HomeMy WebLinkAboutEthics Opinion 2021-01 MIT
Greg Sullivan, City Attorney
Bekki Mclean, Chief Prosecutor
City Attorneys Office Tim Cooper, Assistant City Attorney
Kelley Rischke, Assistant City Attorney
Anna Saverud, Assistant City Attorney
Kyla Murray, Prosecutor
Edward Hirsch, Prosecutor
Samantha Niesen, Prosecutor
Formal Ethics Opinion 2021-01
To: Richard Rudnicki
C: Jerry Pape c/o John Kauffman
City of Bozeman Board of Ethics
Bozeman City Commission
City Manager Jeff Mihelich
Director of Community Development Martin Matsen
Assistant City Attorneys
Dates: March 12, 2021
Re: Planning Board member appearing before Planning Board while also serving
as Advisory Board member to Bozeman Development Consortium
QUESTION
You asked whether a conflict of interest exists between two roles held by Jerry Pape as it relates
to discussion and motions by the Planning Board at its regular meeting on August 10, 2020
regarding the draft Community Plan. I determine to issue a formal ethics opinion pursuant to
2.03.630,BMC.
Mr. Pape is a current member of the Bozeman City Planning Board', and also appears on the
website of the Bozeman Development Consortium (BDC)Z as a current member of its Advisory
Board. Although Mr. Pape is a county appointee to the City Planning Board, as a member of the
Planning Board he is subject to the City's Code of Ethics.3
1 The Bozeman City Planning Board is a city planning board created pursuant to Title 76,Chpt. 1,MCA.
2 See http://bzndevconsortiurn.com/advisory-board(visited January 5,2021).
3 See definition of"official"at 2.03.470,BMC and"persons covered"at 2.03.480,BMC.
3 b � ¢
TDD: 406-582-2301 THE MOST LIVABLE PLACE.
During the August 10"'Planning Board meeting,Mr. Pape provided public conuiient on behalf of
BDC,then returned to his seat and role as a Planning Board member to participate in the motions
and votes on the Community Plan that were advanced by the BDC and were the subject of Mr.
Pape's public comment. Your question is whether Mr. Pape should have recused himself from
discussion and voting on the Planning Board's motions related to the Community Plan.
ANSWER
Under the facts as presented to me,Mr. Pape had no apparent personal or financial interest raising
a conflict of interest. It is also clear from the record Mr. Pape intentions were to improve the
Growth Policy for the benefit of the public and the community and that Mr. Pape proceeded upon
the advice and input of the Planning Board chair and the City Commission member both of whom
responded to your inquiry at the meeting. However, I determine the facts show noncompliance
with 2.03.520.F of the Code of Ethics which prohibits a board member from appearing on behalf
of another entity before a city board on a matter of concern to that board,and prohibits participation
by the board member in the discussion and decision.
DISCUSSION
I understand the following:
1. Mr. Pape is currently serving on the City Planning Board.
2. The BDC website states as a "key pant of our mission... [to] participate in government
processes including:
• Community Plan/Growth Policy Revision
• Uniform.Development Code Revision."
3. Mr. Pape is listed as a member of the Advisory Board on the BDC website.
4. As of the date of this opinion, the BDC has not registered with the Montana Secretary of
State.
5. Two Bozeman Planning Board members serve on BDC's advisory board: George
Thompson and Jerry Pape. On the BDC website, both are identified as members of the
Bozeman City Planning Board4.
b. The BDC prepared a petition the purpose of which is to advocate that the Bozeman
Planning Board table moving the Growth Policy to the City Commission. The Petition
states,in part: "In the next few weeks,the City Commission is calling for the City Planning
Commission to finalize its revision of the Growth Policy (a policy that is meant to last at
least five years)which will eventually impact the Unified Development Code(UDC). We
are asking you to sign this petition so that any votes to be made as they relate to moving
the Growth Policy from the Planning Commission to the City Commission are TABLED
'bttp://bziidevcoilsortiuni.cotii/advisory-board(visited January 5,2021).
