HomeMy WebLinkAboutHamilton ltr 10 31 22UGRIN ALEXANDER ZADICK, P.C.
GARY M. ZADICK
ROGER T. WITT
KEVIN C. MEEK
JORDAN Y. CROSBY
Nick Hamilton
1160 Harmon Way
Bozeman, MT 59718
nfhamilton@gmail.com
ATIORNEYS AT LAW
#2 RAILROAD SQUARE, SUITE B
P.O. Box 1746
GREAT FALLS, MONT ANA 59 403-1 7 46
TELEPHONE (406} 771-0007
FAX (406) 452-9360
E-MAIL frontdesk@uazh.com
Website http://uazh.com
October 31 , 2022
RE: October 3, 2022, Request for "Formal Opinion"
Dear Mr. Hamilton:
ANDREW T. NEWCOMER
JAMES R. ZADICK
SETH T. BONILLA
VIA EMAIL ONLY
As you are aware, my firm serves as counsel and legal advisor to the Board of Ethics for the City of
Bozeman (hereafter "Board"). The Board and I are in receipt of your October 3, 2022, request "to issue a formal
opinion". You have submitted this request pursuant to Sec. 2.03.610, BMC, and request an opinion from the
Board on whether:
[l]t is ethically improper for the Mayor of Bozeman to initiate a closed meeting to influence
a forthcoming vote by the City Commissioners, by stating the purpose 'Issue of Privacy'
with a quorum of City Commissioners and then moving on to discussing non-related
topics with regards to an upcoming vote that was not within the scope of the statutorily
authorized purpose for which the closed meeting was initially called?
Your request also asks the Board to "provide a formal written opinion regarding the influenced vote ouHined
above and if determined the actions were ethically improper, please indicate where [sic] the Mayor and or City
Commissioners would be in violation of the Bozeman Code of Ethics or the Montana Code of Ethics."
For the reasons discussed below, your request is being declined and no further action will be taken at
this time by the Board. Specifically, on October 3, 2022, the Board addressed a nearly identical formal opinion
request submitted by Daniel Zyvoloski on August 11, 2022. See Enclosure 1, 10/3/22 BOE Agenda; see also
10/3/22 Brd. Ethics Mtg. - B recording at 03:52.1 The only difference between your written request and Mr.
Available at:
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October 31, 2022
Page 2 of3
Zyvoloski's August 11 written request is that you note your request is regarding "prospective conduct" and "thus
no detail of a specific event or meeting is referenced." You also refer to an "upcoming" rather than ''forthcoming"
vote.
During the October 3 Board meeting, Mr. Zyvoloski clarified to the Board that his August 11 request was
regarding something happening "in the future" or "prospective conduct". See 10/3/22 Brd. Ethics Mtg. - B
recording at 18:55; 20:23; 20:39. He explained he was looking for a Board opinion about what if the Mayor did
something in the future and how the Board would interpret such actions under the Bozeman Municipal Code and
Montana Code. /d. at 20:26. He states the "meeting hasn't happened" and confirmed he was requesting the
Board provide an opinion regarding a "hypothetical situation". /d. at 20:41, 22:35. Accordingly, while your written
request was slightly different, Mr. Zyvoloski's comments at the October 3 meeting confirm that the two requests
are identical.
Your request cites Sec. 2.03.630, BMC in support. Sec. 2.03.630 and the language contained therein,
however, relate to City Attorney opinions. You have not requested an opinion of the City Attorney. Rather, you
have requested a formal opinion from the Board. Sec. 2.03.610(A}, BMC, addresses Board opinions and
provides that a person "may request of the board an ethics opinion, whether a formal opinion or a confidential
advisory opinion, regarding the propriety of any matter or matters to which the person is or may become a
party[.]" (Emphasis added). This is the guiding language that the Board must rely upon in deciding to issue or
decline to issue a formal opinion. Your request fails to demonstrate a specific situation in which you are a party,
or may become a party, for which the opinion is being sought.
Even if Sec. 2.03.630, BMC were applicable, it addresses a request for a City Attorney opinion by the
person for which the "prospective conduct" would relate. See Sec. 2.03.630(A), BMC. Stated differently, this
code relates to a request from the person to which the "prospective conduct" would apply. At the earlier October
3 Board meeting, City Attorney Greg Sullivan presented examples of situations in which such a request has been
made. See 10/3/22 Brd. Ethics Mtg.-A recording at 33:192 (staff question from library regarding donations from
a trustee to the library foundation to use for a speaker fee); 33:40 (gifts from a trustee to library employees);
34:01 (question from a former director of the City about opening own consulting business which would be closely
related to the work they did for the City); 34:45 (employee question regarding the employee's tangential job
relationship to development review and communications with a developer to buy a parcel of land within the
development); 35:54 (providing clarification for employees receiving gifts of tickets to a football game); 36:10
(employee wanting to start a business using similar skills they use at the City, but not directly tied to the same
work they perform at the City); 37:03 (question from library regarding whether volunteers are subject to the City's
code of ethics); see a/so 10/3/22 Brd. Ethics Mtg.-B recording at 27:30 (Chairperson Rushing explaining to Mr.
Zyvoloski the scenarios discussed with City Attorney Sullivan by the people who may be making the ethical
violation).
Furthermore, Sec. 2.03.630(A), BMC specifically provides that "[t]he request ... must state all the material
facts so the city attorney may render a complete and correct opinion." /d. Even if Sec. 2.03.630 is applicable
here, your request is devoid of the facts which would allow a "complete and correct opinion". In fact you admit
your request regards "prospective conduct" and states "no detail of a specific event or meeting" can be
2 Available at:
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ENCLOSURE 1
A.Call meeting to order
B.Disclosures
C.Public Comment
Please state your name and place of residence in an audible tone of voice for the record. This is
the time for individuals to comment on matters falling within the purview of the Committee.
There will also be an opportunity in conjunction with each action item for comments pertaining to
that item. Please limit your comments to three minutes.
D.Action Items
D.1 Daniel Zyvoloski's August 11, 2022, Formal Opinion Request(Crosby)
E.FYI/Discussion
F.Adjournment
THE BOARD OF ETHICS OF BOZEMAN, MONTANA
BOE AGENDA
Monday, October 3, 2022
This meeting will be held both in-person and also using Webex, an online videoconferencing system.
You can join this meeting:
Via Webex:
Click the Register link, enter the required information, and click submit.
Click Join Now to enter the meeting.
Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in-person
United States Toll
+1-650-479-3208
Access code: 2553 864 1726
If you are interested in commenting in writing on items on the agenda please send an email to
agenda@bozeman.net prior to 12:00pm on the day of the meeting.
Public comments will be accepted in-person during the appropriate agenda items.
You may also comment by visiting the Commission's comment page.
You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you
please be patient in helping us work through this hybrid meeting.
As always, the meeting will be streamed through the Commission's video page and available in the City
on cable channel 190.
1
For more information please contact Mike Maas, mmaas@bozeman.net
Committee meetings are open to all members of the public. If you have a disability and require
assistance, please contact our ADA coordinator, Mike Gray at 582-3232 (TDD 582-2301).
2
Memorandum
REPORT TO:Board of Ethics
FROM:Jordan Y. Crosby, Special Counsel
SUBJECT:Daniel Zyvoloski's August 11, 2022, Formal Opinion Request
MEETING DATE:October 3, 2022
AGENDA ITEM TYPE:Administration
RECOMMENDATION:Adopt attorney Jordan Crosby’s September 27, 2022, findings and decline to
render an advisory opinion in response to Mr. Zyvoloski’s August 11, 2022,
request.
STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture
that reinforces ethical behavior, exercises transparency and maintains the
community’s trust.
BACKGROUND:See attached letter to the Board of Ethics
UNRESOLVED ISSUES:See attached letter to the Board of Ethics
ALTERNATIVES:See attached letter to the Board of Ethics
FISCAL EFFECTS:None
Attachments:
Brd Ethics ltr 9 27 22.pdf
Report compiled on: September 27, 2022
3
UGRIN ALEXANDER ZADICK, P.C.
GARY M. ZADICK
ROGERT. WITT
KEVIN C. MEEK
JORDAN Y. CROSBY
Chairperson Sara Rushing
Board Member Melissa Frost
Board Member Kristin Taylor
ATTORNEYS AT LAW
#2 RAILROAD SQUARE, SUITE B
P.O. Box 1746
GREAT FALLS, MONTANA 59403-1746
TELEPHONE (406) 771-0007
FAX (406) 452-9360
E-MAIL frontdesk@uazh.com
Website http://uazh.com
September 27, 2022
Board of Ethics for the City of Bozeman
srushing@BOZEMAN.NET
mfrost@BOZEMAN.NET
ktaylor@BOZEMAN.NET
RE: Zyvoloski August 11, 2022 Request for "Formal Opinion"
Attorney Review/Findings
Dear Board Members:
ANDREW T. NEWCOMER
JAMES R. ZADICK
SETH T. BONILLA
VIA EMAIL ONLY
As you are aware, my firm has been retained to serve as counsel and legal advisor to the Board
of Ethics for the City of Bozeman (hereafter "Board"). Pursuant to Sec. 2.03.620, Bozeman Municipal
Code ("BMC"), please consider the following findings based on our review and consideration of Daniel
Zyvoloski's August 11, 2022, request for "formal opinion".
