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Home My WebLink About10-03-22 Board of Ethics Agenda and Packet Materials - Meeting BA.Call meeting to order B.Disclosures C.Public Comment Please state your name and place of residence in an audible tone of voice for the record. This is the time for individuals to comment on matters falling within the purview of the Committee. There will also be an opportunity in conjunction with each action item for comments pertaining to that item. Please limit your comments to three minutes. D.Action Items D.1 Daniel Zyvoloski's August 11, 2022, Formal Opinion Request(Crosby) E.FYI/Discussion F.Adjournment THE BOARD OF ETHICS OF BOZEMAN, MONTANA BOE AGENDA Monday, October 3, 2022 This meeting will be held both in-person and also using Webex, an online videoconferencing system. You can join this meeting: Via Webex: Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in-person United States Toll +1-650-479-3208 Access code: 2553 864 1726 If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net prior to 12:00pm on the day of the meeting. Public comments will be accepted in-person during the appropriate agenda items. You may also comment by visiting the Commission's comment page. You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you please be patient in helping us work through this hybrid meeting. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. 1 For more information please contact Mike Maas, mmaas@bozeman.net Committee meetings are open to all members of the public. If you have a disability and require assistance, please contact our ADA coordinator, Mike Gray at 582-3232 (TDD 582-2301). 2 Memorandum REPORT TO:Board of Ethics FROM:Jordan Y. Crosby, Special Counsel SUBJECT:Daniel Zyvoloski's August 11, 2022, Formal Opinion Request MEETING DATE:October 3, 2022 AGENDA ITEM TYPE:Administration RECOMMENDATION:Adopt attorney Jordan Crosby’s September 27, 2022, findings and decline to render an advisory opinion in response to Mr. Zyvoloski’s August 11, 2022, request. STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture that reinforces ethical behavior, exercises transparency and maintains the communityâ€™s trust. BACKGROUND:See attached letter to the Board of Ethics UNRESOLVED ISSUES:See attached letter to the Board of Ethics ALTERNATIVES:See attached letter to the Board of Ethics FISCAL EFFECTS:None Attachments: Brd Ethics ltr 9 27 22.pdf Report compiled on: September 27, 2022 3 UGRIN ALEXANDER ZADICK, P.C. GARY M. ZADICK ROGERT. WITT KEVIN C. MEEK JORDAN Y. CROSBY Chairperson Sara Rushing Board Member Melissa Frost Board Member Kristin Taylor ATTORNEYS AT LAW #2 RAILROAD SQUARE, SUITE B P.O. Box 1746 GREAT FALLS, MONTANA 59403-1746 TELEPHONE (406) 771-0007 FAX (406) 452-9360 E-MAIL frontdesk@uazh.com Website http://uazh.com September 27, 2022 Board of Ethics for the City of Bozeman srushing@BOZEMAN.NET mfrost@BOZEMAN.NET ktaylor@BOZEMAN.NET RE: Zyvoloski August 11, 2022 Request for "Formal Opinion" Attorney Review/Findings Dear Board Members: ANDREW T. NEWCOMER JAMES R. ZADICK SETH T. BONILLA VIA EMAIL ONLY As you are aware, my firm has been retained to serve as counsel and legal advisor to the Board of Ethics for the City of Bozeman (hereafter "Board"). Pursuant to Sec. 2.03.620, Bozeman Municipal Code ("BMC"), please consider the following findings based on our review and consideration of Daniel Zyvoloski's August 11, 2022, request for "formal opinion". I. BACKGROUND On December 8, 2021, Daniel Zyvoloski served a written ethics complaint and request for a formal advisory opinion. Mr. Zyvoloski's complaint originated in a dispute regarding whether and how a particular home-based daycare was subject to business licensing requirements by the City. On December 20, 2021, Mr. Zyvoloski submitted "supplemental information" to the Board, and in which he asserted: 4 September 27, 2022 Page 2of10 Please also bring into evidence the Executive Session that was held before the City Commission Meeting on December 14, 2021, to the extent it is relevant to this investigation. Any discussions or deliberations consisting of a quorum of City Commissioners regarding the pending Appeal Item should have been conducted before the public per Open Meeting Laws under MCA Sec 2-3-203. The political sensitivity of an item is not a lawful reason for a closed session discussion and the timing of the Executive Session was not a coincidence. Please find enclosed my public records request to obtain the video and recorded minutes from the Executive Session. See Enclosure 1, p. 2 (emphasis added in enclosure). The Board held a public meeting on February 7, 2022, to address Mr. Zyvoloski's complaint, the City's January 7, 2022, response, and this firm's January 17, 2022, preliminary written analysis. See Enclosure 2, 2/7/22 Brd. Ethics Mtg. Mins, p. 1. The parties to the complaint attended the meeting and were allowed the opportunity to present argument on their respective positions. /d. The Board questioned the participants and public comment was also taken. The Board then deliberated on the following motion "that the Board dismiss Mr. Zyvoloski's December 8, 2021 ethics complaint pursuant to sections 2.03.640(M)(1)(a) BMC with prejudice for failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics." /d., p. 3. The motion carried in a 3-0 vote. /d. Following the meeting, on March 31, 2022, the Board issued detailed findings and conclusions further explaining its rationale for dismissing the entirety of Mr. Zyvoloski's December 8, 2021, complaint with prejudice. See Enclosure 3. On August 11, 2022, pursuant to Sec. 2.03.61 0, BMC, Mr. Zyvoloski submitted his request to the Board "to issue a formal opinion." See Enclosure 4. Specifically, Mr. Zyvoloski requests an opinion from the Board on whether: [l]t is ethically improper for the Mayor of Bozeman to initiate a closed meeting to influence a forthcoming vote by the City Commissioners, by stating the purpose 'Issue of Privacy' with a quorum of City Commissioners and then moving on to discussing no-related topics with regards to a forthcoming vote that was not within the scope of the statutorily authorized purpose for which the closed meeting was initially called? /d. Mr. Zyvoloski requests the Board "determine if influencing a forthcoming vote under the circumstances stated above would violate the Bozeman Code of Ethics or the Montana Code of Ethics." /d. He asks that if the Board determines that the Mayor's actions were ethically improper, that the Board advise ''what recourse would a citizen affected by the influenced vote have to correct the actions that were a result of the vote?" /d. On September 9, 2022, City Attorney Greg Sullivan submitted a memorandum to the Board addressing Mr. Zyvoloski's request. See Enclosure 5. City Attorney Sullivan's memorandum provides further background regarding the December 14, 2021, closed session meeting. He explains that the purpose of the meeting was to address City Manager Jeff Mihelich's annual performance evaluation. /d., 5 September 27, 2022 Page 3 of 10 p. 2. City Attorney Sullivan states that the scheduling of City Manager Mihelich's performance evaluation on the same night as the Bibs to Books Playhouse business license appeal was "nothing more than coincidence." /d. He explains that to ensure City Manager Mihelich's privacy interests were honored, a second remote platform was used to conduct the performance evaluation, and the only attendees in the executive session were Mayor Andrus, Deputy Mayor Terry Cunningham, Commissioner Pomeroy, Commissioner Madgic, Commissioner Coburn, City Manager Mihelich, and Deputy City Clerk Jesse DiTomasso. Neither City Attorney Sullivan, nor Deputy City Attorney Kelley Rishke, were present in the closed session. /d. City Attorney Sullivan further states that he has questioned all participants that were present at the closed session regarding whether "anything related to the Bibs to Books Playhouse appeal" was discussed and states that "[a]ll have unequivocally denied that any discussions related to the Bibs to Books Playhouse were discussed during the city manager's performance evaluation." /d. Attached to City Attorney Sullivan's memorandum is a September 9, 2022, Affidavit of City Manager Mihelich. See Enclosure 6. In his affidavit, City Manager Mihelich states that his Employment Agreement with the City requires that an annual performance evaluation be conducted "no later than December 1st of each year." /d., 1f 5. City Manager Mihelich explains that in late November or early December he and Mayor Cindy Andrus scheduled his performance evaluation before the City Commission for December 14, 2021. He states that "[t]he scheduling of this meeting was in no way influenced by factors related to the Bibs to Books Playhouse appeal." /d., 1f 6. City Manager Mihelich affirms that he asserted his privacy interests regarding his evaluation at the December 14 meeting and based on that assertion, Mayor Andrus, as presiding officer of the City Commission, made the required findings and closed the meeting. /d., 1f 8. City Manager Mihelich confirms that the only individuals present during the performance evaluation were the five City Commissioners, himself, and Deputy City Clerk DiTommaso. /d., 1f 9. City Manager Mihelich specifically states: "During the closed session neither I nor any other person discussed issues not directly related to my performance. Specifically, neither I nor any individual discussed any issues related to the Bibs to Books Playhouse business license appeal scheduled for later that evening." /d., 1f 10. II. BOARD RULES Pursuant to Sec. 2.03.61 O(A), BMC, a person "may request of the board an ethics opinion, whether a formal opinion or a confidential advisory opinion, regarding the propriety of any matter or matters to which the person is or may become a party[.]" Any request for board action must be in writing and must be signed by the person making the request. See Sec. 2.03.610(B), BMC. The Board may "[r]espond, as it deems appropriate, to requests for confidential advisory opinions; the board may decline to render an opinion in response to any request for an advisory opinion[.]" See Sec. 2.03.600(B)(2), BMC. The Board is entitled to refer a matter to its attorney1 "for review and consideration for appropriate action." See Sec. 2.03.620, BMC. Upon the completion of counsel's review and consideration, the Board's attorney shall report its findings to the Board. /d. 1 Considering the City Attorney's need to represent the City regarding this matter, this firm has been retained as outside legal counsel to serve as counsel for the Board. See Sec. 2.03.580(F), BMC and Sec. 2.03.600(A)(8), BMC. 6 September 27, 2022 Page4 of10 Ill. ANALYSIS A. THE BOARD SHOULD DECLINE THE REQUEST FOR FORMAL OPINION BECAUSE THIS ISSUE HAS ALREADY BEEN DECIDED AND IS THUS MOOT. The Board should decline to consider Mr. Zyvoloski's August 11 request for "formal opinion" because this matter has already been addressed by the Board. Specifically, the Board's prior action dismissing Mr. Zyvoloski's December 8, 2021, ethic's complaint with prejudice forecloses further review of this issue as no actual controversy exists, and the matter is thus moot. See Park Cnty. Env1 Council v. Montana Dep1 of Env1 Quality, 2020 MT 303, ~ 27, 402 Mont. 168, 477 P.3d 288 (citing Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75 ~ 17, 364 Mont. 390, 276 P.3d 867 ("[l]fthe issue presented at the outset of the action has ceased to exist or is no longer 'live,"' the issue is moot.)); see also Plan Helena, Inc. v. Helena Reg'/ Airport Auth. Bd., 2010 MT 26, ~ 11, 355 Mont. 142, 226 P.3d 567 ("A court lacks jurisdiction to decide moot issues or to give advisory opinions insofar as an actual 'case or controversy' does not exist."). Under the mootness doctrine, "the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Plan Helena, Inc.,~ 10. If the issues presented at the outset of the matter cease to exist, then the issue before the court is moot. /d. As noted above, Mr. Zyvoloski's December 20 "supplemental information" to the Board in support of his December 8 ethics complaint specifically raised the issue of the December 14, 2021, executive session. See Encl. 1, p. 2. In this letter, he argued that any quorum of City Commissioners addressing his appeal "should have been conducted before the public per Open Meeting Laws under MCA Sec 2-3- 203." /d. He asserted that "political sensitivity" was not a "lawful reason" for going into closed session, and "the timing of the Executive Session was not a coincidence." /d. Furthermore, as demonstrated in greater detail in Section III.B. below, Mr. Zyvoloski and his counsel presented considerable argument to the Board at the February 7, 2022, public meeting regarding his position that misconduct occurred during the City Commission's December 14 executive session. For example, Mr. Zyvoloski argued that the City Attorney attended the executive session "under the guise" of the City Manager's annual performance evaluation. See 2/7/22 Brd. Ethics Mtg. at 17:51.2 Additionally, he argued that the Mayor failed to "properly call" the executive session by passing a motion (id. at 18:06) and stated his December 20 supplement alleged that "misconduct took place during this executive session." /d. at 18:14. Mr. Zyvoloski "specifically asked the Board to look into this allegation." /d. at 18:21. In fact, he encouraged the Board to ask "one simple question" regarding the December 14 executive session, "did you and a quorum of City Commissioners violate the open meeting laws." /d. at 19:19 (emphasis added). 2 Available at: http://bozeman.granicus.com/player/clip/5332032d-869c-4b4f-b 712- 016d3b0eb497?meta id=9350de22-d092-45e6-affb- e1 d667 478eb2&redirect=true&h=ea95b64d52493dfb0815044e53b1 033b. 7 September 27, 2022 Page 5 of10 The Board's March 31, 2022, findings specifically addressed Mr. Zyvoloski's claims and found that the Board lacked jurisdiction over his allegations regarding the open meeting violation and dismissed such claims pursuant to Sec. 2.03.640(M)(1)(b), BMC. In particular, the findings stated: JURISDICTION 14. As an initial threshold matter, the Board must address the issue of its jurisdiction over the claims as alleged by Mr. Zyvolosk:i. 15. The Board's jurisdiction is defined by Montana law and BMC and is limited to hearing ethics complaints related to alleged violation(s) of the Bozeman Code of Ethics and/or Montana Code of Ethics. See§ 2-2-144(5)(a), MCA; Sections 2.03.600(A)(3) and 2.03.640(E), BMC. 16. In his December 20, 2021. supplement and at the February 7. 2022, meeting, Mr. Zyvoloski asserted alleged violations of Montana's open meeting laws regarding the Bozeman City Commission December 14,2022, meeting. 17. Montana's open meeting laws are found in Title 2. Chapter 3, Part 2, which is not within the authority of this Board, thus the Board lacks jurisdiction to address these claims and they should be dismissed pursuant to Section 2.03.640(M)(1)(b), BMC. Encl. 3, p. 3. These findings should be no surprise, because during the February 7 public meeting, the undersigned specifically counseled the Board regarding its limited jurisdictional review. See 217122 Brd. Ethics Mtg. at 8:29. I explained that the Board's review is restricted to complaints regarding whether City public officials or public employees violated Montana Code of Ethics found in Title 2, Chapter 2, Part 1, of the Montana code or the Bozeman Code of Ethics, found in Part 1, Chapter 2, Article 3, Division 4 of the Bozeman Municipal Code. /d. The undersigned cautioned all present that an alleged violation of§ 2-3-203, MCA, as asserted by Mr. Zyvoloski, is not within the "purview of this Board." /d. at 1:12:40. Montana law is clear that "[i]f a court determines that it Jacks jurisdiction, then it may take no further action in the case other than to dismiss it." Plan Helena, Inc., ~ 11. Importantly, "jurisdictional issues transcend procedural considerations." /d. (citation omitted). Mr. Zyvoloski's August 11 request asks the Board to issue a "formal opinion" on whether unethical conduct occurred when the City Commission went into executive session at its December 14 meeting. His request is yet another call to resolve a matter in which the Board previously found it had no jurisdiction and thus no case or controversy. Stated differently, he again seeks an answer to a moot question. Accordingly, it is our opinion that the Board decline Mr. Zyvoloski's "non justiciable request for an advisory opinion". See Plan Helena, Inc., 1m 14-16. B. THE BOARD SHOULD DECLINE THE REQUEST BECAUSE ISSUE PRECLUSION PREVENTS FURTHER REVIEW. Montana Jaw favors a definite end to litigation and disfavors serial litigation of the same issue. See Baltrusch v. Baltrusch, 2006 MT 51,~ 15, 331 Mont. 281, 130 P.3d 1267. Specifically, the judicial doctrine known as "collateral estoppel" or "issue preclusion" seeks to prevent "litigants from reopening 8 September 27, 2022 Page 6 of10 all questions essential to the judgment which were determined by a prior judgment." Baltrusch, ~ 18. This doctrine serves to "conserve judicial resources, relieve parties of the expense and vexation of multiple lawsuits, and foster reliance on adjudication by preventing inconsistent decisions." Brilz v. Metro. Gen. Ins. Co., 2012 MT 184, ~ 18, 366 Mont. 78, 285 P.3d 494. Issue preclusion specifically bars relitigation when: {1) the identical issue raised was previously decided by a prior adjudication; {2) when a final judgment on the merits was made in the prior adjudication; {3) when the party against whom issue preclusion is asserted was a party in the prior adjudication; and {4) when that party was also afforded a full and fair opportunity to litigate the issues which may be barred. /d. at 1m 18, 24 {"[W]e conclude that it is appropriate to accord finality to an earlier judgment which contains findings of fact that definitively resolve all of the new allegations and legal theories included in the later complaint."). Issue preclusion "also prevents relitigation of determinative facts which were actually or necessarily decided in a prior action." Baltrusch, ~ 25. Importantly, issues may be "identical" if "the 'issues are so intertwined that to decide the issue before it, the Court would have to rehear the precise issue previously decided."' /d., citing Martelli v. Anaconda-Deer Lodge County, 258 Mont. 166, 169, 852 P.2d 579, 581 {1993). Issues may be "identical if the subject matter of the legal theories or factual assertions of the second case issues is 'related and relevant to the issues that were litigated and adjudicated previously."' Montana Envtl. Info. Ctr. v. Montana Dept of Envtl. Quality, 2016 MT 9, ~ 21, 382 Mont. 102, 365 P.3d 454. This can include the relitigation of facts previously decided. /d., ~ 24. A significant portion of the February 7 public meeting focused on Mr. Zyvoloski and his counsel's concerns regarding the December 14 executive session. See generally, Brd. Ethics Mtg. at 17:51-20:34. As noted during Mr. Zyvoloski's rebuttal presentation, he argued the "simple question" the Board should ask is if "anything outside the confines of Montana laws [sic] happen[ed] in the executive session. That's my allegation before you today." /d. at 35:50. During the meeting, Mr. Zyvoloski was specifically questioned by the Board regarding the reasons he felt the executive session was inappropriate and was asked to articulate the factual basis for his position. /d. at 43:38. In response, Mr. Zyvoloski stated that the timing of the executive session "was not a coincidence" and claimed that "things don't line up". /d. at 44:31. Mr. Zyvoloski referenced redacted information he received in a public record request, which in his opinion, demonstrated that the executive session lasted for an hour-and-a half, covering multiple topics, and thus this would indicate that more than the performance evaluation was discussed./d. at 44:38.3 He also questioned why the City Manager's performance evaluation would be scheduled for the same day that he "had a sensitive issue" pending before the City Commission. /d. at 45:06. Mr. Zyvoloski asserted that "things just don't line up" and "something happened during the executive session that ... helped the City Commission kind of line out their appeal." /d. at 45:25. Mr. Zyvoloski's counsel also was allowed to offer comments in response to the Board's request for the factual basis for his argument that the executive session was improper. In response, counsel asserted that "!f' the meeting was not properly closed this was "a big problem" and could be in violation 3 Importantly, Mr. Zyvoloski did not submit the redacted document for the Board's consideration during the February 7 hearing. For purposes of this review, attached as Enclosure 7, is a copy of the redacted Executive Session minutes from the December 14, 2021, meeting that was produced to Mr. Zyvoloski. /d. at pp. 4-7. 