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HomeMy WebLinkAboutResolution 5051 Settlement Agreement and Waiver of Appeal Rights Agreement in Koopman et al. v. City of Bozeman BOZ� 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 Page 1 of 4 Resolution 5051,Settlement and Waiver of Appeal Rights Agreement in Koopman v. City 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 Page 2 of 4 Resolution 5051,Settlement and 117aiver of Appeal Rights Agreement in Koopman v. City 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. Page 3 of 4 Resolution 5051, Settlement and TVaiver of Appeal Rights Agreement in Koopman v. City 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. THIA AANDRUS Mayor ATTEST: gOZ ROBIN CROUGH City Clerk ��•., 1883 ,• �� J L9TjN Co APPR ED AS TO FORM: RE PR VAN City Attorney Page 4 of 4 EXHIBIT r SETTLEMENT AGREEMENT ° This Settlement Agreement is made and entered into this 18th day of April, 2019, by and between Roger Koopman, Paul F. Johnson, and Does 1-5 Area Residents and Taxpayers ("Plaintiffs'), and the City of Bozeman,Mayor Cyndy Andrus, Bozeman City Commissioners, and John and Jane Doe 1-30 Public Employees/Officials ("City of Bozeman"), in full and final resolution of claims related to Koopman, et al. v. Citlj of Bozeman, et al., Cause Nos. DV 18-1166B and DV 18-1215C, Montana Eighteenth Judicial District Court,Gallatin County ("Lawsuit"). RECITALS WHEREAS Montana Code Annotated §§ 2-2-121(3) and 13-35-226(4) allows public officers and public employees to use public time, facilities, equipment, supplies, personnel, or funds to educate the public regarding the impact of passage or failure of a ballot issue on government operations if 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; and WHEREAS the City of Bozeman is committed to encouraging and facilitating public participation, and uses such public forums and tools as: (1) noticed City Commission and citizen advisory board meetings, (2) advertised Town Hall events, (3) project webpages on the City's website related to particular ballot issues and other City projects, (4) social media and other user-friendly online and email tools for submitting public comment, (5) an online repository for all public comment which is easily accessible on the City's website, and (6) push-notification systems to inform the public; and WHEREAS Plaintiffs filed the Lawsuit in November 2018, alleging violations of Montana Code Annotated §§ 2-2-121,13-35-226,and 13-37-210 by the City of Bozeman with regard to a bond election for the Bozeman Public Safety Center; and WHEREAS on March 26 2019 the Montana Eighteenth Judicial District Court, g Hon. Brenda R. Gilbert ("District Court"), dismissed the Lawsuit and entered judgment in favor of the City on March 27,2019; and WHEREAS Plaintiffs possess certain rights under the law to seek post judgment relief in the District Court and to appeal the District Court's rulings to the Montana Supreme Court; and Koopman,et a1.v. Cihj of Bozeman,et al.—Settleinent Agreement Page 1 of 3 WHEREAS the City of Bozeman seeks finality to the Lawsuit so that bonds can be issued and the Bozeman Public Safety Center project can proceed on time and as approved by Bozeman electors; NOW THEREFORE, Plaintiffs and the City of Bozeman enter the following Settlement Agreement: 1. Settlement Terms. Plaintiffs and the City of Bozeman agree to the following terms in full and final resolution of the Lawsuit: A. The City of Bozeman shall pay to Plaintiffs the sum of$21,955 for costs incurred bringing the Lawsuit, including attorneys fees. B. If the City Manager proposes using public funds for an educational campaign in connection with a ballot issue to explain the impact of the ballot issue on government operations, the City Manager shall present to the City Commission a budget with sufficient detail such that: (1) the public can appear and comment on the proposed use of public funds, and (2) the City Commission can consider and adopt all or parts of the proposal. C. Plaintiffs absolutely and irrevocably waive: (1) any right to post-judgment relief available under the Montana Rules of Civil Procedure, any provision of Montana Code Annotated,or at common law;and(2)any right to appeal of any issue,order, or other aspect of the Lawsuit. D. The parties mutually agree that the City of Bozeman's existing commitments which encourage public participation will be enhanced by providing user friendly access to its existing tools in the form of a banner specific to any particular City initiated discretionary ballot issue, which will be displayed on the City's homepage during an election. E. Plaintiffs and the City of Bozeman shall file a joint notice of final settlement and Plaintiffs' waiver of appeal,a copy of which is attached as Exhibit A. 2. No admission of wrongdoing. It is understood that the above-mentioned sum of attorney's fees and other provisions are accepted as the sole consideration for full satisfaction and accord to compromise a disputed claim,and that neither the payment of the sum,the insertion of the proposed provisions,nor the negotiations for settlement shall be considered as an admission of wrongdoing by the City of Bozeman. Koopnian,et al.v. Cihj of Bozeman,et al.