HomeMy WebLinkAbout19- Supplemental Preliminary Written Analysis - City of Bozeman Board of Ethics - Koopman December 12, 2018 Ethics ComplaintUGRIN ALEXANDER ZADICK, P .C.
JORDAN Y. CROSBY
CATHY J. LEWIS
KEVIN C. MEEK
JOHN D. ALEXANDER
(RETIRED)
ROBERT F. JAMES
(RETIRED)
File No.: B049-01
Chairperson Melissa Frost
ATTORNEYS AT LAW
#2 RAILROAD SQUARE, SUITE B
P.O. Box 1746
GREAT FALLS, MONTANA 59403-17 46
TELEPHONE (406) 771-0007
FAX(406)452-9360
E-MAIL uazh@uazh.com,
Website http://uazh.com
February 11, 2019
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
Suppl. Preliminary Written Analysis
Dear Board Members:
ANDREW T. NEWCOMER
ROGER T. WITT
GARY M. ZADICK
JAMES R. ZADICK
NEIL E. UGRIN
1945-2007
We are providing the following supplemental analysis of the remammg claims of Mr.
Koopman's Ethics Complaint in light of the recent decision issued by the Commissioner of Political
Practices.
I. PROCEDURAL BACKGROUND
The Board of Ethics ("the Board") held a meeting on January 24, 2019, regarding Mr.
Koopman's Ethics Complaint. At the conclusion of this meeting, the Board voted to dismiss portions of
Mr. Koopman's Ethics Complaint alleging violations of Title 13 of the Montana Code Annotated and any
and all claims against the City of Bozeman and Nest Collective, LLC. The Board also dismissed the
Ethics Complaint's claims against unnamed public employees and John and Jane Does 1 through 30.
The claims remaining for the Board's consideration following these dismissals are the Ethics
Complaint's claims against certain City officials1 for alleged violations of§ 2-2-121 (3), MCA.
1 These City officials are: Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff Kraus, Terry
Cunningham, and 1-Ho Pomeroy. This analysis will refer to this group as "the City officials."
February 11, 2019
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The Board stayed further consideration of the remaining claims of the Ethics Complaint
pending issuance of a decision by the Commissioner of Political Practices ("COPP") regarding the
COPP's consideration of the City of Bozeman's self-filed COPP complaint, which incorporated the
allegations of Mr. Koopman's District Court Complaint.2
The COPP issued a Dismissal3 on the City's complaint on January 28, 2019. A copy of this
decision was provided to the Board via email on January 30, 2019. The COPP's decision considered
and dismissed, as relevant here, Mr. Koopman's claims alleging that City employees violated § 13-35-
226(4), MCA, by using public time and resources to advocate for passage of the Bond. The COPP
specifically concluded, from a review of emails, affidavits, interviews, financial reports and other
documentary evidence submitted by the parties, that "no City employees used public time or resources
to advocate for the BPSC[.]" COPP Dismissal, p. 34.
On February 4, 2019, the Board, through counsel, notified counsel for Mr. Koopman, the City of
Bozeman, and the Nest Collective, LLC, of the COPP's Dismissal and of the Board's February 20,
2019, meeting to further take up Mr. Koopman's Ethics Complaint. See Exhibit A. This notice advised
that counsel would provide a supplemental written analysis and invited the parties to submit additional
written information to the Board on or before February 14, 2019, by 12:00 p.m. As of the date of this
letter, the only submission received has been from the City. All submissions will be uploaded onto the
City's online repository so they are available for public review.
On February 5, 2019, counsel for the City of Bozeman provided the City's response to the
COPP Complaint, including numerous affidavits and documentary materials. This submission has
been numbered City 00001-00191. Contained within this submission are the many of affidavits and
documentary materials referenced in the COPP's Dismissal.
II. THE COPP'S DISMISSAL
The City's December 3, 2018, self-filed complaint with the COPP attached and incorporated
Roger Koopman's November 19, 2018, Montana District Court Complaint. Accordingly, the COPP
initially considered the same District Court Complaint that Mr. Koopman adopted in support of his
December 12, 2018, Ethics Complaint before this Board. See COPP Dismissal, p. 1.
The COPP's Dismissal specifically considered claims that:
1. The City of Bozeman violated§ 13-35-226(4), MCA, by advocating for passage
of the Bond issue (COPP Dismissal, pp. 18-24);
Mr. Koopman's Ethics Complaint likewise incorporated the allegations of Mr. Koopman's District Court Complaint.
Ethics Campi., pg. 1.
The full citation for the COPP's Dismissal is In re City of Bozeman, No. COPP 2018-CFP-057.
February 11, 2019
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2. The City of Bozeman, its elected officials, or employees violated § 13-35-
226(4), MCA, by using public time, resources, or other materials for passage of
the Bond issue (COPP Dismissal, pp. 24-28); and that
3. The City of Bozeman coordinated Bond advocacy with Bozeman Citizens for
Safety in violation of Montana reporting requirements (COPP Dismissal, pp.