9 September 27, 2022 Page 7 of 10 of the City's ethics and applicable standards of conduct. /d. at 47:02. Counsel explained that she and her client felt that the Q&A during the hearing on Mr. Zyvoloski's appeal was "very rehearsed" and "almost canned" and she noted that it "seems highly suspicious to us that an hour-and-a-half was needed for the performance review of the City Administrator." /d. at 48:18, 1 :04:00. She clarified that her client felt there is a "strong and substantial ethical violation if there was any prior discussion between the City Commission and the City Attorney's office" of the appeal because it was not properly noticed as a closed session. /d. at 1:04:20 (emphasis added). Counsel again stated, that the question the Board should be asking is whether there was any discussion of her client's appeal during the closed door session. /d. at 1:04:40. The Board also heard from the City's counsel on this issue, in which counsel argued that the executive session was "totally appropriate" under Montana law. See id. at 34:00. Counsel asserted that the executive session was duly noticed and appropriately convened. /d. at 34:43. She argued that no evidence was presented that the executive session was merely a "rouse" and asserted that the "pure speculation" raised by Mr. Zyvoloski and his counsel could not form the basis of an ethics complaint. /d. at 34:46. During the Board's deliberation, the Board questioned the lack of evidence presented by Mr. Zyvoloski to support his claims, including his assertion that there was an improper discussion of his appeal during the City Commission's December 14 executive session. Board Member Taylor stated for example that she felt that the Board had not been presented with any evidence that would be compelling or persuasive to demonstrate a violation within the narrow confines of the ethics code the Board was working with. /d. at 1 :37:45; see also 1:46:25 (finding no evidence of due process violations, conflict of interest, deviation or failure to follow standards of conduct, improper government actions, or breach of public trust). Board Member Frost also expressed a lack of specific facts which would support the allegations of misconduct or violations of the Bozeman Code of Ethics or Montana code. /d. at 1 :39:08; see also 1:46:15 (noting she had not heard facts sufficient to support the allegations). Chairperson Rushing was similarly in agreement and noted that she did not find anything to substantiate claims of unfair action or impartial, immoral, or dishonest conduct. She also did not believe improper government actions were taken. /d. at 1 :40:06; see also 1:45:40 (stating no ethical violation has been found). The Board followed its deliberations and vote with its March 31 findings which confirmed that Mr. Zyvoloski's December 8, 2021, ethics complaint was being dismissed with prejudice pursuant to Sec. 2.03.640(M)(1)(a), BMC, "for failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana code of Ethics." Encl. 3, p. 7, 1[56. In our opinion, the principle of issue preclusion weighs strongly in favor of declining Mr. Zyvoloski's August 11 request for ''formal opinion". First, the issues considered by Board in relation to Mr. Zyvoloski's December 2021 ethics complaint are substantively identical to the issues raised by Mr. Zyvoloski's August 11 request. Second, the Board issued a final dismissal of Mr. Zyvoloski's claims with prejudice after assessing the merits of the allegations raised in his complaint and based on his lengthy presentation at the February 7 public meeting. Third, there can be no dispute that Mr. Zyvoloski is the complaining party in both matters. Finally, it is also clear that the Board afforded Mr. Zyvoloski a full and fair opportunity to "litigate" the issue of the December 14 executive session. 10 September 27, 2022 Page 8 of10 In our opinion, there is no need for the Board to re-examine the allegations of unethical conduct raised in Mr. Zyvoloski's August 11 request. Mr. Zyvoloski's request raises no new facts, but instead continues to be based on unsupported and speculative beliefs that an improper discussion of his appeal was held during the City Commission's December 14 executive session. To accept Mr. Zyvoloski's request now would simply allow for the re-litigation of determinative facts which were already decided by the Board following a lengthy public meeting process. This is improper and precluded by the doctrine of issue preclusion. C. IN THE ALTERNATIVE, THE BOARD SHOULD DECLINE THE REQUEST BECAUSE THE RECORD DEMONSTRATES NO IMPROPER CONDUCT OCCURRED. In the alternative, assuming for the sake of argument that the Board has jurisdiction to review Mr. Zyvoloski's claims regarding the alleged improper closing of the December 14 meeting, Mr. Zyvoloski's August 11 request for "formal opinion" should also be denied because the further record presented to the Board demonstrates that no improper conduct occurred in the City Commission's December 14 executive session. Throughout the February 7 public meeting, Mr. Zyvoloski, and his counsel stated the pertinent questions for the Board to ask regarding the executive session was who was present and what was discussed. See Brd. Ethics Mtg. at 17:51; 19:19; 35:50; 1:04:40. City Manager Mihelich's September 9, 2022, Affidavit {Encl. 6) directly addresses those questions. Specifically, City Manager Mihelich states that the only individuals present during the closed session were himself, the five City Commissioners, and Deputy City Clerk DiTomasso. /d., 1f 9. City Attorney Sullivan's September 9 memorandum also confirms this fact. Encl. 5, p. 2. This information directly contradicts Mr. Zyvoloski's unsupported claim that City Attorney Sullivan and/or Deputy City Attorney Rishke were present during the meeting. See Brd. Ethics Mtg. at 17:51. Additionally, City Manager Mihelich states that during the closed session "neither I nor any other person discussed issues not directly related to my performance. Specifically, neither I nor any individual discussed any issues related to the Bibs to Books Playhouse business license appeal scheduled for later that evening." Encl. 6, 1f 10.4 City Manager Mihelich explains under oath that only issues related to his performance were discussed during the December 14 executive session. Thus, the supplemental record before the Board disproves the speculation and suspicions offered by Mr. Zyvoloski and his counsel at the February 7 meeting that more than the City Manager's performance evaluation was discussed during the closed session. Furthermore, while Mr. Zyvoloski and his counsel questioned the timing of the executive session, the fact that the City Commission would be addressing the City Manager's annual performance evaluation, and possibly doing so in executive session, was a known fact. It was properly noticed on the Commission's Special Meeting Agenda. See Enclosure 8 {emphasis added in document). This agenda 4 City Attorney Sullivan's memorandum also confirms that his discussion with the closed session participants corroborated that no discussions related to the Bibs to Books Playhouse occurred during the closed session. Encl. 5, p. 2. 11 September 27, 2022 Page9 of10 was physically posted in the City's lobby, on the City's calendar of events, and online in Laserfiche on December 9, 2021 ,swell in advance of the December 14 meeting. Montana law permits the presiding officer of any meeting to close the meeting to discuss "a matter of individual privacy" if the presiding officer "determines that the demands of individual privacy clearly exceed the merits of public disclosure." See§ 2-3-203{3), MCA. The right of individual privacy may be waived by the person about whom the discussion pertains, and if that occurs, then the meeting is required to remain open. /d. The video record of the December 14 meeting demonstrates City Manager Mihelich specifically asserted his individual privacy interest and requested that his performance evaluation be conducted in executive session. See 12/14/21 City Comm. Mtg. at 1:0o.s The recording then demonstrates that Mayor Andrus closed the meeting to the public based on her finding that City Manager Mihelich's privacy interests clearly exceeded the merits of public disclosure. /d. at 1 :08. Mayor Andrus' actions are directly in line with Montana law. See§ 2-3-203{3), MCA; see a/so Missou/ian v. Brei of Regents of Higher Educ., 207 Mont. 513, 533, 675 P.2d 962, 973 {1984) {Montana Supreme Court recognizing job performance evaluations of university presidents were matters of individual privacy protected by the State Constitution, the presidents' privacy interests clearly exceeded the public's right to know, and closure was proper to protect the presidents' privacy interests); Flesh v. Brd. of Trustees of Joint School Dist. No.2, Mineral and Missoula Counties, 241 Mont. 158, 166, 786 P.2d 4, 9-10 {1990) {finding the presiding officer at a school board meeting followed proper statutory procedures in closing a hearing held to consider