I. BACKGROUND
On December 8, 2021, Daniel Zyvoloski served a written ethics complaint and request for a
formal advisory opinion. Mr. Zyvoloski's complaint originated in a dispute regarding whether and how a
particular home-based daycare was subject to business licensing requirements by the City. On
December 20, 2021, Mr. Zyvoloski submitted "supplemental information" to the Board, and in which he
asserted:
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September 27, 2022
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Please also bring into evidence the Executive Session that was held before the City Commission Meeting
on December 14, 2021, to the extent it is relevant to this investigation. Any discussions or deliberations
consisting of a quorum of City Commissioners regarding the pending Appeal Item should have been
conducted before the public per Open Meeting Laws under MCA Sec 2-3-203. The political sensitivity of
an item is not a lawful reason for a closed session discussion and the timing of the Executive Session was
not a coincidence. Please find enclosed my public records request to obtain the video and recorded
minutes from the Executive Session.
See Enclosure 1, p. 2 (emphasis added in enclosure).
The Board held a public meeting on February 7, 2022, to address Mr. Zyvoloski's complaint, the
City's January 7, 2022, response, and this firm's January 17, 2022, preliminary written analysis. See
Enclosure 2, 2/7/22 Brd. Ethics Mtg. Mins, p. 1. The parties to the complaint attended the meeting and
were allowed the opportunity to present argument on their respective positions. /d. The Board
questioned the participants and public comment was also taken. The Board then deliberated on the
following motion "that the Board dismiss Mr. Zyvoloski's December 8, 2021 ethics complaint pursuant to
sections 2.03.640(M)(1)(a) BMC with prejudice for failure to allege facts sufficient to constitute a violation
of the Bozeman Code of Ethics or violation of the Montana Code of Ethics." /d., p. 3. The motion carried
in a 3-0 vote. /d.
Following the meeting, on March 31, 2022, the Board issued detailed findings and conclusions
further explaining its rationale for dismissing the entirety of Mr. Zyvoloski's December 8, 2021, complaint
with prejudice. See Enclosure 3.
On August 11, 2022, pursuant to Sec. 2.03.61 0, BMC, Mr. Zyvoloski submitted his request to the
Board "to issue a formal opinion." See Enclosure 4. Specifically, Mr. Zyvoloski requests an opinion
from the Board on whether:
[l]t is ethically improper for the Mayor of Bozeman to initiate a closed meeting to
influence a forthcoming vote by the City Commissioners, by stating the purpose
'Issue of Privacy' with a quorum of City Commissioners and then moving on to
discussing no-related topics with regards to a forthcoming vote that was not within
the scope of the statutorily authorized purpose for which the closed meeting was
initially called?
/d. Mr. Zyvoloski requests the Board "determine if influencing a forthcoming vote under the
circumstances stated above would violate the Bozeman Code of Ethics or the Montana Code of Ethics."
/d. He asks that if the Board determines that the Mayor's actions were ethically improper, that the Board
advise ''what recourse would a citizen affected by the influenced vote have to correct the actions that
were a result of the vote?" /d.
On September 9, 2022, City Attorney Greg Sullivan submitted a memorandum to the Board
addressing Mr. Zyvoloski's request. See Enclosure 5. City Attorney Sullivan's memorandum provides
further background regarding the December 14, 2021, closed session meeting. He explains that the
purpose of the meeting was to address City Manager Jeff Mihelich's annual performance evaluation. /d.,
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September 27, 2022
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p. 2. City Attorney Sullivan states that the scheduling of City Manager Mihelich's performance evaluation
on the same night as the Bibs to Books Playhouse business license appeal was "nothing more than
coincidence." /d. He explains that to ensure City Manager Mihelich's privacy interests were honored, a
second remote platform was used to conduct the performance evaluation, and the only attendees in the
executive session were Mayor Andrus, Deputy Mayor Terry Cunningham, Commissioner Pomeroy,
Commissioner Madgic, Commissioner Coburn, City Manager Mihelich, and Deputy City Clerk Jesse
DiTomasso. Neither City Attorney Sullivan, nor Deputy City Attorney Kelley Rishke, were present in the
closed session. /d. City Attorney Sullivan further states that he has questioned all participants that were
present at the closed session regarding whether "anything related to the Bibs to Books Playhouse
appeal" was discussed and states that "[a]ll have unequivocally denied that any discussions related to
the Bibs to Books Playhouse were discussed during the city manager's performance evaluation." /d.
Attached to City Attorney Sullivan's memorandum is a September 9, 2022, Affidavit of City
Manager Mihelich. See Enclosure 6. In his affidavit, City Manager Mihelich states that his Employment
Agreement with the City requires that an annual performance evaluation be conducted "no later than
December 1st of each year." /d., 1f 5. City Manager Mihelich explains that in late November or early
December he and Mayor Cindy Andrus scheduled his performance evaluation before the City
Commission for December 14, 2021. He states that "[t]he scheduling of this meeting was in no way
influenced by factors related to the Bibs to Books Playhouse appeal." /d., 1f 6. City Manager Mihelich
affirms that he asserted his privacy interests regarding his evaluation at the December 14 meeting and
based on that assertion, Mayor Andrus, as presiding officer of the City Commission, made the required
findings and closed the meeting. /d., 1f 8. City Manager Mihelich confirms that the only individuals
present during the performance evaluation were the five City Commissioners, himself, and Deputy City
Clerk DiTommaso. /d., 1f 9. City Manager Mihelich specifically states: "During the closed session neither
I nor any other person discussed issues not directly related to my performance. Specifically, neither I
nor any individual discussed any issues related to the Bibs to Books Playhouse business license appeal
scheduled for later that evening." /d., 1f 10.
II. BOARD RULES
Pursuant to Sec. 2.03.61 O(A), BMC, a person "may request of the board an ethics opinion,
whether a formal opinion or a confidential advisory opinion, regarding the propriety of any matter or
matters to which the person is or may become a party[.]" Any request for board action must be in writing
and must be signed by the person making the request. See Sec. 2.03.610(B), BMC. The Board may
"[r]espond, as it deems appropriate, to requests for confidential advisory opinions; the board may decline
to render an opinion in response to any request for an advisory opinion[.]" See Sec. 2.03.600(B)(2), BMC.
The Board is entitled to refer a matter to its attorney1 "for review and consideration for appropriate
action." See Sec. 2.03.620, BMC. Upon the completion of counsel's review and consideration, the
Board's attorney shall report its findings to the Board. /d.
1 Considering the City Attorney's need to represent the City regarding this matter, this firm has been
retained as outside legal counsel to serve as counsel for the Board. See Sec. 2.03.580(F), BMC and Sec.
2.03.600(A)(8), BMC.
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September 27, 2022
Page4 of10
Ill. ANALYSIS
A. THE BOARD SHOULD DECLINE THE REQUEST FOR FORMAL OPINION BECAUSE
THIS ISSUE HAS ALREADY BEEN DECIDED AND IS THUS MOOT.
The Board should decline to consider Mr. Zyvoloski's August 11 request for "formal opinion"
because this matter has already been addressed by the Board. Specifically, the Board's prior action
dismissing Mr. Zyvoloski's December 8, 2021, ethic's complaint with prejudice forecloses further review
of this issue as no actual controversy exists, and the matter is thus moot. See Park Cnty. Env1 Council
v. Montana Dep1 of Env1 Quality, 2020 MT 303, ~ 27, 402 Mont. 168, 477 P.3d 288 (citing Progressive
Direct Ins. Co. v. Stuivenga, 2012 MT 75 ~ 17, 364 Mont. 390, 276 P.3d 867 ("[l]fthe issue presented at
the outset of the action has ceased to exist or is no longer 'live,"' the issue is moot.)); see also Plan
Helena, Inc. v. Helena Reg'/ Airport Auth. Bd., 2010 MT 26, ~ 11, 355 Mont. 142, 226 P.3d 567 ("A court
lacks jurisdiction to decide moot issues or to give advisory opinions insofar as an actual 'case or
controversy' does not exist."). Under the mootness doctrine, "the requisite personal interest that must
exist at the commencement of the litigation (standing) must continue throughout its existence
(mootness)." Plan Helena, Inc.,~ 10. If the issues presented at the outset of the matter cease to exist,
then the issue before the court is moot. /d.
As noted above, Mr. Zyvoloski's December 20 "supplemental information" to the Board in support
of his December 8 ethics complaint specifically raised the issue of the December 14, 2021, executive
session. See Encl. 1, p. 2. In this letter, he argued that any quorum of City Commissioners addressing
his appeal "should have been conducted before the public per Open Meeting Laws under MCA Sec 2-3-
203." /d. He asserted that "political sensitivity" was not a "lawful reason" for going into closed session,
and "the timing of the Executive Session was not a coincidence." /d.
