HomeMy WebLinkAboutBozeman Ethics Complaint Letter 12.8.21Page 1
December 8, 2021
City of Bozeman Board of Ethics
c/o Office of the City Clerk, Mike Mass
121 N. Rouse, Suite 201
Bozeman, MT 59715
RE: City of Bozeman—Code of Ethics Complaint (Improper Government Actions, Standards of Conduct
Violation, and Conflict of Interest Violation)
Bozeman Board of Ethics and City Clerk Mass:
This letter serves as a written Code of Ethics complaint submitted in accordance with Bozeman
Municipal Code (BMC) § 2.03.640—Procedures for Hearing Complaints, and a request for a formal
advisory opinion with respect to the following alleged conduct:
As described in more detail below, the staff of the City of Bozeman Attorney’s Office, specifically
Assistant City Attorney Kelly Rischke, acting independently or at the direction of the City Attorney,
deviated from the City’s Standards of Conduct, created a Conflict of Interest, and conducted actions
that meet the standard of Improper Government Actions 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. To be clear, this complaint is not about the merits of the daycare
licensing decision in dispute. Rather, the complaint arises from the procedural improprieties
surrounding that disputed licensing decision, the subsequent appeal, and the related administrative
rule change. This was not a fair and impartial process and the improprieties outlined below need to
be acknowledged and addressed.
Please confirm this letter has been provided within three working days of receipt by the City Clerk’s
Office to the Board of Ethics, as well as City Attorney Greg Sullivan and Assistant City Attorney Kelly
Rischke, whose actions are the subject of this filed complaint, as required by BMC § 2.03.640.C.
Facts Which Form the Basis for This Complaint
Specific actions and decisions which are relevant to the subject complaint include:
-On August 31, 2021, we submitted a letter to the City of Bozeman’s Community Development Director
indicating that a home-based daycare was in violation of the BMC, as it had not applied for or obtained a
City Business License, as required under the existing plain terms of the BMC’s Business Licensing
provisions.
-On September 21, 2021, after indicating that they were waiting for direction from the City Attorney’s
Office, we received a formal letter from the Director of Community Development stating, “the City does
not require any licensure of day care businesses beyond what is required by state law.”
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-On September 30, 2021, we submitted a letter informing the City that we are planning to appeal the
Director of Community Development’s decision to the City Commission that the home-based daycare
does not need to obtain a Business License.
-On October 6, 2021, we filed a formal appeal per BMC § 12.02.190 to the City Clerk to go before the
City Commission to challenge and formally appeal the decision by the City that the home-based daycare
with 2 employees and 12 children does not need to obtain a Business License. At the time of our filing of
this appeal, all applicants were required to file their Business License Application for the City’s review,
approval and license issuance as a Home-Based, Commercial or Out of City Limits Business.
-On October 15, 2021, we received a letter from the Assistant City Attorney indicating that the daycare
applied for and received a City of Bozeman Business License and that our “complaint has been resolved
and the appeal is moot; therefore, no hearing date before the City Commission will be set.”
The Assistant City Attorney’s actions, taken either independently or upon the direction of the City
Attorney, canceled our hearing date before the City Commission and denied our right of appeal and to
procedural due process as provided in the BMC § 12.02.190. The City engaged, at the direction or
guidance of the City Attorney’s Office, in a one-sided communication with the business regarding an
issue pending before the City Commission. Thus, they initiated a series of repeated actions and conduct
that clearly display favoritism, partiality and bias in handling our appeals and the City’s review and
licensing of the business, which was the specific subject of our appeal.
It is our belief that the Assistant City Attorney, of her own volition or at the direction of the City
Attorney, began taking actions to protect the personal and/or financial interests of the home-based
business that was the subject of our pending appeal, and either directly or indirectly, via the City’s
Community Development Department, reached out and colluded with the home-based daycare to
submit a Business License Application, which was then approved by the City the same day without any
further notice or due process to us as the proponents of the pending appeal.
