HomeMy WebLinkAbout12-10-19 Public Comment - B. Close - Commission Interactions with Employees-Resolution 5124From:Chris Mehl
To:Agenda
Subject:FW: public comment
Date:Tuesday, December 10, 2019 10:04:36 PM
Attachments:Dear Commissioners v3.pdf
Charter Provision002.pdf
Model Charter Excerpt.pdf
Study Commission Report Excerpt.pdf
Public Right to Know and Participate and public records 2015 MCA.pdf
Chris Mehl
Bozeman Deputy Mayor
cmehl@bozeman.net
406.581.4992
________________________________________
From: Brian Close [taxatty123@gmail.com]
Sent: Tuesday, December 10, 2019 9:57 PM
To: Chris Mehl
Subject: Re: public comment
Dear Deputy Mayor:
Please forward the attached to the commission (with the attachments).
I hope to attend tomorrow and to be of assistance to the commission on this important matter.
Yours,
Brian F. Close
Study Commissioner 2004-2006
Dear Commissioners:
I served on the study commission that wrote the city charter. I was
elected with 5600 votes. City charters drafted by study commissions before
us had been voted down quite regularly prior to this charter. This Charter
was presented to the public with our full report and passed by the voters
with a 60% approval.
As the author of the section of the report (Section F) which provides
a legislative history of the individual charter provisions, I have to take issue
with the statement contained in the proposed resolution that the “Charter
does not provide any specific description of the scope of the term
“inquiry’” permitted to Commissioners to make to staff.
In a literal sense, that is true. However, Article 2.05(c) of the city
charter was taken, unmodified, from the National Civic League Model
Charter 8th Edition. Commentary in that document to that section states1:
Council members are strictly prohibited from giving orders to
city officers or employees. However, the prohibition against
interference with administration does not prevent council
members from making inquiries of department heads or
employees for the purpose of obtaining information needed
by them in the discharge of their duties including response
to constituent requests. Information provided to one council
member should be shared with the entire council as warranted.
The council and manager should define the parameters for such
requests and establish reasonable boundaries. In some cities,
automated information systems make information on aspects of
departmental operations readily available to council members
1Section 9 F of the Study Commission Report directs questions on charter issues to the
Model Charter Commentary. So these official comments as to the meaning of “inquiry” are
authoritative.
on computer terminals.
(Emphasis supplied; Model Charter Comments attached)
To be clear, Article 2.05( c) gives a commissioner the right to ask
direct questions of staff, particularly in matter that affect the
commissioner’s duties and especially regarding constituent matters. No
ordinance or resolution can legally deprive a commissioner of that right or
bind future commissioners. On that score, Para 8 of the resolution violates
the city charter.
The charter commentary permits establishing “reasonable
boundaries” on inquiries. I respectfully submit barring a commissioner
from asking staff any questions outside a city commission meeting is not
reasonable and violates the right of inquiry that the charter guarantees
commissioners and their constituents.
This is particularly true for commissioners in their role as liaisons to
city boards. I have served on several city boards and currently chair one.
Commission liaisons regularly ask practical nuts and bolts questions of
staff in such meetings. Do we really want stop a commissioner from asking
what the status of a matter is? On the Rec Board it is oftentimes something
as simple as when will the hockey boards go up? Or as complex as “What
is the status of hiring the Contractor for the PROST Plan?” Putting the
burden of all of that on the city manager seems excessive and complicated.
I’d like to direct your attention to item 10, which prohibits a
commissioner from attending a public meeting organized by staff. That
provision is a clear violation of the federal constitution’s first amendment
freedom of association as well as a violation of the Montana constitution
Article II, Section 8, guarantee of right to participate in public matters. A
commissioner does not forfeit his or her rights as a citizen by merely being
elected. Restrictions must be reasonable and, under standard constitutional
construction, subject to strict scrutiny. Is there a less restrictive way to
achieve the goal of preventing City Commissioners pushing staff around
other than barring them from meetings? Or asking questions, for that
matter. In short, this entire resolution is constitutionally deficit based on the
City Charter and state and federal constitutions.
Aside from criticisms I have solutions.
First, as Article 2.05(c) is a Model Charter provision there are dozens
of communities that have dealt with how to implement it. I suggest you
review their solutions. You may find something better than what is
proposed here today with all too much haste.
Second, before going forward with the proposed solution, if there is
even a hint of constitutional infirmity you should submit it to the DOJ for
an attorney general opinion.
To conclude, the Model Charter commentary had this to say about the
approach presented in the proposed resolution:
The prohibition against interference in the...administration of
city programs does not include the broad language of earlier
editions of the Model because it was considered too rigid and
unrealistic.
