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verizon1^Invoice Number Account Number Date Due Pagei||||9»9Mg|l:g4IQg§W^|gOM:IV:1|g1i[|a2..of@ii,•P;:^. :;;R^?™KB \.::?:.H.§:ii::^¥?:i;!::li:i:i 'i '...:f:i.....:;:;i:.!!^:3; ;;!;. f..^f!'^s™f™S^ :!:l^g<:i:i::':^'.::::i... .^ li:i ;:;! ;;i....<!;:. :.;:;:i.i.. ^iDetail for Kelley Rishcke: 406-595-7992VoiceDate Time NumberRate Usage TypeOriginationDestinationMin. AirtimeChrgs U/Other Chrgs Total9/21 1:53P 406-582-2311PeakBozeman MTBozeman MT169/22 3:50P 406-582-2311PeakBozeman MTBozeman MT24S/22 4:14P 406-582-2950PeakBozeman MTBozeman MT189/23 S:45A 406-589-5480Peak M2MAIIowBozeman MTBozeman MT19/23 10:24A 406-582-2260PeakBozeman MTIncoming CLs9/24 1:28P 406-582-2375PeakBozeman MTBozeman MT19/24 1:29P 406-582-2950PeakBozeman MTBozeman MT19/24 1:4SP 406-582-2375PeakBozeman MTIncoming CL49/28 2:48P 406-582-2311PeakBozeman MTBozeman MT189/28 4:42P 406-582-2300PeakBozeman MTIncoming CL429/29 3-.26P 406-589-5480Peak M2MAIIowBozeman MTIncoming CL69/30 8:38A 406-570-3038Peak M2MAIIOWBozeman MTIncoming CL109/30 9:05A 406-586-5544PeakBozaman MTBozeman MT129/30 9:28A 406-586-5544PeakBozeman MTIncoming CL9/30 2:09P 406-998-0956PeakBozeman MTIncoming CL19/30 2:59P 406-723-6244PeakBozeman MTButte MT10/01 10:51A 406-582-2311PeakBozeman MTIncoming CL710/01 3:06P 406-589-6271Peak M2MAIIOWBozeman MTBozeman MT3010/04 11:12A 406-551-0209Peak M2MAIIOWBozeman MTIncoming CL110/05 10:54A 406-582-2311PeakBozeman MTIncoming CL410/05 3:18P 406-582-2311PeakBozeman MTBozeman MT510/06 2:50P 406-595-5749Peak MZMAIIowBozeman MTIncoming CL1010/06 9:29P 406-589-5480Off-Peak M2MAIIOWBozeman MTIncoming CL810/07 10:10A 406-589-5480Peak M2MAIIOWBozeman MTIncoming CL2410/11 1:44P 406-595-5749Peak M2MAIIowBozeman MTBozeman MT110/13 10:26A 406-581-8375Peak M2MAIIOWBozeman MTBozeman MT1710/14 12:58P 406-551-0209Peak M2MAIIOWBozeman MTIncoming CL310/14 3:24P 406-570-0176Peak M2MAIIOWBozeman MTIncoming CL310/14 3:56P 406-551-0209Peak M2MAIIOWBozeman MTBozeman MT1310/18 8:43A 406-582-2320PeakBozeman MTIncoming CL410/19 11:47A 406-582-2320PeakBozeman MTIncoming CL110/19 1:53P 406-570-3038Peak M2MAIIOWBozeman MTIncoming CL210/19 1:55P 406-595-5749Peak M2MAIIOWBozeman MTBozeman MT310/19 2:12P 406-582-2267PeakBozeman MTIncoming CL410/20 11:30A 406-582-2310PeakBozeman MTIncoming CL4 Kelley RischkeFrom:Sent:To:Subject:Kelley RischkeWednesday, October 13, 2021 10:44 AMbarbcml@msn.com,· shannell.limpus@gmail.combusiness license applicationDear Barbara,It was nice to speak with you today. As we discussed, please fill out an application for a business license at your earliestconvenience. The application is onlineat: https://www.bozeman.net/home/showpublisheddocument/688/637169318508100000. The application fee iswaived, so don't worry about that. You can leave all of the boxes unchecked for home based business, commerciallocation, and out of city limits location because group and family day care businesses don't fit into any of thosecategories. We will update our forms soon to provide another checkbox for day care businessesPlease don't hesitate to contact me if you have any questions.Sincerely,KelleyKelley Rischke | Assistant City AttorneyCity of Bozeman | 121 N. Rouse Ave. | Bozeman, MT 59715 | 406.582.2289BOZEMANMTCity Aiiotncy'., O'l'''.-Email sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do not read,copy or disseminate this communication unless you are the intended addressee. If you received this communication in error,please respond to this email and call me immediately at 406 582-2289.1 Kelley RischkeFrom:Sent:To:Subject:Barb Limpus <barb.limpus@gmail.com>Wednesday, October 13, 2021 12:38 PMKelley RischkeRe: business license applicationCAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize thesender and know the content is safe.Thank you for your time today. We are officially have our business license.I also left you a message in regards to getting our license numbers updated with the city.Have a blessed day.On Wed, Oct 13, 2021 at 10:44 AM Kelley Rischke <KRischke@,bozeman.net> wrote:Dear Barbara,It was nice to speak with you today. As we discussed, please fill out an application for a business licenseat your earliest convenience. The application is onlineat: https://www.bozeman.net/home/showpublisheddocument/688/637169318508100000. The application feeis waived, so don't worry about that. You can leave all of the boxes unchecked for home based business,commercial location, and out of city limits location because group and family day care businesses don't fit intoany of those categories. We will update our forms soon to provide another checkbox for day care businessesPlease don't hesitate to contact me if you have any questions.Sincerely,KelleyKelley Rischke | Assistant City Attorney^City ofBozeman I 121 N. Rouse Ave. I Bozeman. MT 59715 | 406.582.2289BOZEMANCity Attoineys OtiiceMTEmail sent to or from me can, in some circumstances, be considered privileged and/or confidential. Therefore, please do notread, copy or disseminate this communication unless you are the intended addressee. If you received this communication inerror, please respond to this email and call me immediately at 406 582-2289.1 BOZEMANCommunity DevelopmentMTAdministrative Rule 2021-01Chapter 12 BMC - Business LicensingRational & IntentMontana law favors allowing family and group day care homes in residential zoningdistricts and such uses are expressly considered a residential use of property. See Mont.Code Ann. § 76-2-412. City of Bozeman [City) zoning codes also provide that group andfamily day care businesses are a principal use in all residential zoning districts.38.310.030.A,BMC.The City generally requires a business license to conduct any business within City limits,unless it is exempt from licensure requirements pursuant to section 12.02.040, BMC, or thebusiness is regulated by the State of Montana.The State of Montana regulates day care providers. Day care centers are required to obtaina license from the Montana Department of Public Health and Human Services [DPHHS) tooperate while group day care and family day care operators are required to register withDPHHS. Licensed or registered day care providers are inspected annually by DPHHS toensure compliance with rules promulgated by DPHHS containing requirements that protectthe public health, welfare, and safety. DPHHS regulations address many items City officialswould inspect as part of the business license application.There is a shortage of day care providers in Bozeman. The provision of day care services,especially to the work force, is essential to the health ofBozeman's economy and thegeneral welfare of the community. Therefore, the City does not wish to impose additionalexpense or overly burdensome regulations on day care providers.Historically, the City has not required day care businesses of any type to obtain a Citybusiness license to operate within City limits even though a for profit day care meets thedefinition of a business in the BMC. Day care businesses are not among those businessesexpressly exempt from obtaining a business license in the BMC. Acknowledging the generalrequirement to obtain a business license, while recognizing the existing requirements instate regulation of day cares and the need for day care services in the City, I determine it isnecessary to require day care businesses to obtain a business permit, but to waiveapplication fees and inspection requirements for new licensees, unless the programadministrator believes inspection^) by City officials are reasonably necessary for codeenforcement purposes.(A) 20 East Olive Street \ @P.O. Box 1230Bozeman, MT 59771-1230(P) 406-582-2260 | © 406-582-2263 j www.bozeman.netTRD- 406-589-9301THF MOST IIVARI F Pl AFF Page 2 of 2*fDefinitions"Day care center," "Day care home, group," and "Day care home, family" are all definedterms in section 38.700.050, BMC.For the purpose of business licensing, a "business" is defined in section 12.01.010.A.1, BMC.RulesPursuant to rulemaking authority in 12.02.050.A.1 of the Bozeman Municipal Code (BMC),the Director of Community Development hereby promulgates Administrative Rule 2021-01regarding business licensing of day care businesses within the City of Bozeman.1. A business license is required to conduct a "day care center," "day care home, group," or"day care home, family" business within the City.2. The day care business must submit a business license application and provide the Citywith a copy of its current and valid license or registration with DPHHS, or other proof oflicensure or registration with DPHHS satisfactory to the City.3. Fees associated with applying for a business license, as required by section12.02.060.A.4, BMC, are waived for all types of day care businesses.4. Inspections by City officials for new license applicants are waived unless the programadministrator believes inspection^] are reasonably necessary for code enforcementpurposes or to comply with DPHHS licensure or registration requirements.This Administrative Rule is hereby adopted and made effective by the CommunityDevelopment Director, October 13, 2021.