As indicated in the letter by Ms. Rischke on November 19 ,2021, the City instructed the subject daycare
business to leave the Home-Based business checkbox blank, as the City was working on a new
application and enacting a new administrative rule specific to home-based daycares, which first became
effective the same day the business submitted and received approval of its Business License Application.
Notably, even though we had a filed appeal pending, and this administrative rule became effective on
October 13, 2021, the Assistant City Attorney did not provide us with a copy of this new rule until
November 19th, and only after our second appeal was filed on October 27th, as further outlined below.
Additionally, it is our position that this new administrative rule clearly exceeds the City’s related and
limited authority under BMC for operating and enforcing its business licensing requirements, since this
rule substantially changes the existing and established scope of the BMC’s home-based business
regulations, which by their plain terms apply to home-based daycare businesses.
Communications by or at the direction of the City Attorney’s Office, with a private for-profit business, on
how to secure a Business License and instructions by the City on how to fill out the application to avoid
additional City permits and procedural review required by the BMC for home-based businesses, as well
as drafting and supporting the Community Development Department’s enactment of a new
administrative rule that allows for special treatment of home-based daycare businesses in the City’s
business review and licensing process, all while a pending complaint regarding the same was in process
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with the City and without any notice to the proponents of that pending appeal, clearly meets the City’s
definition of Conflict of Interest and results in conduct that plainly violates the City’s Standards of
Conduct, including for impartial and fair conduct, as well as for improper government actions.
-On October 27, 2021, we submitted our second formal appeal to the City Clerks’ Office to be scheduled
before the City Commissioners indicating the subject home-based daycare’s Business License
Application was flawed and needed to be submitted and reviewed by the City as a Home-Based Business
to be compliant with the BMC; our appeal noted multiple areas in the Business License Application that
were not properly completed, and which if completed in accordance with the BMC’s existing
requirements for home-based businesses, including daycares, would trigger additional permits and
procedural review required prior to the City’s issuance of a business license to a home-based business.
We called the City Clerks’ Office to check on scheduling for this matter and our appeal before the City
Commission on November 16, 2021 and were told that the Assistant City Attorney was handling this
matter, including the scheduling of our appeal and related public hearing before the Commission.
Notably, nothing in BMC § 12.02.190 authorizes any involvement of the City Attorney’s Office, beyond
defending the City’s decision before the City Commission at the public hearing. During this three-week
period that the Assistant City Attorney, acting independently or at the direction of the City Attorney,
was holding onto and delaying our appeal, the City was also working on and rolled out a new Business
License Application (Revision October), at the direction or with the support of the City Attorney’s Office.
-On November 19, 2021, after our inquiry with the Clerk’s Office and a further request on November
17th for clarification on the status our public hearing, we received a letter from Assistant City Attorney
Rischke indicating there will be a City Commission hearing on December 14, 2021. The letter informed
us that the City is in the process of updating its Business License Application, thus the business was
instructed by the City to leave the required selection of either the Home-Based Business or Commercial
Business boxes blank. The letter also informed us for the first time of a newly enacted administrative
rule that the City had issued on October 13, 2021 under BMC § 12.02.050.A.1—to remove home-based
daycares from the existing definition of “Home-Based Business” and create a special new review process
applicable to their approval of daycares. This could hardly have been a coincidence.
-Additionally, as indicated in this November 17th letter, the City Attorney’s Office will be representing
the City and its decision to issue a business license to the subject daycare under its new enacted
administrative rule before the City Commission. It is our position that the scheduling of our appeal and
requested public hearing under and in accordance with BMC § 12.02.190 was only a ministerial duty of
the City Clerk’s Office, and the City Attorney’s Office involvement in and direct handling of the
scheduling of this hearing, which was clearly provided for under applicable provisions of the BMC,
represents yet another Conflict of Interest and a violation of the City’s Standard of Conduct, specifically
the discharge of duties fairly and impartially. It also conflicts with the City’s Declaration of Policy for its
Code of Ethics, which as quoted below, specifically requires that for the proper operation of City
government, governmental decision be made in the proper channels of the governmental structure.