Furthermore, as demonstrated in greater detail in Section III.B. below, Mr. Zyvoloski and his
counsel presented considerable argument to the Board at the February 7, 2022, public meeting regarding
his position that misconduct occurred during the City Commission's December 14 executive session.
For example, Mr. Zyvoloski argued that the City Attorney attended the executive session "under the
guise" of the City Manager's annual performance evaluation. See 2/7/22 Brd. Ethics Mtg. at 17:51.2
Additionally, he argued that the Mayor failed to "properly call" the executive session by passing a motion
(id. at 18:06) and stated his December 20 supplement alleged that "misconduct took place during this
executive session." /d. at 18:14. Mr. Zyvoloski "specifically asked the Board to look into this allegation."
/d. at 18:21. In fact, he encouraged the Board to ask "one simple question" regarding the December 14
executive session, "did you and a quorum of City Commissioners violate the open meeting laws." /d.
at 19:19 (emphasis added).
2 Available at: http://bozeman.granicus.com/player/clip/5332032d-869c-4b4f-b 712-
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September 27, 2022
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The Board's March 31, 2022, findings specifically addressed Mr. Zyvoloski's claims and found
that the Board lacked jurisdiction over his allegations regarding the open meeting violation and dismissed
such claims pursuant to Sec. 2.03.640(M)(1)(b), BMC. In particular, the findings stated:
JURISDICTION
14. As an initial threshold matter, the Board must address the issue of its jurisdiction over the
claims as alleged by Mr. Zyvolosk:i.
15. The Board's jurisdiction is defined by Montana law and BMC and is limited to hearing ethics
complaints related to alleged violation(s) of the Bozeman Code of Ethics and/or Montana Code of Ethics.
See§ 2-2-144(5)(a), MCA; Sections 2.03.600(A)(3) and 2.03.640(E), BMC.
16. In his December 20, 2021. supplement and at the February 7. 2022, meeting, Mr. Zyvoloski
asserted alleged violations of Montana's open meeting laws regarding the Bozeman City Commission
December 14,2022, meeting.
17. Montana's open meeting laws are found in Title 2. Chapter 3, Part 2, which is not within the
authority of this Board, thus the Board lacks jurisdiction to address these claims and they should be dismissed
pursuant to Section 2.03.640(M)(1)(b), BMC.
Encl. 3, p. 3. These findings should be no surprise, because during the February 7 public meeting, the
undersigned specifically counseled the Board regarding its limited jurisdictional review. See 217122 Brd.
Ethics Mtg. at 8:29. I explained that the Board's review is restricted to complaints regarding whether City
public officials or public employees violated Montana Code of Ethics found in Title 2, Chapter 2, Part 1,
of the Montana code or the Bozeman Code of Ethics, found in Part 1, Chapter 2, Article 3, Division 4 of
the Bozeman Municipal Code. /d. The undersigned cautioned all present that an alleged violation of§
2-3-203, MCA, as asserted by Mr. Zyvoloski, is not within the "purview of this Board." /d. at 1:12:40.
Montana law is clear that "[i]f a court determines that it Jacks jurisdiction, then it may take no
further action in the case other than to dismiss it." Plan Helena, Inc., ~ 11. Importantly, "jurisdictional
issues transcend procedural considerations." /d. (citation omitted). Mr. Zyvoloski's August 11 request
asks the Board to issue a "formal opinion" on whether unethical conduct occurred when the City
Commission went into executive session at its December 14 meeting. His request is yet another call to
resolve a matter in which the Board previously found it had no jurisdiction and thus no case or
controversy. Stated differently, he again seeks an answer to a moot question. Accordingly, it is our
opinion that the Board decline Mr. Zyvoloski's "non justiciable request for an advisory opinion". See Plan
Helena, Inc., 1m 14-16.
B. THE BOARD SHOULD DECLINE THE REQUEST BECAUSE ISSUE PRECLUSION
PREVENTS FURTHER REVIEW.
Montana Jaw favors a definite end to litigation and disfavors serial litigation of the same issue.
See Baltrusch v. Baltrusch, 2006 MT 51,~ 15, 331 Mont. 281, 130 P.3d 1267. Specifically, the judicial
doctrine known as "collateral estoppel" or "issue preclusion" seeks to prevent "litigants from reopening
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September 27, 2022
Page 6 of10
all questions essential to the judgment which were determined by a prior judgment." Baltrusch, ~ 18.
This doctrine serves to "conserve judicial resources, relieve parties of the expense and vexation of
multiple lawsuits, and foster reliance on adjudication by preventing inconsistent decisions." Brilz v.
Metro. Gen. Ins. Co., 2012 MT 184, ~ 18, 366 Mont. 78, 285 P.3d 494.
Issue preclusion specifically bars relitigation when: {1) the identical issue raised was previously
decided by a prior adjudication; {2) when a final judgment on the merits was made in the prior
adjudication; {3) when the party against whom issue preclusion is asserted was a party in the prior
adjudication; and {4) when that party was also afforded a full and fair opportunity to litigate the issues
which may be barred. /d. at 1m 18, 24 {"[W]e conclude that it is appropriate to accord finality to an earlier
judgment which contains findings of fact that definitively resolve all of the new allegations and legal
theories included in the later complaint."). Issue preclusion "also prevents relitigation of determinative
facts which were actually or necessarily decided in a prior action." Baltrusch, ~ 25. Importantly, issues
may be "identical" if "the 'issues are so intertwined that to decide the issue before it, the Court would
have to rehear the precise issue previously decided."' /d., citing Martelli v. Anaconda-Deer Lodge
County, 258 Mont. 166, 169, 852 P.2d 579, 581 {1993). Issues may be "identical if the subject matter of
the legal theories or factual assertions of the second case issues is 'related and relevant to the issues
that were litigated and adjudicated previously."' Montana Envtl. Info. Ctr. v. Montana Dept of Envtl.
Quality, 2016 MT 9, ~ 21, 382 Mont. 102, 365 P.3d 454. This can include the relitigation of facts
previously decided. /d., ~ 24.
A significant portion of the February 7 public meeting focused on Mr. Zyvoloski and his counsel's
concerns regarding the December 14 executive session. See generally, Brd. Ethics Mtg. at 17:51-20:34.
As noted during Mr. Zyvoloski's rebuttal presentation, he argued the "simple question" the Board should
ask is if "anything outside the confines of Montana laws [sic] happen[ed] in the executive session. That's
my allegation before you today." /d. at 35:50. During the meeting, Mr. Zyvoloski was specifically
questioned by the Board regarding the reasons he felt the executive session was inappropriate and was
asked to articulate the factual basis for his position. /d. at 43:38. In response, Mr. Zyvoloski stated that
the timing of the executive session "was not a coincidence" and claimed that "things don't line up". /d. at
44:31. Mr. Zyvoloski referenced redacted information he received in a public record request, which in his
opinion, demonstrated that the executive session lasted for an hour-and-a half, covering multiple topics,
and thus this would indicate that more than the performance evaluation was discussed./d. at 44:38.3 He
also questioned why the City Manager's performance evaluation would be scheduled for the same day
that he "had a sensitive issue" pending before the City Commission. /d. at 45:06. Mr. Zyvoloski asserted
that "things just don't line up" and "something happened during the executive session that ... helped the
City Commission kind of line out their appeal." /d. at 45:25.
Mr. Zyvoloski's counsel also was allowed to offer comments in response to the Board's request
for the factual basis for his argument that the executive session was improper. In response, counsel
asserted that "!f' the meeting was not properly closed this was "a big problem" and could be in violation
3 Importantly, Mr. Zyvoloski did not submit the redacted document for the Board's consideration during the
February 7 hearing. For purposes of this review, attached as Enclosure 7, is a copy of the redacted Executive
Session minutes from the December 14, 2021, meeting that was produced to Mr. Zyvoloski. /d. at pp. 4-7.
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September 27, 2022
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of the City's ethics and applicable standards of conduct. /d. at 47:02. Counsel explained that she and
her client felt that the Q&A during the hearing on Mr. Zyvoloski's appeal was "very rehearsed" and "almost
canned" and she noted that it "seems highly suspicious to us that an hour-and-a-half was needed for the
performance review of the City Administrator." /d. at 48:18, 1 :04:00. She clarified that her client felt there
is a "strong and substantial ethical violation if there was any prior discussion between the City
Commission and the City Attorney's office" of the appeal because it was not properly noticed as a closed
session. /d. at 1:04:20 (emphasis added). Counsel again stated, that the question the Board should be
asking is whether there was any discussion of her client's appeal during the closed door session. /d. at
1:04:40.
The Board also heard from the City's counsel on this issue, in which counsel argued that the
executive session was "totally appropriate" under Montana law. See id. at 34:00. Counsel asserted that
the executive session was duly noticed and appropriately convened. /d. at 34:43. She argued that no
evidence was presented that the executive session was merely a "rouse" and asserted that the "pure
speculation" raised by Mr. Zyvoloski and his counsel could not form the basis of an ethics complaint. /d.
at 34:46.