^^^latsenCommunity Development Director Commission Memo Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse December 3, 2021 Report To: Mayor and City Commission From: Kelley Rischke, Assistant City Attorney Subject: Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse Meeting Date: December 14, 2021 Agenda Type: Action CITY COMMISSION ACTION: At the conclusion of consideration of the appeal, the City Commission may uphold, amend, or overturn the decision of the City to issue a business license to Bibs to Books Playhouse. The decision may be overturned or amended upon finding the administrative decision was erroneous. Report Date: December 3, 2021 EXECUTIVE SUMMARY: This appeal, filed by Daniel Zyvoloski (Appellant) pursuant to section 12.02.190 of the Bozeman Municipal Code (BMC), seeks to overturn the City of Bozeman’s (City) decision to issue a business license to Bibs to Books Playhouse, his neighbor’s legally registered and compliant day care operation. Appellant’s original complaint centered around the fact Bibs to Books Playhouse was operating without a City business license. The City explained a license was not required and Appellant submitted an appeal of that determination. The City reconsidered the matter and subsequently issued an Administrative Rule addressing Appellant’s concerns regarding day care business licenses. Bibs to Books Playhouse applied for and obtained a license under the newly adopted Administrative Rule, thus addressing Appellant’s concerns that they be licensed with the City. Appellant now appeals the City’s decision to issue a business license and asserts the City violated sections 38.250.010 and 38.200.100, BMC. Specifically, Appellant requests: “that the City Commission reverse the City’s decision to issue Business License No. 21-69197 and require that the Applicant cease operating until it can obtain a business license that is compliant with the BMC’s applicable requirements, including the Applicant signing the City’s Home-Based Business Acknowledgement Form and issuance by the City of a Special Use Permit, as necessary prior to being licensed as a home-based business.” Page 2 of 12 In his Supplement to Administrative Appeal of Business License No. 21-69197 for a Home- Based Daycare (Supplement), dated December 2, 2021, Appellant adds to the scope of this appeal by alleging that the City’s adoption of Administrative Rule 2021-01 was improper because it “exceeds the City’s scope of authority per BMC § 12.02.050.A.1.” Appellant contends, “this new rule goes far beyond the City’s limited authority to create administrative or ministerial rules and regulations required for the City to operate and enforce [sic] of the Code’s existing business license provisions, since the rule substantially changes the existing scope of the BMC’s Home-Based Business (HBB) provisions.” Appellant asks the City Commission to invalidate Administrative Rule 2021-01 pursuant to the Commission’s authority to review and modify any rule promulgated for the operation and enforcement of the business license chapter. See 12.02.050.A.1, BMC. The City defends its issuance of business license 21-69197 because: sections 38.250.010 and 38.200.100, BMC, are not applicable to the issuance of business licenses; the City did not exceed its scope of authority in adopting Administrative Rule 2021-01; and the City’s issuance of Business License 21-69197 was proper. Appeals of business licenses are governed by 12.02.190, BMC. The record of review for this matter consists of the Business License #21-69197, Bibs to Books Playhouse’s application for a business license, and correspondence between the Appellant and City regarding the City’s decision to require a business license for Bibs to Books Playhouse1. At the conclusion of consideration of the appeal, the City Commission may uphold, amend, or overturn the City’s decision to issue business license number 21-69197. The decision may be overturned or amended upon finding the administrative decision was erroneous. Consider the Recommended Motion: Having reviewed and considered this appeal of the City’s issuance of business license number 21-69197 to Bibs to Books Playhouse, including the staff report, record of review, the presentation of staff and the Appellant, public comment, and all information presented, I move to uphold Administrative Rule 2021-01 and uphold the decision of the City to issue business license number 21-69197. 1 The materials for this appeal are somewhat duplicative because Appellant produced some, but not all of the correspondence between the parties as an attachment to his supplement and all correspondence is provided as part of the administrative record. Additionally, staff tried to reduce email redundancy in the administrative record, but because email communications are often cumulative, the production of emails in the materials contain redundant emails. Page 3 of 12 Table of Contents EXECUTIVE SUMMARY: ........................................................................................................................................ 1 TABLE OF CONTENTS: .......................................................................................................................................... 3 BACKGROUND:……………………………………………………………………………………………………….….4 Timeline of Correspondence and Issuance of Business License Number 21-69197….4 BASIS OF THE APPEAL:………………………………………………………………………………………………4 Violations of Sections 38.250.010 and 38.200.100…………………………………………………5 City’s Adoption of Administrative Rule 2021-01 was Improper…….………………………..7 APPEAL OF THE ADMINISTRATIVE DECISION……………………………………………………………9 APPEAL PUBLIC NOTICE:………………………………………………………………………………………….10 APPEAL PUBLIC COMMENT:…………………………………………………………………………………….10 EVALUATION OF THE APPEAL AND PROCEDURE:..…………………………………………………..10 Authority of the City Commission under the Bozeman Municipal Code…………………10 UNRESOLVED ISSUES:………………………………………………………………………………………………11 12.02.190.A, BMC, “Aggrieved Person” Standard…………………………………………………11 Code of Ethics Complaint…………………………………………………………………………………...11 ALTERNATIVES:……………………………………………………………………………………………………..11 FISCAL EFFECT:………………………………………………………………………………………………………11 ATTACHMENTS:……………………………………………………………………………………………………..11 Page 4 of 12 BACKGROUND: Administration of the business license program has been housed with several different divisions of the City over the years. Most recently, the City Manager has appointed the Director of Community Development to administer the business license program pursuant to 12.02.050.A, BMC. Administrative staff at the Division of Community Development collect applications and license fees, coordinate any necessary inspections by City officials, and issue business licenses. Prior to October 13, 2021, the City did not require day care operators to obtain a business license. While this policy was unwritten, the City treated day care operators similarly to other professions that are regulated by the State of Montana i.e. if the State regulates an industry, it is exempt from requiring a business license2. The Montana Department of Public Health and Human Services (DPHHS) regulates day care operations by enforcing state laws and promulgating regulations governing day care providers. Although not required, some day care operators chose to obtain a business license. Prior to October 13, 2021, the City’s practice was to inform day care operators that they were not required to hold a business license, but if the day care operator applied for a business license and paid the fee, a business license would be issued. A timeline of correspondence is provided below and the correspondence provides a detailed account of the City’s actions, but to summarize, Appellant first complained of his neighbor’s day care operating without a city business license on July 21, 2021. The City first verified the day care was properly licensed with the State and confirmed that day care complied with zoning regulations. The City communicated its policy regarding business licenses and day cares to Appellant. After some discussion and review, the City agreed with Appellant’s general point of view that day cares should have business licenses and adopted Administrative Rule 2021-01. Administrative Rule 2021-01 requires day care providers to obtain a business license, but waives the application fee and only requires inspections when the City believe it is reasonably necessary for code enforcement purposes or to ensure compliance with state regulations. Bibs to Books Playhouse, a group day care business properly registered with DPHHS and operating in an R-1 zoning district, applied for and received a business license pursuant to Administrative Rule 2021-01. Appellant 2 Due to the City’s building permit software, plumbers and electricians, which are regulated by the State of Montana, are nonetheless required to obtain a business license from the City before building permits can be issued. The City waives business license application fees for plumbers and electricians. Most do not need any inspections because they either operate home-based businesses or their business is located out of City limits. For public health, welfare, and safety reasons, the City requires marijuana businesses to obtain a business license even though marijuana businesses are regulated by the state. See 12.02.040.F. Page 5 of 12 appeals the City’s creation of the Administrative Rule and issuance of a business license to Bibs to Books Playhouse. Timeline of Correspondence and Issuance of Business License Number 21-69197 Complaint submitted via email from Mr. Zyvoloski’s counsel July 21, 2021 Director Matsen email response to complaint August 6, 2021 Response