28-34).
The claims considered in the second section, regarding the City officials' and employees' allegedly
improper use of public time, resources, and materials to advocate for the Bond, are the only allegations
relevant to Mr. Koopman's remaining ethics claims before the Board. This section will accordingly
focus upon the COPP's specific consideration of those claims.
The COPP Dismissal initially made a range of findings of fact relevant to Mr. Koopman's claims
under #2, above. Again, these factual findings were based upon the COPP's review of documents,
emails, interviews, committee financial reports, and other evidence submitted by the parties. COPP
Dismissal, p. 34. Relevant factual findings include:
• Finding of Fact No. 3, regarding the City's filing of a C-2 Statement of
Organization on June 22, 2018;
• Finding of Fact No. 4, regarding the City's filing of an initial C-4 committee
finance report on August 8, 2018, detailing City staff time spent on education
and City expenditures;
• Finding of Fact No. 7, regarding the City's filing of a periodic C-4 committee
finance report on October 2, 2018, detailing City staff time spent on education
and City expenditures;
• Finding of Fact No. 11, regarding the City's filing of a periodic C-4 committee
finance report on October 25, 2018, detailing City staff time spent on education
and City expenditures;
• Finding of Fact No. 15, regarding the City's filing of a closing C-4 committee
finance report on November 21, 2018, detailing City staff time spent on
education and City expenditures;
• Finding of Fact No. 16, detailing the City's response to the COPP Complaint;
• Finding of Fact No. 17, detailing an affidavit from Mayor Andrus swearing that
she understood the line between education and advocacy and only engaged in
educational activities in her official capacity as Mayor. See also City's
Submission, City 00028-31 ;4
4 The Finding notes that Mayor Andrus swore that she authored a letter to the editor of the Bozeman Daily
Chronicle on her personal computer during personal time but erroneously sent the letter via her City email account.
February 11, 2019
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• Finding of Fact No. 19, detailing an affidavit from Commissioner Cunningham
swearing that he was aware of the difference between education and advocacy
and did not engage in advocacy using public time or resources. See also
City's Submission, City 00051-53;
• Finding of Fact No. 20, detailing an affidavit from Commissioner Krauss
swearing that he understood the prohibition on advocacy using public
resources and only advocated for the Bond on his personal time using personal
resources. See also City's Submission, City 00054-56;
• Finding of Fact No. 21, detailing an affidavit from Deputy Mayor Mehl swearing
that he understood the line between advocacy and education and never
advocated for the Bond in his official capacity, but only as a private citizen on
his own time and with personal resources. See also City's Submission, City
00057-59;
• Finding of Fact No. 22, detailing an affidavit from Commissioner Pomeroy
swearing that she understood the difference between education and advocacy
and never advocated for passage of the Bond in her official capacity but only
did so during private time with private resources. See also City's Submission,
City 00060-61;
• Finding of Fact No. 28 detailing an interview with Deputy Mayor Mehl wherein
Deputy Mayor Mehl indicated that his communications and work on behalf of
BCFS was conducted on private time using private resources; and
• Finding of Fact No. 35, detailing an email from Commissioner Cunningham
providing that his work on behalf of BCFS's radio ad was conducted on private
time and with private resources.
COPP Dismissal, pp. 2-13.
The COPP considered Mr. Koopman's claim that City employees violated § 13-35-226(4),
MCA, on pages 24 through 28 of the Dismissal. The COPP first determined that "the materials
produced and distributed by the City were electioneering communications that do not support or
oppose the ballot issue." COPP Dismissal, p. 24 (emphasis added). The COPP then determined that
"[t]he City of Bozeman made it clear to its employees the prohibitions on advocating for the success or
failure of the BPSC ballot issue." COPP Dismissal, p. 25. For support, the COPP cited to findings of
fact that included the above-summarized findings regarding the City officials' understanding and
conduct regarding the line between advocacy and education. /d.
The COPP also determined that "[t]he City also provided affidavits from several City employees
involved, or alleged to have been involved in key aspects of the bond matter, and each employee
attested that they did not promote, support, or advocate for the BPSC while acting in their official
February 11, 2019
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capacity. /d. p. 26. For support, the COPP again cited to findings of fact that included the above-
summarized findings regarding the City officials' conduct. See id., p. 26.
As the COPP summarized, "[a]s long as the employee was not operating in an official
employment capacity, officially representing the City of Bozeman, or otherwise utilizing City time or
resources, the individuals were free to express their personal opinion or position regarding the BPSC
and advocate for its passage or failure as they saw fit." COPP Dismissal, p. 26. The COPP then
determined that "[t]he Koopman district court complaint contains neither factual evidence nor
specific examples refuting the sworn statements of these employees; neither was any such
evidence uncovered as a result of COPP's investigation." COPP Dismissal, p. 26 (emphasis added).
