuant to City policy, at any meeting of the Board in which Mr. Koopman’s Ethics Complaint is considered, at the time in the meeting or hearing in which the complaint is taken up, Mr. Taylor should recuse himself, step off the dais, and refrain from discussion or voting (except as further discussed below) on this issue. See Sec. 2.02.100.E, BMC.4 4 Mr. Koopman’s complaint seems to imply that Mr. Taylor’s recusal would preclude a quorum to allow the Board to act. This is incorrect. Mr. Taylor’s recusal would only be as it relates to the Board’s review and handling of Mr. Koopman’s complaint. Mr. Taylor would still be in attendance at the meeting and his recusal does not affect the quorum of members present. Furthermore, the Board is a three-member panel, and while the BMC does not have specific rules governing the Board’s required quorum, analogous Montana law provides that in three-member municipal commissions, two members constitutes a quorum. See § 7-3-4323, MCA. Accordingly, even if for some reason Mr. Taylor was not present, the presence of the other two members would constitute a quorum. January 11, 2019 Page 7 of 17 It is important to note that Mr. Taylor refraining from voting could raise the possibility of a 1-1 tie vote, which would preclude the Board from acting. While there are no specific Board rules or procedures addressing tie votes, other City codes offer guidance. Regarding the City Commission, the BMC provides that: “In the event of a tie vote a commissioner is required to vote after disclosing the conflict of interest pursuant to section 2.02.100.E.” Sec. 2.02.090, BMC. Relatedly, the Bozeman Code of Ethics also provides direction for managing potential conflicts of interest in the presence of a tie, stating in relevant part: Conflict of interest. […] G. A city commissioner or mayor, as authorized pursuant to 2-2- 121(10), MCA, may take action despite a conflict of interest described in this section if that commissioner's or mayor's participation is necessary for the city commission to obtain a quorum or to otherwise enable the city commission to act. If so, the commissioner or mayor shall disclose the interest creating the conflict prior to performing the official act. Sec. 2.03.520.G, BMC; see also § 2-2-121(1), MCA. Here, in our opinion, in the instance of a tie vote, Mr. Taylor could vote, but only after disclosing his potential appearance of a conflict, to break the tie. B. JURISDICTION OF THE BOARD In considering Mr. Koopman’s Ethics Complaint, the Board should first address the threshold issue of its jurisdiction over the legal claims and parties as alleged by Mr. Koopman. As the Montana Supreme Court has explained, “[i]n general terms, jurisdiction is a court's authority to hear and determine a case, and goes to the ‘power’ of the court.” In re Support Obligation of McGurran, 2002 MT 144, ¶ 12, 310 Mont. 268, 271, 49 P.3d 626, 629. Importantly, “[j]urisdiction cannot be waived or conferred by consent of the parties where there is no basis for jurisdiction under the law.” Id. In this instance, the Board’s jurisdiction—i.e., its power—is defined and limited by Montana law and City code. This means that such laws specifically limit the types of complaints that the Board may hear and what types of individuals the Board may hear claims against. As a result, the Board may dismiss a compliant if “[t]he board has no jurisdiction over the matter[.]” Sec. 2.03.640.M.1.b, BMC. 1. The Board’s Jurisdiction Over Legal Claims As discussed above, Montana law and Bozeman code define the jurisdiction and authority of the Board, which is limited to hearing complaints regarding alleged violation(s) of the Bozeman Code of Ethics and/or Montana Code of Ethics. See § 2-2-144(5)(a), MCA; Secs. 2.03.600. A.3 and 2.03.640.E, BMC. While Mr. Koopman’s Ethics Complaint asserts violation of § 2-2-121(3), MCA, his Civil Complaint, which he has incorporated in support of his Ethics Complaint, makes additional claims January 11, 2019 Page 8 of 17 for violations of §§ 13-35-226 and 13-37-210, MCA. See Civil Compl., ¶ 1; see also, ¶¶ 3-4 (alleging violations of §§ 13-35-226 & 13-37-210, MCA “or other Montana law”); ¶¶ 115-135 (asserting claims for violations of §§ 13-35-226(4) & 13-37-210, MCA). Sections 13-35-226 & 13-37-210 fall within Title 13, Elections, of the Montana Code Annotated, and Title 13 is beyond the authority and jurisdiction of the Board. In the abundance of caution, because Mr. Koopman’s complaint is not entirely clear on the scope of his legal claims, and because neither Montana law nor the City code empowers the Board to hear and decide cases alleging violations of laws outside