During the Board's deliberation, the Board questioned the lack of evidence presented by Mr.
Zyvoloski to support his claims, including his assertion that there was an improper discussion of his
appeal during the City Commission's December 14 executive session. Board Member Taylor stated for
example that she felt that the Board had not been presented with any evidence that would be compelling
or persuasive to demonstrate a violation within the narrow confines of the ethics code the Board was
working with. /d. at 1 :37:45; see also 1:46:25 (finding no evidence of due process violations, conflict of
interest, deviation or failure to follow standards of conduct, improper government actions, or breach of
public trust). Board Member Frost also expressed a lack of specific facts which would support the
allegations of misconduct or violations of the Bozeman Code of Ethics or Montana code. /d. at 1 :39:08;
see also 1:46:15 (noting she had not heard facts sufficient to support the allegations). Chairperson
Rushing was similarly in agreement and noted that she did not find anything to substantiate claims of
unfair action or impartial, immoral, or dishonest conduct. She also did not believe improper government
actions were taken. /d. at 1 :40:06; see also 1:45:40 (stating no ethical violation has been found). The
Board followed its deliberations and vote with its March 31 findings which confirmed that Mr. Zyvoloski's
December 8, 2021, ethics complaint was being dismissed with prejudice pursuant to Sec.
2.03.640(M)(1)(a), BMC, "for failure to allege facts sufficient to constitute a violation of the Bozeman
Code of Ethics or violation of the Montana code of Ethics." Encl. 3, p. 7, 1[56.
In our opinion, the principle of issue preclusion weighs strongly in favor of declining Mr.
Zyvoloski's August 11 request for ''formal opinion". First, the issues considered by Board in relation to
Mr. Zyvoloski's December 2021 ethics complaint are substantively identical to the issues raised by Mr.
Zyvoloski's August 11 request. Second, the Board issued a final dismissal of Mr. Zyvoloski's claims with
prejudice after assessing the merits of the allegations raised in his complaint and based on his lengthy
presentation at the February 7 public meeting. Third, there can be no dispute that Mr. Zyvoloski is the
complaining party in both matters. Finally, it is also clear that the Board afforded Mr. Zyvoloski a full and
fair opportunity to "litigate" the issue of the December 14 executive session.
10
September 27, 2022
Page 8 of10
In our opinion, there is no need for the Board to re-examine the allegations of unethical conduct
raised in Mr. Zyvoloski's August 11 request. Mr. Zyvoloski's request raises no new facts, but instead
continues to be based on unsupported and speculative beliefs that an improper discussion of his appeal
was held during the City Commission's December 14 executive session. To accept Mr. Zyvoloski's
request now would simply allow for the re-litigation of determinative facts which were already decided by
the Board following a lengthy public meeting process. This is improper and precluded by the doctrine of
issue preclusion.
C. IN THE ALTERNATIVE, THE BOARD SHOULD DECLINE THE REQUEST BECAUSE
THE RECORD DEMONSTRATES NO IMPROPER CONDUCT OCCURRED.
In the alternative, assuming for the sake of argument that the Board has jurisdiction to review
Mr. Zyvoloski's claims regarding the alleged improper closing of the December 14 meeting, Mr.
Zyvoloski's August 11 request for "formal opinion" should also be denied because the further record
presented to the Board demonstrates that no improper conduct occurred in the City Commission's
December 14 executive session. Throughout the February 7 public meeting, Mr. Zyvoloski, and his
counsel stated the pertinent questions for the Board to ask regarding the executive session was who
was present and what was discussed. See Brd. Ethics Mtg. at 17:51; 19:19; 35:50; 1:04:40. City
Manager Mihelich's September 9, 2022, Affidavit {Encl. 6) directly addresses those questions.
Specifically, City Manager Mihelich states that the only individuals present during the closed
session were himself, the five City Commissioners, and Deputy City Clerk DiTomasso. /d., 1f 9. City
Attorney Sullivan's September 9 memorandum also confirms this fact. Encl. 5, p. 2. This information
directly contradicts Mr. Zyvoloski's unsupported claim that City Attorney Sullivan and/or Deputy City
Attorney Rishke were present during the meeting. See Brd. Ethics Mtg. at 17:51. Additionally, City
Manager Mihelich states that during the closed session "neither I nor any other person discussed issues
not directly related to my performance. Specifically, neither I nor any individual discussed any issues
related to the Bibs to Books Playhouse business license appeal scheduled for later that evening." Encl.
6, 1f 10.4 City Manager Mihelich explains under oath that only issues related to his performance were
discussed during the December 14 executive session. Thus, the supplemental record before the Board
disproves the speculation and suspicions offered by Mr. Zyvoloski and his counsel at the February 7
meeting that more than the City Manager's performance evaluation was discussed during the closed
session.
Furthermore, while Mr. Zyvoloski and his counsel questioned the timing of the executive session,
the fact that the City Commission would be addressing the City Manager's annual performance
evaluation, and possibly doing so in executive session, was a known fact. It was properly noticed on the
Commission's Special Meeting Agenda. See Enclosure 8 {emphasis added in document). This agenda
4 City Attorney Sullivan's memorandum also confirms that his discussion with the closed session
participants corroborated that no discussions related to the Bibs to Books Playhouse occurred during the closed
session. Encl. 5, p. 2.
11
September 27, 2022
Page9 of10
was physically posted in the City's lobby, on the City's calendar of events, and online in Laserfiche on
December 9, 2021 ,swell in advance of the December 14 meeting.
Montana law permits the presiding officer of any meeting to close the meeting to discuss "a
matter of individual privacy" if the presiding officer "determines that the demands of individual privacy
clearly exceed the merits of public disclosure." See§ 2-3-203{3), MCA. The right of individual privacy
may be waived by the person about whom the discussion pertains, and if that occurs, then the meeting
is required to remain open. /d. The video record of the December 14 meeting demonstrates City
Manager Mihelich specifically asserted his individual privacy interest and requested that his performance
evaluation be conducted in executive session. See 12/14/21 City Comm. Mtg. at 1:0o.s The recording
then demonstrates that Mayor Andrus closed the meeting to the public based on her finding that City
Manager Mihelich's privacy interests clearly exceeded the merits of public disclosure. /d. at 1 :08. Mayor
Andrus' actions are directly in line with Montana law. See§ 2-3-203{3), MCA; see a/so Missou/ian v. Brei
of Regents of Higher Educ., 207 Mont. 513, 533, 675 P.2d 962, 973 {1984) {Montana Supreme Court
recognizing job performance evaluations of university presidents were matters of individual privacy
protected by the State Constitution, the presidents' privacy interests clearly exceeded the public's right
to know, and closure was proper to protect the presidents' privacy interests); Flesh v. Brd. of Trustees of
Joint School Dist. No.2, Mineral and Missoula Counties, 241 Mont. 158, 166, 786 P.2d 4, 9-10 {1990)
{finding the presiding officer at a school board meeting followed proper statutory procedures in closing a
hearing held to consider grievances lodged against school administrator, when administrator did not
waive his right to privacy and grievant objected to hearing being held in executive session, and presiding
officer found that right to privacy exceed the public's right to know); Billings Gazette v. City of Billings,
2013 MT 334, 1f 59, 372 Mont. 409, 313 P.3d 129 {finding that City employees' reasonable expectation
of privacy in their identities related to internal disciplinary proceedings clearly outweighed the limited
merits of public disclosure, and concluding that public disclosure is not in the public interest).
Considering the supplemental record now before the Board, it is our opinion, that the Board
decline to render an opinion in response to Mr. Zyvoloski's August 11 request. It has been clearly
demonstrated it was proper for Mayor Andrus to close the December 14 meeting to discuss City Manager
Mihelich's performance evaluation. Mayor Andrus made the appropriate finding that City Manager
Mihelich's privacy interests exceed the merits of public disclosure. Additionally, the uncontradicted
evidence is that none of the accused in Mr. Zyvoloski's December 8 ethics complaint {i.e., City Attorney
Sullivan or Deputy City Attorney Rishke) were present at the closed session, nor was Mr. Zyvoloski's
license appeal the topic of discussion during the closed session. Simply put, nothing has been presented
supporting Mr. Zyvoloski's claims that an improper discussion on the Commission's forthcoming vote on
s The metadata for the agenda's posting on Laserfiche demonstrates a creation date of December 9,
2021, at 9:36:25 a.m. Available at:
https://weblink.bozeman.net/Weblink/DocView.aspx?id=257684&dbid=O&repo=BOZEMAN.
a Available at:
https://bozeman.granicus.com/player/clip/203?view id=1&redirect=true&h=fb507ada8f81f35757aaa177b0a4a49
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Bozeman Board of Ethics Meeting Minutes, February 7, 2022
THE BOARD OF ETHICS MEETING OF BOZEMAN, MONTANA
MINUTES
February 7, 2022
Present: Melissa Frost, Sara Rushing, Kristin Taylor
None Absent:
Staff Present in the WebEx: City Clerk (CC) Mike Maas, Special Counsel (SC) Jordan Crosby
A) 00:00:05 Call meeting to order -4pm
B) 00:02:38 Disclosures
C) 00:03:36 Changes to the Agenda
D) 00:03:50 Public Comment
There were no public comments.