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for the time being. We feel its vital that any changes be made as part of a larger, more,
in-depth discussion."s
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7. On August 10, 2020, the Planning Board held a public hearing entitled "Continuation of
Bozeman Community Plan Public Hearing [Growth Policy]."6 Fortner Bozeman Mayor
Chris Mehl was present at the meeting as the City Commission representative. Planning
Board Chair Happel opened the hearing and recognized Mr. Pape, who Mr. Happel stated
was "speaking on behalf of the Bozeman Development Consortium." Mr. Happel then
asked the board if any member had a conflict they needed to disclose and no member asked
to be recognized.
8. Mr. Pape presented the purpose of BDC as to"Develop a workgroup relationship between
the Planning Board, the Community Development Dept., and the Bozeman Development
Community."Mr.Pape explained"we are not per se a special interest group ... we are the
predominant user of the document." He described himself and others in attendance as
Board members of BDC. He also stated the group was not seeking to secure any kind of
advantage for itself. The presentation included a list of several "Motions to correct Plan
Deficiencies." Mr. Pape presented the proposed motions. Slides for each motion contained
the specific motion language, including "I hereby move to instruct staff to [add tine
proposed language to amend the Conununity Plan]." Mr. Pape spoke at length on the
"substantiation" for each proposed motion, with specific details of what BDC was
"requesting"of the Platming Board. After his presentation,Mr. Pape asked for members of
"my board of directors" (of BDC)to speak on the motions.
9. During discussion of the first motion proposed by BDC,you posed a question to the Board:
since Mc. Pape is on the advisory board of BDC, whether it was a conflict for Mr. Pape to
address any of the motions. Mr. Pape stated he does not have a financial interest in the
issues being discussed. Former Mayor Mehl opined that Mr. Pape's disclosure was
sufficient; Mr. Happel also opined Mr. Pape could vote on the motions although someone
could raise the issue to the City Attorney's office.
Section 7(a) of the Bozeman City Charter prohibits the use of public office for private gain. The
City's Charter requires that the City Commission implement this prohibition through the adoption
of ordinances. The Commission has done so through the City's Code of Ethics. Chapter 2, Article
3,Division 4,Bozeman Municipal Code (BMC).
5 htt-p://bz►idevconsortiutn.cotiVpetition/petition-text(visited January 5,2021).
G Hearing video available at irttps://media.avcaptureall.com/session.litml?sessionid=a6447ec0-3f68-4dde-946a-
602f33 53 e99d&prefilter-654,3835
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Likewise, Article XIII, Section 4 of the Montana Constitution requires the Montana Legislature
"provide a code of ethics prohibiting conflict between public duty and private interest for(...) all
(...)local officers (...)."The Montana Legislature has adopted Title 2, Chpt. 2,Part 1, MCA.
Generally, "public confidence requires that municipal officials avoid conflicting interests that
convey the perception that a personal rather than the public interest might affect decision-making
on matters of concern. Officials must be free of even the potential for entangling interests that will
erode public trust in government actions.Thus, it is the potential for conflict,rather than proof of
an actual conflict or of actual dishonesty, that commands a public official to disqualify himself
from acting on a matter of public interest." McQuillan Law of Municipal Corporations §
12:173.22. Conflicts of interest(2020). "The general rule is that there should be strict enforcement
of conflict of interest statutes so as to provide a strong disincentive for officers who might be
tempted to take personal advantage of their public offices. The test for disqualification is fact-
sensitive and depends on whether, under the circumstances, a particular interest had the likely
capacity to tempt the official to depart from his sworn public duty."Id.
City board members, including those appointed to boards by another entity, are considered city
officials under the City's Code of Ethics and thus subject to its standards and requirements.
Because board members are City officials,the rules for conflicts of interest apply.The City's Code
of Ethics implements the general principles described above and addresses conflicts of interest in
2.03.5201$ BMC. The Code of Ethics requires that "no official (...) who represents their own
personal interest before an agency of which they are a member(...)shall participate in the decision
of that agency (...). 2.03.520.A, BMC. In addition, "no official (...) shall engage in any
employment or business which conflicts with the proper discharge of such official['s] duties."
