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HomeMy WebLinkAbout04-22-19 City Commission Packet Materials - A1. Res. 5051, Ratifying CM Signature on Settlement Agreement with Koopman Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Andrea Surratt, City Manager Greg Sullivan, City Attorney SUBJECT: Adopt Resolution 5051, a resolution ratifying the City Manager’s approval of settlement and waiver of appeal rights in Roger Koopman & Paul F. Johnson v. City of Bozeman (Cause Nos. DV 18–1166B and DV 18–1215C, Montana Eighteenth Judicial District Court, Gallatin County) MEETING DATE: April 22, 2019 AGENDA ITEM TYPE: Action RECOMMENDATION: After accepting public comment, adopt Resolution 5051. SUGGESTED MOTION: Having considered public comment, I hereby move to adopt Resolution 5051. STRATEGIC PLAN: The Bozeman Public Safety Center is one of the City’s top seven priorities as listed in the City’s Strategic Plan. Under the vision statement of “Safe Welcoming Community (We embrace a safe, healthy, welcoming and inclusive community)” the first action item is “3.1 Public Safety – Support high quality public safety programs, emergency preparedness, facilities, and leadership.” BACKGROUND: This past November, city voters approved the sale of bonds to construct a new Bozeman Public Safety Center (the “BPSC”) on Rouse Avenue between Oak Street and Tamarack Street. The development of a safety center to provide updated facilities for police, fire, municipal courts, prosecution, and victim services has been a priority of the City Commission and City Management for years. Information on the background of the Safety Center can be found in the April 23, 2018 City Commission packet materials and on the BPSC project page on the City’s website. The remainder of this memo is dedicated to discussion on the proposed settlement agreement. At the time of the election plaintiff Roger Koopman filed a complaint in Gallatin County District Court seeking a ruling from the district court that the City and Commissioners violated State law and that the election should be overturned. Because the City determined the district court was not the appropriate legal forum for resolving the issues raised in the complaint, the City self-served the complaint with the Commissioner of Political Practices (CoPP) – the forum we believe to be the proper body to hear the type of issues included in Mr. Koopman’s complaint. The CoPP dismissed the complaint finding City educational materials for the BPSC were educational in nature and not improper advocacy, and that the City did not coordinate any BPSC activities with an outside citizens group. Mr. Koopman also filed his district court complaint with the City’s Board of Ethics. The Board dismissed the complaint indicating “The uncontroverted evidence shows that Mayor 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 Sect. 2-2-121(3), MCA.” As for the district court case, the District Court recently ruled in the City’s favor determining Mr. Koopman did not have a private right of action to challenge the election in the manner in which he did. After judgment was entered on March 28th, by rule Mr. Koopman has 60 days to file an appeal with the Montana Supreme Court. This means the time to file an appeal will run at the end of May. An appeal to the Montana Supreme Court could take at least six to nine months. If Mr. Koopman were to wait the maximum time to file a notice of appeal a decision on the appeal may not come until early next year. As such, the simple act of an appeal even if the City were to succeed upon appeal will be enough to delay the BPSC for an entire year resulting in increased costs to the project and an indefinite delay in addressing the inadequate facilities the BPSC will address. RAMIFICATIONS OF SETTLEMENT: Throughout this litigation, we have recognized the litigation has had significant impact on the future of the BPSC. With litigation in place, the City will not market and sell bonds – the primary source of financing for the BPSC. This means that during litigation and during any appeal funding for the project through the sale of bonds is not possible. While the City has some funds available for the project, the vast majority of construction costs will come from revenue from the sale of bonds. We estimate that as construction costs increase continually in the Gallatin Valley a year of delay could mean an increase of at least $2,000,000 in costs for the project. Delay also means the issues associated the need for the BPSC continue to go unaddressed. The practical impacts of not constructing the BPSC are significant. These include: City staff must indefinitely continue to work from and within inadequate facilities. This includes employees in police, fire, and municipal court services. Next, appeal and continued litigation means an indefinite delay for addressing the safety concerns for City employees and the public who enter the current Law & Justice Center for city related purposes. In addition, indefinite delay means financial issues related to inadequate facilities at the current Fire Station One (especially in relation to the historic boiler) go unaddressed. Other impacts include indefinite delay to addressing inadequate police facilities related to evidence storage, inadequate facilities for the municipal court file storage, etc. These deficiencies in City facilities have been well documented. Resolving this case through settlement means Mr. Koopman waives his appeal rights. This is the most important aspect as it means the case is over. City staff can begin immediately to implement the process to sell bonds, provide revenue for final design, and have a chance of staying on time with the proposed schedule of bidding construction at the end of 2019 or early 2020. As such, we consider settlement a business decision of the City. He has approximately five more weeks to file a notice of appeal with the Montana Supreme Court. TERMS OF SETTLEMENT: The settlement agreement contains several terms. These include: • Payment of $21,955 in attorney fees and costs; • Waiver of appeal rights by Mr. Koopman; • Requirement that the City Manager include in her proposed budget for future bond elections a budget for any proposed educational efforts (this has been done in the past); • Placement of a banner on the homepage of the City’s website to provide a link to information on the proposed ballot initiative (this is what the City