E) 00:06:15 Action Items
E.l 00:06:16 Review ofthe Daniel Zyvoloski Ethics Complaint Filed on December 8,
2021
Preliminary Written Analysis.pdf
Bozeman Ethics Complaint Letter 12.8.21.pdf
Enclosures for Ethics Complaint Letter (12.8.21).pdf
Bozeman Supplemental Ethics Complaint Letter 12.20.2021 (Re levant Information to
12.8.21 Ethics Complaint Letter).pdf
Supplemental Ethics Complaint_Enclosures.pdf
2022-01-07 City's Response to Ethics Complaint.pdf
00:06:45 Staff Presentation
Jordan Crosby, retained counsel, presented the December 8, 2021 complaint by Daniel Zyvoloski and
subsequent written analysis. Counsellor Crosby presented the options before the board, provided the
applicable statute in Montana Code Annotated (MCA) and Bozeman Municipal Code (BMC), the Board
cannot reverse the decision of the City Commission, and presented a summary of the written analysis
and the recommendation of dismissal with prejudice.
Page 1 of 3
20
Bozeman Board of Ethics Meeting Minutes, February 7, 2022
00:10:47 Questions of Special Counsel
00:12:25 Presentation of Complainant
Lara Guercio, Crowley Fleck Law, presented the complaint, their disagreement with the written analysis,
requested the Board schedule a hearing to identify additional material fact, and disagreement with the
handling of the appeal by the City Commission as a remedy for the initial unethical actions. Daniel
Zyvoloski presented that misconduct took place during an Executive Session on December 14, 2021,
specifically that the written analysis does not include a response of the violation of Open Meetings Laws
related to the Executive Session, and recommended that the Board conduct a hearing or determine
whether further information is necessary to make a determination of whether a violation occurred.
00:20 :36 Questions of Complainant
00:21:16 Presentation of Representative of City Staff
Natasha Jones, Boone Karlberg, representing City Staff, presented that facts are lacking to assert an
ethical violation, presented the actions taken by staff as a matter of the allowable responses, that
process was afforded to the complainant citing the appeal heard by the City Commission on December
14, 2021, recommended dismissal ofthe complaint, and presented a refutation of claims within the
complaint.
00:29:41 Questions of Staff Representative
00:35:06 Rebuttal of Complainant
Mr. Zyvoloski clarified the allegation related to the Executive Session that improper action was taken,
commented that his process request was to present public comment through the Special Use Permit
process and that the City Attorney took steps to sideline his appeal, improperly contacted the business
owner subject to his appeal and provided legal advice to the business owner, further alleged special
efforts to provide a personal favor for a single business owner, and alleged a violation of the BMC and
City Charter.
00:40:55 Public Comment
There were no public comments on this item.
00:43:08 Questions from the Board
01:06:50 Technicallssues
Counsellor Crosby experienced technical difficulties and the meeting briefly paused.
01:10:14 Rejoined
Counsellor Crosby returned to the meeting.
01:10:35 Questions of the Board continued
01:37:03 Motion that it should be our determination that within the purview of the Board, no violation
of the Bozeman Code of Ethics or the Montana Code of Ethics has occurred.
Kristin Taylor: Motion
Melissa Frost: 2 nd
Page 2 of 3
21
Bozeman Board of Ethics Meeting Minutes, February 7, 2022
01:37:14 Discussion
01:37:55 Clarification on Procedures
Chairperson Rushing requested clarification on the change of status of non-board members within the
meeting.
CC Maas stated that procedurally, once a motion is before the Board, non-board members are lowered
to attendee status within the Web Ex meeting.
01:38:30 Discussion continued
01:44:20 Vote on the Motion that it should be our determination that within the purview of the Board, no
violation of the Bozeman Code of Ethics or the Montana Code of Ethics has occurred. The Motion failed 0
-3.
Approve:
None
Disapprove:
Melissa Frost
Sara Rushing
Kristin Taylor
01:44:42 Motion that the Board dismiss Mr. Zyvoloski's December 8, 2021 ethics complaint pursuant to
sections 2.03.640(M}(1}(a) BMC with prejudice for failure to allege facts sufficient to constitute a
violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics.
Melissa Frost: Motion
Kristin Taylor: 2nd
01:45:30 Discussion
01:46:55 Vote on the Motion that the Board dismiss Mr. Zyvoloski's December 8, 2021 ethics complaint
pursuant to sections 2.03. 640(M}(1)(a) BMC with prejudice for failure to allege facts sufficient to constitute
a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics. The Motion carried
3-0.
Approve:
Melissa Frost
Sara Rushing
Kristin Taylor
Disapprove:
None
F) 01:47:46
G) 01:48:01
FYI/Discussion
Adjournment
Page 3 of 3
22
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DocuSign Envelope ID: 75D8A 16C-CD1 3-450B-9A26-A79A2D4AB651
BOZEMAN MT
THE BOARD OF ETHICS OF BOZEMAN, MONTANA
FINDINGS AND CONCLUSIONS
December 8, 2021, Daniel Zyvoloski's Ethics Complaint
In addition to the oral findings entered into the record by the Board of Ethics for the City of Bozeman
(hereafter "the Board") at the public meeting on February 7, 2022 , and pursuant to Section 2.06.640(M)(5)
of the Bozeman Municipal Code ("BMC "), the Board makes the following findings and conclusions regarding
the December 8, 2021 , Ethics Complaint by Daniel Zyvoloski :
1. Montana law provides that where a local government has established a panel to review
complaints alleging violations of Title 2, chapter 2, part 1 of the Montana Code Annotated (hereafter "Montana
Code of Ethics"), that panel "shall review complaints and may refer to the county attorney complaints that
appear substantiated." See§ 2-2-144(5)(a), MCA.
2. Bozeman City Charter establishes an independent Board of Ethics. The Board reviews
ethical complaints alleging that city public officials or public employees violated the Montana Code of Ethics
or violated Bozeman 's Code of Ethics (Article 3, Division 4, BMC). See Sections 2.03.600(A)(3) and
2.03.640(E) & (M), BMC.
3. The Board 's authority is provided for in Section 2.03.600, BMC and Section 2.03 .640, BMC
summarizes the procedures for review of complaints.
4. Among other reasons, the Board is empowered to dismiss a complaint if it "does not allege
facts sufficient to constitute a violation " of the Bozeman Code of Ethics or Montana Code of Ethics. See
Section 2.03.640(M)(1)(a), BMC.
5. In its review of an ethical complaint, the Board may not reverse or modify a prior action of
the Mayor, City Commission, or an officer or employee of the City. Instead , "[i]f the board finds a prior action
of the mayor, the city commission , officer, or employee to have been ethically improper, the board may advise
the appropriate party that the action should be reconsidered. Upon such advice by the boa rd, the action shall
be reconsidered by the appropriate person or public body." See Section 2.03.620, BMC.
6. On December 8, 2021 , Daniel Zyvoloski served a written Ethics Complaint ("Complaint"),
and request for a "formal advisory opinion ." Mr. Zyvoloski's Complaint originates in a dispute regarding
whether and how a particular home-based daycare was subject to business licensing requirements by the
City. Mr. Zyvoloski owns and lives in property adjacent to the daycare in question.
7. Mr. Zyvoloski's Complaint alleges that:
A. Staff within the City Attorney's Office "deviated from the City's Standards of Conduct,
created a Conflict of Interest, and conducted actions that meet the standard of Improper Government Actions
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as defined and identified in the City's Code of Ethics by their procedural misconduct in connection with the
disputed licensing of a home-based daycare in violation of the BMC";
B. The procedural improprieties surrounding the disputed licensing decision, the
appeal, and related administrative rule change were not "fair and impartial";
C. His procedural rights were violated by the canceling of a City Commission hearing
date, thereby denying him his appeal rights under Section 12.02.190, BMC;
D. Promulgation of a new administrative rule requiring daycare licensing and
subsequent communications with the daycare at issue regarding this new licensing requirement displayed
unethical"favoritism, partiality and bias," constituting an alleged conflict of interest, by allegedly advancing
or protecting "the personal and/or financial interests of the home-based business that was the subject of our
pending appeal" outside of the "proper channels of government structure"; 1
E. The above City conduct violated the Bozeman Municipal Code's standards of
conduct at Section 2.03.490, BMC and the conflict-of-interest prohibitions at Section 2.03.520, BMC; and
F. The newly promulgated rule requiring certain daycare business licenses exceeds the
authority delegated to the Community Development Director under Section 12.02.050, BMC.
8. On December 20, 2021, Mr. Zyvoloski submitted "supplemental information" to the Board
which he asserts demonstrates that Assistant City Attorney Kelly Rischke had improper communication with
the daycare operator about filling out the newly required business license. Mr. Zyvoloski claims these
communications "secured a significant personal and/or financial favor for a single home-based business
owner and influenced the Community Development Department to unlawfully pass a new Administrative Rule
without public review or participation and undermined our procedural due process right to provide public
comment before the business license was issued."