The COPP ultimately determined that any City employee advocacy was made in the
employee's private capacity utilizing private time and resources. /d., p. 26-27. The COPP accordingly
dismissed Mr. Koopman's unsupported allegations to the contrary. /d.
Ill. THE BOARD OF ETHICS SHOULD TAKE NOTICE OF AND APPLY THE COPP'S
DISMISSAL
While the COPP's Dismissal did not consider Mr. Koopman's Title 2 claims against the City
officials, it is our opinion that the COPP's decision should be adopted and applied by the Board to
dismiss Mr. Koopman's Ethics Complaint's remaining Title 2 claims against the City officials. This is
because: 1) the COPP considered and issued findings and conclusions regarding the same City
officials' conduct put at issue by the Ethics Complaint; 2) these fully-adjudicated findings should be
afforded deference by the Board; and 3) the legal conclusions of the COPP regarding§ 13-35-226(4),
MCA, are substantively identical to the claims the Board must consider under§ 2-2-121 (3), MCA.
The procedures applicable to the Board provide that "the board shall not be bound to adhere to
statutory Rules of Evidence, but shall be fundamentally fair in its administration of evidence." Sec.
2.03.640(F)(1), BMC. Montana law allows courts to take notice of findings of fact and conclusions of
law made in prior proceedings. See M.R.Evid. 201; M.R.Evid. 202; see also Farmers Plant Aid, Inc. v.
Fedder, 2000 MT 87, 11 27, 299 Mont. 206, 213, 999 P.2d 315, 320 (the Supreme Court express
approval of courts taking judicial notice of, and adopting, factual findings regarding the same parties
that were made in prior cases). Judicial notice of facts may be taken regardless of whether the
documents from prior proceedings were formally entered into evidence before the tribunal
subsequently taking notice of those facts. In re S.T., 2008 MT 19,1117,341 Mont. 176, 181, 176 P.3d
1054, 1057. Judicial notice likewise extends to the legal opinions, orders, and records of prior
proceedings. Estate of Kinnaman v. Mountain W Bank, N.A., 2016 MT 25, 1126, 382 Mont. 153, 162,
365 P.3d 486, 493. Both types of judicial notice, whether of facts or of law, are generally within the
discretion of Montana courts. In re Marriage of Carter-Scan/on & Scanlon, 2014 MT 97, 1117, 374
Mont. 434, 439, 322 P.3d 1033, 1036 ("Both types of judicial notice also allow a court to take judicial
notice at its discretion, whether requested or not."). Judicial notice of factual findings and legal
February 11, 2019
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conclusions regarding substantially similar allegations involving the same parties promotes consistency
and judicial economy.
While the Board is not bound to the above statutory rules of evidence and legal findings
permitting notice of facts and law, it is our opinion that it is appropriate and "fundamentally fair" for the
Board to follow clear, established Montana law permitting tribunals to take notice of prior factual
findings and legal conclusions. The COPP's decision fully considered the same factual issues and
conduct put at issue by the remaining claims of Mr. Koopman's Ethics Complaint. The COPP's
consideration of the same conduct, evidence, and factual issues resulted in a determination that there
was no evidence that City employees or officials engaged in advocacy for the Bond on public time or
with public resources. COPP Dismissal, pp. 26-27; see also Findings of Fact Nos. 3-4, 7, 11, 15, 16-
17, 19-22, 26, 28, 35, and 37, COPP Dismissal, pp. 2-13. These factual findings should be applied
here in the interests of consistency and economy.
Furthermore, the Board is presently considering the same conduct that the COPP has
previously adjudicated. Montana law favors a definite end to litigation and disfavors serial litigation of
the same issue. See Baltrusch v. Baltrusch, 2006 MT 51,~ 15, 331 Mont. 281, 288, 130 P.3d 1267,
1273. Specifically, the judicial doctrine known as "collateral estoppel" or "issue preclusion" seeks to
prevent "litigants from reopening all questions essential to the judgment which were determined by a
prior judgment." Baltrusch, ~ 18. This doctrine serves to "conserve judicial resources, relieve parties
of the expense and vexation of multiple lawsuits, and foster reliance on adjudication by preventing
inconsistent decisions." Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ~ 18, 366 Mont. 78, 85, 285 P.3d
494, 499. Accordingly, the Board should respect the COPP's factual findings and legal conclusions
regarding issues that were previously considered by the COPP and that are also raised by Mr.
Koopman's Ethics Complaint. Application of the COPP's findings and decisions here will likewise
promote consistency and efficiency.
Issue preclusion specifically bars relitigation when 1) the identical issue raised was previously
decided by a prior adjudication; 2) when a final judgment on the merits was made in the prior
adjudication; 3) when the party against whom issue preclusion is asserted was a party in the prior
adjudication; and 4) when that party was also afforded a full and fair opportunity to litigate the issues
which may be barred. /d. at~~ 18, 24 ("[W]e conclude that it is appropriate to accord finality to an
earlier judgment which contains findings of fact that definitively resolve all of the new allegations and
legal theories included in the later complaint.").s Issue preclusion "also prevents relitigation of
determinative facts which were actually or necessarily decided in a prior action." Baltrusch, ~ 25.