2.03.520.13, BMC. The Code of Ethics specifically prohibits an official from having a financial or
personal interest in any transaction or matter with the city as to which such official or employee
has the power to take or influence official action. 2.03.520.C,BMC.B
7 2.03.470.A.12,BMC defines "Transaction"as"the offer of,or the sale,purchase,or fiirnishing of,any real or
personal property or services,by or to any person or entity directly or indirectly,as vendor or vendee,prime
contractor,subcontractor,or otherwise,for the use and benefit of the city or of such other person or entity for a
valuable consideration."
s Sec.2.03.520,BMC.-Conflict of interest.
A. Nothing in this section shall be interpreted or construed to prohibit any official or employee fi-om
exercising their own individual legal rights as to their own personal interests in a transaction or matter pending
before the city or any of its agencies,or to prohibit an official or employee fiom testifying as a witness in any
administrative or judicial proceeding.However,no official or employee who represents their own personal interest
before an agency of which they are a member or employee,or a member or employee of an agency to which the
matter may be appealed,shall participate in the decision of that agency or the appellate agency.
B. No official or employee shall engage in any employment or business which conflicts with the proper
discharge of such official or employee's duties.
C. No official or employee shall take or influence official action if the official or employee has a financial or
personal interest in a transaction or matter with the city.
D. If an official or employee has a financial or personal interest in the outcome of a transaction or matter
coming before the agency of which they are a member or by which they are employed,such official or employee
shall:
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Section 2,03.470.A.10,BMC,defines personal interest as:
any interest in the matter which would affect the action of the official or employee other
than a financial interest,and other than an interest because of membership in,or affiliation
with,but not employment by a social, fraternal, charitable, service, educational,religious,
governmental, health service, philanthropic, cultural, or similar nonprofit institution or
organization.
(Emphasis added,)
Section 2.03.470.A.6, BMC, defines financial interest as:
any ownership interest, contractual relationship, business relationship, or other interest
Which will result in a monetary or other material benefit to an official or employee, either
tangibly or intangibly, which has a value of more than $15.00, other than the official or
employee's drily authorized salary or compensation for the official or employee's services
to the city, and which interest is not common to the interest of all other citizens of the city.
The following financial interest shall be imputed to be those of an official or an employee
of the city:that of a spouse or child of an official or employee;that of any prime contractor
1. Publicly disclose on the record of the agency,or to their superior or other appropriate authority,the
existence of such financial or personal interest;and
2. Except as authorized pursuant to 2.03.520.A and G,shall not engage in deliberations concerning the matter
or transaction,shall be disqualified fiom acting on the matter or transaction and shall not communicate about such
matter or transaction with any person who will participate in an action to be taken on such matter or transaction.
E. No employee,whether paid or unpaid shall represent or appear on behalf of any individual or entity before
any agency of the city,or take any appellate proceedings from any action of such agency,either personally or
through an associate or partner.
F. No official whether paid or unpaid,shall represent or appear on behalf of any individual or entity in
transaction or matter of concern to the agency on which that official serves,either before that agency or any other
agency of the city,or before the city commission,or take any appellate proceedings fiom any action of such agency
or the commission.Such representation may be made by the official's associate or partner,provided no reference to
the participation of the involved official is made except for certification or other required identification on prepared
documents.The involved official shall not engage in deliberations concerning a transaction or matter represented by
an associate or partner,shall disqualify hinnsel€/herself from acting on the transaction or matter,and shall not
communicate about such matter with any person who will participate in the action to be taken on such transaction or
matter.
G. A city commissioner or mayor,as authorized pursuant to 2-2-121(10),MCA,may take action despite a
conflict of interest described in this section if that commissioner's or mayor`s participation is necessary for the city
commission to obtain a quorum or to otherwise enable the city commission to act. If so,the commissioner or mayor
shall disclose the interest creating the conflict prior to performing the official act.
H. This section does not absolve any official or employee from complying with Title 2,Chapter 2,MCA.If
any provision of this section is in conflict with Title 2,Chapter 2,MCA the more stringent provision,the provision
that requires greater disclosure,or the provision that provides less authority to act in furtherance of a conflict,shall
apply.