grievances lodged against school administrator, when administrator did not waive his right to privacy and grievant objected to hearing being held in executive session, and presiding officer found that right to privacy exceed the public's right to know); Billings Gazette v. City of Billings, 2013 MT 334, 1f 59, 372 Mont. 409, 313 P.3d 129 {finding that City employees' reasonable expectation of privacy in their identities related to internal disciplinary proceedings clearly outweighed the limited merits of public disclosure, and concluding that public disclosure is not in the public interest). Considering the supplemental record now before the Board, it is our opinion, that the Board decline to render an opinion in response to Mr. Zyvoloski's August 11 request. It has been clearly demonstrated it was proper for Mayor Andrus to close the December 14 meeting to discuss City Manager Mihelich's performance evaluation. Mayor Andrus made the appropriate finding that City Manager Mihelich's privacy interests exceed the merits of public disclosure. Additionally, the uncontradicted evidence is that none of the accused in Mr. Zyvoloski's December 8 ethics complaint {i.e., City Attorney Sullivan or Deputy City Attorney Rishke) were present at the closed session, nor was Mr. Zyvoloski's license appeal the topic of discussion during the closed session. Simply put, nothing has been presented supporting Mr. Zyvoloski's claims that an improper discussion on the Commission's forthcoming vote on s The metadata for the agenda's posting on Laserfiche demonstrates a creation date of December 9, 2021, at 9:36:25 a.m. Available at: https://weblink.bozeman.net/Weblink/DocView.aspx?id=257684&dbid=O&repo=BOZEMAN. a Available at: https://bozeman.granicus.com/player/clip/203?view id=1&redirect=true&h=fb507ada8f81f35757aaa177b0a4a49 ~· 12 September 27, 2022 Page 10 of 10 his appeal occurred. Thus, because there has been no demonstration of improper conduct, there is nothing for the Board to opine upon, and the request should be denied. IV. CONCLUSION For the foregoing reasons, pursuant to Sec. 2.03.600(B)(2), BMC and Sec. 2.03.620, BMC, it is our recommendation that the Board adopt these findings and decline to render an advisory opinion in response to Mr. Zyvoloski's August 11, 2022, request. Both the doctrines of mootness and issue preclusion support this decision. Furthermore, based on the supplemental record before the Board, Mr. Zyvoloski's request for a "formal opinion" can be declined because the record demonstrates that no improper conduct occurred when the City Commission went into executive session on December 14, 2021, to address the City Manager's performance evaluation. For purposes of the October 3, 2022, meeting, I suggest the Board consider the following motion: Motion: "I move that the Board adopt attorney Jordan Crosby's September 27, 2022, findings and decline to render an advisory opinion in response to Mr. Zyvoloski's August 11, 2022, request." Thank you for allowing us the opportunity to continue our review of this matter and offer our analysis. We look forward to answering any additional questions you may have at the October 3 meeting on this matter. Sincerely Yours, Encls.: 1 -December 20, 2021, Zyvoloski Letter 2-February 7, 2022, Board of Ethics Meeting Minutes 3 -March 31, 2022, Board of Ethics Findings and Conclusions 4-August 11, 2022, Zyvoloski Letter 5-September 9, 2022, Sullivan Memorandum 6-September 9, 2022, Mihelich Affidavit 7-January 24, 2022, Zyvoloski Record Request 8-December 14, 2021, Special Meeting Agenda Cc: City Clerk Mike Maas (via email MMaas@BOZEMAN.NET; w/ encls.) Daniel Zyvoloski (via email danzyvo@hotmail.com; w/ encls.) Greg Sullivan (via email gsullivan@BOZEMAN.NET; w/ encls.) 13 ENCL. 1 14 15 16 17 18 -I .. l. L r I l • t. , ·. I .. If 19 Bozeman Board of Ethics Meeting Minutes, February 7, 2022 THE BOARD OF ETHICS MEETING OF BOZEMAN, MONTANA MINUTES February 7, 2022 Present: Melissa Frost, Sara Rushing, Kristin Taylor None Absent: Staff Present in the WebEx: City Clerk (CC) Mike Maas, Special Counsel (SC) Jordan Crosby A) 00:00:05 Call meeting to order -4pm B) 00:02:38 Disclosures C) 00:03:36 Changes to the Agenda D) 00:03:50 Public Comment There were no public comments. E) 00:06:15 Action Items E.l 00:06:16 Review ofthe Daniel Zyvoloski Ethics Complaint Filed on December 8, 2021 Preliminary Written Analysis.pdf Bozeman Ethics Complaint Letter 12.8.21.pdf Enclosures for Ethics Complaint Letter (12.8.21).pdf Bozeman Supplemental Ethics Complaint Letter 12.20.2021 (Re levant Information to 12.8.21 Ethics Complaint Letter).pdf Supplemental Ethics Complaint_Enclosures.pdf 2022-01-07 City's Response to Ethics Complaint.pdf 00:06:45 Staff Presentation Jordan Crosby, retained counsel, presented the December 8, 2021 complaint by Daniel Zyvoloski and subsequent written analysis. Counsellor Crosby presented the options before the board, provided the applicable statute in Montana Code Annotated (MCA) and Bozeman Municipal Code (BMC), the Board cannot reverse the decision of the City Commission, and presented a summary of the written analysis and the recommendation of dismissal with prejudice. Page 1 of 3 20 Bozeman Board of Ethics Meeting Minutes, February 7, 2022 00:10:47 Questions of Special Counsel 00:12:25 Presentation of Complainant Lara Guercio, Crowley Fleck Law, presented the complaint, their disagreement with the written analysis, requested the Board schedule a hearing to identify additional material fact, and disagreement with the handling of the appeal by the City Commission as a remedy for the initial unethical actions. Daniel Zyvoloski presented that misconduct took place during an Executive Session on December 14, 2021, specifically that the written analysis does not include a response of the violation of Open Meetings Laws related to the Executive Session, and recommended that the Board conduct a hearing or determine whether further information is necessary to make a determination of whether a violation occurred. 00:20 :36 Questions of Complainant 00:21:16 Presentation of Representative of City Staff Natasha Jones, Boone Karlberg, representing City Staff, presented that facts are lacking to assert an ethical violation, presented the actions taken by staff as a matter of the allowable responses, that process was afforded to the complainant citing the appeal heard by the City Commission on December 14, 2021, recommended dismissal ofthe complaint, and presented a refutation of claims within the complaint. 00:29:41 Questions of Staff Representative 00:35:06 Rebuttal of Complainant Mr. Zyvoloski clarified the allegation related to the Executive Session that improper action was taken, commented that his process request was to present public comment through the Special Use Permit process and that the City Attorney took steps to sideline his appeal, improperly contacted the business owner subject to his appeal and provided legal advice to the business owner, further alleged special efforts to provide a personal favor for a single business owner, and alleged a violation of the BMC and City Charter. 00:40:55 Public Comment There were no public comments on this item. 00:43:08 Questions from the Board 01:06:50 Technicallssues Counsellor Crosby experienced technical difficulties and the meeting briefly paused. 01:10:14 Rejoined Counsellor Crosby returned to the meeting. 01:10:35 Questions of the Board continued 01:37:03 Motion that it should be our determination that within the purview of the Board, no violation of the Bozeman Code of Ethics or the Montana Code of Ethics has occurred. Kristin Taylor: Motion Melissa Frost: 2 nd Page 2 of 3 21 Bozeman Board of Ethics Meeting Minutes, February 7, 2022 01:37:14 Discussion 01:37:55 Clarification on Procedures Chairperson Rushing requested clarification on the change of status of non-board members within the meeting. CC Maas stated that procedurally, once a motion is before the Board, non-board members are lowered to attendee status within the Web Ex meeting. 01:38:30 Discussion continued 01:44:20 Vote on the Motion that it should be our determination that within the purview of the Board, no violation of the Bozeman Code of Ethics or the Montana Code of Ethics has occurred. The Motion failed 0 -3. Approve: None Disapprove: Melissa Frost Sara Rushing Kristin Taylor 01:44:42 Motion that the Board dismiss Mr. Zyvoloski's December 8, 2021 ethics complaint pursuant to sections 2.03.640(M}(1}(a) BMC with prejudice for failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics. Melissa Frost: Motion Kristin Taylor: 2nd 01:45:30 Discussion 01:46:55 Vote on the Motion that the Board dismiss Mr. Zyvoloski's December 8, 2021 ethics complaint pursuant to sections 2.03. 640(M}(1)(a) BMC with prejudice for failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics. The Motion carried 3-0. Approve: Melissa Frost Sara Rushing Kristin Taylor Disapprove: None F) 01:47:46 G) 01:48:01 FYI/Discussion Adjournment Page 3 of 3 22 I! • L ii,... t li . f' f f .. . .. "' .. I Q' r l ~\ I - -!" • '.oi .;:: ... ). " .,. ~ .• II . ,.. -l .., -, I ,._ .. -1 ~ .. ,.. .. Ill: 'II I .. 'Go' t '1: ... - " !"' ' I " :1< ." •' . lit ~ 'I II "' I ,_-.. • I ... -. II! ?~J lol .. 'I 23 DocuSign Envelope ID: 75D8A 16C-CD1 3-450B-9A26-A79A2D4AB651 BOZEMAN MT THE BOARD OF ETHICS OF BOZEMAN, MONTANA FINDINGS AND CONCLUSIONS December 8, 2021, Daniel Zyvoloski's Ethics Complaint In addition to the oral findings entered into the record by the Board of Ethics for the City of Bozeman (hereafter "the Board") at the public meeting on February 7, 2022 , and pursuant to Section 2.06.640(M)(5) of the Bozeman Municipal Code ("BMC "), the Board makes the following findings and conclusions regarding the December 8, 2021 , Ethics Complaint by Daniel Zyvoloski : 1. Montana law provides that where a local government has established a panel to review complaints alleging violations of Title 2, chapter 2, part 1 of the Montana Code Annotated (hereafter "Montana Code of Ethics"), that panel "shall review complaints and may refer to the county attorney complaints that appear substantiated." See§ 2-2-144(5)(a), MCA. 2. Bozeman City Charter establishes an independent Board of Ethics. The Board reviews ethical complaints alleging that city public officials or public employees violated the Montana Code of Ethics or violated Bozeman 's Code of Ethics (Article 3, Division 4, BMC). See Sections 2.03.600(A)(3) and 2.03.640(E) & (M), BMC. 3. The Board 's authority is provided for in Section 2.03.600, BMC and Section 2.03 .640, BMC summarizes the procedures for review of complaints. 