via email from Mr. Zyvoloski August 12, 2021 Formal complaint filed by Mr. Zyvoloski’s counsel August 31, 2021 Director Matsen response to formal complaint September 21, 2021 Complaint re: building permit submitted via email by Mr. Zyvoloski September 23, 2021 Director Matsen email response to complaint re: building permit September 23, 2021 Correspondence from Mr. Zyvoloski’s counsel re: business license September 30, 2021 1st Appeal re: business license decision from Mr. Zyvoloski’s counsel October 6, 2021 Issuance of business license 21-69197 to Bibs to Books Playhouse October 13, 2021 Attorney Rischke response to 1st Appeal October 15, 2021 2nd Appeal submitted by Daniel Zyvoloski October 27, 2021 Supplemental application info provided by Bibs to Books Playhouse November 18, 2021 Attorney Rischke response to 2nd appeal & notice of hearing November 19, 2021 Appeal Supplemental materials submitted by Mr. Zyvoloski December 2, 2021 Commission Hearing December 14, 2021 BASIS OF THE APPEAL: Violations of Sections 38.250.010 and 38.200.100: First, Appellant contends that the City has violated its code in issuing a business license to Bibs to Books Playhouse because a principal purpose of the code is to “establish procedures (including for any permitted departures, deviations, or variances therefrom) for providing and preserving equitable implementation of the law to ‘prevent special treatment to particular parties…’” pursuant to section 38.250.010, BMC. However, his allegation is misguided because Chapter 38 applies to development matters, not to business licenses. Nonetheless, the City’s business license rules for day care operations under Chapter 12 apply equally to all day care providers. No special treatment was afforded to Bibs to Books Playhouse; the business was simply the first day care to apply for and receive a business license under Administrative Rule 2021-01, which is explained below. Appellant’s next allegation is that the City has violated section 38.200.100 by issuing a permit or license without an application in conformance with the regulations contained within the Unified Development Code. As above, the basis for Appellant’s assertion lies in Chapter 38, not Chapter 12. Further, when read in context, the section of code Appellant cites is clearly not related to business licenses. The title of section 38.200.100 is “Building permit requirements” (emphasis in original). The next section of the code, which Page 6 of 12 contains the quote that forms the basis of Appellant’s argument, is similarly related to building permits, not business licenses. See 38.200.110, BMC. Even if Appellant had cited similar authority from Chapter 123, Bibs to Books application is currently complete, with all missing information noted by Appellant addressed. The City often receives business license applications that are incomplete or have omitted information. According to Lacie Kloosterhof, Office Manager of the Community Development Division, the City’s practice is to contact the applicant and work with them to fill in the omitted information, as was the case with Bibs to Books Playhouse’s application after Appellant pointed out omissions in the original application. Because the zoning district does not determine eligibility for home-based, out-of-city-limits, and now day care business licenses, it is often left blank on applications and does not prevent processing or invalidate the license application. Check boxes on the application regarding changes to the business structure are primarily intended to put applicants on notice that they must obtain proper building, electrical, mechanical, plumbing, or sign permits. Regardless of whether the business license should have been issued on October 13, 2021 when the original application was received, all ministerial errors have been corrected and the business has a valid business license. Appellant also complains that the City’s decision to not charge day care operators for a business license application violates section 38.200.100. Again, the citation to Chapter 38 is inapplicable to business licenses4. However, even the provisions of Chapter 12 support the City’s decision to not charge a business license application fee to day care providers. “All business license fees are based on the costs of administering this chapter and the regulatory costs incurred.” 12.03.010, BMC. The regulatory costs of administering business licenses to day care providers are minimal because Administrative Rule 2021-01, as discussed below, waives inspections by City officials unless the City believes an inspection is reasonably necessary. Appellant notes that the City issued a business license to Bibs to Books Playhouse the same day that the application was received, which highlights the streamlined, minimal administration associated with processing day care business licenses. Notably, the costs of processing payment by the City’s finance department, staff costs associated with budgeting processes, and building and fire inspections in most cases are avoided in this streamlined process. Therefore, the City’s waiver of business license application fees for day care operators is reasonable. 3 See sections 12.02.050.A.2 and 12.02.060A.2, BMC. 4 But see section 12.02.060.A.4, BMC, which requires that “the [business license] application shall be accompanied by the full amount of the fees chargeable for such license.” Page 7 of 12 City’s Adoption of Administrative Rule 2021-01 Was Improper: Appellant’s objections regarding the City’s adoption of Administrative Rule 2021-01 are summarized as: the City exceeded its scope of authority to adopt Administrative Rule 2021- 01 under 12.02.050.A.1 because a) the rule is not a reasonable rule or regulation necessary to the operation and enforcement of the business license chapter of the code and, rather, the City should have required Bibs to Books Playhouse to apply for a business license as a home based business as defined in section 38.700.090; and b) the City impermissibly denied the public the right to participate when it wrote and adopted Administrative Rule 2021-01. Finally, Appellant requests that the Commission “invalidate this unauthorized administrative rule and invalidate the subject business license, which the City improperly issued based on this rule,” pursuant to section 12.02.050.A.1, BMC. The City Commission intended the program administrator to make rules and adopt forms to implement the business license requirements in Chapter 12. Specifically, the program administrator is granted authority to “promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter,” 12.02.050.A.1, BMC. Further, the program administrator is directed to “adopt all forms and prescribe the information to be given therein as to character…,” 12.02.050.A.2, BMC. Appellant argues that the City exceeded its rulemaking authority when it determined that a departure was warranted from the only three categories of businesses identified on business license applications prior to October 13, 2021 and that it should have rigidly required day care businesses to identify as a home-based business. However, notably, all of the prior three categories of businesses – Commercial Location, Home-Based Location, and Out of City Limits Location -- were likewise created administratively. Except for an unutilized definition of home-based business, Chapter 12 is silent as to categories of businesses and the administration of business licenses to each. Given this clear and express authority to promulgate rules and determine the information to be included in the application form in Chapter 12, Appellant’s argument that the City lacks authority to do so fails. The creation of a new category of business licenses and the associated revision of the business license application form was a proper exercise of administrative rulemaking authority. The City considered that there was no express exemption in state law or municipal code for group and family day care operators and ultimately conceded that day care operations should be required to obtain a business license. Then the City considered the inherent differences between day care businesses and home-based businesses, as discussed below. The City also researched and gave consideration to the extensive DPHHS regulations that licensed or registered day care operators must comply with that protect public health, welfare, and safety. Given the direct authority to promulgate administrative rules found in 12.02.050.A.1, the City decided to craft a business license rule for all day care operations Page 8 of 12 that would strike a balance between the acute need for day care services and the City’s desire to require businesses of all kinds to obtain a business license. While the definition of a home based business may seem to describe a day care operating out of a residential dwelling, a plain reading of the regulations applicable to home-based businesses reveals that they are intended to regulate businesses that have characteristics that differ significantly from day care operations. For instance, “in general, an accessory home-based business is a use so located and conducted that the average neighbor, under normal circumstances, would not be aware of its existence with the exception of permitted signage…” 38.360.150.B.2, BMC. Further, there are several necessary conditions to conduct a home-based business as an