Importantly, issues may be "identical" if "the 'issues are so intertwined that to decide the issue before it,
It is important to note that the preclusion doctrines have been applied to administrative decisions as well. See,
e.g., B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1303 (2015) (United States Supreme Court holding that
"'[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to
enforce repose."'); see also Restatement (Second) of Judgments§ 83 (1982).
February 11, 2019
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the Court would have to rehear the precise issue previously decided.'" Baltrusch, 1f25, citing Martelli v.
Anaconda-Deer Lodge County, 258 Mont. 166, 169, 852 P.2d 579, 581 (1993). Issues may be
"identical if the subject matter of the legal theories or factual assertions of the second case issues is
'related and relevant to the issues that were litigated and adjudicated previously."' Montana Envt/. Info.
Ctr. v. Montana Dep't of Envtl. Quality, 2016 MT 9, 1f21, 382 Mont. 102, 111, 365 P.3d 454, 461. This
can include the relitigation of facts previously decided. /d. at 1f24.
The principle of issue preclusion weighs strongly in favor of taking notice of, and adopting the
COPP's findings of fact and legal conclusions, and dismissing Mr. Koopman's Ethics Complaint due to
the identical legal questions, parties, and factual issues. First, the issues considered by the COPP's
Dismissal are substantively identical to the issues raised by Mr. Koopman's Ethics Complaint. This is
because consideration of Mr. Koopman's Ethics Complaint would require relitigation of factual findings
previously made by the COPP. The COPP determined, considering the same conduct put at issue by
Mr. Koopman's Ethics Complaint, that City employees and the City officials knew the line between
advocacy and education and respected it. The COPP likewise determined that no evidence refuted the
sworn statements of City employees and the City officials. These factual determinations should not be
re-litigated. The Board should instead adopt the COPP's findings that the City officials respected the
line between advocacy and education and did not engage in improper advocacy on public time or using
public resources.
Similarly, the legal issues raised by Mr. Koopman's Ethics Complaint under§ 2-2-121 (3), MCA,
are substantively identical to the legal issues considered by the COPP's Dismissal under § 13-35-
226( 4 ), MCA. Section 2-2-121 (3), MCA, provides, in relevant part:
(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
February 11, 2019
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support or oppose a candidate or candidates for public office. With
respect to ballot issues, properly incidental activities are restricted to:
(emphasis added).
(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[.]
Section 13-35-226( 4 ), MCA, provides in relevant part that:
(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.
(emphasis added).
Both statutes identically prohibit public employees and officials from soliciting support for or
opposition to a ballot issue while on the job or at work. Indeed,§ 13-35-226(4), MCA, incorporates the
provisions of § 2-2-121, MCA, regarding this issue. The legal questions at issue in both the COPP's
Dismissal and Mr. Koopman's Ethics Complaint involve the same essential questions regarding public
employees' and officials' uses of public time and resources to advocate in favor of the Bond issue. Any
adjudication of the Ethics Complaint's alleged violations of § 2-2-121 (3), MCA, would necessarily
become intertwined with the prior legal analysis of the COPP regarding § 13-35-226(4). It is our
opinion that the Board should not engage in relitigation of the same essential legal question decided by
the COPP.
Second, the COPP issued a final Dismissal after assessing the merits of the allegations in Mr.
Koopman's District Court Complaint regarding §§ 13-35-226(4), the allegation which overlaps with the
complaints regarding § 2-2-121 (3), MCA, in Mr. Koopman's Ethics Complaint. See COPP Dismissal,
pp. 18-28. Third, it is clear that Mr. Koopman is the complaining party in both the COPP Dismissal and
the Ethics Complaint here.
Finally, it is also clear that the COPP afforded Mr. Koopman a full and fair opportunity to litigate
the claims before it. The COPP expressly considered Mr. Koopman's District Court Complaint. See
COPP Dismissal, p. 1. The COPP Dismissal further indicates that "[t]he COPP provided a copy of the
campaign finance complaint to the parties in the Koopman lawsuit and invited them to provide
February 11, 2019
Page 9 of 11
additional information. While the response submitted addressed their position on the campaign finance
complaint, no additional evidence or information was provided." COPP Dismissal, p. 13.
Considerations of judicial economy, clear Montana law on judicial notice of facts and law, and
comity towards the decisions of other Montana tribunals all weigh in favor of taking notice of and
adopting the relevant factual findings and legal conclusions of the COPP Dismissal. As a result, it is
our recommendation that the Board of Ethics take notice of the findings of fact and conclusions of law
contained within the COPP's Dismissal, as well as any related records of the COPP action regarding
the City's self-filed complaint. The Board should then apply these factual findings and legal
conclusions in its decision on Mr. Koopman's remaining Title 2 claims against the City officials.