either the Bozeman Code of Ethics or Montana Code of Ethics, it is our opinion that the Board must clarify the scope of its review of Mr. Koopman’s claims, making clear it only has the authority to review his claims regarding alleged violations of § 2-2-121(3), MCA. The Board should further refuse to consider and dismiss, in part, to the extent they are made, Mr. Koopman’s claims and allegations regarding alleged violations of Title 13 for lack of jurisdiction. See Sec. 2.03.640.M.1.b, BMC. 2. The Board’s Jurisdiction Over Named Parties Mr. Koopman’s Ethics Complaint states it is submitted for alleged violations “by the City, city commissioners, and at their direction, or with their approval, numerous public employees.” Ethics Compl., p. 1. He also adopts for further support his Civil Complaint which names as defendants the City of Bozeman; Cyndy Andrus, Mayor; City Commissioners; John and Jane Doe 1 through 30 public employees/officials; and Nest Collective, LLC (hereafter “Nest”). More particularly, paragraphs 34 through 39 of the Civil Complaint, identifies the defendants to Mr. Koopman’s litigation as the City of Bozeman (Compl., ¶ 34); Mayor Cyndy Andrus (Compl., ¶ 35); Commissioners Chris Mehl (Deputy Mayor), Jeff Kraus, and Terry Cunningham (Compl., ¶ 36); Commissioner I-Ho Pomeroy (Compl., ¶ 38); Nest (Compl., ¶ 38) (hereafter “Nest”); and John and Jane Does 1 through 30 as City public officials and employees “actively involved in the City’s advocacy efforts supporting the bond and political committee.” (Compl., ¶ 39). The Board’s jurisdiction only extends to employees and city officials of the City of Bozeman. Sec. 2.03.480 & Sec. 2.03.600, BCM; § 2-2-121(2), MCA. Similarly, the provisions of the Montana Code of Ethics implicated by Mr. Koopman only apply to public officers and public employees. See §§ 2-2-121 & 2-2-144, MCA. Therefore, the Board may only hear complaints about public officials and/or public employees. a. The City of Bozeman As noted above, both the Bozeman Code of Ethics and the Montana Code of Ethics limit their application to individuals—either public employees or public officials. The City of Bozeman is neither a public employee nor a public official. It is instead a municipal corporation chartered under Title 7 of the Montana Code Annotated. See generally § 7-1-4101, MCA. The Montana Code of Ethics recognizes the distinction between a “local government,” like the City of Bozeman, and a “public employee” or a January 11, 2019 Page 9 of 17 “public official”, by separately defining each term. See § 2-2-102, MCA. The definition of “local government” provided in § 2-2-102, MCA,5 does not encompass the definition of either a “public employee” or “public official.” The Bozeman Code of Ethics similarly limits itself. See Sec. 2.03.480, BMC. Because the City of Bozeman is not a public official or a public employee, it is our opinion the Board does not have the jurisdiction to consider claims made by Mr. Koopman against the City generally, and we believe those claims should be dismissed. See Sec. 2.03.640.M.1.b, BMC. b. Nest Collective, LLC Here, the Civil Complaint, which Mr. Koopman adopts in his Ethics Complaint, makes allegations against the Nest, a Montana limited liability corporation. It alleges that the Nest is subject to the Montana Code of Ethics (and, therefore, the jurisdiction of the Board) because, “[b]y legal definition, Nest became a public employee when it entered into a contract with the City of Bozeman as an independent contractor,” and that “Nest, is, by legal definition, a public employee if its services were engaged by the City to oversee the activities of the City’s incidental committee and educational campaign.” Civil Compl., ¶¶ 38, 92. It is our opinion, however, the Board lacks jurisdiction over the Nest because Nest is neither a public employee nor a public official of the City of Bozeman. The Montana Code of Ethics defines “public employee,” in the context of a local government, as “any temporary or permanent employee of a local government,” while a “public officer” is defined to include “any state officer and any elected officer of a local government.” § 2-2-102, MCA. The Bozeman Code of Ethics similarly defines “employee” as “all individuals employed by the city and its agencies, but does not include independent contractors hired by the city, city commissioners, or any municipal judge” and “officials” are defined as “all officers and members of the city's agencies, whether elected or appointed, whether paid or unpaid, whether permanent, temporary, or alternate, and that are not employees.” See Sec. 2.03.470.A.5 & .A.9, BMC. It is clear that the