accessory use, such as: permitting not more than one on-premises halftime nonresident employee; restricting the business portion of the dwelling to no more than 25 percent of the gross area of the structures; prohibiting an increase in use of utilities, including water and sewer; vehicular traffic flow and parking are restricted to no more than one additional vehicle at a time; and the home-based business must not create noise any greater or more frequent than usually experienced in an average residential occupancy under normal circumstances. See 38.360.150.B.3, BMC. The City considered requiring day care operators to obtain a business license as a home based business, but rejected the notion due to these significant differences. Day care operations, by their nature, generate traffic and parking in excess of one additional vehicle during pick up and drop off times and may create greater levels of noise from children playing outside. Day care operators likely use more than 25 percent of their home to care for children including kitchen facilities, sleeping rooms, and common areas for play spaces. Pursuant to DPHHS regulations, day care operators have staff to children or infant ratio requirements that would likely be in excess of one halftime nonresident employee. It is clear that home-based business regulations, if applied to day care operations, would result in a de facto prohibition on day care businesses in residential districts. Instead, the BMC expressly treats day care uses and home-based businesses in residential zoning districts differently. See 38.310.030.A and 38.310030.B, BMC. Group and family day care homes are a principal use in all residential zoning districts, pursuant to land use table 38.310.030.A. Home-based businesses are an accessory or special use in all residential zoning districts, pursuant to land use table 38.310.030.B. This distinction comports with state statutes that require: “a family day-care home or group day-care home … is considered a residential use of property for purposes of zoning,” group day care is “a permitted use in all residential zones, including but not limited to residential zones for single-family dwellings…,” and “a city or county may not require a conditional use permit in order to maintain a day-care home registered by the department of public health and human services.” Mont. Code Ann. § 76-2-412, 2021. Page 9 of 12 Without citing any requirement in code or statute, Appellant appears to raise a procedural due process complaint. Appellant argues that “the creation of this new administrative rule behind closed doors creates a precedent that all City departments can create new rules and regulations that the community doesn’t even knows [sic] exists, as they are not subject to standard public notice, review and comment requirements or review and approval by the City Commission prior to the City’s internal enactment of an administrative rule.” While State agencies are subject to the provisions of the Montana Administrative Procedures Act (MAPA), which provides a process for public participation in agency rulemaking, MAPA does not apply to municipalities. Mont. Code Ann. § 2-4-101 et seq., see in particular the express exclusion of “a unit of local government” from the definition of “agency” in Mont. Code Ann. § 2-4-102(2)(b). There is no analogous provision in the BMC requiring a public process for administrative rule making. That the City Commission would provide authority to an administrator to promulgate reasonable rules without a public process makes sense because administrative rulemaking would have no distinction from enacting an ordinance otherwise. For the reasons set forth above, the City Commission should not invalidate Administrative Rule 2021-01 and should uphold the City’s decision to issue business license 21-69197. The City was reasonable in adopting a rule creating a distinct business license category for day care operations because day care operations are expressly distinct from home-based businesses and because imposing the requirements of home-based businesses on day care operations would lead to the absurd result of effectively prohibiting day care operations in residential zoning districts. The City did not impermissibly deny the public a right to participate in its adoption of Administrative Rule 2021-01 because no public process was required. APPEAL OF THE ADMINISTRATIVE DECISION: On October 27, 2021, the City received this appeal from Daniel Zyvoloski, pursuant to Section 12.02.190, BMC. Although the context of Chapter 12, when read as a whole5, insinuates that an appeal would be made by an applicant or licensee whose application is denied or whose license is suspended or revoked, the plain language of 12.02.190 states, “Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission…” (emphasis added). Whether Appellant is a “person aggrieved” is addressed in the Unresolved Issues section of this staff report, below. Staff reviewed the appeal application materials and, while it was novel for a person not related to the underlying business appeal the issuance of a license, found that the application met all submittal requirements for processing the appeal. The Appellant was notified on 5 See in particular the two sections that immediately precede the appeal provisions of Chapter 12, 12.02.170 and 12.02.180, BMC. Page 10 of 12 November 19, 2021 that the appeal was complete and that a hearing on the appeal before the City Commission on December 14, 2021 was scheduled. APPEAL PUBLIC NOTICE: Notice of the appeal hearing was provided through publication of the City Commission’s agenda on the City of Bozeman website and hard copy notice posted in City Hall. APPEAL PUBLIC COMMENT: The City has received no comments regarding this appeal from the public at the time of writing this staff report. Any public comment received will be forwarded to the City Clerk’s office for Commission consideration. EVALUATION OF THE APPEAL AND PROCEDURE: The City Commission has the authority to hear this appeal pursuant to Section 12.02.190, BMC: Sec. 12.02.190. Appeal. A. Right of appeal. Any person aggrieved by any decision of the city manager shall have the right of appeal to the city commission by filing a written appeal with the city clerk within 20 days following the effective date of the action taken or the decision made. B. Contents of appeal. Such appeal shall set out a copy of the order or decision appealed and shall include a statement of the facts relied upon to avoid such action taken or decision made. C. Notification of city manager. At the time of filing any such appeal a copy thereof shall be filed by the appellant with the city manager. D. Hearing. The city commission shall fix a time and place for hearing the appeal and shall personally serve a written notice, as provided herein, upon the appellant informing the appellant thereof. The city commission shall also give such notice to the city manager and such officer shall be entitled to appear and defend such action taken or decision made. E. Effect of decision. The findings of the city commission shall be final and conclusive and shall be personally served upon the appellant as required herein. During the appeal, the Commission will first hear from City staff for an explanation of the application and nature of the appeal. Next, the Appellant will have an opportunity to present its position. Commissioners will have an opportunity to ask questions of City staff and Appellant. Then, the Commission will hear public comment regarding the appeal from any proponent or opponent. At the close of public comment, the Commission must consider the merits of the appeal, including considering motions, discussion, and taking a vote. Page 11 of 12 UNRESOLVED ISSUES: 12.02.190.A, BMC, “Aggrieved Person” Standard: The right of appeal of a business license extends to “any person aggrieved.” While an “aggrieved person” is defined in the Unified Development Code (Chapter 38 of the BMC) pertaining to an “aggrieved person’s” ability to file an appeal of an administrative project decisions, no similar guidance is provided in Chapter 12 of the BMC pertaining to business license appeals. Often questions of standing involve an analysis of whether an appellant has a concrete, particularized and imminent injury. To ensure an expeditious hearing on the merits of this appeal, the City declines address whether this Appellant is an “aggrieved person,” but preserves the issue as an affirmative defense for any appeal of the City Commission’s decision. Code of Ethics Complaint: Appellant’s Supplement indicates that he will file a Code of Ethics complaint. The City Commission has no jurisdiction over code of ethics complaints and should not be considered as part of this appeal. See section 2.03.600.A.3, BMC. Note, however, that: The board does not have the authority to reverse or otherwise modify a prior action of the mayor, city commission, or an officer or employee of the city. If 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 board, the action shall be reconsidered by the appropriate person or public body. Section 2.03.620, BMC. ALTERNATIVES: The City Commission has the following alternative actions available: 1. Uphold the City’s decision to issue business license 21-69197. 2. Amend or modify the City’s decision to adopt Administrative Rule 2021-01 and issue business license 21-69197. 