IV. APPLICATION OF THE COPP'S DISMISSAL TO THE ETHICS COMPLAINT
Here, the COPP determined that Mr. Koopman failed to allege facts sufficient to constitute a
violation of the substantively identical § 13-35-226(4), MCA. The COPP specifically determined that
the available evidence, which included the evidence regarding the City officials, demonstrated that the
City, the City officials, and City employees did not use public time or resources to advocate for the
Bond. COPP Dismissal, pp. 25-27. The COPP also specifically determined that Mr. Koopman had
failed to provide evidence that would controvert the sworn statements, emails, interviews, or
documentary evidence, which encompassed the conduct of City officials, in the record before the
COPP. /d. The evidence provided that the City officials did not engage in advocacy on public time or
with public resources and Mr. Koopman did not provide evidence to the contrary, despite being
provided a full and fair opportunity to litigate the issue. /d., Findings of Fact Nos. 3-4, 7, 11, 15, 16-17,
19-22, 26, 28, 35, and 37.
The COPP's legal analysis, as explained above, under § 13-35-226(4), MCA, necessarily
involved a review of the same City officials' conduct put at issue by the Ethics Complaint's allegations
under§ 2-2-121(3), MCA. The COPP determined that the uncontroverted evidence provided by the
City regarding the conduct of City employees and City officials demonstrated that the City employees'
conduct did not violate§ 13-35-226(4), MCA. The legal question presently before the Board under§ 2-
2-121 (3), MCA, regarding the City officials is substantively identical and requires a review of City
officials' conduct that was already the subject of factual findings by the COPP.
As shown above, the COPP Dismissal made a range of factual findings regarding the conduct
of all the City officials named in Mr. Koopman's Ethics Complaint. These factual findings dealt with the
very conduct at issue in Mr. Koopman's Ethics Complaint: whether the City officials improperly used
public resources or time to advocate for the Bond. The COPP then determined, based in part on these
factual findings regarding the City officials' conduct that City employees and officials were aware of the
line between impressible advocacy and permissible education and acted in conformity with this line.
COPP Dismissal, pp. 25-26. The COPP specifically noted the lack of any evidence to the contrary,
despite providing an opportunity for Mr. Koopman to provide additional evidence or information. See
COPP Dismissal, p. 26.
February 11, 2019
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This lack of evidence of any improper advocacy using public time or resources, coupled with
the range of evidence provided by the City officials detailing conduct in conformity with Montana law, in
our opinion requires dismissal of Mr. Koopman's allegations in his Ethics' Complaint. While, the COPP
declined to extend its ultimate legal conclusions to include the City officials or Mr. Koopman's claims
under § 2-2-121, MCA, just like with the City employees, the COPP's factual findings show that there is
no evidence that the City officials engaged in improper advocacy. COPP Dismissal Findings of Fact
Nos. 3-4, 7, 11, 15, 16-17, 19-22, 26, 28, 35, and 37. Instead, the COPP's factual findings
demonstrate that the City officials engaged in advocacy on personal time using personal resources. /d.
Importantly, to date Mr. Koopman has not controvert these factual findings, which instead affirmatively
demonstrate that the City officials complied with § 2-2-121 (3), MCA, by respecting the line between
advocacy and education. /d.
Under City code, the Board, after giving due consideration to a complaint, with or without a
hearing, may dismiss an ethics complaint if it "does not allege facts sufficient to constitute a violation of
this division or a violation of title 2, chapter 2, part 1 of the Montana Code Annotated." Sec.
2.03.640(M)(1)(a), BMC. The BMC also permits the Board to dismiss complaints, after due
consideration with or without a hearing, that are "defective in any manner which results in the board
being unable to make any sound determination[.]" Sec. 2.03.640(M)(1)(d). Further, the BMC
empowers the Board to dismiss a complaint if "no violation of this division or a violation of title 2,
chapter 2, part 1 of the Montana Code Annotated (MCA 2-2-101 et seq.) has occurred[.]" Sec.
2.03.640(M)(2).
Here, the Board may take notice of, adopt, and apply those factual findings regarding the City
officials' conduct under the substantively identical § 2-2-121 (3), MCA. In applying the COPP Dismissal
to the remaining allegations of the Ethics Complaint, it is also our recommendation that the Board
dismiss the Ethics Complaint's remaining claims against the City officials for alleged violations of§ 2-2-
121 (3), MCA. Consistency and respect for the COPP's prior adjudication of the same facts under a
substantively identical law requires a similar dismissal of the remaining claims of Mr. Koopman's Ethics
Complaint.
We accordingly recommend that the Board dismiss the entirety of the remaining allegations of
the Ethics Complaint because: 1) Mr. Koopman's Ethics Complaint failed to allege facts sufficient to
constitute a violation of either the Bozeman Code of Ethics or § 2-2-121(3), MCA; and 2) the
uncontroverted available evidence shows that the City officials did not violate either the Bozeman Code
of Ethics or§ 2-2-121 (3), MCA.