1. Any official or employee with a conflict of interest tinder this section shall,in addition to other
requirements in this section and when required by law,comply hilly with the disclosure requirements of 2-2-131,
MCA,and shall file this disclosure with the Montana Commissioner of Political Practices prior to acting.
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or subcontractor of the city,in which the official or employee or any member of the official
or employee's immediate family has any direct or indirect interest as the proprietor, by
ownership of stock or partnership interest.
In addition,the Code of Ethics conflict of interest section at 2.03.520.F, establishes a prohibition
on an official representing or appearing on behalf of any individual or entity in a transaction or
matter of concern to the agency on which that official serves. This rule prohibits representation
before the agency (City board or committee) on which the official serves and also before the City
Commission. The result is that a board member is prohibited from representing an individual or
an entity,be it a for-profit or not for profit group or organization,on an issue before their board or
the City Commission if the board on which they serve has jurisdiction over the issue. This is the
case regardless of whether the board's role is advisory. This section of the Code also provides a
mechanism for how the individual or entity may be represented at a City board or committee or
City Commission meeting: "by the official's associate or partner, provided no reference to the
participation of the involved official is made."
When a conflict exists, the Code requires an official to take certain steps. Under 2.03.520.1), the
official must publicly disclose on the record the existence of the conflict of interest and refrain
from engaging in deliberations and discussion with those who will act on the matter. The best
practice is for the official to place the nature of the conflict on the record, recuse from the
discussion, and leave the room.
The Code of Ethics recognizes that at times an official must address their own personal interest
before the board upon which they sit. See 2.03.520.A. This is authorized. If a board member has a
personal interest,for example a board member seeks a certificate of appropriateness for a remodel
of their personal residence, the official may appear on their own behalf: The Code of Ethics,
however, distinguishes between an item that is clearly personal in nature from interests that may
arise due to affiliation with a business or other entity, such as serving on a board or as an officer
of a non-profit organization. An ownership interest in a business entity, or membership on the
board or advisory conunittee of a group or organization, will, in most situations, create a personal
or financial interest establishing a conflict of interest.
Mr. Pape stated he did not have a financial interest in the BDC proposed amendments to the
Community Plan. The facts as I understand them are insufficient,at this time,to determine whether
there could be any direct or indirect financial advantage to Mr. Pape by the City Commission's
adoption of the 2020 Growth Policy with the amendments BDC proposed and which the Planning
Board incorporated in its recommendation to the City Commission.10
9 For meetings occurring by WebEx or other means of meeting electronically,if possible I suggest the official log
out of the WebEx meeting until the agenda item has concluded and the next agenda item is to be called.
10 This opinion is based on the facts as presented.It is not intended to predetermine other circumstances.Each
determination is based on the facts as presented and known at the time of the determination.
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For purposes of determining compliance with 2.03.520.C, the question then is whether his
participation in BDC rises to the level of a personal interest so as to affect his actions in his role
as a Planning Board member, thus requiring his disqualification from the Planning Board's
discussions regarding the 2020 Growth Policy. Again, from the facts presented, it is not apparent
Mr. Pape has any personal (nonfinancial)interest in the inclusion of BDC's suggested edits in the
2020 Growth Policy due to his involvement on the BDC advisory board that would raise a conflict
between the two roles addressed in this memo.
However,the Code of Ethics also expressly prohibits a Planning Board member from representing
or appearing before the Planning Board on behalf of any entity in a matter of concern to the
Planning Board, although an associate or partner may do so. 2.03.520.F, BMC. Importantly, this
section of the Code of Ethics does not require the existence of a conflict of interest.