-On December 2, 2021, we submitted a supplement to our October 27th appeal letter to the City
Commission (c/o the City Clerks’ Office) to respond to the November 19th letter received from the City
Attorney’s Office and outline our position to the Commission regarding the validity of the City’s new
administrative rule issued on October 13, 2021, as well as to correct misinformation stated in this letter
and the City’s Rationale & Intent for its recently minted administrative rule.
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Applicable Standards of Conduct
The City’s Standards of Conduct (BMC § 2.03.490) and Conflict of Interest (BMC § 2.03.520) provisions
establish basic required standards and related rules that apply to all City employees and officials, the
applicable provisions of which are summarized below.
• Act morally and honestly in discharging their responsibilities;
• Discharge their duties impartially and fairly;
• No official or employee shall improperly use, directly or indirectly, the official or employee's
city position to secure personal interest for said official employee, or others.
• All officials and employees shall refrain from “improper governmental action”—as this term is
defined in the City’s Code of Ethics and further reviewed below.
• Not use their position to secure any financial interest or personal interest, improperly influence
any other official or employee in the performance of official duties, or act in a private capacity on
matters they are directly responsible for BMC.
• Not take or influence official action if the official or employee has a financial or personal interest
in a transaction or matter with the city.
The City’s Code of Ethics defines “improper government action” as including “any action taken by an
official or employee during the performance of the officer's or employee's duties, regardless of
whether the action is within the scope of the employee's employment or the officer's duties that:
violates the [City’s] standards of conduct ... [or standards under MCA § 2-2-101 et seq., the State’s Code
of Ethics]. ….” (BMC § 2.03.470.A.8.a.(1) and (2))
As referenced in the Bozeman Employee Handbook and stated in the Declaration of Policy for the City’s
Code of Ethics:
“The proper operation of City government requires that public officials and employees be independent,
impartial, and responsible; that governmental policies and decisions be made in the proper channels of
the governmental structure; that public office and employment not be used for personal gain nor be used
to harass, intimidate, or retaliate against citizens and other employees and officials. The purpose of this
code of ethics is to set forth standards of ethical conduct, to assist public officials and employees in
establishing guidelines for their conduct, to foster the development and maintenance of a tradition of
responsible, accountable and effective public service, and to prohibit conflict between public duty and
private interest.” (BMC § 2.03.460; emphasis added.)
Additionally, MCA § 2-2-101 et seq., which is referenced and incorporated in the City’s Code of Ethics,
also provides a Code of Ethics and Standards of Conduct applicable to local government employees and
public officials. The purpose of this state-level Code of Ethics is “prohibiting conflict between public
duty and private interest as required by the constitution of Montana.” (MCA § 2-2-101) Specific to a
local government employee and official’s duty to act for and on behalf of the public (and not a specific
individual’s or business’s interests), the State’s Code of Ethics, in MCA § 2-2-103, provides that:
“The holding of public office or employment is a public trust, created by the confidence that the
electorate reposes in the integrity of public officers, legislators, and public employees. A public officer,
legislator, or public employee shall carry out the individual’s duties for the benefit of the people of the
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state. … This part sets forth various rules of conduct, the transgression of any of which is a violation of
public duty, and various ethical principles, the transgression of any of which must be avoided.”
For enforcement of this public trust duty and rules of conduct specific to local government officers and
employees, MCA § 2-2-103 refers to enforcement provided in MCA § 2-2-144, which allows local
governments to establish an independent panel to review complaints alleging violations by officers or
employees of local governments, subject to procedures and rules established by the local government
for this panel, which in this case is the City of Bozeman Board of Ethics, operating in accordance with the
City’s Code of Ethics, as codified in Chapter 2, Article 3, Division 4 of the BMC.