4. Among other reasons, the Board is empowered to dismiss a complaint if it "does not allege facts sufficient to constitute a violation " of the Bozeman Code of Ethics or Montana Code of Ethics. See Section 2.03.640(M)(1)(a), BMC. 5. In its review of an ethical complaint, the Board may not reverse or modify a prior action of the Mayor, City Commission, or an officer or employee of the City. Instead , "[i]f the board finds a prior action of the mayor, the city commission , officer, or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered. Upon such advice by the boa rd, the action shall be reconsidered by the appropriate person or public body." See Section 2.03.620, BMC. 6. On December 8, 2021 , Daniel Zyvoloski served a written Ethics Complaint ("Complaint"), and request for a "formal advisory opinion ." Mr. Zyvoloski's Complaint originates in a dispute regarding whether and how a particular home-based daycare was subject to business licensing requirements by the City. Mr. Zyvoloski owns and lives in property adjacent to the daycare in question. 7. Mr. Zyvoloski's Complaint alleges that: A. Staff within the City Attorney's Office "deviated from the City's Standards of Conduct, created a Conflict of Interest, and conducted actions that meet the standard of Improper Government Actions 24 DocuSign Envelope ID: 75D8A 16C-CD13-450B-9A26-A79A2D4AB651 as defined and identified in the City's Code of Ethics by their procedural misconduct in connection with the disputed licensing of a home-based daycare in violation of the BMC"; B. The procedural improprieties surrounding the disputed licensing decision, the appeal, and related administrative rule change were not "fair and impartial"; C. His procedural rights were violated by the canceling of a City Commission hearing date, thereby denying him his appeal rights under Section 12.02.190, BMC; D. Promulgation of a new administrative rule requiring daycare licensing and subsequent communications with the daycare at issue regarding this new licensing requirement displayed unethical"favoritism, partiality and bias," constituting an alleged conflict of interest, by allegedly advancing or protecting "the personal and/or financial interests of the home-based business that was the subject of our pending appeal" outside of the "proper channels of government structure"; 1 E. The above City conduct violated the Bozeman Municipal Code's standards of conduct at Section 2.03.490, BMC and the conflict-of-interest prohibitions at Section 2.03.520, BMC; and F. The newly promulgated rule requiring certain daycare business licenses exceeds the authority delegated to the Community Development Director under Section 12.02.050, BMC. 8. On December 20, 2021, Mr. Zyvoloski submitted "supplemental information" to the Board which he asserts demonstrates that Assistant City Attorney Kelly Rischke had improper communication with the daycare operator about filling out the newly required business license. Mr. Zyvoloski claims these communications "secured a significant personal and/or financial favor for a single home-based business owner and influenced the Community Development Department to unlawfully pass a new Administrative Rule without public review or participation and undermined our procedural due process right to provide public comment before the business license was issued." 9. Bozeman City Attorney Greg Sullivan and Assistant City Attorney Rischke, through counsel, submitted a response to Mr. Zyvoloski's Ethics Complaint on January 7, 2022, arguing Mr. Zyvoloski's claims of ethical violations were fatally vague and without factual basis. 10. The City's response asserts that there were no violations of Mr. Zyvoloski's due process rights because: A. The City complied with the Bozeman Municipal Code's required procedures regarding Mr. Zyvoloski's license complaint and appeal; B. No Municipal Code provisions barred the City either from taking action on Mr. Zyvoloski's license complaint or amending City administrative regulations in response to the complaint; 1 Mr. Zyvoloski also extends these arguments to the City's provision of assistance to the daycare when completing the new business license application. 2 25 DocuSign Envelope ID: 75D8A 16C-CD13-4508-9A26-A79A2D4AB651 C. City employees were permitted to be involved in the license complaint process and resolution; and D. Regardless, Mr. Zyvoloski received extensive "due process" through the City's evaluation of Mr. Zyvoloski's license complaint and appeal, which resulted in the relief Mr. Zyvoloski requested-the implementation of a business license requirement for home-based daycares. 11. The City contends there was no violation of either the Bozeman or Montana Code of Ethics and requests that the Board dismiss Mr. Zyvoloski's Ethics Complaint with prejudice. 12. On January 17, 2022, pursuant to Section 2.03.640(D), BMC, the Board's legal counsel, Jordan Y. Crosby, with the law firm of Ugrin Alexander Zadick, P.C., provided a preliminary written analysis, recommending the Board dismiss Mr. Zyvoloski's Complaint with prejudice for failure to allege facts sufficient to constitute violations of the Bozeman Code of Ethics or the Montana Code of Ethics. 13. The Board held a public meeting on February 7, 2022, to address Mr. Zyvoloski's Ethics Complaint and counsel's preliminary written analysis. The affected parties to the Ethics Complaint were invited to attend and allowed the opportunity to present on their respective positions. Significant questions were asked by the Board to the participants and public comment was also taken. JURISDICTION 14. As an initial threshold matter, the Board must address the issue of its jurisdiction over the claims as alleged by Mr. Zyvoloski. 15. The Board's jurisdiction is defined by Montana law and BMC and is limited to hearing ethics complaints related to alleged violation(s) of the Bozeman Code of Ethics and/or Montana Code of Ethics. See§ 2-2-144(5)(a), MCA; Sections 2.03.600(A)(3) and 2.03.640(E), BMC. 16. In his December 20, 2021, supplement and at the February 7, 2022, meeting, Mr. Zyvoloski asserted alleged violations of Montana's open meeting laws regarding the Bozeman City Commission December 14, 2022, meeting. 17. Montana's open meeting laws are found in Title 2, Chapter 3, Part 2, which is not within the authority of this Board, thus the Board lacks jurisdiction to address these claims and they should be dismissed pursuant to Section 2.03.640(M)(1)(b), BMC. DUE PROCESS VIOLATIONS 18. Due process is a constitutional limitation on the deprivation of life, liberty, or property without appropriate procedure. City of Missoula v. Mountain Water Co., 2016 MT 183, ~ 24, 384 Mont. 193, 378 P.3d 1113. 19. To demonstrate a violation of procedural due process, the party must make a showing "that a property or liberty interest exists," as "[i]f there is a property or liberty interest at stake, procedural due process requires that a person 'must be given an opportunity to explain, argue and rebut any information 3 26 DocuSign Envelope ID: 75D8A 16C-CD13-450B-9A26-A79A2D4AB651 that may lead to a deprivation of life, liberty, or property."' State v. Samples, 2008 MT 416, 1f 29, 347 Mont. 292, 198 P.3d 803. 20. A party "cannot establish a property interest in a procedure itself," and "a public official's discretion may prevent the creation of a property right sufficient to support a claim that due process was denied[.]" /SC Distributors, Inc. v. Trevor, 273 Mont. 185, 192, 903 P.2d 170, 174 (1995). 21. Montana law does not recognize a procedural due process right in abstract procedure without a cognizable liberty or property right that would be implicated by that procedure. /d., 273 Mont. at 192, 903 P.2d at 174. 22. In his Complaint, Mr. Zyvoloski does not point to any property interest granted to him by either state law or BMC. 23. Mr. Zyvoloski's lack of any cognizable property interest in the dispute precludes him from establishing a procedural due process claim here. Beas/eyv. Flathead cty., 2009 MT 121,1f 16,350 Mont. 177, 206 P.3d 915. 24. While procedural due process is not implicated by Mr. Zyvoloski, the. record further demonstrates Mr. Zyvoloski was afforded significant process in conformity with the requirements of the BMC. 25. Mr. Zyvoloski's initial complaint requested investigation of the daycare's lack of a business license, appropriate action under Chapter 12 in response to the lack of a business license, and, on appeal, reconsideration of the City's position that the daycare did not require a business license. 26. The record demonstrates that Mr. Zyvoloski was granted all these forms of relief-the City investigated the issue and was persuaded that requiring a license was reasonable. The City utilized delegated authority to craft an administrative regulation addressing the present daycare and prospectively and proactively requiring all other similarly situated daycares to obtain business licenses. The City affirmatively granted Mr. Zyvoloski the reconsideration his appeal requested. 27. Furthermore, the issue Mr. Zyvoloski presented-the daycare's lack of a business license- ceased to exist after the City promulgated a regulation generally requiring such a license and the daycare obtained that license. As such, Mr. Zyvoloski did not have an abstract right to further pursue an appeal where the issue was mooted by the City granting the relief he sought during that appeal. Country Highlands Homeowners Ass'n, Inc. v. Bd. of Cty. Commissioners of Flathead cty. ex rei. Hall, 2008 MT 286, 1f 22, 345 Mont. 379, 191 P.3d 424. This action thus removed any need for further process or procedure. 