3. Overturn the City’s decision issue business license 21-69197. The decision may be amended or overturned upon making alternative findings to support the conclusion that the City’s decision was in error. FISCAL EFFECT: None. ATTACHMENTS: October 27, 2021 Appeal filed by Daniel Zyvoloski – submission materials and attachments December 2, 2021 Supplement to Administrative Appeal of Business License No. 21- 69197 for a Home-Based Daycare – submission material and attachments Page 12 of 12 Record of Review: Business License 21-69197 issued to Bibs to Books Playhouse; Application for a business license submitted by Bibs to Books Playhouse; and Correspondence between the City and Appellant. The full appeal and file record are available to view by contacting the Community Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Lacie Kloosterhof at lkloosterhof@bozeman.net or 406-582-2954 to make arrangements to view the file. December 17, 2021 City of Bozeman c/o City Clerk 121 N Rouse, Suite 201 Bozeman, MT 59715 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 WebEx video recording of the Executive Session at your earliest convenience. Specifically, we are asking for any WebEx 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 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 WebEx 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 Department of Public Health and Human Services Early Childhood and Family Support Division ♦ 1625 11th Avenue ♦ PO Box 4210 ♦ Helena, MT 59620-4210 SURVEY TOOL Facility Name: Barbara Limpus Provider ID: PV76409 Address: 2107 Highland Court, Bozeman, MT 59715 Type: Group Child Care Service Area: Bozeman Assigned Worker: Teri Whitesitt Director: Barbara Limpus Phone: (406) 581-8375 Email: barbcml@msn.com Contact: Barbara Limpus Phone: 4065818375 Email: barbcml@msn.com Inspection Type: Renewal Inspection Date: 08/12/2021 Time In: 8:00 AM Time Out: 9:10 AM Inspector: Teri Whitesitt Phone: 406-522-2271 Children/Caregiver Observations Time: 8:00 AM # children: 5 # under 2: 1 # caregivers: 2 Time: 9:10 AM # children: 11 # under 2: 2 # caregivers: 2 Time:# children:# under 2:# caregivers: Staff Ratios 1. License Yes 2. Overlap Yes Building/Fire Requirements 3. Inside Facility Yes 4. Fire Safety No 37.95.706.GROUP AND FAMILY DAY CARE HOMES, FIRE SAFETY REQUIREMENTS 3.All child care facilities must have operating UL smoke alarms on each floor of the facility, installed inaccordance with the manufacturer's specifications. Smoke alarms must be installed in front of the doorsto stairways, in corridors of all floors, and in all rooms where children sleep. Deficiency The intent of this rule was not met: Based on observation on 8/11/21, CCL observed the nap room did not have a smoke detector. 08/12/2021 1 of 4 cr'IV OJ BOZ'E~JtN, OJ{r~j\ Effecti've January 1,2008 THE CITY OF BOZEMAN, MONTANA CHARTER PREAMBLE We, the people of the City of Bozeman, under the constitution and laws of the State of Montana, in order to secure the benefits of local self-government and to provide for an honest and accountable commission-manager government, do hereby adopt this charter and confer upon the city the following powers, subject to the following restrictions, and prescribed by the following procedures and governmental structure. By this action, we secure the benefits of home rule and self-governance and affirm the values of representative democracy, professional management, strong political leadership, citizen participation, and regional cooperation. ARTICLE I POWERS OF THE CITY Section 1.01. Powers of the City. The City of Bozeman shall have all powers possible for a city with self-governing powers to have under the constitution and laws of the State of Montana as fully and completely as though they were specifically enumerated in this charter. Section 1.02. Construction. a) Powers. The powers of the city under this charter shall be construed liberally in favor of the city, and the specific mention of particular powers in the charter shall not be construed as limiting in any way the general power granted in this article. b) Priority Construction. As provided by Article XI, Section 5, of the Constitution of Montana, provisions herein establishing executive, legislative, and administrative structure and organization are superior to statutory provisions. Section 1.03. Intergovernmental Relations. The City of Bozeman may participate by contract or otherwise with any governmental entity of the State of Montana or any other state or states or the United States in the performance of any activity which one or more of such entities has the authority to undertake. ARTICLE II CITY COMMISSION Section 2.01. General Powers and Duties. All powers of the city shall be vested in the city commission, except as otherwise provided by law or this charter, and the commission shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. Section 2.02. Eligibility, Terms, and Composition. a) Eligibility. Only registered voters whose principal residence is in the City of Bozeman shall be eligible to hold the office of commission member or mayor. b) Terms. The term of office of elected officials shall be four years elected in accordance with Article VI. c) Composition. The commission shall be composed of four members elected by the voters of the city at large in accordance with provisions of Article VI and the mayor. The mayor shall be elected as provided in ~2.03(b). Section 2.03. Mayor a) Powers and Duties. The mayor shall be a voting member of the city commission and shall attend and preside at meetings of the commission; represent the city in intergovernmental relationships; present an annual state of the city message; add an item to the commission agenda prepared by the city manager; assign, subject to the consent of commission, agenda items to sub-committees of the commission; and perform other duties specified by the commission. The mayor shall be recognized as head of the city government for all ceremonial purposes and by the governor for purposes of military law but shall have no administrative duties and shall not interfere with the administration of the city as provided in ~2.05(c), below. The mayor shall not have any appointment power to city boards exceptwhere required by state law. b) Mayor Elected At Large. At every regular city election the voters of the city shall elect a mayor at large for a term of four years. The person so elected shall serve as deputy mayor and a commissioner for the first two years of his or her term, and mayor for the balance of his or her term of office. Section 2.04. Compensation; Expenses. The city commission may determine the annual salary of the mayor and commission members by ordinance, but no ordinance increasing such salary shall become effective until the date of commencement of the terms of commission members elected at the next regular 2- election. The mayor and commission members shall receive their actual ordinary and necessary expenses incurred in the performance of their duties of office. Section 2.05. Prohibitions. a) Holding Other Office. Except where authorized by law, no commission member shall hold any other elected public office during the term for which the member was elected to the commission. No commission member shall hold any other city office or employment during the term for which the member was elected to the commission. No former commission member shall hold any compensated appointive office or employment with the city until one year after the expiration of the term for which the member was elected to the commission, unless granted a waiver by the board of ethics. Nothing in this section shall be construed to prohibit the commission from selecting any current or former commission member to represent the city on the governing board of any regional or other intergovernmental agency, or any city board. b) Appointments and Removals. Neither the city commission nor any of its members shall in any manner control or demand the appointment or removal of any city administrative officer or employee whom the city manager or any subordinate of the city manager is empowered to appoint, but the commission may express its views and fully and freely discuss with the city manager anything pertaining to appointment and removal of such officers and employees. c) Interference with Administration. Except for the purpose of inquiries, and investigations under ~2.09, the commission or its members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately. Section 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies. a) Vacancies. The office of a commission member shall become vacant upon the member's death, resignation, or removal from office or forfeiture of office in any manner authorized by law. If the mayor is absent, incapacitated, dies, resigns from office, or is removed from office, the deputy mayor shall succeed as mayor during said time or absence or incapacity or for the balance of the mayor's term, as appropriate; and the commission vacancy created therein shall be filled pursuant to this section. b) Forfeiture of Office. A commission member shall forfeit that office if the commission member: 1) Fails to meet the residency requirements, 2) Violates any express prohibition of this charter, 3) Is convicted of a felony, or 3- 4) Fails to attend three consecutive regular meetings of the Commission without being excused