We would further suggest consideration of the following motion at the meeting:
"I move that the Board dismiss the remaining portions of Mr. Koopman's December
12, 2018, Ethics Complaint."
February 11, 2019
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V. PROPOSED FINDINGS
Should the Board agree with our recommendations , we suggest the Board incorporate the
attached findings (Exhibit B) in addition to any oral findings entered into the record by the Board at the
February 20, 2019, meeting on Mr. Koopman's Ethics Complaint.
Thank you for allowing us the opportunity to continue our review of this matter and offer our
analysis . We look forward to answering any additional questions you may have at the February 20
meeting on this matter.
Sincerely Yours,
Encls.
C/o City Clerk Robin Crough (via email RCrouqh@BOZEMAN.NET)
1
Jordan Crosby
From:Jordan Crosby
Sent:Monday, February 04, 2019 3:26 PM
To:Christopher Gallus; John M Newman (jnewman@boonekarlberg.com);
ashaw@brownfirm.com
Cc:Robin Crough; Jim Zadick
Subject:Koopman Complaint
Dear Mr. Gallus, Mr. Newman, and Mr. Shaw:
In light of last week’s COPP findings, the City of Bozeman Board of Ethics is scheduling a meeting for February 20, 2019,
at 5:00 p.m., in the City Commission Room, at City Hall, to further take up Mr. Koopman’s complaint.
I will be providing the Board with a supplemental written analysis and intend on doing so by the end of this week. I will
make certain that each of you receive a copy of that analysis.
Additionally, the Board would like to provide your respective parties with the opportunity to provide any additional
written information they would like the Board to consider at the February 20 meeting. To allow sufficient time for all
materials to be included with the Board agenda and provide sufficient public notice, please provide via email any
materials you wish by February 14, 2019, 12:00 p.m. to City Clerk, Robin Crough at RCrough@BOZEMAN.NET.
In the meantime, should you have any additional questions, please let me know.
Jordan
Jordan Y. Crosby
UGRIN ALEXANDER ZADICK, P.C.
#2 Railroad Square, Suite B
P.O. Box 1746
Great Falls, MT 59403
Telephone: (406) 771-0007
Facsimile: (406) 452-9360
www.uazh.com
NOTICE: This communication may contain privileged or other confidential information. If you are
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Thank you.
EXHIBIT A
1
EXHIBIT B
BOARD OF ETHICS
FINDINGS AND CONCLUSIONS
DECEMBER 12, 2018, ROGER KOOPMAN COMPLAINT
In addition to the oral findings entered into the record by the Board of Ethics for the City of
Bozeman (hereafter “the Board”) at the public meetings on January 24 and February 20, 2019, and
pursuant to Section 2.06.640.M.5 of the Bozeman Municipal Code (“BMC”), the Board makes the
following findings and conclusions regarding the December 12, 2018, Ethics Complaint by Roger
Koopman:
1. Montana law provides that where 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.
2. Bozeman City Charter establishes an independent Board of Ethics. The Board reviews
ethical 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.
3. 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.
4. On December 12, 2018, Roger Koopman served an Ethics Complaint on the Board
alleging 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. Mr. Koopman argues that his civil action contains his
assertions that the City officials and employees violated § 2-2-121(3), MCA, while engaging in acts
connected to the recently concluded bond issue election.
5. On January 11, 2019, pursuant to Section 2.03.640.D, BMC, the Board’s legal counsel
issued their preliminary written analysis. On February 11, 2019, the Board’s legal counsel issued a
supplemental written analysis.
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EXHIBIT B
6. The Board held public meetings on January 24, 2019 and February 20, 2019, to address
Mr. Koopman’s Ethics Complaint. The affected parties to the Ethics Complaint were invited to attend
and also allowed the opportunity to file written information. Public comment was also taken at both
meetings.
A. Preliminary Procedural Matters
7. Initially, in his Ethics Complaint, Mr. Koopman raises several procedural issues and
conflicts of interest which he argues precludes the Board’s review of his complaint. In requesting relief,
Mr. Koopman requests that the Board refuse to accept his complaint and 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.
8. Mr. Koopman 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. Mr. Koopman’s complaint regarding the City Attorney’s
alleged conflict of interest in serving as the Board’s legal advisor is moot and has already been addressed
by the December 17, 2018, retention of the law firm of Ugrin Alexander Zadick, P.C., to serve as the
Board’s legal counsel.
9. Mr. Koopman’s Ethics Complaint also generally asserts that the Board’s system is not
designed to handle complaints implicating a majority of City officials who “play vital roles” in how the
Board exercises its authority and thus creates a conflict of interest in the Board’s review of his complaint
which further supports the Board’s preclusion in reviewing his complaint. Montana law specifically
empowers the Board to hear ethical complaints regarding City officials and employees. See § 2-2-144(5),
MCA. Montana law further 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. It is thus proper for the Board to review and decide this Ethics Complaint.