28. The record further demonstrates that Mr. Zyvoloski was ultimately heard by the City Commission on December 14, 2021, pursuant to his second appeal. He and his counsel were provided a full opportunity to contest promulgation of the administrative rule and issuance of the license. 29. In summary, Mr. Zyvoloski's due process arguments fail to allege facts sufficient to demonstrate the City took any action constituting a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics and should be dismissed pursuant to Sec. 2.03.640(M)(1)(a), BMC. 4 27 DocuSign Envelope ID: 75D8A 16C-CD13-450B-9A26-A79A2D4AB651 CONFLICT OF INTEREST 30. Section 2.02.520, BMC provides a prohibition against a "conflict of interest" and bars City officials and employees from engaging in business which conflicts with City duties or taking official action where the official or employee "has a financial or personal interest in a transaction or matter with the city." See Section 2.03.520(B) & (C), BMC. 31. The Bozeman Code of Ethics also prohibits, as an improper conflict of interest, employees, or officials from representing or appearing on behalf of individuals or entities in proceedings or transactions before the City. See Section 2.03.520(E) and (F), BMC. 32. The Code of Ethics defines a "financial interest" as ownership, a contractual relationship, business relationship, or other interest "which will result in a monetary or other material benefit to an official or employee[.]" See Section 2.02.470(6), BMC. 33. A "personal interest" is defined 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." See Section 2.03.470(10), BMC. 34. The Montana Code of Ethics at § 2-2-1 02(6), MCA, similarly defines "private interest" to mean an ownership interest in a business, a creditor interest, employment or prospective employment, ownership in real property, a loan, or a directorship or officership in a business. 35. A public official lacks an improper private interest where that official does not receive compensation, benefit, or gain from the entity in question. See Mountain States Ins. Co. v. State, By & Through Bd. of Hail Ins., Dep't of Agric., 218 Mont. 365, 369, 708 P.2d 564, 567 (1985). 36. Mr. Zyvoloski fails to put forth any facts demonstrating any City employee has a "financial interest" in the subject daycare as that phrase is defined by Section 2.03.470(6), BMC. 37. Beyond unclear and unsubstantiated allegations that City officials desired the subject daycare to become licensed, Mr. Zyvoloski also does not allege facts sufficient to demonstrate a "personal interest" as that phrase is defined in Section 2.03.470(10), BMC. 38. Whether the financial or personal interest of the subject daycare was furthered by City action is irrelevant under the controlling "conflict of interest" definitions. There is no indication in the record that any City employee or official acted, either through promulgation of the administrative rule or assistance with the daycare's subsequent application, to improperly further that employee or official's financial or personal interest. See Section 2.03.520(E) and (F), BMC 39. Nor is there any indication or claim that any City official or employee derived any financial or personal gain or benefit from any action taken in response to Mr. Zyvoloski's complaints and appeals, as that is defined under Montana's Code of Ethics. 5 28 DocuSign Envelope ID: 75D8A 16C-CD13-450B-9A26-A79A2D4AB651 40. Mr. Zyvoloski's Complaint fails to allege facts sufficient to demonstrate the City, and more importantly Assistant City Attorney Rischke, took any action in response to his complaints or appeals due to an improper "conflict of interest" as defined by the Bozeman and/or Montana law, and such claims should be dismissed pursuant to Sec. 2.03.640(M)(1)(a), BMC. STANDARDS OF CONDUCT 41. Bozeman Code of Ethics "standards of conduct" generally require fair, impartial, moral, and honest discharge of City responsibilities. Sec. 2.03.490, BMC. 42. Per Section 12.02.050, BMC, the Bozeman City Commission has expressly delegated administrative authority to the Community Development Director to "promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter." As a check on this agency's authority, such promulgated rules are "subject to commission review and modification." Section 12.02.050, BMC. 43. On December 14, 2021, the City Commission heard Mr. Zyvoloski's appeal and directly considered the procedural propriety of the promulgation of Administrative Rule 2021-01. A 5-0 vote of the City Commission upheld the adoption of Administrative Rule 2021-01. The City properly exercised its right to review the rule. 44. Furthermore, the facts presented demonstrate that the general application of the administrative rule, promulgated to impose a new requirement sought by Mr. Zyvoloski, suggests that the rule was impartially developed to apply to a broad range of future daycare applicants, not just the subject applicant here. 45. Mr. Zyvoloski failed to present evidence that City employees, in particular Assistant City Attorney Rischke, assisted the daycare with applying for a business license in a dishonest manner outside the normal range of interactions with any potential applicant for a City license. 46. Nor did Mr. Zyvoloski offer evidence beyond speculation that the City Attorney's office delayed consideration of his second appeal to disadvantage his presentation. The record of the December 14, 2021, hearing demonstrates that Mr. Zyvoloski and his counsel were allowed to fully present the same substantive arguments that motivated his licensure complaint from the beginning. 47. Mr. Zyvoloski also fails to demonstrate that the City's actions in promulgating the administrative rule, assisting with the daycare's license, dismissing the first appeal, or scheduling the second appeal were unfair, partial, immoral, or dishonest. 48. Mr. Zyvoloski fails to allege facts sufficient to demonstrate that City employees deviated from the "standards of conduct" found at Section 2.03.490, BMC, and such claims should be dismissed pursuant to Sec. 2.03.640(M)(1)(a), BMC. 6 29 DocuSign Envelope JD: 75D8A 16C-CD13-450B-9A26-A79A204AB651 IMPROPER GOVERNM ENT ACTIONS 49 . An "improper government action" is an action that violates the standards of conduct in the Bozeman Code of Ethics, violates standards in the Montana Code of Ethics, or is intended to harass, intimidate, or retaliate against a member of the public for protected conduct. See Section 2.03.470(8), BMC. 50. The Bozeman Code of Ethics requires complainants to specifically describe the factual bases for alleged ethical violations. See Section 2.03 .640(B), BMC. 51. Mr. Zyvoloski does not offer separate support for his "improper government action" claims beyond a cursory connection with the allegations he makes to other alleged ethical violations. 52. Accordingly, Mr. Zyvoloski has failed to allege facts sufficient to demonstrate that City employees engaged in improper government action, and such claims should be dismissed pursuant to Sec. 2.03.640(M)(1)(a), BMC . PUBLIC TRUST 53 . Mr. Zyvoloski perfunctorily claims that the above City actions breached the "public trust" as defined in the Montana Code of Ethics. 54. Mr. Zyvoloski fails to substantiate his allegations of a public trust violation in a manner different from the above allegations. 55. Accordingly, in line with the above conclusions, Mr. Zyvoloski fails to allege facts sufficient to demonstrate that City employees breached the public trust, and thus such claims should be dismissed pursuant to Sec . 2.03.640(M)(1)(a), BMC. CONCLUSION 56. For the reasons stated herein, and the oral findings entered into the record by the Board at the public meeting on February 7, 2022, the Board accordingly dismisses the entirety of Mr. Zyvoloski 's December 8, 2021 , Ethics Complaint pursuant to Sec. 2.03.640(M)(1 )(a), BMC with prejudice for failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics. DATED this ]1___ day of March, 2022. DocuSigned by: Board of Ethics: 7 30 '• • .. .• 1_ • ..,. . ~ II' • .. l .. l I ' _, .· .. IJ ."r . r E·N.CL ., ... fl. -- • • V" \ . II .. , . ..,. I .~ • "I :.lir &: .. ' 31 August 11, 2022 Via e-mail and U.S. Mail City of Bozeman Board of Ethics c/o Office of the City Clerk, Mike Mass 121 N. Rouse, Suite 201 Bozeman, MT 59771 RE: City of Bozeman-Official Request to the Board of Ethics to Issue a Formal Opinion Dear Bozeman Board of Ethics: Per BMC § 2.03.610 this letter serves as an official request to the Board of Ethics to issue a formal opinion regarding the matter detailed below. Under Montana law, there are only two lawful reasons for a closed meeting (MCA 2-3-203). 