Nest is neither a “public officer” under the Montana Code of Ethics nor an “official” under the Bozeman Code of Ethics. Both definitions require officials/officers to be elected or appointed members of a local government. Nest was neither elected nor appointed to any City of Bozeman position. Therefore, in order for the Board to have jurisdiction over the Nest, it must be considered a “public employee” of the City. 5 Section 2-2-102(4), MCA, states that: “’Local government’ means a county, a consolidated government, an incorporated city or town, a school district, or a special district.” Section 2-2-102(7), MCA, states that: “‘Public employee’ means: (a) any temporary or permanent employee of the state; (b) any temporary or permanent employee of a local government; (c) a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority; and (d) a person under contract to the state.” Section 2-2-102(8), MCA, states that: “(a) ‘Public officer’ includes any state officer and any elected officer of a local government; (b) For the purposes of 67-11-104, the term also includes a commissioner of an airport authority.” January 11, 2019 Page 10 of 17 While Mr. Koopman’s Civil Complaint broadly asserts the Nest was a public employee of the City “by legal definition” (Civil Compl., ¶¶ 38, 92), he provides no further analysis or support for such claim. It is clear, however, that the Nest is not a public employee of the City of Bozeman according to Montana law. First, the Civil Complaint’s allegation that the Nest is a public employee because it entered into a contract with the City as an independent contractor is a misstatement of Montana law. The Montana Supreme Court has held that “[t]he test to determine whether a person is an independent contractor or employee allows for no middle ground: The claimant is classified as an employee or as an independent contractor.” Lundberg v. Liberty Nw. Ins. Co., 268 Mont. 499, 503, 887 P.2d 156, 158 (1994). This dichotomy is echoed in Montana’s wrongful discharge and worker’s compensation laws. See, e.g., § 39-2-903, MCA (“(3) ‘Employee’ means a person who works for another for hire. The term does not include a person who is an independent contractor.”); § 39-71-118(1), MCA (defining “employee” as “each person in this state, including a contractor other than an independent contractor[.]”). Thus, the Nest could not, as a matter of Montana law, be both an employee and independent contractor of the City of Bozeman. It must be one or the other. Montana law provides a clear, two-part test to determine whether an individual is an employee or independent contractor. See § 39-71-417(4)(a), MCA. Relatedly, the Montana Supreme Court has held that “[t]he right to control constitutes the most crucial factor in distinguishing between employees and independent contractors.” Eldredge v. Asarco Inc., 2011 MT 80, ¶ 51, 360 Mont. 112, 124, 252 P.3d 182, 191. Essentially, Montana law looks at how the individual performs the work, whether training, supervision, or a review of job assignments is provided, whether payment is rendered on a time or completed project basis, whether equipment is furnished, and whether an individual can be fired “without incurring contractual liability.” Eldredge, ¶¶ 52-55. The Ethics Complaint and the Civil Complaint fail to either address or offer factual allegations regarding any of the above factors relative to the relationship between the Nest, its employees, and the City of Bozeman. Instead, the Civil Complaint makes the legally untenable, otherwise unsupported claim that the Nest is a Bozeman employee because it entered into a contract for services with Bozeman as an independent contractor. See Compl., ¶¶ 38, 92. Mr. Koopman, as the complainant bears the burden of establishing that the Nest was a public employee of the City. See § 26-1-402, MCA; Mont. Envtl. Info. Ctr. v. Montana Dep't of Envtl. Quality, 2005 MT 96, ¶ 14, 326 Mont. 502, 507, 112 P.3d 964, 967. Furthermore, the Bozeman Code of Ethics requires that any complaint “shall specify the provisions of this division or provisions of title 2, chapter 2, part 1 of the Montana Code Annotated [ ] alleged to have been violated and facts alleged to constitute the violation.” Sec. 2.03.640.B, BMC. Here, neither the Ethics Complaint, nor the Civil Complaint, provide any factual allegations or substantive legal allegations establishing why the Nest is a public employee of the City and thus fail to establish that the Nest was a Bozeman employee. Accordingly, it is our opinion, the Board lacks jurisdiction over any of the allegations concerning the Nest and the Board should dismiss the allegations regarding the