9. Bozeman City Attorney Greg Sullivan and Assistant City Attorney Rischke, through counsel,
submitted a response to Mr. Zyvoloski's Ethics Complaint on January 7, 2022, arguing Mr. Zyvoloski's claims
of ethical violations were fatally vague and without factual basis.
10. The City's response asserts that there were no violations of Mr. Zyvoloski's due process
rights because:
A. The City complied with the Bozeman Municipal Code's required procedures
regarding Mr. Zyvoloski's license complaint and appeal;
B. No Municipal Code provisions barred the City either from taking action on Mr.
Zyvoloski's license complaint or amending City administrative regulations in response to the complaint;
1 Mr. Zyvoloski also extends these arguments to the City's provision of assistance to the daycare when
completing the new business license application.
2
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C. City employees were permitted to be involved in the license complaint process and
resolution; and
D. Regardless, Mr. Zyvoloski received extensive "due process" through the City's
evaluation of Mr. Zyvoloski's license complaint and appeal, which resulted in the relief Mr. Zyvoloski
requested-the implementation of a business license requirement for home-based daycares.
11. The City contends there was no violation of either the Bozeman or Montana Code of Ethics
and requests that the Board dismiss Mr. Zyvoloski's Ethics Complaint with prejudice.
12. On January 17, 2022, pursuant to Section 2.03.640(D), BMC, the Board's legal counsel,
Jordan Y. Crosby, with the law firm of Ugrin Alexander Zadick, P.C., provided a preliminary written analysis,
recommending the Board dismiss Mr. Zyvoloski's Complaint with prejudice for failure to allege facts sufficient
to constitute violations of the Bozeman Code of Ethics or the Montana Code of Ethics.
13. The Board held a public meeting on February 7, 2022, to address Mr. Zyvoloski's Ethics
Complaint and counsel's preliminary written analysis. The affected parties to the Ethics Complaint were
invited to attend and allowed the opportunity to present on their respective positions. Significant questions
were asked by the Board to the participants and public comment was also taken.
JURISDICTION
14. As an initial threshold matter, the Board must address the issue of its jurisdiction over the
claims as alleged by Mr. Zyvoloski.
15. The Board's jurisdiction is defined by Montana law and BMC and is limited to hearing ethics
complaints related to alleged violation(s) of the Bozeman Code of Ethics and/or Montana Code of Ethics.
See§ 2-2-144(5)(a), MCA; Sections 2.03.600(A)(3) and 2.03.640(E), BMC.
16. In his December 20, 2021, supplement and at the February 7, 2022, meeting, Mr. Zyvoloski
asserted alleged violations of Montana's open meeting laws regarding the Bozeman City Commission
December 14, 2022, meeting.
17. Montana's open meeting laws are found in Title 2, Chapter 3, Part 2, which is not within the
authority of this Board, thus the Board lacks jurisdiction to address these claims and they should be dismissed
pursuant to Section 2.03.640(M)(1)(b), BMC.
DUE PROCESS VIOLATIONS
18. Due process is a constitutional limitation on the deprivation of life, liberty, or property without
appropriate procedure. City of Missoula v. Mountain Water Co., 2016 MT 183, ~ 24, 384 Mont. 193, 378
P.3d 1113.
19. To demonstrate a violation of procedural due process, the party must make a showing "that
a property or liberty interest exists," as "[i]f there is a property or liberty interest at stake, procedural due
process requires that a person 'must be given an opportunity to explain, argue and rebut any information
3
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that may lead to a deprivation of life, liberty, or property."' State v. Samples, 2008 MT 416, 1f 29, 347 Mont.
292, 198 P.3d 803.
20. A party "cannot establish a property interest in a procedure itself," and "a public official's
discretion may prevent the creation of a property right sufficient to support a claim that due process was
denied[.]" /SC Distributors, Inc. v. Trevor, 273 Mont. 185, 192, 903 P.2d 170, 174 (1995).
21. Montana law does not recognize a procedural due process right in abstract procedure
without a cognizable liberty or property right that would be implicated by that procedure. /d., 273 Mont. at
192, 903 P.2d at 174.
22. In his Complaint, Mr. Zyvoloski does not point to any property interest granted to him by
either state law or BMC.
23. Mr. Zyvoloski's lack of any cognizable property interest in the dispute precludes him from
establishing a procedural due process claim here. Beas/eyv. Flathead cty., 2009 MT 121,1f 16,350 Mont.
177, 206 P.3d 915.
24. While procedural due process is not implicated by Mr. Zyvoloski, the. record further
demonstrates Mr. Zyvoloski was afforded significant process in conformity with the requirements of the BMC.
25. Mr. Zyvoloski's initial complaint requested investigation of the daycare's lack of a business
license, appropriate action under Chapter 12 in response to the lack of a business license, and, on appeal,
reconsideration of the City's position that the daycare did not require a business license.
26. The record demonstrates that Mr. Zyvoloski was granted all these forms of relief-the City
investigated the issue and was persuaded that requiring a license was reasonable. The City utilized
delegated authority to craft an administrative regulation addressing the present daycare and prospectively
and proactively requiring all other similarly situated daycares to obtain business licenses. The City
affirmatively granted Mr. Zyvoloski the reconsideration his appeal requested.
27. Furthermore, the issue Mr. Zyvoloski presented-the daycare's lack of a business license-
ceased to exist after the City promulgated a regulation generally requiring such a license and the daycare
obtained that license. As such, Mr. Zyvoloski did not have an abstract right to further pursue an appeal
where the issue was mooted by the City granting the relief he sought during that appeal. Country Highlands
Homeowners Ass'n, Inc. v. Bd. of Cty. Commissioners of Flathead cty. ex rei. Hall, 2008 MT 286, 1f 22, 345
Mont. 379, 191 P.3d 424. This action thus removed any need for further process or procedure.
28. The record further demonstrates that Mr. Zyvoloski was ultimately heard by the City
Commission on December 14, 2021, pursuant to his second appeal. He and his counsel were provided a
full opportunity to contest promulgation of the administrative rule and issuance of the license.
29. In summary, Mr. Zyvoloski's due process arguments fail to allege facts sufficient to
demonstrate the City took any action constituting a violation of the Bozeman Code of Ethics or violation of
the Montana Code of Ethics and should be dismissed pursuant to Sec. 2.03.640(M)(1)(a), BMC.
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CONFLICT OF INTEREST
30. Section 2.02.520, BMC provides a prohibition against a "conflict of interest" and bars City
officials and employees from engaging in business which conflicts with City duties or taking official action
where the official or employee "has a financial or personal interest in a transaction or matter with the city."
See Section 2.03.520(B) & (C), BMC.
31. The Bozeman Code of Ethics also prohibits, as an improper conflict of interest, employees,
or officials from representing or appearing on behalf of individuals or entities in proceedings or transactions
before the City. See Section 2.03.520(E) and (F), BMC.
32. The Code of Ethics defines a "financial interest" as ownership, a contractual relationship,
business relationship, or other interest "which will result in a monetary or other material benefit to an official
or employee[.]" See Section 2.02.470(6), BMC.
33. A "personal interest" is defined as "any interest in the matter which would affect the action of
the official or employee other than a financial interest, and other than an interest because of membership in,
or affiliation with, but not employment by a social, fraternal, charitable, service, educational, religious,
governmental, health service, philanthropic, cultural, or similar nonprofit institution or organization." See
Section 2.03.470(10), BMC.
34. The Montana Code of Ethics at § 2-2-1 02(6), MCA, similarly defines "private interest" to
mean an ownership interest in a business, a creditor interest, employment or prospective employment,
ownership in real property, a loan, or a directorship or officership in a business.
35. A public official lacks an improper private interest where that official does not receive
compensation, benefit, or gain from the entity in question. See Mountain States Ins. Co. v. State, By &
Through Bd. of Hail Ins., Dep't of Agric., 218 Mont. 365, 369, 708 P.2d 564, 567 (1985).
36. Mr. Zyvoloski fails to put forth any facts demonstrating any City employee has a "financial
interest" in the subject daycare as that phrase is defined by Section 2.03.470(6), BMC.
37. Beyond unclear and unsubstantiated allegations that City officials desired the subject
daycare to become licensed, Mr. Zyvoloski also does not allege facts sufficient to demonstrate a "personal
interest" as that phrase is defined in Section 2.03.470(10), BMC.
38. Whether the financial or personal interest of the subject daycare was furthered by City action
is irrelevant under the controlling "conflict of interest" definitions. There is no indication in the record that any
City employee or official acted, either through promulgation of the administrative rule or assistance with the
daycare's subsequent application, to improperly further that employee or official's financial or personal
interest. See Section 2.03.520(E) and (F), BMC
39. Nor is there any indication or claim that any City official or employee derived any financial or
personal gain or benefit from any action taken in response to Mr. Zyvoloski's complaints and appeals, as that
is defined under Montana's Code of Ethics.