10. Mr. Koopman’s Ethics Complaint also implicates Board Member Carson Taylor’s
involvement with BCFS and argues such relationship creates a conflict of interest in the Board’s review
of his Ethics Complaint. Pursuant to City policies and procedures regarding potential conflicts of interest,
and because of his involvement with BCFS and Mr. Koopman’s allegations regarding BCFS, at each
meeting in which the Board took up Mr. Koopman’s complaint, Mr. Taylor recused himself from the
Board’s discussion and consideration.
11. Mr. Koopman also requested that the Board forgo any review of his complaint and
instead refer it directly to the Gallatin County Attorney to proceed. This request, however, is not
appropriate pursuant to Montana law. Referral to the County Attorney is not mandatory, and only
discretionary. See § 2-2-144(5)(a), MCA. State law clearly allows for the Board to take other actions
and City code provides for other actions.
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EXHIBIT B
12. Additionally, 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 the facts alleged by competent evidence and verify the allegations before referral can occur.
B. Board Jurisdiction
13. As an initial threshold matter, the Board must address the issue of its jurisdiction over
the legal claims and parties as alleged by Mr. Koopman.
14. The Board’s jurisdiction is defined by Montana law and Bozeman City code and is limited
to hearing ethics complaints related to 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.
15. Mr. Koopman’s Ethics Complaint asserts violation of § 2-2-121(3), MCA, and his Civil
Complaint, which he has incorporated in support of his Ethics Complaint, makes additional claims for
violations of §§ 13-35-226 and 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. The Board only has the authority to review Mr. Koopman’s claims regarding alleged violations of
§ 2-2-121(3), MCA and Mr. Koopman’s claims and allegations regarding alleged violations of Title 13 are
dismissed for lack of jurisdiction. See Sec. 2.03.640.M.1.b, BMC.
16. Mr. Koopman’s Ethics Complaint alleges 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, Mayor Cyndy
Andrus, Commissioners Chris Mehl, Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy, Nest Collective,
LLC (“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.”
17. The Bozeman Code of Ethics and the Montana Code of Ethics limit their application to
individuals—either public employees or public officials. Mr. Koopman’s Ethics Complaint asserts it is
brought against the City of Bozeman. The City is neither a public employee nor a public official under
the Montana Code of Ethics or Bozeman Code of Ethics. See § 2-2-102, MCA; Sec. 2.03.480, BMC.
Because the City of Bozeman is not a public official or a public employee, the Board does not have the
jurisdiction to consider claims made by Mr. Koopman against the City generally, and those claims are
dismissed. See Sec. 2.03.640.M.1.b, BMC.
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EXHIBIT B
18. Mr. Koopman alleges ethical violations against the Nest, a Montana limited liability
corporation claiming it became a public employee when it entered into a contract with the City of
Bozeman as an independent contractor and was engaged by the City to oversee the activities of the
City’s incidental committee and educational campaign. The Board, however, lacks jurisdiction over the
Nest because the Nest is neither a public employee nor a public official of the City of Bozeman. The
Board thus dismisses the allegations regarding the Nest for lack of jurisdiction. See Sec. 2.03.640.M.1.b,
BMC.
19. Mr. Koopman’s Ethics Complaint generally alleges violations against “numerous public
employees” and his Civil Complaint which he has incorporated therein, names “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.
20. The use of fictitious defendants is not appropriate in ethics complaints filed before the
Board. City procedures require that ethics complaints be stated with sufficient legal and factual support.
See Sec. 2.03.640.B, BMC. Mr. Koopman’s Ethics Complaint and Civil Complaint’s make only general
references to “public employees” and otherwise lacks specificity regarding which Bozeman employee’s
conduct is at issue, what specific conduct by that employee is at issue, or what conduct constitutes an
alleged violation.
21. The failure to specifically identify accused employees does not allow for proper or
sufficient notice and opportunity for the accused to respond which is required by Bozeman code. See
Secs. 2.03.640.C, 2.03.640.E.2, and 2.03.640.H, BMC. Thus, general references to “numerous” and
“fictitious” public employees does not provide sufficient information to allow proper notice and due
process procedures to occur.
22. 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. 2.03.640.M.1.a & .d, BMC. Accordingly, the Board
dismisses the claims asserted against the unnamed “numerous public employees” and against the “John
and Jane Does 1 through 30” non-party Bozeman employees.
23. Based on the foregoing findings, the only individuals to which specific allegations have
been asserted by Mr. Koopman 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.
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EXHIBIT B
C. COPP Review
24. In his Ethics Complaint, Mr. Koopman suggests that determination of his ethics claims
be made in conjunction with the campaign finance issues he has raised. Ethics Compl., p. 3.
25. 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.