1. Litigation-Discuss a lawsuit against the city/town 2. Issue of Privacy-The individual must waive the right to privacy if he/she wants the issue discussed at an open If the individual waives their right to privacy, the meeting must be open to the public. Specifically, I'm asking the Board of Ethics to determine if it is ethically improper for the Mayor of Bozeman to initiate a closed meeting to influence a forthcoming vote by the City Commissioners, by stating the purpose "Issue of Privacy" with a quorum of City Commissioners and then moving on to discussing non-related topics with regards to a forthcoming vote that was not within the scope of the statutorily authorized purpose for which the closed meeting was initially called? Per the stated question please provide a discussion regarding the influenced vote outlined above and cite where the actions of the Mayor and or City Commissioners would be in violation of the Bozeman Code of Ethics or the Montana Code of Ethics. The actions above are a violation of the Montana Constitution, but the purpose of this formal opinion to the Borad of Ethics is to determine if influencing a forthcoming vote under the circumstances stated above would violate the Bozeman Code of Ethics or the Montana Code of Ethics. If the Board of Ethics determines that the Mayor's actions are ethically improper, what recourse would a citizen affected by the influenced vote have to correct the actions that were a result of the vote? Thank you for your time and consideration regarding this important community issue. Please respond on or before September 15th, 2022 to danzyvo@hotmail.com and by mailing a copy to my address below. Respectfully, {:?a;e, Jr~~; Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 Page 1 32 I .. . · . • 1 II ENCL. 5 I • 33 MT City Allorney's Office Greg Sullivan, City Attorney Bekki Mclean, Chief Prosecutor Chanan Brown, Prosecutor Ashley Carroll, Prosecutor Tim Cooper, Assistant City Attorney Jennifer Giuttari, Assistant City Attorney Kelley Rischke, Assistant City Attorney Anna Saverud, Assistant City Attorney Mollie Schultz, Prosecutor TO: C: FR: Date: RE: Bozeman Ethics Board Mayor Cindy Andrus; City M~er Jeff Mihelich; Jordan Crosby Greg Sullivan, City Attorney ~ September 9, 2022 Zyvoloski Request for Ethics Board Opinion Dated August 11, 2022 I write to provide you information related to the letter sent to you by Daniel Zyvoloski on August 11, 2022. I appreciate your patience. As you know, in the fall of 2021 Mr. Zyvoloski filed an ethics complaint against Kelley Rishke, Assistant City Attorney, and me alleging violations of the City's Code of Ethics and the State of Montana ethics laws. The Board held a hearing and dismissed Mr. Zyvoloski's complaint with prejudice. The written dismissal was issued March 31, 2022. Mr. Zyvoloski included in his complaint an allegation that a meeting to evaluate the Bozeman City Manager's performance, held on December 14, 2021, was improperly closed as issues beyond performance were discussed, including, according to Mr. Zyvoloski, matters related to an upcoming hearing regarding his appeal of a business license issued to Bibs to Books Playhouse. Specifically, Mr. Zyvoloski submitted a supplemental letter on his ethics complaint on December 20, 2021 -a week after the Bibs to Books Playhouse appeal. That letter requested the board "bring into evidence" in his ethics complaint issues related to the December 14, 2021 closed session of the City Commission. In addition, Mr. Zyvoloski and his attorney, during the hearing you held on February 7, 2022, put forward allegations that issues related to his appeal were discussed during the City Manager's performance evaluation. During your hearing, Jordan Crosby, acting as legal counsel for the Ethics Board, indicated the Board did not have jurisdiction related to Mr. Zyvoloski's allegations the City Commission improperly closed the December 14, 2022 City Manager performance evaluation. Mr. Zyvoloski has taken no other action related to his allegations. Page 1 of2 TUC' I\J1r\C'T I 1\/AOI C 01 ArC 34 As I and Assistant City Attorney Kelley Rischke were named in Mr. Zyvoloski's ethics complaint, I contacted Jordan Crosby and she will be advising you in evaluating Mr. Zyvoloski's August I I, 2021 letter. On behalf of the City I provide the following to give background on the December 14,2021 closed session. Under Montana law, a meeting of the City Commission may be closed to discuss matters related to individual privacy when the demands of individual privacy clearly exceed the merits of -Jv public disclosure. See Sect. 2-3-203, MCA. A meeting may be closed by the "presiding officer." On December 14, 2021, dming open session of the City Commission, City Manager Mihelich asse1ted his pdvacy interests in his performance evaluation. Immediately thereafter, Mayor Andrus, as the presiding officer of the Commission, made a fmding pursuant to the statutory requirement that Mr. Mihelich's privacy interests clearly exceeded the merits of public disclosure and ordered the session to be closed. Pursuant to the City Manager's employment contract, the City conducts an annual perfonnance evaluation of the city manager "no later than December 1 of each year." Due to scheduling and workload conflicts, this annual performance evaluation was scheduled for December 14, 2021. It was nothing more than coincidence Mr. Mihelich's evaluation was scheduled for the same night as the Bibs to Books Playhouse business license appeal. As the City Commission was conducting its meetings tlu·ough remote participation only, the general city commission meeting on December 14, 2021 was conducted through WebEx. As the meeting began, numerous employees, including myself, were in attendance. To ensure Mr. Mihelich's privacy interests were honored, the City Commission used a second remote platform to conduct the petfmmance evaluation. In attendance at the closed meeting were Mayor Andrus, Deputy Mayor Terry Cunninghan1, Commissioner Pomeroy, Commissioner Madgic, and Commission Coburn along with City Manager Mihelich and Deputy City Clerk DiTomasso. Neither I nor Ms. Rischke were present during the closed session. The attached affidavit of Mr. Mihelich clearly demonstrates that at no time during the performance evaluation were any issues other than Mr. Mihelich's performance discussed, including, any discussion related to the Bibs to Books Playhouse appeal. In addition, I have asked all other participants in the closed session if anything related to the Bibs to Books Playhouse appeal were discussed. All have unequivocally denied that any discussions related to the Bibs to Books Playhouse were discussed during the city manager's performance evaluation Jordan Crosby will soon be in contact with you. Pagel of2 35 ' p II I ' .. • .:. 36 AFFIDAVIT OF JEFF MIHELICH I, Jeff Mihelich, affirm and say: 1. I am of legal age and a resident of Gallatin County, Montana. I am competent to testify to the tmth of the following facts based upon my personal knowledge. 2. I am currently employed by the City of Bozeman as the Bozeman City Manager. 3. I spent 30 years in various roles in local government throughout the United States Prior to joining the City of Bozeman. 4. I was hired by the Bozeman City Commission as the City Manager for the city of Bozeman pursuant to an Employment Agreement dated Aplil20, 2020. 5. The Employment Agreement requires the City to conduct my annual performance evaluation no later than December 1st of each year. 6. Sometime in late November of early December of2021 Mayor Cindy Andrus and I scheduled my performance evaluation to be held before the City Commission on December 14, 2021. The scheduling of this meeting was in no way influenced by factors related to the Bibs to Books Playhouse appeal. 7. I understand that under Montana law a meeting of the City Commission may be closed to discuss matters of individual privacy if a person's asserted privacy interests clearly exceed the merits of public disclosure. 8. At the December 14, 2021 meeting, Mayor Andrus inquired as to whether I was asserting privacy interests related to my evaluation. I respond affhmatively. Mayor Andrus, as presiding officer of the City Commission, made the required finding and closed the meeting. AFFIDAVIT OF JEFF MIHELICH Page 1 37 9. Persons present dming my performance evaluation included all five city commissioners and Deputy City Clerk DiTomasso. No other individuals were present during the closed session. 10. During the closed session neither I nor any other person discussed issues not directly related to my performance. Specifically, neither I nor any individual discussed any issues related to the Bibs to Books Playhouse business license appeal scheduled for later that evening. 11. At the conclusion of the closed session, Mayor Andrus, I, along with the other participants in the closed session, returned to open session of the City Commission. FURTHER THIS AFFIANT SAYETHNAUGHT. DATED this 9th day of September, 2::· ~~ STATEOFMONTANA ) : ss. County of Gallatin ) Signed and swom to before me on September !/!:2022, by Jeff Mihelich. ,,''~~~ .. ~~.~~~'', HEATHER BIENVENUE ;J-.· · · .~---Notary Public : :r : ~oTAflt-'l/·C.:. for the State of Montana - . -·-rn ~ * ·. SEAL .: * ~ Residing at: -:.,~·.. . . ·~--Bozeman, Montana "-,,,_'>foi='fl,o~~,,-My Commission Expires· '''11'''·',, "'" '' January 26, 2026 · AFFIDAVIT OF JEFF MIHELICH Page 2 38 !I I • • ENCL .. 7 f .... .1. • ., II 39 Jordan Crosby From: Sent: To: Subject: Agenda <agenda@BOZEMAN.NET> Monday, January 24, 2022 2:34 PM Dan Zyvoloski RE: Zyvo loski Records Request 4 Attachments: 12-14-21 EXECUTIVE SESSION Redacted.pdf Good afternoon, The public portions of the December 14, 2021 meeting are available for review on our website either by streaming the meeting video or through the approved minutes. Pursuant to your request, please find the attached Executive Session minutes redacted for personal privacy in accordance with 2-3-203{3), MCA. There is no fee for this request. Lastly, Jesse DiTommaso has moved to another position in the City and is no longer in the Clerk's Office. Please note for future co rrespondence. Thank you, Mike Maas, MPA I City Clerk City of Bozeman 1121 N. Rouse Ave. I Bozeman, MT 59715 D: 406.582.2321 I C: 406.599.0804 Pronouns: he/him/his MT From: Agenda <agenda@BOZEMAN.NET> Sent: Friday, December 17, 20218:46 AM To: Agenda <agenda@BOZEMAN.NET> Subject: Zyvoloski Records Request 4 A new entry to a form/survey has been submitted. Form Name: Date & Time: Response#: Submitter ID: IP address: Records Request 12/17/2021 8:37AM 729 46972 71.15.192.45 Time to complete: 8 min., 10 sec. Survey Details 1 40 Page 1 Records Request Form We would be happy to help you with a records request related to city administration or city governance. NOTICE: No new document will be created to respond to an information request. See Sect. 2-6-1006(4}, MCA. Applicable information may be made available for requester to compile his/her own data subject to law, including the legal restrictions regarding creation of mailing lists from public records. See