already did with the BPSC); • Filing of a joint notice of final settlement and plaintiffs’ waiver of appeal rights in the District Court; and • No admission of wrongdoing by the City. As stated, this is a business decision of the City. We continue to assert, as has been shown through dismissal of Mr. Koopman’s complaint by the CoPP, the City’s Ethics Board, and the District Court, that the City did everything related to the educational efforts for the BPSC within the requirements of the law. UNRESOLVED ISSUES: None identified. If the Commission adopts the Resolution, the case will be over and the Bozeman Public Safety Center can continue as planned. ALTERNATIVES: None suggested. If the Commission does not ratify the settlement, we are uncertain whether any additional room for negotiation exists. The Commission may reject ratification, which would put the City into the same position – awaiting whether Mr. Koopman will appeal to the Montana Supreme Court. FISCAL EFFECTS: The fiscal effects of this decision are significant. While the City would agree to pay $21,559 in attorney fees and costs to Mr. Koopman, resolving this case will result in the Bozeman Public Safety Center moving forward. Absent resolution of this case (and should Mr. Koopman appeal) as noted above, the City will face significant cost increases due to delay in selling bonds. This could be over $2,000,000 in delay costs. In addition, in order for the City to continue with conceptual design, the City adjusted the current fiscal year’s budget to provide additional funds from other projects – delaying those other projects to a future time. The funds were necessary to keep the design on schedule. These other projects (PROST plan update, Commission Room safety and tech upgrades) may now continue. Attachments: Resolution 5051 with Attachments Settlement Agreement Joint Notice of Final Settlement and Plaintiffs Waiver of Appeal Report compiled on: April 18, 2019 Page 1 of 4 RESOLUTION NO. 5051 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, RATIFYING THE CITY MANAGER’S APPROVAL OF A SETTLMENT AGREEMENT AND WAIVER OF APPEAL RIGHTS AGREEMENT IN KOOPMAN ET AL. v. CITY OF BOZEMAN (CAUSE NOS. DV 18–1166B AND DV 18–1215C, MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY) WHEREAS, The Bozeman Public Safety Center (BPSC) is one of the City’s top seven Strategic Plan priorities as listed under the vision statement of “Safe Welcoming Community (We embrace a safe, healthy, welcoming and inclusive community)” wherein the first action item is “3.1 Public Safety – Support high quality public safety programs, emergency preparedness, facilities, and leadership”; and WHEREAS, At the November 2018 general election, city voters approved the sale of bonds by a vote of 13,580 in favor to 9,134 opposed to construct a new Bozeman Public Safety Center (BPSC) on Rouse Avenue between Oak Street and Tamarack Street; and WHEREAS, In November, 2018 Roger Koopman and Paul F. Johnson filed a complaint in the Eighteenth Judicial District court alleging the City, its elected officials, and unidentified employees, violated Montana law in the City’s educational effort related to the BPSC bond election; and WHEREAS, the Montana Commissioner of Political Practices dismissed the complaint finding City educational materials for the BPSC were educational in nature and not improper Resolution 5051, Settlement and Waiver of Appeal Rights Agreement in Koopman v. City Page 2 of 4 advocacy, and that the City did not coordinate any BPSC activities with an outside citizens group; and WHEREAS, Mr. Koopman filed the same compliant with the City’s Board of Ethics who also the dismissed Mr. Koopman’s complaint indicating “The uncontroverted evidence shows that Mayor 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 Sect. 2-2- 121(3), MCA;” and WHEREAS, The District Court dismissed Mr. Koopman’s complaint ruling Mr. Koopman did not have a private right of action to challenge the election in the manner in which he did; and WHEREAS, Mr. Koopman has approximately five more weeks from the date of this Resolution to determine whether to appeal the District Court ruling to the Montana Supreme Court; and WHEREAS, an appeal to the Montana Supreme Court could take a minimum of six to nine months; and WHEREAS, while the City is confident it would be successful on appeal it recognizes as with all litigation that uncertainty, albeit it minimal, as to the legal outcome of this case exists; and WHEREAS, an appeal will most certainly result in delay of design and construction of the BPSC for at least one year resulting in significant increased costs to the BPSC with such costs potentially exceeding $2,000,000 per year of delay; and WHEREAS, the City Commission recognizes and affirms all aspects of the City’s educational effort related to the BPSC were lawful; and Resolution 5051, Settlement and Waiver of Appeal Rights Agreement in Koopman v. City Page 3 of 4 WHEREAS, the City Commission determines ratification of this settlement and waiver of appeal rights agreement is in the best interest of the City as it creates certainty for the financing, designing, and construction the BPSC, avoids future costs of litigation, provides certainty for the employees of the City and members of the public who work and visit the City’s facilities at the Law & Justice Center, provides certainty for correcting inadequate facilities for the Bozeman Fire Department, Bozeman Police Department, and Bozeman Municipal Court, and will provide the City the best opportunity to keep the BPSC on schedule and within the costs approved by the voters of the City. NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Bozeman, Montana: Section 1 The City Commission hereby ratifies the City Manager’s approval of the Settlement Agreement and the release of appeal rights attached as Exhibit A to this Resolution. Section 2 The City Commission authorizes the City Manager and the City Attorney to take all steps necessary to implement the settlement agreement. Resolution 5051, Settlement and Waiver of Appeal Rights Agreement in Koopman v. City Page 4 of 4 PASSED, ADOPTED, AND APPROVED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 22nd day of April, 2019. ___________________________________ CYNTHIA L. ANDRUS Mayor ATTEST: _____________________________________ ROBIN CROUGH City Clerk APPROVED AS TO FORM: ___________________________________ GREG SULLIVAN City Attorney