Nest for lack of jurisdiction. See Sec. 2.03.640.M.1.b, BMC. January 11, 2019 Page 11 of 17 C. LEGAL SUFFICENCY OF NON-NAMED PARTIES Mr. Koopman’s Ethics Complaint generally alleges violations against “numerous public employees”. Ethics Compl., p. 1. The Civil Complaint also names as defendants: John and Jane Does 1 through 30 [which] are public officials and employees of the City of Bozeman who were actively involved in the City’s advocacy efforts supporting the bond and the political committee. With particularity, they are any and all public employees contained on any of the campaign finance reports filed with CoPP. Civil Compl., ¶ 39. The Civil Complaint thereafter broadly alleges that unnamed City “employees spent public time and funds directly and created and supported a political committee,” that unnamed Bozeman employees engaged in improper advocacy, that unnamed Bozeman employees engaged in improper coordination, and unnamed employees improperly provided funds in support of the bond issue. See, e.g., Compl., ¶¶ 55, 63, 78, 114, 125, and 137. The use of fictitious defendants, like the John and Jane Does in the Civil Complaint, is a device used in Montana district courts to allow claims to be filed against unknown parties prior to the running of any statute of limitations. Montana law generally requires that complaints filed in district court be “sufficiently detailed to provide the other party with adequate notice of the claim so as to enable him or her to prepare a responsive pleading.” Poeppel v. Flathead Cty., 1999 MT 130, ¶ 17, 294 Mont. 487, 491, 982 P.2d 1007, 1009. Plaintiffs may bring complaints against fictitious defendants and then may engage in discovery, determine the correct identities of the fictitious defendants, and amend the complaint in a way that “relates back” to the original complaint even if the statute of limitations has run in the interim. See, e.g., Molina v. Panco Const., Inc., 2004 MT 198, ¶¶ 7-9, 322 Mont. 268, 271–72, 95 P.3d 687, 690; Sooy v. Petrolane Steel Gas, Inc., 218 Mont. 418, 422, 708 P.2d 1014, 1017 (1985). The use of fictitious names in district court complaints is specifically permitted by § 25-5-103, MCA, and Rule 15 of the Montana Rules of Civil Procedure governs whether an amended complaint that substitutes an individual for a fictitious defendant may “relate back” to the time when the original complaint was filed. However, as the following discusses, the above procedures enabling the use of fictitious defendants and subsequent substitution of true names by later amendment in a civil action are not applicable to ethics complaints filed with the Board and, regardless, conflict with the specific procedures that are applicable to this Board. First, City procedures require that ethics complaints be stated with sufficient legal and factual support. See Sec. 2.03.640.B, BMC (“[a] complaint shall specify the provisions of this division or provisions of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.) alleged to have been violated and facts alleged to constitute the violation.”). Mr. Koopman’s Ethics Complaint only generally states that “numerous public employees … violated MCA Sec. 2-2-121(3) while engaging in acts connected to the recently concluded bond issue January 11, 2019 Page 12 of 17 election.” Ethics Compl., p. 1. Further, throughout his Civil Complaint only general references to “public employees” or “employees” are made. Both documents otherwise lack specificity regarding which Bozeman employee’s conduct is at issue, what specific conduct by that employee is at issue, or what conduct constituted an alleged violation. These broad allegations regarding the John and Jane Doe Bozeman employees improperly places the burden on the Board to determine which Bozeman employees conduct is at issue, what specific conduct is at issue, or what conduct constitute an alleged violation. This shifting of the burden of proof is impermissible in light of the procedural requirement that complaints to the Board “specify” the alleged violations and facts constituting the violations. Sec. 2.03.640.B, BMC. Furthermore, the failure to specifically identify accused employees also does not allow for proper or sufficient notice and opportunity for the accused to respond. For example, Section 2.03.640.C, BMC, requires that the Bozeman City Clerk provide notice of the Complaint to “the person who is complained against,” Section 2.03.640.E.2, BMC, requires that any accused be afforded the opportunity to challenge the sufficiency of any complaint, and Section 2.03.640.H, BMC, grants the accused the right to respond to any complaint within 20 days of being served