Yours,
Brian F. Close
Member, Bozeman Study Commission 2004-2006
Model
City
Charter
A Publication of the
National Civic League
National Civic League
National Headquarters
1445 Market Street, Suite 300
Denver, Colorado 80202-1717
Office: 303-571-4343
Fax: 303-571-4404
Web:www.ncl.org
Washington D.C. Office
1319 F Street N.W. Suite 204
Washington, D.C. 20004
Office: 202-783-2961
Fax: 202-347-2161
Commentary.
Under the Model, council members are part-time officials and do not direct city departments.
Council salary level depends on a variety of factors specific to each community, including the part-
time nature of the position and the emphasis on policy-making rather than administration. The city
should reimburse council members for expenses incurred in performing their duties, e.g., travel to
the state capital to testify on behalf of the city.
The Model rejects the setting of the actual amount of compensation in the charter except for the
salary of the first council after the charter goes into effect (see § 9.05(f)). The delay in the effective
date of any salary increases provides ample protection.
The city should provide extra compensation for the mayor because, in addition to regular
responsibilities as a council member, the mayor has intergovernmental, ceremonial, and city-related
promotional responsibilities.
Section 2.05. Prohibitions.
(a) Holding Other Office. Except where authorized by law, no council member shall hold
any other elected public office during the term for which the member was elected to the
council. No council member shall hold any other city office or employment during the term
for which the member was elected to the council. No former council member shall hold any
compensated appointive office or employment with the city until one year after the
expiration of the term for which the member was elected to the council, unless granted a
waiver by the Board of Ethics.
Nothing in this section shall be construed to prohibit the council from selecting any current
or former council member to represent the city on the governing board of any regional or
other intergovernmental agency.
(b) Appointments and Removals. Neither the city council nor any of its members shall in
any manner control or demand the appointment or removal of any city administrative
officer or employee whom the city manager or any subordinate of the city manager is
empowered to appoint, but the council may express its views and fully and freely discuss
with the city manager anything pertaining to appointment and removal of such officers and
employees.
(c) Interference with Administration. Except for the purpose of inquiries, and
investigations under § 2.09, the council or its members shall deal with city officers and
employees who are subject to the direction and supervision of the city manager solely
through the city manager, and neither the council nor its members shall give orders to any
such officer or employee, either publicly or privately.
Commentary.
(a) This provision prohibits council members from concurrently holding other elective office, such
as state legislator, as occurs in some states. Also prohibited is holding any other city office or
employment during one's council term or for one year after leaving office. These provisions are
designed to avoid conflict of interest situations. The charter is specific, however, that these
prohibitions do not restrict any current or former officeholder from service on the boards of regional
or other intergovernmental agencies. Such service is particularly valuable in accomplishing the
objectives of intergovernmental cooperation.
(b) and (c) The prohibition against interference by council members in the appointment and removal
of employees and in the administration of city programs does not include the broad language of
earlier editions of the Model because it was considered too rigid and unrealistic. This provision,
while expressing the general policy of noninterference, does not exclude communication between
council members and the manager on questions of appointment and removal. The manager may
seek advice from the council regarding appointments.
Council members are strictly prohibited from giving orders to city officers or employees. However,
the prohibition against interference with administration does not prevent council members from
making inquiries of department heads or employees for the purpose of obtaining information needed
by them in the discharge of their duties including response to constituent requests. Information
provided to one council member should be shared with the entire council as warranted. The council
and manager should define the parameters for such requests and establish reasonable boundaries. In
some cities, automated information systems make information on aspects of departmental
operations readily available to council members on computer terminals.
Section 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies.
(a) Vacancies. The office of a council member shall become vacant upon the member's
death, resignation, or removal from office or forfeiture of office in any manner authorized
by law.
(b) Forfeiture of Office. A council member shall forfeit that office if the council member:
(1) Fails to meet the residency requirements,
(2) Violates any express prohibition of this charter,
(3) Is convicted of a crime involving moral turpitude, or
(4) Fails to attend three consecutive regular meetings of the council
without being excused by the council.
(c) Filling of Vacancies. A vacancy in the city council shall be filled for the remainder of
the unexpired term, if any, at the next regular election following not less than sixty days
upon the occurrence of the vacancy, but the council by a majority vote of all its remaining
members shall appoint a qualified person to fill the vacancy until the person elected to
serve the remainder of the unexpired term takes office. If the council fails to do so within
thirty days following the occurrence of the vacancy, the election authorities shall call a