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40. Mr. Zyvoloski's Complaint fails to allege facts sufficient to demonstrate the City, and more
importantly Assistant City Attorney Rischke, took any action in response to his complaints or appeals due to
an improper "conflict of interest" as defined by the Bozeman and/or Montana law, and such claims should be
dismissed pursuant to Sec. 2.03.640(M)(1)(a), BMC.
STANDARDS OF CONDUCT
41. Bozeman Code of Ethics "standards of conduct" generally require fair, impartial, moral, and
honest discharge of City responsibilities. Sec. 2.03.490, BMC.
42. Per Section 12.02.050, BMC, the Bozeman City Commission has expressly delegated
administrative authority to the Community Development Director to "promulgate and enforce all reasonable
rules and regulations necessary to the operation and enforcement of this chapter." As a check on this
agency's authority, such promulgated rules are "subject to commission review and modification." Section
12.02.050, BMC.
43. On December 14, 2021, the City Commission heard Mr. Zyvoloski's appeal and directly
considered the procedural propriety of the promulgation of Administrative Rule 2021-01. A 5-0 vote of the
City Commission upheld the adoption of Administrative Rule 2021-01. The City properly exercised its right
to review the rule.
44. Furthermore, the facts presented demonstrate that the general application of the
administrative rule, promulgated to impose a new requirement sought by Mr. Zyvoloski, suggests that the
rule was impartially developed to apply to a broad range of future daycare applicants, not just the subject
applicant here.
45. Mr. Zyvoloski failed to present evidence that City employees, in particular Assistant City
Attorney Rischke, assisted the daycare with applying for a business license in a dishonest manner outside
the normal range of interactions with any potential applicant for a City license.
46. Nor did Mr. Zyvoloski offer evidence beyond speculation that the City Attorney's office
delayed consideration of his second appeal to disadvantage his presentation. The record of the December
14, 2021, hearing demonstrates that Mr. Zyvoloski and his counsel were allowed to fully present the same
substantive arguments that motivated his licensure complaint from the beginning.
47. Mr. Zyvoloski also fails to demonstrate that the City's actions in promulgating the
administrative rule, assisting with the daycare's license, dismissing the first appeal, or scheduling the second
appeal were unfair, partial, immoral, or dishonest.
48. Mr. Zyvoloski fails to allege facts sufficient to demonstrate that City employees deviated from
the "standards of conduct" found at Section 2.03.490, BMC, and such claims should be dismissed pursuant
to Sec. 2.03.640(M)(1)(a), BMC.
6
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August 11, 2022
Via e-mail and U.S. Mail
City of Bozeman Board of Ethics
c/o Office of the City Clerk, Mike Mass
121 N. Rouse, Suite 201
Bozeman, MT 59771
RE: City of Bozeman-Official Request to the Board of Ethics to Issue a Formal Opinion
Dear Bozeman Board of Ethics:
Per BMC § 2.03.610 this letter serves as an official request to the Board of Ethics to issue a formal
opinion regarding the matter detailed below.
Under Montana law, there are only two lawful reasons for a closed meeting (MCA 2-3-203).
1. Litigation-Discuss a lawsuit against the city/town
2. Issue of Privacy-The individual must waive the right to privacy if he/she wants the issue
discussed at an open If the individual waives their right to privacy, the meeting must be open to
the public.
Specifically, I'm asking the Board of Ethics to determine if it is ethically improper for the Mayor of
Bozeman to initiate a closed meeting to influence a forthcoming vote by the City Commissioners, by
stating the purpose "Issue of Privacy" with a quorum of City Commissioners and then moving on to
discussing non-related topics with regards to a forthcoming vote that was not within the scope of the
statutorily authorized purpose for which the closed meeting was initially called?
Per the stated question please provide a discussion regarding the influenced vote outlined above and
cite where the actions of the Mayor and or City Commissioners would be in violation of the Bozeman
Code of Ethics or the Montana Code of Ethics.
The actions above are a violation of the Montana Constitution, but the purpose of this formal opinion to
the Borad of Ethics is to determine if influencing a forthcoming vote under the circumstances stated
above would violate the Bozeman Code of Ethics or the Montana Code of Ethics.
If the Board of Ethics determines that the Mayor's actions are ethically improper, what recourse would a
citizen affected by the influenced vote have to correct the actions that were a result of the vote?
Thank you for your time and consideration regarding this important community issue. Please respond on
or before September 15th, 2022 to danzyvo@hotmail.com and by mailing a copy to my address below.
Respectfully,
{:?a;e, Jr~~;
Daniel Zyvoloski
2108 Highland Ct.
Bozeman, MT 59715
Page 1
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As I and Assistant City Attorney Kelley Rischke were named in Mr. Zyvoloski's ethics complaint,
I contacted Jordan Crosby and she will be advising you in evaluating Mr. Zyvoloski's August I I,
2021 letter.
On behalf of the City I provide the following to give background on the December 14,2021 closed
session. Under Montana law, a meeting of the City Commission may be closed to discuss matters
related to individual privacy when the demands of individual privacy clearly exceed the merits of -Jv
public disclosure. See Sect. 2-3-203, MCA. A meeting may be closed by the "presiding officer."
On December 14, 2021, dming open session of the City Commission, City Manager Mihelich
asse1ted his pdvacy interests in his performance evaluation. Immediately thereafter, Mayor
Andrus, as the presiding officer of the Commission, made a fmding pursuant to the statutory
requirement that Mr. Mihelich's privacy interests clearly exceeded the merits of public disclosure
and ordered the session to be closed.
Pursuant to the City Manager's employment contract, the City conducts an annual perfonnance
evaluation of the city manager "no later than December 1 of each year." Due to scheduling and
workload conflicts, this annual performance evaluation was scheduled for December 14, 2021. It
was nothing more than coincidence Mr. Mihelich's evaluation was scheduled for the same night
as the Bibs to Books Playhouse business license appeal.
As the City Commission was conducting its meetings tlu·ough remote participation only, the
general city commission meeting on December 14, 2021 was conducted through WebEx. As the
meeting began, numerous employees, including myself, were in attendance. To ensure Mr.
Mihelich's privacy interests were honored, the City Commission used a second remote platform
to conduct the petfmmance evaluation. In attendance at the closed meeting were Mayor Andrus,
Deputy Mayor Terry Cunninghan1, Commissioner Pomeroy, Commissioner Madgic, and
Commission Coburn along with City Manager Mihelich and Deputy City Clerk DiTomasso.
Neither I nor Ms. Rischke were present during the closed session.
The attached affidavit of Mr. Mihelich clearly demonstrates that at no time during the performance
evaluation were any issues other than Mr. Mihelich's performance discussed, including, any
discussion related to the Bibs to Books Playhouse appeal. In addition, I have asked all other
participants in the closed session if anything related to the Bibs to Books Playhouse appeal were
discussed. All have unequivocally denied that any discussions related to the Bibs to Books
Playhouse were discussed during the city manager's performance evaluation
Jordan Crosby will soon be in contact with you.
Pagel of2
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AFFIDAVIT OF JEFF MIHELICH
I, Jeff Mihelich, affirm and say:
1. I am of legal age and a resident of Gallatin County, Montana. I am competent to
testify to the tmth of the following facts based upon my personal knowledge.
2. I am currently employed by the City of Bozeman as the Bozeman City Manager.
3. I spent 30 years in various roles in local government throughout the United States
Prior to joining the City of Bozeman.
4. I was hired by the Bozeman City Commission as the City Manager for the city of
Bozeman pursuant to an Employment Agreement dated Aplil20, 2020.
5. The Employment Agreement requires the City to conduct my annual performance
evaluation no later than December 1st of each year.
6. Sometime in late November of early December of2021 Mayor Cindy Andrus and
I scheduled my performance evaluation to be held before the City Commission on December 14,
2021. The scheduling of this meeting was in no way influenced by factors related to the Bibs to
Books Playhouse appeal.
7. I understand that under Montana law a meeting of the City Commission may be
closed to discuss matters of individual privacy if a person's asserted privacy interests clearly
exceed the merits of public disclosure.
8. At the December 14, 2021 meeting, Mayor Andrus inquired as to whether I was
asserting privacy interests related to my evaluation. I respond affhmatively. Mayor Andrus, as
presiding officer of the City Commission, made the required finding and closed the meeting.
AFFIDAVIT OF JEFF MIHELICH Page 1 37
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Page 1
Records Request Form
We would be happy to help you with a records request related to city administration or city governance.
NOTICE: No new document will be created to respond to an information request. See Sect. 2-6-1006(4}, MCA. Applicable
information may be made available for requester to compile his/her own data subject to law, including the legal
restrictions regarding creation of mailing lists from public records. See See Sect. 2-6-1017, MCA.
This form is NOT intended for requesting information regarding court cases, marriage licenses, divorce records, birth or
death records, police records, etc. DO NOT USE THIS FORM. Please see information above on how to request these
records.