by a majority of the Commission. c) Filling of Vacancies. A vacancy in the city commission shall be filled for the remainder of the unexpired term, pursuant to state law. Section 2.07. Judge of Qualifications. The city commission shall be the judge of the grounds for forfeiture of a member's office, pursuant to ~2.06.b. In order to exercise these powers, the commission shall have power to subpoena witnesses, administer oaths and require the production of evidence. A member charged with conduct constituting grounds for forfeiture of office shall be entitled to a public hearing on demand, and notice of such hearing shall be published in one or more newspapers of general circulation in the city pursuant to state law. Section 2.08. City Clerk. The city commission or the city manager, as designated by ordinance, shall appoint an officer of the city who shall have the title of city clerk. The city clerk shall give notice of commission meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are assigned by this charter, by the commission or by state law. Section 2.09. Investigations. The city commission may make investigations into the affairs of the city and the conduct of any city department, office, or agency and for this purpose may subpoena witnesses, administer oaths, take testimony, and require the production of evidence. Failure or refusal to obey a lawful order issued in the exercise of these powers by the commission shall be a misdemeanor punishable pursuant to state law. Section 2.10. Procedure. The city commission shall, by ordinance, establish its rules of procedure and time and place of meetings, in accordance with state law. Section 2.11. Action Requiring an Ordinance. In addition to other acts required by law or by specific provision of this charter to be done by ordinance, those acts of the city commission shall be by ordinance which: 1) Adopt or amend an administrative code or establish, alter, or abolish any city department, office, or agency; 2) Provide for a fine or other penalty or establish a rule or regulation for violation of which a fine or other penalty is imposed; 3) Levy a new tax; 4) Grant, renew, or extend a franchise; 4- 5) Conveyor lease or authorize the conveyance or lease of any lands of the city; 6) Adopt or amend zoning and subdivision regulations; 7) Amend or repeal any ordinance previously adopted; or 8) Adopt, with or without amendment, ordinances proposed under the initiative power. Acts other than those referred to in the preceding sentence may be done either by ordinance or by resolution. Section 2.12. Ordinances in General. Ordinances, regular, emergency, and technical regulations, will be proposed, published, and approved in accordance with state law. In addition to the requirements of state law, ordinances, administrative regulations, resolutions, and the Bozeman Municipal Code will be published electronically. ARTICLE III CITY MANAGER Section 3.01. Appointment; Qualifications; Compensation. The city commission, by a majority vote of its total membership, shall appoint a city manager for an indefinite term and fix the manager's compensation. The city manager shall be appointed solely on the basis of education and experience in the accepted competencies and practices of local government management. The manager need not be a resident of the city or state at the time of appointment, but may reside outside the city while in office only with the approval of the commission. Section 3.02. Removal. If the city manager declines to resign at the request of the city commission, the city commission may suspend the manager by a resolution approved by the majority of the total membership of the city commission. Such resolution shall set forth the reasons for suspension and proposed removal. A copy of such resolution shall be served immediately upon the city manager. The city manager shall have fifteen days in which to reply thereto in writing and, upon request, shall be afforded a public hearing, which shall occur not earlier than ten days nor later than fifteen days after such hearing is requested. After the public hearing, if one is requested, and after full consideration, the city commission, by a majority vote of its total membership, may adopt a final resolution of removal. The city manager shall continue to receive full salary until the effective date of a final resolution of removal. Section 3.03. Acting City Manager. By administrative order filed with the city clerk, the city manager shall designate a city officer or employee to exercise the powers and perform the duties of city manager during the manager's temporary absence or disability. The city commission may revoke such 5 - designation at any time and appoint another officer of the city to serve until the city manager returns. Section 3.04. Powers and Duties of the City Manager. The city manager shall be the chief executive officer of the city, responsible to the commission for the management of all city affairs placed in the manager's charge by or under this charter. The city manager shall: 1) Appoint and suspend or remove all city employees and appointive administrative officers provided for by or under this charter, except as otherwise provided by law, this charter, or personnel rules adopted pursuant to this charter. The city manager may authorize any administrative officer subject to the manager's direction and supervision to exercise these powers with respect to subordinates in that officer's department, office or agency; 2) Direct and supervise the administration of all departments, offices, and agencies of the city, except as otherwise provided by this charter or by law; 3) Attend all city commission meetings unless excused. The city manager shall have the right to take part in discussion but shall not vote; 4) See that all laws, provisions of this charter, and acts of the city commission subject to enforcement by the city manager or by officers subject to the manager's direction and supervision are faithfully executed; 5) Prepare and submit the annual budget and multi-year capital program to the city commission for its approval, and execute the final budget approved by the commission to achieve the goals of the city; 6) Submit to the city commission and make available to the public a complete report on the finances and administrative activities of the city as of the end of each fiscal year; 7) Make such other reports as the city commission may require concerning operations; 8) Keep the city commission fully advised as to the financial condition and future needs of the city; 9) Make recommendations to the city commission concerning the affairs of the city and facilitate the work of the city commission in developing policy; 10) Provide staff support services for the mayor and commission members subject to the provisions regarding the city clerk under ~2.08; 11) Assist the commission in developing long term goals for the city and strategies to implement these goals; 12) Encourage and provide staff support for regional and intergovernmental cooperation; 13) Promote partnerships among commission, staff, and citizens in developing public policy and building a sense of community; 14) Perform such other duties as are specified in this charter or may be required by the city commission; 15) Prepare the commission agenda; and 16) Appoint members of temporary advisory committees established by the city manager or the city commission. 6- ARTICLE IV DEPARTMENTS, OFFICES AND AGENCIES Section 4.01. General Provisions. a) Creation of Departments. The city commiSSion may establish city departments, offices, or agencies in addition to those created by this charter and may prescribe the functions of all departments, offices, and agencies. No function assigned by this charter to a particular department, office, or agency may be discontinued or, unless this charter specifically so provides, assigned to any other. b) Direction by city manager. All departments, offices, and agencies under the direction and supervision of the city manager shall be administered by an officer appointed by and subject to the direction and supervision of the city manager. With the consent of commission, the city manager may serve as the head of one or more such departments, offices, or agencies or may appoint one person as the head of two or more of them. Section 4.02. Personnel System. Consistent with all applicable federal and state laws, all appointments and promotions of city officers and employees shall be made solely on the basis of merit and qualifications demonstrated by a valid and reliable examination or other evidence of competence. Section 4.03. Legal Officer. a) Appointment. There shall be a legal officer of the city appointed by the city manager subject to confirmation by the city commission. b) Role. The legal officer shall serve as chief legal adviser to the commission, the manager and all city departments, offices and agencies, shall represent the city in all legal proceedings, and shall perform any other duties prescribed by state law, by this charter, or by ordinance. Section 4.04. Land Use, Development, and Environmental Planning. Consistent with all applicable federal and state laws with respect to land use, development, and environmental planning, the city commission shall: 1) Designate an agency or agencies to carry out the planning function and such decision-making responsibilities