HomeMy WebLinkAbout19- Findings and Conclusions - Board of Ethics - December 12, 2018 Roger Koopman Complaint NI T
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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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 BUS 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 BUS 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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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 Krauss,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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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 2.03.640.1-1, 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 & A, 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 Krauss, Terry
Cunningham, and I-Ho Pomeroy.
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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 Krauss, 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.
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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
Commissioners Jeff Krauss, 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
Krauss, 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 Krauss, 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
Krauss, 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 Krauss, 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 Krauss, 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 Krauss, 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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40. The uncontroverted evidence shows that Mayor Cyndy Andrus, Deputy Mayor Chris
Mehl, and Commissioners Jeff Krauss, 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,
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Board of Ethics:
Chai sa rost Board embe ary Jane McGarit
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