—Settlement Agreement Page 2 of 3 3. Ratification. This Settlement Agreement is subject to ratification by the Bozeman City Commission, and is not considered final until such approval is given. 4. Agreement not confidential. It is expressly stated herein that this Settlement Agreement and all of its terms,without limitation,are not confidential,and are subject to public dissemination under the laws and Constitution of the State of Montana. 5. Authority. By his signature below, Plaintiff Roger Koopman represents and attests that he is authorized to settle this matter in the manner described herein, and that his signature individually and separately binds each plaintiff. 6. Severability. Should any provision of this Settlement Agreement be determined to be unenforceable, all remaining terms and clauses shall remain in force and shall be fully severable. 7. Final agreement. This written Settlement Agreement constitutes the final agreement between the parties and shall supersede any oral agreements to the contrary. DATED this 18th day of April, 2019. DATED this 18th day of April,2019. Roger Koopman Andrea Surratt, City Mar Ager City of Bozeman APPROVED BY: APPROVED BY: Chris J. Gallus Joi54 Newman Attorney for Plaintiffs Boone Karlberg,P.C. Attorneys for City of Bozeman Koopnian,et al.v. Citj of Bozeman,et al.—Settlement Agreement Page 3 of 3 EXHIBIT A i i 1 Chris J. Gallus Attorney at Law ' 1423 Otter Road Helena,MT 59602 Tel.: (406)459.8676 chrisjgalluslaw@gmaii.com Attorneys for Plaintiffs Roger Koopman, .Paul F. Johnson, and Does 1-5 Area.Residents and Taxpayers ) Randy J. Cox Natasha Priming Jones John M.Newman BOONE KARLBERG P.C. 201 West Main, Suite 300 P.O. Box 9199 Missoula,MT 59807-9199 Tel.: (406) 543-6646 � Fax: (406)549-6804 E rcox@boonelcarlberg.com iipjones@boonelcarlberg.com jnewman@boonekarlberg.com i Attorneys for Defendants City of Bozeman, Cyndy Andrus, i City Commissioners, and John and Jane Doe.l 30 Public Employees/0jf1cials 3 � E E MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT GALLATIN COUNTY 1 ROGER ICOOPMAN,et al. Cause No.DV---18-•1166B Hon.Brenda R, Gilbert Plaintiffs, l V. F ♦ f i CITY OF BOZEMAN,et al. Defendants. ROGER KOOPMAN,et al. Cause No. DV-18--1215C Hon. Brenda R. Gilbert i Plaintiffs, V. JOINT NOTICE OF FINAL � } SETTLEMENT AND PLAINTIFFS' f CITY OF BOZEMAN,et al., WAIVER OF APPEAL Defendants. i I I Notice is hereby given that the parties have agreed to full and final resolution of the above-entitled action. The Court dismissed this matter with prejudice on March 26,2019,and entered judgment in favor of Defendants on March 27,2019. That judgment is final and shall remain final in all respects, Defendant City of Bozeman served and filed a notice of entry of judgment on March 28,2019. Now,in exchange for valuable consideration as agreed between the parties,Plaintiffs agree to absolutely and irrevocably waive; (1)any right to post judgment relief available under the Montana Rules of Civil Procedure,any provision of Montana Code Annotated,or at commnon law; and(2)any right to appeal of any issue,order,or other aspect of the above-entitled action. The City enters into this agreement in the interest of finality and in order to timely proceed with construction of the Bozeman Public Safety Center. This matter is therefore fully and finally resolved. DATED this 18th day of April,2019. ckll Chris J.Gallus Attorneys for•Plaintiffs Roger Koopman, Paul F. Johnson, and Does 1-5 Area Residents and Taxpayers i 4andy Cox Na riming Jones John M.Newman Attorneys for Defendants City of Bozenian, Cyndy Andrus, City Commissioners, and John and Jane Doe 1-30 Public Employees/OjfIcials 2 I i e CERTIFICATE OF SERVICE This is to certify that the foregoing was duly served by email and mail upon the following : counsel of record at the address shown below on this 18th day of April,2019. Scott M. Gratton Ada►n M. Shaw BROWN LAW FIRM,P,C. 269 W.Front Street, Suite A Missoula,MT 59802 ' sgratton@brownfirm.com asliaw@brownffi,m.com t Hon. Brenda R. Gilbert District Judge 414 Bast Callender Street Livingston,MT S9047 t1nlaCCxackelt@tnt.gov (email only) BOONS KAii1..mm)P.C. i i Tina Sunderland i i i I I i .3