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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