by the City Clerk. Here, generally referring to “numerous” and “fictitious” public employees does not provide sufficient information to allow proper notice and due process procedures to occur as outlined in the City code. The intent behind these procedural rules is to clearly allow for the identity of the accused, enable notification, service, and an opportunity to respond and challenge the allegations. That has not occurred here. Finally, unlike civil actions in district court, it is clear that the procedures applicable to the Board do not permit the use of fictitious defendants because the procedures lack any provision for amendment of a complaint to the Board to allow for the later identification of fictitious defendants. Rather, complainants may only amend the complaint once, and only if the complaint is first dismissed by the Board. See Sec. 2.03.640.l, BMC (providing “[i]f the complaint is dismissed, the complainant shall have one opportunity within 15 days of the dismissal to amend the complaint and to refile it with the board.”).6 Taken together, the procedural rules applicable to the Board, as discussed above, in our opinion, do not permit the use of unnamed, fictitious defendants. The Board is empowered to dismiss a complaint if it “does not allege facts sufficient to constitute a violation” or if the complaint “is defective in a manner which results in the board being unable to make any sound determination[.]” See Sec. 6 It should also be noted that the Civil Complaint used the fictitious defendant device rather than name, as party defendants, the employees included in the exhibits to the Civil Complaint. This distinction has important consequences. Individuals that are not named parties are not provided the notice and opportunity to respond that Montana law, including the procedures applicable to the Board, requires. See Secs. 2.03.640.B, .C, .E.2, & .H, BMC. Relatedly, relief cannot be ordered against non-parties. Williams v. Schwager, 2002 MT 107, ¶ 40, 309 Mont. 455, 466, 47 P.3d 839, 846. As a result, it is our opinion, claims cannot be considered against employees that are referenced in the Civil Complaint exhibits or the body of the Complaint but that are not identified as parties. January 11, 2019 Page 13 of 17 2.03.640.M.1.a & .d, BMC. In our opinion, the Board should dismiss the claims asserted against the unnamed “numerous public employees” and against the “John and Jane Does 1 through 30” non-party Bozeman employees. D. REMAINING CLAIMS AND FURTHER REVIEW Should the Board follow the recommendations as outlined above, the portion of Mr. Koopman’s Ethics Complaint that would remain for review would be those allegations alleging violations of § 2-2- 121(3), MCA against named defendants Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy. It would then be the Board’s duty to give due consideration to these claims, and take any action as outlined in Section 2.03.640.M. For purposes of the Board’s review, Mr. Koopman’s Ethics Complaint makes several requests for relief which are addressed below. 1. Direct Referral of Ethics Complaint to County Attorney Mr. Koopman requests due to “many conflicts of interest, required recusals and your limited authority” and “many inherent problematic deficiencies” that the Board forgo any review of his complaint and instead refer it directly to the Gallatin County Attorney to proceed pursuant to § 2-2-144, MCA.7 Ethics Compl., pp. 2-3. This request, however, in our opinion is not appropriate at this time, pursuant to Montana law. Section 2-2-144(5)(a), MCA, first provides only that the Board “may” refer the complaint. Such referral to the County Attorney is not mandatory, and only discretionary. State law clearly allows for the Board to take other actions (and City code provides for other actions). Second, and more importantly, state law provides that the Board may only refer complaints to the county attorney “that appear to be substantiated.” See § 2-2-144(5)(a), MCA; see also Sec. 2.03.640.M.4.d, BMC (providing the Board may “[r]efer the complaint, if it appears to be substantiated, to the county attorney….”). Thus, state law and BMC require that the Board must first “establish the existence or truth of (a fact, etc.), esp. by competent evidence” or “verify” the allegations before referral can occur. Black’s Law Dictionary 1443 Bryan A. Garner ed., 7th ed. 1999. Accordingly, a referral may only occur once there have been findings that evidence has been presented “by clear and convincing evidence” (Sec. 2.03.640.F.5, BMC) that the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or the Montana Code of Ethics. In our opinion, that has