Per MCA § 2-2-144(5)(a), while the Board of Ethics typically refers complaints to the county (or as
applicable in Bozeman, city) attorney, if the complaint is filed against the county (or in this case, city)
attorney, the board “shall refer the matter to the commissioner of political practices and the complaint
must then be processed by the commissioner pursuant to 2-2-136.” Under MCA § 2-2-136, the
commissioner of political practices has jurisdiction over complaints referred by a local board or ethics
review panel pursuant to 2-2-144. While MCA § 2-2-144(6) allows a complaint against the county or city
attorney’s office to be filed directly with the commissioner, in consideration of and respect for the
expertise of the Bozeman Board of Ethics with the City’s Code of Ethics, we have elected to file our
complaint with the board for its review and our request for its issuance of a formal advisory opinion.
Conclusion
While an appeal by a concerned citizen that has taken considerable time and financial resources was
pending as a matter before the City Commission, the Assistant City Attorney, acting independently or at
the direction of the City Attorney, acted in an official capacity to help the daycare business navigate
around the then-current applicable City laws. The Assistant City Attorney then provided legal advice,
support and/or direction to the Community Development Director to enact a new administrative rule
directly aimed at sidelining our appeal and procedural due process review rights under BMC. This was
the second time that the Assistant City Attorney, acting independently or at the direction of the City
Attorney, took direct action to support the daycare’s private interest and improperly influence the
outcome of an official action pending before the City Commission. This is a Conflict of Interest as
defined by the Code of Ethics.
Based on the actions and decisions outlined above and related to our appeals of applicable business
licensing requirements for home-based daycares, it is our position and belief that the Assistant City
Attorney, acting independently or at the direction of the City Attorney, made multiple decisions,
including directing other City departments, including the Community Development Department and City
Clerk’s Office, in her official capacity as an employee of the City Attorney’s Office, to sideline, prejudice
or delay a matter being actively appealed to the City Commission for review, in order to secure a
favorable outcome for a specific home-based daycare’s private and/or financial interests. As such, she
and the City Attorney did not act or discharge their public duties impartially or fairly, as required under
the City’s Standard of Conduct. These improprieties need to be acknowledged and addressed.
We have submitted multiple public records requests to the City including one on November 17th
requesting communication between the City and the subject business, as well as other inter-
departmental City communication related to the scheduling of our appeals before the City Commission
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and the business licensing requirements for daycares, which we believe will provide further support to
our position and ethics complaint.
City employees and officials undertake annual ethics training, and the training involves a series of
specific examples where one must decide if the actions constitute a violation of the Code of Ethics. If
the situation outlined above was used as an example, the answer would be yes, the actions and facts
constitute a violation of the City’s Code of Ethics, as well as the State’s Code of Ethics.
As the City Attorney and his office staff are involved in the subject matter of this complaint, it is
recommended that if the Board of Ethics needs a legal opinion to form its opinion, it retain outside
independent legal counsel or refer this matter to the State’s Commissioner of Political Practices, as set
forth in the State’s Code of Ethics.
Thank you in advance for your impartial consideration of the issues discussed in this letter.
Respectfully,
Daniel Zyvoloski
2108 Highland Ct.
Bozeman, MT 59715
Enclosures:
8.31.21 – Complaint Letter to City Community Development Director (Business License Violation)
9.21.21 – Letter to Ms. Guercio from City (re: City Decision to not require business license for daycare)
9.30.21 – Reply Letter to City Community Development Director (re: Intent to Appeal re: Business License Decision)
10.6.21 – Letter to City Commissioners (c/o City Clerk) (Appeal of City Decision re: License) (with enclosures)
10.15.21 – Letter to Ms. Guercio from City Attorney’s Office (enclosing Business License issued to daycare)
10.27.21 – Letter to City Commissioners (c/o City Clerk) (Appeal of Business License Application)
11.19.21 – Letter to Mr. Zyvoloski from City Attorney’s Office (enclosing Administrative Rule 2021-01)
12.2.21 – Supplemental Letter to City Commissioners (c/o City Clerk) (re: appeal and response to 11.19.21 Letter)
10.13.21 – Bibs to Books Business License Application
10.13.21 – New Administrative Rule 2021-01
11.17.2021 – Bozeman Public Records Request 11.18.2021 – Bozeman Public Records Request
11.24.2021 – Bozeman Public Records Request