See Sect. 2-6-1017, MCA. This form is NOT intended for requesting information regarding court cases, marriage licenses, divorce records, birth or death records, police records, etc. DO NOT USE THIS FORM. Please see information above on how to request these records. First Name Last Name Organization/Company Street Address Mailing Address City State ZIP Code Email Address Phone Number Records Requested December 17, 2021 City of Bozeman cjo City Clerk 121 N Rouse, Suite 201 Bozeman, MT 59715 Daniel Zyvoloski Not answered 2108 Highland Ct. Not answered Bozeman Montana 59715 Danzvvo@hotmail.com (406} 570-2716 Submitted December 17, 2021, (via the Bozeman City Clerk's Online Records Request Form) Bozeman City Clerk, Under the Montana Public Records Act, and pursuant to Article II, section 9 of the Montana Constitution, and specifically MCA 2-6-1003, I am hereby requesting information that relates to the City Commissioners' Executive Session held on December 14th, 2021, directly before the City Commission's scheduled public meeting. Per Bozeman City Code Sec. 2.02.130(B)(3} (Executive session minutes) and Sec 2.02.110(A} (Open Meetings and email} as excerpted below: "Except for properly called executive session as permitted by state law, all meetings of the city commission shall be open to the public and media, freely subject to recording by radio, television and photography at any time, provided that such arrangements do not interfere with the orderly conduct of the meetings." In accordance with the above legal requirements, please provide: (i) a Web Ex video recording of the Executive Session at your earliest convenience. Specifically, we are asking for any Web Ex video or minutes held during the executive session that relates to the Action Item on the Agenda titled "Appeal of Issuance of Business License 21-69197 to Bibs to Books Playhouse."; and (ii} the minutes as prepared by the City Clerk and approved by the City Commission once available, all for the Executive Session "City Manager Annual Performance Evaluation" held on December 14, 2021. The Mayor closed the meeting and went into Executive Session per a memorandum dated December 14, 2021, with the Subject: City Manager Annual Performance Evaluation. Pursuant to MCA Sec. 2.3-203(3}: "The presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the 2 41 merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains, and, in that event, the meeting must be open." Any matter relating to the individual privacy concerning the City Manager's Performance Evaluation may be redacted in accordance with this statute and its applicable exemption. As the City Managers' Performance Evaluation does not concern the City Attorney's Office, we respectfully reject the impression that any attorney/client privileged information was produced. Any and all other information pertaining to this Executive Session is subject MCA Sec 2-3-203(2) which provides : "All meetings of associations that are composed of public or governmental bodies referred to in subsection (1) and that regulate the rights, duties, or privileges of any individual must be open to the public." If there are any fees for searching, redacting, or copying these records or Web Ex video recordings, please inform me if the cost will exceed $500. This information is not being sought for commercial purposes. If access to the information that I am requesting will take the City longer than 25 days to provide, please contact me with an estimated date by which I will receive recordings and copies of minutes for the subject Executive Session or be provide with an opportunity to inspect and review these requested public records in person. If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. Thank you in advance for processing my public information request. Sincerely, Daniel Zyvoloski 406-570-2716 Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 By submitting this request, I hereby make application for inspection and/or copying of the following public records of the City of Bozeman, Montana and acknowledge that I have read and agree to Resolution No. 4446, and approve and agree to pay the fees associated with this request. (o) Agree I prefer to receive my request through: (o) Email Thank you, City Of Bozeman This is an automated message generated by Granicus. Please do not reply directly to this email. 3 42 Bozeman City Commission December 14, 2021 Executive Session 4:45pm -Mayor Andrus introduced the Executive Session. 4:53pm Commission Pomeroy Joins 43 44 5:20pm-- 5:20pm-- 5:23pm 45 46 21 I-• • J ) I Ji ... ~ II .. 1 ~ ~ II: ..w L '~:: .. -' . I __ , ~ • 1 ...··~ . i/. ·r:.., .. 1 - II\ &... "" II J I I - Ill . . -•' l • ·-•r II "" I ut. . ~ Boo . ' r tf ... t ' y ENCL. g ~:-"'' 1 ' .. f .. " ... li ~ .- .. I . -II 47 BOZEMAN MT THE CITY COMMISSION OF BOZEMAN, MONTANA SPECIAL MEETING AGENDA Tuesday, December 14, 2021 This meeting will be held using Webex, an online videoconferencing system. You can join this meeting: Via Webex: https:/ /cityofbozeman. webex.com/cityofbozeman/onstage/g.php? MTID=e0422bf46c57332a23fd8bd8e290c6d2a Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream or channel190 United States Toll +1-650-479-3208 Access code: 2556 605 1717 If you are interested in commenting in writing on items on the agenda please send an email to agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting the Commission's comment page. You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you please be patient in helping us work through this online meeting. If you are not able to join the Webex meeting and would like to provide oral comment you may send a request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and the City Clerk will call you during the meeting to provide comment. You may also send the above information via text to 406-224-3967. As always, the meeting will be streamed through the Commission's video page (click the Streaming Live in the drop down menu) and available in the City on cable channel190. A. Call to Order -4:30 PM -WebEx Videoconference B. Executive Session The Mayor may close the meeting to the public pursuant to Sect. 2-3-203{3}, MCA, during the time discussion relates to a matter of individual privacy if and only if the Mayor determines the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open. 8.1 City Manager Annual Performance Evaluation C. Pledge of Allegiance and a Moment of Silence D. Changes to the Agenda 48 E. FYI F. Commission Disclosures G. Consent G.l Accounts Payable Claims Review and Approval (Tonkovich) G.2 Authorize the City Manager to Sign a Letter of Agreement Accepting a Donation in the Amount of $41,750 from the Library Foundation for Service Order 2 and Pre-Construction Services for the Bozeman Public Library Expansion( Henderson) G.3 Authorize the City Manager to Sign an lnterlocal Agreement with Riverside Water and Sewe r District( Cooper) G.4 Riverside Annexation, Acknowledge Receipt of Petition for Annexation of the Riverside Manor Subdivision, Riverside Greens Subdivision, and Tracts 1-3 of Certificate of Survey 3030, Approximately 57.5 Acres Located on Gallatin Drive, Park Plaza Road, Riverside Drive, Elaine Lane, and Springhill Road, Including 125 Residential Bui ldings and 4 Commercial Buildings, Application 21426(Saunders) G.5 Authorize the City Manager to Sign a Change Order 1 with CK May for the Griffin Drive and Manley Road Street and Stormwater Improvements Project( Lonsdale) G.6 Authorize the City Manager to Sign a Task Order 4 for Economic and Planning Systems, Inc (EPS)-Update to the 2016 Economic Development Strategy( Fontenot) G.7 Ordinance 2095, Provisional Adoption to Rezone 3.4 Acres from B-2, Community Business District to B-2M, Community Business District-Mixed, Application 21192, Property Located on the Southeast Corner of South 19th Avenue and West Babcock Street( Rogers) H. Public Comment This is the time to comment on any matter falling within the scope of the Bozeman City Commission. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once. Please note, the City Commission cannot take action on any item which does not appear on the agenda. All persons addressing the City Commission shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and address in an audible tone of voice for the record and limit your comments to three minutes. I. Action Item 1.1 Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse (Rischke) 1.2 Resolution 5353 Allocation Of Cash-ln-Lieu Of Parkland Funds For Acquisition Of Land Adjacent To Burke Park And Authorizing The City Manager And City Attorney To Take All Steps Necessary To Purchase The Land Associated With The Burke Park/Peets Hill Expansion And Improvement Project(Jadin) 1.3 Resolution 5359 Adoption of the Capital Improvement Plan (CIP) for Fiscal Years 2023- 49 2027(Rosenberry) J. FYI I Discussion K. Adjournment City Commission meetings are open to all members of the public. If you have a disability that requires assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 {TOO 582-2301}. Commission meetings are televised live on cable channel190 and streamed live at www.bozeman.net. City Commission meetings are re-aired on cable Channel190 Wednesday night at 4 p.m., Thursday at noon, Friday at 10 a.m. and Sunday at 2 p.m. In order for the City Commission to receive all relevant public comment in time for this City Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no later than 12:00 PM on the day of the meeting. Public comment may be made in person at the meeting as well. 50 BOZEMAN MT REPORT TO: SUBJECT: MEETING DATE: AGENDA ITEM TYPE: RECOMMENDATION: Memorandum City Commission City Manager Annual Performance Evaluation December 14, 2021 Administration Discuss the City Manager Annual Performance Evaluation The Mayor may close the meeting to the public pursuant to Sect. 2-3-203(3L MCA, during the time discussion relates to a matter of individual privacy if and only if the Mayor determines the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open. 51