First Name
Last Name
Organization/Company
Street Address
Mailing Address
City
State
ZIP Code
Email Address
Phone Number
Records Requested
December 17, 2021
City of Bozeman
cjo City Clerk
121 N Rouse, Suite 201
Bozeman, MT 59715
Daniel
Zyvoloski
Not answered
2108 Highland Ct.
Not answered
Bozeman
Montana
59715
Danzvvo@hotmail.com
(406} 570-2716
Submitted December 17, 2021,
(via the Bozeman City Clerk's Online Records Request Form)
Bozeman City Clerk,
Under the Montana Public Records Act, and pursuant to Article II, section 9 of the Montana Constitution, and specifically
MCA 2-6-1003, I am hereby requesting information that relates to the City Commissioners' Executive Session held on
December 14th, 2021, directly before the City Commission's scheduled public meeting.
Per Bozeman City Code Sec. 2.02.130(B)(3} (Executive session minutes) and Sec 2.02.110(A} (Open Meetings and email} as
excerpted below:
"Except for properly called executive session as permitted by state law, all meetings of the city commission shall be open to
the public and media, freely subject to recording by radio, television and photography at any time, provided that such
arrangements do not interfere with the orderly conduct of the meetings."
In accordance with the above legal requirements, please provide: (i) a Web Ex video recording of the Executive Session at
your earliest convenience. Specifically, we are asking for any Web Ex video or minutes held during the executive session that
relates to the Action Item on the Agenda titled "Appeal of Issuance of Business License 21-69197 to Bibs to Books
Playhouse."; and (ii} the minutes as prepared by the City Clerk and approved by the City Commission once available, all for
the Executive Session "City Manager Annual Performance Evaluation" held on December 14, 2021.
The Mayor closed the meeting and went into Executive Session per a memorandum dated December 14, 2021, with the
Subject: City Manager Annual Performance Evaluation. Pursuant to MCA Sec. 2.3-203(3}:
"The presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual
privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the
2
41
merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion
pertains, and, in that event, the meeting must be open."
Any matter relating to the individual privacy concerning the City Manager's Performance Evaluation may be redacted in
accordance with this statute and its applicable exemption. As the City Managers' Performance Evaluation does not concern
the City Attorney's Office, we respectfully reject the impression that any attorney/client privileged information was
produced.
Any and all other information pertaining to this Executive Session is subject MCA Sec 2-3-203(2) which provides :
"All meetings of associations that are composed of public or governmental bodies referred to in subsection (1) and that
regulate the rights, duties, or privileges of any individual must be open to the public."
If there are any fees for searching, redacting, or copying these records or Web Ex video recordings, please inform me if the
cost will exceed $500.
This information is not being sought for commercial purposes.
If access to the information that I am requesting will take the City longer than 25 days to provide, please contact me with an
estimated date by which I will receive recordings and copies of minutes for the subject Executive Session or be provide with
an opportunity to inspect and review these requested public records in person.
If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the
information and notify me of the appeal procedures available to me under the law.
Thank you in advance for processing my public information request.
Sincerely,
Daniel Zyvoloski
406-570-2716
Daniel Zyvoloski
2108 Highland Ct.
Bozeman, MT 59715
By submitting this request, I hereby make application for inspection and/or copying of the following public records of the
City of Bozeman, Montana and acknowledge that I have read and agree to Resolution No. 4446, and approve and agree
to pay the fees associated with this request.
(o) Agree
I prefer to receive my request through:
(o) Email
Thank you,
City Of Bozeman
This is an automated message generated by Granicus. Please do not reply directly to this email.
3
42
Bozeman City Commission
December 14, 2021
Executive Session
4:45pm -Mayor Andrus introduced the Executive Session.
4:53pm Commission Pomeroy Joins
43
44
5:20pm--
5:20pm--
5:23pm
45
46
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BOZEMAN MT
THE CITY COMMISSION OF BOZEMAN, MONTANA
SPECIAL MEETING AGENDA
Tuesday, December 14, 2021
This meeting will be held using Webex, an online videoconferencing system. You can join this meeting:
Via Webex:
https:/ /cityofbozeman. webex.com/cityofbozeman/onstage/g.php?
MTID=e0422bf46c57332a23fd8bd8e290c6d2a
Click the Register link, enter the required information, and click submit.
Click Join Now to enter the meeting.
Via Phone: This is for listening only if you cannot watch the stream or channel190
United States Toll
+1-650-479-3208
Access code: 2556 605 1717
If you are interested in commenting in writing on items on the agenda please send an email to
agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting
the Commission's comment page.
You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you
please be patient in helping us work through this online meeting.
If you are not able to join the Webex meeting and would like to provide oral comment you may send a
request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and
the City Clerk will call you during the meeting to provide comment. You may also send the above
information via text to 406-224-3967. As always, the meeting will be streamed through the
Commission's video page (click the Streaming Live in the drop down menu) and available in the City on
cable channel190.
A. Call to Order -4:30 PM -WebEx Videoconference
B. Executive Session
The Mayor may close the meeting to the public pursuant to Sect. 2-3-203{3}, MCA, during the
time discussion relates to a matter of individual privacy if and only if the Mayor
determines the demands of individual privacy clearly exceed the merits of public disclosure.
The right of individual privacy may be waived by the individual about whom the discussion
pertains and, in that event, the meeting must be open.
8.1 City Manager Annual Performance Evaluation
C. Pledge of Allegiance and a Moment of Silence
D. Changes to the Agenda
48
E. FYI
F. Commission Disclosures
G. Consent
G.l Accounts Payable Claims Review and Approval (Tonkovich)
G.2 Authorize the City Manager to Sign a Letter of Agreement Accepting a Donation in the
Amount of $41,750 from the Library Foundation for Service Order 2 and Pre-Construction
Services for the Bozeman Public Library Expansion( Henderson)
G.3 Authorize the City Manager to Sign an lnterlocal Agreement with Riverside Water and Sewe r
District( Cooper)
G.4 Riverside Annexation, Acknowledge Receipt of Petition for Annexation of the Riverside
Manor Subdivision, Riverside Greens Subdivision, and Tracts 1-3 of Certificate of Survey
3030, Approximately 57.5 Acres Located on Gallatin Drive, Park Plaza Road, Riverside Drive,
Elaine Lane, and Springhill Road, Including 125 Residential Bui ldings and 4 Commercial
Buildings, Application 21426(Saunders)
G.5 Authorize the City Manager to Sign a Change Order 1 with CK May for the Griffin Drive and
Manley Road Street and Stormwater Improvements Project( Lonsdale)
G.6 Authorize the City Manager to Sign a Task Order 4 for Economic and Planning Systems, Inc
(EPS)-Update to the 2016 Economic Development Strategy( Fontenot)
G.7 Ordinance 2095, Provisional Adoption to Rezone 3.4 Acres from B-2, Community Business
District to B-2M, Community Business District-Mixed, Application 21192, Property Located
on the Southeast Corner of South 19th Avenue and West Babcock Street( Rogers)
H. Public Comment
This is the time to comment on any matter falling within the scope of the Bozeman City
Commission. There will also be time in conjunction with each agenda item for public comment
relating to that item but you may only speak once. Please note, the City Commission cannot take
action on any item which does not appear on the agenda. All persons addressing the City
Commission shall speak in a civil and courteous manner and members of the audience shall be
respectful of others. Please state your name and address in an audible tone of voice for the record
and limit your comments to three minutes.
I. Action Item
1.1 Appeal of Issuance of Business License #21-69197 to Bibs to Books Playhouse (Rischke)
1.2 Resolution 5353 Allocation Of Cash-ln-Lieu Of Parkland Funds For Acquisition Of Land
Adjacent To Burke Park And Authorizing The City Manager And City Attorney To Take All
Steps Necessary To Purchase The Land Associated With The Burke Park/Peets Hill Expansion
And Improvement Project(Jadin)
1.3 Resolution 5359 Adoption of the Capital Improvement Plan (CIP) for Fiscal Years 2023-
49
2027(Rosenberry)
J. FYI I Discussion
K. Adjournment
City Commission meetings are open to all members of the public. If you have a disability that requires
assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 {TOO 582-2301}.
Commission meetings are televised live on cable channel190 and streamed live at www.bozeman.net.
City Commission meetings are re-aired on cable Channel190 Wednesday night at 4 p.m., Thursday at
noon, Friday at 10 a.m. and Sunday at 2 p.m.
In order for the City Commission to receive all relevant public comment in time for this City
Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no
later than 12:00 PM on the day of the meeting. Public comment may be made in person at the
meeting as well.
50
BOZEMAN MT
REPORT TO:
SUBJECT:
MEETING DATE:
AGENDA ITEM TYPE:
RECOMMENDATION:
Memorandum
City Commission
City Manager Annual Performance Evaluation
December 14, 2021
Administration
Discuss the City Manager Annual Performance Evaluation
The Mayor may close the meeting to the public pursuant to Sect. 2-3-203(3L
MCA, during the time discussion relates to a matter of individual privacy if
and only if the Mayor determines the demands of individual privacy clearly
exceed the merits of public disclosure. The right of individual privacy may be
waived by the individual about whom the discussion pertains and, in that
event, the meeting must be open.
51