Under 2.03.520.F, a city official member must disqualify themselves from acting on the matter,
and must not communicate about the matter with another board member who will participate in
the action to be taken by the board. Again,this does not require a direct conflict of interest to exist
— it's the mere representation or appearance on behalf of an entity in a transaction or matter of
concern to the board that requires disqualification from acting as a board member on the item.The
purpose of this section is to prevent the appearance of a conflict of interest,avoid confusion as to
the role of the official in the transaction or matter, and enhance transparency in the development
and implementation of City policy. See 2.03.460, BMC (stating the policy of the City's Code of
Ethics is to ensure that "governmental policies and decisions be made in the proper channels of
the governmental structure,"that the "public have confidence in the integrity of its government,"
and to "foster the development and maintenance of a tradition of responsible, accountable, and
effective public set vice" among others); see also See City of Bozeman Strategic Plan, Goal 1.Lb
(dramatically increase transparency).i n
The action being discussed at this Planning Board meeting—whether to recommend adoption of
the draft 2020 Growth Policy — is clearly a matter of concern to the Planning Board and is a
statutorily mandated duty of the board. It was stated numerous times that Mr. Pape was appearing
before the Planning Board on behalf of BDC. It is not relevant that the entity at issue has not
registered with the Montana Secretary of State.
I recognize Mr. Pape proceeded upon the advice and input of the Planning Board chair and the
City Commission member both of whom responded to your inquiry at the meeting.Nevertheless,
pursuant to 2.03.520.F, Mr. Pape should not have presented BDC's proposals as another BDC
advisory board member who is not also on the Planning Board could have made the presentation.
In addition, Mr. Pape should have recused himself and left the Webex meeting during the
littps://strategic-plan-bozeinan.opendata.arcgis.conz/pages/engaged-coi)iutiity
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presentation, discussion, and vote on the motions proposed by BDC. Mere disclosure is not
sufficient.
This opinion is provided pursuant to my authority-tinder 2.03.630,BMC.12
I provide this opinion in my capacity as the City Attorney for the City of Bozeman and do so on
behalf of the City of Bozeman(2.03.630.D, BMC). My opinions herein are based on facts as you
represented to me and exist today. If facts change, my opinion may change.
If you have any questions about this matter,please contact me.
Res tfully Submi .196,
Z,//.. .
BOZE N CITY ATTORNEY'S OFFICE
Greg Sullivan
City Attorney
12 Sec.2.03.630,BMC.-City attorney opinions.
A. At the request of a person,the city attorney may render an informal or formal advisory opinion with respect
to the prospective conduct of such person.An informal advisory opinion need not be written,and may be provided
directly to the requestor of such opinion.A request for a formal advisory opinion must be in writing and include all
the information and documents related to the request.The request for either an informal or formal advisory opinion
must state all the material facts so the city attorney may render a complete and correct opinion.The city attorney's
formal advisory opinion must be in writing.Nothing in this division shall be construed to prohibit a request for an
opinion by any public servant fiom the city attorney regarding a potential conflict of interest.Neither a request for
an informal or formal advisory opinion,nor the making of a statement concerning a potential conflict of interest
made by a member of the city commission in the course of abstaining from voting or making a motion of self-
recusal,shall create a presumption or inference that a public servant actually has a personal interest in the matter
about which the opinion was requested;if the city attorney elects to render an opinion,the city attorney shall,within
a reasonable time,submit a written summary of the opinion to the ethics board for the board's information; if the city
attorney declines to render an opinion,nothing shall preclude the person requesting the opinion from requesting the
ethics board for an opinion.
B. Any formal advisory opinion issued pursuant to this section may be relied upon by the person directly
Involved in the specific transaction or activity to which such advisory opinion has been issued,and any person
directly involved in any specific transaction or activity which is indistinguishable in all its material aspects from(lie
transaction or activity with respect to which such advisory opinion was rendered.
C. Any person who relies upon a formal advisory opinion pursuant to this section,and who acts in good faith
in accordance with the provisions and findings of such opinion,shall not,as a result to such act,be subject to
prosecution under this division or,in the case where the opinion is exculpatory,be subject to any administrative
adverse action or civil action based upon legal authority cited in that opinion.
D. The City Attorney's client is the City of Bozeman and not the individual requesting the opinion.No request
for an opinion fi•om the City Attorney shall constitute the establishment of an attorney-client relationship with the
individual requesting the opinion.
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