as may be specified by ordinance; 2) Adopt a comprehensive plan and determine to whatextent zoning and other land use control ordinances must be consistent with the plan; 3) Determine to what extent the comprehensive plan and zoning and other land use ordinances must be consistent with regional plan(s); and 7- 4) Adopt development regulations, to be specified by ordinance, to implement the plan. The designated agency, the city manager, and the mayor and commission shall seek to act in cooperation with other jurisdictions and organizations in their region to promote integrated approaches to regional issues. Section 4.05. Municipal Court There shall be a municipal court as prescribed by state law. Section 4.06 Neighborhood Associations a) Purpose. The citizens of Bozeman value the contribution neighborhoods can make to the governance of the city. Therefore, it is the purpose of this article to strengthen neighborhood participation where it exists, and to encourage and support neighborhood participation where it does not yet exist. b) Recognition of neighborhood associations. The city commission shall establish by ordinance minimum recognition requirements for neighborhood associations. These standards shall include, but not be limited to: 1) clear geographic boundaries; 2) procedures for defining a resident for neighborhood association membership; 3) adherence to established by-laws that ensure democratic deliberative and voting procedures; 4) periodic meetings, including an annual meeting; 5) copy of the by-laws and all amendments filed with the city; 6) inclusion of all residents in the neighborhood association; and 7) demonstrating that it has a means of communicating with all residents in a neighborhood association. c) Minimum Standards. A neighborhood association must meet and continue to maintain conformity with the minimum standards as established by ordinance in order to be recognized by the city and to be eligible to elect members to the InterNeighborhood Council. Neighborhood associations existing on the date of the enactment of this charter shall have one year after the enactment of said city ordinance to come into compliance. d) InterNeighborhood Council. There is hereby established an I nterNeighborhood Council to be composed of representatives selected by each recognized neighborhood association. . 1) The InterNeighborhood Council shall provide a forum for Neighborhood Associations to come together, share information, and make recommendations to the city commission, city staff, and the mayor on city-wide issues. This does not preclude a 8- neighborhood association from taking its concerns directly to the city or the commission. 2) The InterNeighborhood Council shall meet on a regular basis to address city-wide concerns and foster dialogue between neighborhoods. 3) The InterNeighborhood Council shall adopt by-laws governing the conduct of their business. Such by-laws shall be approved by the city commission, or as designated by ordinance. A vacancy on the InterNeighborhood Council shall be filled only by the affected neighborhood association. The city may appoint a city commissioner as a non-voting member of the InterNeighborhood Council. e) City Liaison. The City shall designate a staff member to serve as liaison to the InterNeighborhood Council and neighborhood associations. Section 4.07. City Boards, Commissions and Committees. Except for boards and commissions established by statute, the commission may create boards, commissions, or committees as determined necessary. All city boards, commissions, or committees will be established by the city commission and members appointed by the commission and the mayor, when so required by law, following a public solicitation through the newspaper advertised not less than twice annually. Between public solicitations for members, appointments may be made to fill unexpected vacancies or vacancies not filled through the last round of advertisements from those applications on file as of the date of appointment. Subcommittees of existing boards, commissions, or committees may be appointed by the city commission without the necessity of public solicitation. The commission may authorize the city manager to establish ad hoc special commissions for specific purposes without public advertisement. Except where prohibited by law, the terms on all boards shall be staggered. ARTICLE V FINANCIAL MANAGEMENT Section 5.01. Fiscal Year. The fiscal year of the city shall begin on the first day of July and end on the last day of June, or as otherwise provided by state law. Section 5.02. Submission of Budgets and Budget Message. The city manager shall submit to the city commission a preliminary budget for the ensuing fiscal year and an accompanying message and a final budget, both in a timely manner. The publication requirements must conform to the provisions of state law for a municipality and be available electronically. 9- Section 5.03. Budget Message. The city manager's message shall explain the budget both in fiscal terms and in terms of the work programs, linking those programs to organizational goals and community priorities. It shall outline the proposed financial policies of the city for the ensuing fiscal year and the impact of those policies on future years. It shall describe the important features of the budget; indicate any major changes from the current year in financial policies, expenditures, and revenues together with the reasons for such changes; summarize the city's debt position, including factors affecting the ability to raise resources through debt issues; and include such other material as the city manager deems desirable. Section 5.04. Budget. a) Statutory Provisions. The preliminary annual operating budget, the final budget, and amended budgets must be prepared in accordance with state laws governing municipal budgets as then in effect. b) Unreserved Fund Balance. A minimum level of budgeted general fund unreserved fund balance shall be established by ordinance and shall be in accordance with the GFOA (Government Finance Officers Association) recommended practice on appropriate levels of unreserved fund balance in the general fund. This provision does not limit appropriations in case of emergency pursuant to state law. Section 5.05. Adjusting Appropriations. a) Reduction of Appropriations. In addition to the requirements of state law, if at any time during the fiscal year it appears probable to the city manager that the revenues or fund balances available will be insufficient to finance the expenditures forwhich appropriations have been authorized, the manager shall report to the city commission without delay, indicating the estimated amount of the deficit, any remedial action taken by the manager, and recommendations as to any other steps to be taken. The commission shall then take such further action as it deems necessary to prevent or reduce any deficit and, for that purpose, it may by ordinance reduce or eliminate one or more appropriations. b) Transfer of Appropriations. In addition to the requirements of state law, at any time during or before the fiscal year, the city commission may by resolution transfer part or all of the unencumbered appropriation balance from one department, fund, service, or organizational unit to the appropriation for other departments or organizational units or a new appropriation as provided by state law. The city manager may transfer funds among programs within a department, fund, service, or organizational unit and shall report such transfers to the commission in writing in a timely manner. c) Limitation; Effective Date. In addition to the requirements of state law, no appropriation for debt service may be reduced or transferred, except to the extent that the debt is refinanced and less debt service is required, and no 10- appropriation may be reduced below any amount required by law to be appropriated or by more than the amount of the unencumbered balance thereof. The supplemental and emergency appropriations and reduction or transfer of appropriations authorized by this section may be made effective immediately upon adoption. Section 5.06. Administration and Fiduciary Oversight of the Budget. The city commission shall provide by ordinance the procedures for administration and fiduciary oversight of the budget. Section 5.07. Capital Program. a) Submission to City Commission. The city manager shall prepare and submit to the city commission a multi-year capital program no later than December 15 for the ensuing fiscal year. b) Contents. The capital program shall include: 1) A clear general summary of its contents; 2) Identification of the long-term goals of the community; 3) A list of all capital improvements and other capital expenditures which are proposed to be undertaken during the fiscal years next ensuing, with appropriate supporting information as to the necessity for each; 4) Cost estimates and recommended time schedules for each improvement or other capital expenditure; 5) Method of financing upon which each capital expenditure is to be reliant; 6) The estimated annual cost of operating and maintaining the facilities to be constructed or acquired; 7) A commentary on how the plan addresses the sustainability of the community and the region of which it is a part; and 8) Methods to measure outcomes and performance of the capital plan related to the long-term goals of the community. The above shall be revised and extended each year with regard to capital improvements still pending or in process of construction or acquisition. Section 5.08. City Commission Action on Capital Program. a) Notice and Hearing. The city commission shall publish the general summary of the capital program and a notice stating: 1) The times and places where copies of the capital program are available for inspection by the public, and 2) The time and place, not less than two weeks after such publication, for a public hearing on the capital program. 