HomeMy WebLinkAbout20- Opinon City EE & Police Commission Incompatiable Offices Sept 17 2020BOZ E MAN MT
City Attorney's Office
TO: Jeff Mihelich, City Manager; Mike Maas, City Clerk
FR: Greg Sullivan, City Attorney6
C: Assistant City Attorneys
Date: September 18, 2020
Greg Sullivan, City Attorney
Bekki McLean, Chief Prosecutor
Tim Cooper, Assistant City Attorney
Karen Stambaugh, Assistant City Attorney
Kelley Rischke, Assistant City Attorney
Anna Saverud, Assistant City Attorney
Kyle Murray, Prosecutor
Edward Hirsch, Prosecutor
Samantha Niesen, Prosecutor
RE: Incompatible office: public works employee and police commission
You asked me to examine whether a city employee may serve on the police commission.
Generally, whether city employment is incompatible with the appointment to a city office on a city
board, agency, or committee depends on the nature of the employment and the role the employee
would serve as an appointed official. Here, I determine city employment for those that are subject
to the appointment and removal authority of the City Manager is incompatible with the office of a
police commissioner.
Neither the City nor State of Montana has a statutory or regulatory prohibition on public employees
serving in elected or appointed offices in the same organization. We must, however, follow the
common law "doctrine of incompatible offices." The doctrine, in essence, provides that a person
cannot hold an office over which the person exercises supervisory control. Zunski v. Frenchtown
Rural Fire Dept.l3d. Of Trustees, 2013 MT 258.
In 1998, the Montana Attorney General determined a public works employee could not also hold
the position of city council member of the same city in which they were employed. In doing so,
the Attorney General stated:
The Montana Supreme Court has recognized that two offices are incompatible
when one has the power of removal over the other, when one is in any way
subordinate to the other, when one has the power of supervision over the other, or
when the nature and duties of the two offices are such as to render it improper, from
considerations of public policy, for one person to retain both. State ex rel. Klick v.
Wittmer, 50 Mont. 22, 144 P. 648 (1914).
TDD: 406-582-2301 THE MOST LIVABLE PLACE.
The doctrine of incompatible public offices eliminates the public policy concerns
inherent in the simultaneous holding of multiple public offices or positions by: (1)
preventing multiple position -holding, so that offices and positions of public trust
do not accumulate in a single person; (2) preventing individuals from deriving,
directly or indirectly, any pecuniary benefit by virtue of their dual position -holding;
(3) avoiding the inherent conflict which occurs when an employee's elected position
has revisory power over the employee's superior in another position; and (4)
ensuring, generally, that public officeholders and public employees discharge their
duties with undivided loyalty.
46 Op. Att'y Gen. No. 26 (1996), citing 43 Op. Att'y Gen. No. 47 at 165 (1989),
which cites Acevedo v. City of North Pole, 672 P.2d 130, 134 (Alaska 1983).
hi 46 Op. Att'y Gen. No. 26, I also concluded that the common law doctrine of
incompatible public offices applies to public employees, as well as to public office
holders, and that a county employee appointed by a board of county commissioners
and paid by the county cannot serve on the board of commissioners for the same
county.
The common-law doctrine of incompatibility extends to positions of public
employment as well as public offices. See, e.g., Otradovec v. City of Green Bay,
347 N.W.2d 614 (Wis. Ct. App. 1984). As the Wyoming Supreme Court has stated,
it is "inimical to the public interest for one in public employment to be both the
employer and the employee or the supervisor and the supervised." Thomas v.
Dremmel, 868 P.2d 263, 264 (Wyo. 1994), quoting Haskins v. State ex rel.
Harrington, 516 P.2d 1171 (Wyo. 1973).46 Op. Att'y Gen. No. 26.
47 Mont. Op. Atty. Gen. No. 19.
In examining whether two offices or employment are incompatible I focus not on the traits,
intentions, or characteristics of the person but rather on the relationship of the offices or
employment including their context within the organization and their duties, functions, and
responsibilities.
As for this specific request, the police commission has specific statutory duties. First, the police
commission has a role in the examination of applicants for the police force:
7-32-4154. Role of police commission in examination of applicants for police
force. It shall be the duty of the police commission to examine all applicants whose
applications have been referred to the commission as to their age, legal, mental, moral,
Page 2 of 4
and physical qualifications and their ability to fill the office as a member of the police
force. It shall also be the duty of the police commission, subject to the approval of the
mayor, to make such rules regarding such examinations not inconsistent with this pail
or the laws of the state.
Next, the police commission hears and decides appeals brought by police officers regarding
discipline or removal from the police force:
7-32-4155. Role of police commission in hearing and deciding appeals brought
by police officers. (1) The police commission shall hear and decide appeals brought by
any member or officer of the police department who has been disciplined, suspended,
removed, or discharged by an order of the mayor, city manager, or chief executive.
(2) The police commission shall, at the time set for hearing an appeal of a police
officer, hear and determine the appeal according to the rules of evidence applicable to
courts of record in the state.
An employee of the city is subject to the supervision of the city manager. Sec. 3.04, Bozeman
Charter.
The City has entered into a collective bargaining agreement (CBA) with the Bozeman Police
Protective Association (BPPA), a labor union who is the exclusive bargaining agent of officers of
the Bozeman Police Department. The current CBA between the City and the BPPA includes a
grievance and arbitration provision. The final step of the grievance process, prior to arbitration, is
a decision on the grievance by the city manager. An officer may file an appeal of the decision of
the city manager to the police commission. As noted above, the members of the police commission
"shall hear and decide appeals brought by any [] officer of the police department who has been
disciplined, suspended, removed, or discharged by an order of the [] city manager []." 7-32-
4155(1), MCA.
The statutory role of the police commission is be to hear and decide an appeal of a decision of the
city manager. In doing so, the police commission may overturn the decision of the city manager.
7-32-4160, MCA.
It is my opinion that a City employee, who is subject to the appointment and removal authority of
the city manager, cannot simultaneously hold the office of police commissioner as City
employment and the office of police commissioner are incompatible. There is an inherent conflict
between the employee's appointed positions since, in this circumstance, the employee (in the role
of police commissioner) will have "revisory power" over the City Manager. I recognize the
revisory power will not be in direct relation to the employee's own employment relationship with
the City; nonetheless, given the significant due process rights of police officers in the police
Page 3 of 4
commission's hearing, the mere fact that a commissioner is subject to the supervisory authority of
a person who a decision is being appealed from is significant enough to require the office of police
commissioner to be incompatible with that of a city employee.
In addition, this circumstance would place a cloud over whether the employee/police
commissioner was discharging their duty with undivided loyalty.
Again, it is my opinion City employment is incompatible with the office of police commissioner.
Page 4 of 4