not yet occurred and thus referral would be premature and against state law and Bozeman code. 7 Mr. Koopman asserts that a myriad of conflicts and deficiencies preclude the Board’s review of his complaint. However, under the same logic employed by Mr. Koopman (i.e., that City officials and employees advocated on behalf of the bond in violation of ethical laws), the County Attorney may similarly need to recuse his review due to his alleged opposition of the bond. See e.g., Lisa Casillas Separate public safety facilities may be better NBC Montana, October 22, 2018; Whitney Bermes As Bozeman pushes for public safety center, county attorney voices opposition Bozeman Daily Chronicle, October 18, 2018; Mederios Babb Gallatin County Sheriff, Attorney oppose Bozeman Public Safety Center: push for joint project KBZK, October 18, 2018. January 11, 2019 Page 14 of 17 2. Handling of Ethics Complaint in Conjunction with Campaign Finance Issues In the alternative to referral to the County Attorney, Mr. Koopman also suggests that determination of his ethics claims be made in conjunction with the campaign finance issues he has raised. By way of background, on December 3, 2018, the City of Bozeman, by and through its counsel of record, self-reported Mr. Koopman’s civil litigation to the Office of the Commissioner of Political Practices (“COPP”) by filing a copy of his Civil Complaint with the Commissioner. Mr. Koopman’s Civil Complaint alleges, among other things, certain campaign finance and ethical violations by public officials and employees, which he claims affected the outcome of the November 2018 election. On December 10, 2018, attorneys for Mr. Koopman; the City of Bozeman, City Commissioners and Cyndy Andrus; and Nest, agreed to stay and hold in abeyance any and all actions in the Civil Complaint pending determination by COPP. As discussed above, the Board lacks jurisdiction to consider Mr. Koopman’s alleged violations of Title 13. Rather, alleged violations of § 13-35-226 and § 13-37-210, MCA, must be brought either by COPP or a county attorney. See §§ 13-35-226(5), 13-37-210, 13-37-128, MCA. The only legal claim that the Board has jurisdiction over is Mr. Koopman’s claims for alleged violations of § 2-2-121, MCA. Importantly, Mr. Koopman’s complaints in district court, before the COPP, and before this Board are all rooted and arise out of the November 2018 election in which approval was sought for the sale of bonds for the construction costs for the Bozeman Public Safety Center. Thus, they all arise out of alleged campaign practice violations. Importantly, the ethical rules alleged by Mr. Koopman to be violated--§ 2-2-121(3)8 and § 13-35-226(4), MCA9--regard a public officer or public employee’s 8 Section 2-2-121(3), MCA, provides in pertinent part: (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 … 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), .… 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. 9 Section 13-35-226(4), MCA, provides in pertinent part: January 11, 2019 Page 15 of 17 solicitation of support or opposition to a ballot issue, and are substantially similar. This is a fact that Mr. Koopman himself agrees with. See Civil Compl., ¶¶ 3-4. While Mr. Koopman seems to question COPP’s authority to review the issues before it, it is very clear that in addition to alleged violations of Title 13, chapters 35 and 37, the COPP has long enforced § 2-2-121, MCA, which outlines ethical rules governing public employees, when a violation is alleged to have occurred in the campaign practices context. See Juve v. Roosevelt Co. Comms., COPP 2014-CFP-063, fn. 1 (Dec. 8, 2014). Administrative regulations addressing the functions of the Commissioner clearly provide that the COPP has “enforcement responsibilities related to the Code of Ethics for government officer and employees in Title 2, chapter 2, part 1, MCA.” 44.11.101(2)(b), Admin. R. Mont. Furthermore, § 13-35-226(4), MCA, incorporates the standards of § 2-2-121 and in past decisions the COPP has applied § 2-2-121(3) and § 13-35-226(4), MCA, “to measure the propriety of election related activity engaged in by” local government officials and entities. See Juve, pp. 3-4 (Dec. 8, 2014) (citing other COPP decisions for support). Here, the facts underlying Mr. Koopman’s complaints are interwoven—the essence of the issues are the same and the parties overlap. The COPP action is at a more advanced stage— pleadings, responses, and other materials have been exchanged and filed with the COPP and it is our understanding that the parties are merely awaiting a decision from the COPP. Further, the underlying basis of all allegations relate to