26. Mr. Koopman’s COPP Complaint and Mr. Koopman’s December 12, 2018, Ethics
Complaint raise the same fundamental allegation that the City, City employees, and City officials,
including Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff Kraus, Terry
Cunningham, and I-Ho Pomeroy, allegedly engaged in improper advocacy in support of the Bond while
on public time and with public resources.
27. 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. These claims arise out of alleged
campaign practice violations, the facts underlying Mr. Koopman’s complaints are interwoven, and the
COPP action was at a more advanced stage. Accordingly, at the January 24, 2019, meeting, the Board
decided to give deference to the COPP review, and stay further proceedings on the remaining portions
of Mr. Koopman’s Ethics Complaint pending the issuance of COPP’s findings. See Sec. 2.06.640.M.4,
BMC.
28. The Board held that following the issuance of the COPP findings, at the Board’s next
regular meeting, or within 30 days, whichever is sooner, the Board would then meet and further review
and consider Mr. Koopman’s Ethics Complaint.
29. The COPP issued a Dismissal on the City’s complaint on January 28, 2019. Thus, the
Board scheduled a meeting to further review and consider Mr. Koopman’s Ethics Complaint for February
20, 2019.
30. The COPP’s decision considered and dismissed, as relevant here, Mr. Koopman’s
claims alleging that City employees violated § 13-35-226(4), MCA, by using public time and resources
to advocate for passage of the Bond. The COPP specifically concluded, from a review of emails,
affidavits, interviews, financial reports and other documentary evidence submitted by the parties, that “no
City employees used public time or resources to advocate for the BPSC[.]” COPP Dismissal, p. 34.
31. The COPP’s consideration of Mr. Koopman’s campaign finance complaint involved the
review of evidence, including from affidavits, emails, documentary evidence, committee financial reports,
and interviews, that concerned the conduct of Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and
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EXHIBIT B
Commissioners Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy. The COPP’s factual findings
regarding the conduct of Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff
Kraus, Terry Cunningham, and I-Ho Pomeroy demonstrated that none of the parties engaged in improper
advocacy for the Bond on public time or with public resources.
32. The COPP provided Mr. Koopman with a full and fair opportunity to address or rebut this
evidence. Mr. Koopman did not provide evidence that refuted either the sworn statements of Mayor
Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff Kraus, Terry Cunningham, and I-Ho
Pomeroy or the evidence uncovered by the COPP’s investigation.
33. The COPP concluded that Mr. Koopman failed to provide evidence that the City or City
employees engaged in improper advocacy concerning the Bond. The COPP instead concluded that the
available evidence showed that any advocacy efforts by the City or City employees were undertaken on
personal time utilizing personal resources. The COPP accordingly dismissed Mr. Koopman’s claims that
the City and City employees engaged in improper advocacy under § 13-35-226(4), MCA.
34. Section 2-2-121(3), MCA, forms the basis of the remaining claims of Mr. Koopman’s
Ethics Complaint against Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff
Kraus, Terry Cunningham, and I-Ho Pomeroy. Section 2-2-121(3), MCA, is substantively identical to §
13-35-226(4), MCA.
35. The Board may take notice of the COPP’s factual findings and legal conclusions. The
Board may adopt and apply the COPP’s factual findings and legal conclusions that involve the same
parties, facts, and issues presented by Mr. Koopman’s Ethics Complaint. The Board should not engage
in relitigation of factual or legal issues previously determined by the COPP.
36. The uncontroverted evidence shows that Mayor Cyndy Andrus, Deputy Mayor Chris
Mehl, and Commissioners Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy knew and respected the
line between advocacy and education.
37. The uncontroverted evidence shows that Mayor Cyndy Andrus, Deputy Mayor Chris
Mehl, and Commissioners Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy did not engage in advocacy
in support of the Bond on public time or with public resources.
38. Respect for the COPP’s analysis of the same facts under a substantively identical statute
requires a determination here that Mayor Cyndy Andrus, Deputy Mayor Chris Mehl, and Commissioners
Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy did not violate § 2-2-131(3), MCA.
39. Mr. Koopman’s Ethics Complaint has failed to allege facts sufficient to constitute a
violation of either the Bozeman Code of Ethics or § 2-2-121(3), MCA.
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EXHIBIT B
40. The uncontroverted evidence shows that Mayor Cyndy Andrus, Deputy Mayor Chris
Mehl, and Commissioners Jeff Kraus, Terry Cunningham, and I-Ho Pomeroy did not violate either the
Bozeman Code of Ethics or § 2-2-121(3), MCA.
41. The Board accordingly dismisses the entirety of the remaining allegations of Mr.
Koopman’s Ethics Complaint pursuant to Sec. 2.03.640(M)(1)(a), BMC; Sec. 2.03.640(M)(1)(d), BMC;
and Sec. 2.03.640(M)(2), BMC.
DATED this _____ day of February, 2019.
___________________________________ ____________________________________
Chairperson Melissa Frost Board Member Mary Jane McGarity