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HomeMy WebLinkAboutBozeman Supplemental Ethics Complaint Letter 12.20.2021 (Relevant Information to 12.8.21 Ethics Complaint Letter) Page 1 of 4 December 20, 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 to provide supplemental information and evidence to our initial Code of Ethics complaint filed on December 8, 2021. 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. As outlined in our initial complaint, the staff of the City of Bozeman Attorney’s Office, specifically Assistant City Attorney Kelley 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. The information outlined below provides newly acquired evidence that was received December 14, 2021, in response to our public records request submitted to the City on November 17, 2021 (as referenced in our initial complaint letter), and analysis to further support our complaint. Our appeal was held on December 14, 2021, and City Commissioners Cindy Andrus, Christopher Coburn, Terry Cunningham, Jennifer Magic, and I-Ho Pomeroy voted 5-0 to dismiss our appeal to the City Commission with prejudice. The City Commission’s decision to deny our appeal is based in part on the Assistant City Attorney’s Staff Report to the Mayor and City Commission and this report’s recommended motion to “uphold Administrative Rule 2021-01 and uphold the decision of the City to issue business license number 21-69197.” (December 3, 2021 Staff Report at pg. 2). Additional Facts and Evidence that Constitute the Violation As previously noted in our initial complaint and enclosures, we had filed a formal appeal per Bozeman Municipal Code (BMC) §12.02.190 on October 6, 2021 with the City Clerk to go before the City Commission to appeal the decision by the City that the home-based daycare business does not need to obtain a Business License. Per BMC § 38.700.090 “Home-Based Business” is defined as: “Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chapter.” Page 2 of 4 Based on information recently received from our public record request (with supporting records enclosed herewith), there is a clear picture of a violation that outlines how the Assistant City Attorney’s actions in the course of 2 hours on October 13, 2021, influenced the related official action that was then taken at the City Commission meeting held on December 14, 2021. Specifically: • At 10:26 AM, the Assistant City Attorney made an outgoing call on her cell phone to the home- based daycare business owner Barbara Limpus and talked for 17 minutes. • At 10:44 AM, the Assistant City Attorney e-mailed Ms. Limpus and provided the City’s then- current application for a business license, with specific instructions to leave the home-based business box (which would have triggered further review and an opportunity to be properly noticed by the City and the public to provide comment under existing and applicable home- based business regulations of the BMC) and other boxes unchecked. • At 12:28 AM, Ms. Limpus e-mailed the Assistant City Attorney to inform her that Ms. Limpus officially had received a business license for her home-based daycare business. • On October 13, 2021, the same day that the subject business license was applied for and issued, the City adopted Administrate Rule 2021-01, which created a unilateral change and amendment to the definitions contained in the BMC, specifically the application of its existing home-based business regulations to home-based daycare businesses. As outlined above, over the course of 2 hours, while our first filed appeal was pending, the Assistant City Attorney 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 Administrate Rule without public review or participation and undermined our procedural due process right to provide public comment before the business license was issued. The Assistant City Attorney was ultimately rewarded for these improper actions on December 14, 2021, when the City Commissioners adopted her recommended motion (included in her December 3, 2021 Staff Report, also excerpted above and enclosed) to uphold the City’s new administrative rule for daycare business licensing and the license issued to Ms. Limpus’s home-based daycare on the very same day. If you want proof of what was the improper procedure and governmental actions underlying the filed ethics complaint, there is no need to look any further than the actions that the Assistant City Attorney took on October 13, 2021 to influence the outcome of the December 14, 2021 City Commission hearing. 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. The same voter-approved City Charter that established the Board of Ethics also established the proper procedures for amending or adopting the BMC through a Commission-managed public process. The Page 3 of 4 Administrative Rule 2021-01 was only drafted (very likely with direct assistance from the City Attorney’s Office and specifically Ms. Rischke, although the City did not release this requested correspondence, based on claimed attorney-client privileges) and then signed by the Community Development Director, and it is a significant amendment to the BMC, specifically for home-based businesses and the applicable standards and public participation required for the City’s issuance of a business license to these businesses, which by the BMC’s plain terms, includes home-based daycares. Additionally, this rule was not created for the public good but specifically aimed at removing the opportunity to provide public comment and to dismiss one single administrative appeal that had been properly filed on October 6, 2021 and was pending a review and consideration before the City Commission at the time of the rule’s adoption on October 13, 2021. As such, the new Administrate Rule 2021-01 also meets the definition of a “legislative act” under MCA § 2-9-111(A) and carries the consequences of removing governmental immunity, as the legislative act was not lawfully discharged as outlined in the City Charter. Based solely on the language contained in this unlawful legislative act, the City Commissioners, who acted for themselves in their own official capacities, denied our appeal. As a result of the Assistant City Attorney’s actions, the City and the City Commissioners are not immune from any suit or damages brought against them. The voters of this City created the City Charter to explicitly outline the powers and restrictions for city officials and employees to operate and serve as impartial stewards of our local government. The Ethics component in the City Charter is what keeps city officials and employees accountable from impulsively creating public policy based on their own personal priorities and initiatives, without required community engagement or concern for the potential negative consequences of their hurried governmental actions. Conclusion This ethics complaint is not about the merits of the daycare licensing decision in dispute. This ethics complaint arises from the Assistant City Attorney’s determination to do what she (and possibly her supervisor, the City Attorney) deemed necessary and most expedient to remove the opportunity to consider public participation as part of the business licensing process and to ultimately sideline our October 6, 2021 appeal to the City Commission regarding the City’s business licensing requirements for home-based daycares under applicable and existing provisions of the City’s duly enacted BMC. This was not a fair, transparent, or impartial process, and the improprieties outlined need to be acknowledged and addressed by remedial action to preserve the public’s trust in our local government. Respectfully, Daniel Zyvoloski 2108 Highland Ct. Bozeman, MT 59715 Enclosures on Following Page Page 4 of 4 Enclosures: 10.13.21 – Verizon – Cell Phone Call Details for Kelley Rishcke 10.13.21 – Kelly Rischke E-Mail to Barbra Limpus 10.13.21 – Barbra Limpus E-Mail to Kelly Rischke 10.13.21 – New Administrative Rule 2021-01 12.3.21—Staff Report from Ms. Rischke to Mayor and City Commission (Including recommended motion) 12.17.2021 – Public Records Request – Executive Session Minutes from December 14, 2021 8.12.2021 – DPHHS Inspection report to Confirm Barbara Limpus Phone Number 11.7.2006 – The City of Bozeman, Charter