that of campaign practices, for which the COPP has established procedures and expertise. Additionally, there is always concern for inconsistent opinions being issued by the Board and COPP over the same issues or disputes, further complicating these matters. Nor does it appear to be the best use of public resources to have the Board continue on the same track as COPP. Board procedures allow the Board to decide that further information be obtained prior to making any further findings on whether there are facts sufficient to perform further review and/or hold a hearing on whether a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics has occurred. See Sec. 2.06.640.M.4, BMC. The rules allow the Board to schedule the complaint for further review and consideration at a future time certain–in essence the rules allow the Board to stay the proceedings. Based on the above discussion, it is our opinion that the Board should give deference to the COPP review, which was filed prior to this Ethics Complaint and which will specifically address the matters directly raised herein. We believe it would be appropriate for the Board to stay further proceedings on Mr. Koopman’s Ethics Complaint pending the issuance of COPP’s findings. Following the issuance of the COPP findings, at the Board’s next regular meeting, or within 30 days, whichever is sooner, the Board can then meet and further review and consider Mr. Koopman’s Ethics Complaint. A public employee may not solicit support for or opposition to … 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. January 11, 2019 Page 16 of 17 III. RECOMMENDATIONS Based on the above analysis, we offer the following recommendations. First, to avoid the appearance of a potential conflict of interest and impropriety, at the time Mr. Koopman’s Ethics Complaint is heard, prior to the complaint being considered, Mr. Taylor should recuse himself, step off the dais, and refrain from any active participation, discussion or voting on the matter. In the event of a tie vote, Mr. Taylor may vote, but only after disclosing his potential appearance of conflict, to break the resulting tie. Second, it is imperative that the Board clarify the scope of its review of Mr. Koopman’s claims, making clear it only has the authority to review his claims regarding alleged violations of § 2-2-121(3), MCA. We would further recommend that, pursuant to Section 2.03.640.M.1.b, BMC, the Board dismiss, in part, Mr. Koopman’s Ethics Complaint for lack of jurisdiction, regarding: (1) any and all claims alleging violations of Title 13; (2) any and all claims against the City of Bozeman; and (3) any and all claims against the Nest. Third, it is also important that the Board clarify the specific individuals to which Mr. Koopman’s alleged violations of § 2-2-121(3), MCA, apply. The only individuals to which specific allegations have been asserted are to those City officials and employees named as parties in his Civil Complaint: Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy. We, thus, recommend that pursuant to Sections 2.03.640.M.1.a and 2.03.640.M.1.d, the Board dismiss claims against the unnamed “numerous public employees” and against the “John and Jane Does 1 through 30” non-party Bozeman employees. Finally, with regard to review of the remaining claims by Mr. Koopman for violation of § 2-2- 121(3), MCA, by Mayor Andrus, Deputy Mayor Mehl, and Commissioners Kraus, Cunningham, and Pomeroy, we recommend the Board refuse Mr. Koopman’s request to directly refer his complaint to the Gallatin County Attorney as premature. Additionally, we recommend the Board give deference to the COPP review and stay further proceedings on Mr. Koopman’s Ethics Complaint pending the issuance of COPP’s findings. Following the issuance of the COPP findings, at the Board’s next regular meeting, or within 30 days, whichever is sooner, the Board can then meet and further review and consider Mr. Koopman’s Ethics Complaint. Based on the above recommendations, we would suggest the Board consider the following motion: “I move that the Board dismiss, in part, Mr. Koopman’s December 12, 2018, Ethics Complaint, (1) for lack of jurisdiction as it relates to any and all claims for alleged violations of Title 13 of Montana Code Annotated; any and all claims against the City of Bozeman and the Nest, and (2) for failure to state a claim against all unnamed “numerous public employees” and against the “John and Jane Does 1 through 30”; and J a n u a r y 1 1 , 2 0 1 9 P a g e 1 7 o f 1 7 s t a y f u r t h e r p r o c e e d i n g s o n t h e r e m a i n i n g p o r t i o n s o f M r . 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