11 - b) Adoption. The city commission by resolution shall adopt the capital program for the ensuing fiscal year, with or without amendment after the public hearing, but no later than the last day of March of the current fiscal year. Section 5.09 Independent Audit. The city commission shall provide for an independent annual audit of all city accounts in accordance with state law and may provide for more frequent audits as it deems necessary. No accountant or firm may provide any other services to the city during the time it is retained to provide independent audits to the city, however, the city commission may waive this requirement by a majority vote at a public meeting. ARTICLE VI ELECTIONS Section 6.01. City Elections. a) Regular Elections. Regular city elections shall be held and administered in odd numbered years, pursuant to state law. Candidates shall run for office without party designation. b) Beginning of term. The terms of new commission members shall start at the beginning of the first regularly scheduled meeting in January after their election. Section 6.02. Methods of Electing Commission Members. At the first election under this charter, commission members shall be elected at large for four-year terms. The mayor shall be elected pursuant to ~2.03(b). Section 6.03. Initiative; Citizen Referendum, and Recall. The powers of initiative, citizen referendum, and recall are hereby reserved to the electors of the city as provided by state law. In verifying petitions for initiatives and referendums, the percentage of signatures required under state law shall be reduced in proportion to the number of inactive registered voters as most recently certified by the county election administrator pursuant to state law. ARTICLE VII GENERAL PROVISIONS Section 7.01. Conflicts of Interest; Board of Ethics. a) Conflicts of Interest. The use of public office for private gain is prohibited. The city commission shall implement this prohibition by ordinance, the terms 12 - of which shall include, but not be limited to: acting in an official capacity on matters in which the official has a private financial interest clearly separate from that of the general public, the acceptance of gifts and other things of value, acting in a private capacity on matters dealt with as a public official, the use of confidential information, and appearances by city officials before other city agencies on behalf of private interests. This ordinance shall include a statement of purpose and shall provide for reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and contractual and regulatory matters and, . insofar as permissible under state law, shall provide for fines and imprisonment for violations. b) Board of Ethics. The city commission shall, by ordinance, establish an independent board of ethics pursuant to state law. The city commission shall appropriate sufficient funds to the city manager to provide annual training and education of city officials, city boards, and employees regarding the state and city ethics codes. City officials, board members, and employees shall take an oath to uphold the state and city ethics codes. Section 7.02. Campaign Finance. In order to combat the potential for, and appearance of, corruption and to preserve the ability of all qualified citizens to run for public office, the city shall, insofar as is permitted by state and federal law, have the authority to enact ordinances designed to limit contributions and expenditures by candidates for locally elected office. Ordinances pursuant to this section may include, but are not limited to: limitations on candidate and candidate committees that affect the amount, time, place, and source of financial and in-kind contributions; and voluntary limitations on candidate and candidate committee expenditures tied to financial or non-financial incentives. ARTICLE VIII CHARTER AMENDMENT Section 8.01 Proposal of Amendment. Amendments to this charter may be framed and proposed: 1) In the manner provided by state law, or 2) By ordinance of the commission containing the full text of the proposed amendment, or 3) By report of a study commission created pursuant to state law, or 4) By the voters of the city. Proposal of an amendment by the voters of the city shall be by petition containing the full text of the proposed amendment and shall be governed by the same procedures and requirements prescribed in Article VI for initiative petitions until such time as a final determination as to the sufficiency of the petition is made, except that there shall be no limitation as to subject matter and that the petition must be signed by registered voters of the 13- city equal to that required by state law. In verifying petitions, the percentage of required signatures shall be reduced pursuant to Section 6.03, above. Section 8.02. Election. Upon delivery to the election authorities of the report of a charter commission or delivery by the city clerk of an adopted ordinance or a petition finally determined sufficient, proposing an amendment pursuant to ~8.01, or as otherwise provided by state law, the election authorities shall submit the proposed amendment to the voters of the city at an election, pursuant to state law. Section 8.03. Adoption of Amendment. If a majority of those voting upon a proposed charter amendment vote in favor of it, the amendment shall become effective at the time fixed in the amendment or, if no time is therein fixed, 30 days after its adoption by the voters. ARTICLE IX TRANSITION AND SEVERABILITY Section 9.01. Officers, Employees and Elected Officials. a) Rights and Privileges Preserved. Nothing in this charter except as otherwise specifically provided, shall affect or impair the rights or privileges of persons who are city officers or employees at the time of its adoption. b) Continuance of Office or Employment. Except as specifically provided by this charter if, at the time this charter takes full effect, a city administrative officer or employee holds any office or position which is or can be abolished by or under this charter, he or she shall continue in such office or position until the taking effect of some specific provision under this charter directing that he or she vacate the office or position. Elected officials serving at the time this charter is approved by the voters shall continue in office for the balance of their term. c) Personnel System. An employee holding a city position at the time this charter takes full effect, who was serving in that same or a comparable position at the time of its adoption, shall not be subject to competitive tests as a condition of continuance in the same position but in all other respects shall be subject to the personnel system provided for in ~4.02. Section 9.02. Pending Matters. All rights, claims, actions, orders, contracts, and legal administrative proceedings shall continue except as modified pursuant to the provisions of this charter and in each case shall 14- be maintained, carried on, or dealt with by the city department, office, or agency appropriate under this charter. Section 9.03. State and Municipal Laws. All city ordinances, resolutions, orders, and regulations in force when this charter becomes fully effective shall be updated to conform with this charter pursuant to state law. Any ordinance or resolution required to be established pursuant to this charter shall be completed as required by state law. Section 9.04. Schedule. a) Mayor Election. Section 2.03(b) shall take effect with the 2007 city election, with said mayor being seated after serving as deputy mayor at the beginning of the first commission meeting in January, 2010. b) Referendum on Increasing the Commission. At the general election in 2010, the city commission shall place before the voters, with conforming charter amendments, the issue of adding two members to the city commission. Should the voters approve said increase, said commission members shall be elected during the regular city election in 2011 and seated at the first regular commission meeting in January 2012. c) Time of Taking Full Effect. The charter shall be in full effect for all purposes pursuant to the schedule established by state law. Section 9.05. Severability. If any provision of this charter is held invalid, the other provisions of the charter shall not be affected. If the application of the charter or any of its provisions to any person or circumstance is held invalid, the application ofthe charter and its provisions to other persons or circumstances shall not be affected. This charter was proposed by the City of Bozeman's 2004-2006 Local Government Study Commission and was approved by the voters at the November 7,2006, general election. Section 2.03(b) of the charter becomes effective with the 2007 election; all other sections become effective on January 1, 2008. 15 -