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HomeMy WebLinkAboutFindings Conclusions 4.25.24 executed 1 THE BOARD OF ETHICS OF BOZEMAN, MONTANA FINDINGS AND CONCLUSIONS Daniel Carty’s March 8, 2024, 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 April 25, 2024, and pursuant to Bozeman Municipal Code (“BMC”) 2.06.640(M)(5), the Board makes the following findings and conclusions regarding Daniel Carty’s March 8, 2024, Ethics Complaint: 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 BMC 2.03.600(A)(3) and 2.03.640(E) & (M). 3. The Board’s authority as provided for in BMC 2.03.600 and 2.03.640 summarizes the procedures for review of complaints. 4. Among other reasons, the Board is empowered to dismiss a complaint if: a. The complaint does not allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or Montana Code of Ethics; or b. The board doesn’t have jurisdiction over the matter. See BMC 2.03.640(M)(1)(a) & (1)(b). 5. On March 8, 2024, Daniel Carty served a written Ethics Complaint (“Complaint”) against City Director of Community Development Anna Bentley. Mr. Carty asserts in his Complaint that Director Bentley exhibited unprofessional and unethical behavior in the leaked “City Manager-Director of Community Development (CM-DCD) video” (hereafter “leaked video”). Mr. Carty alleges three specific complaints regarding Director Bentley’s conduct on the leaked video: a. Director Bentley violated the City’s four core values of Integrity, Leadership, Service, and Teamwork as identified and described on page 3 of the City of Bozeman Ethics Handbook; b. Director Bentley violated the following two Standards of Conduct, as listed on page 6 of the City of Bozeman Ethics Handbook: DocuSign Envelope ID: 46A5941D-FE7A-4429-B636-9A038810CA37 2 i. “‘Act morally and honestly in discharging their responsibilities’” and ii. ‘”Discharge their duties impartially and fairly.’”; c. Director Bentley violated “the spirit and intent … of City of Bozeman Ethics Handbook, Section 7” regarding employees’ use of city resources, particularly equipment, for personal gain. 6. Mr. Carty requests that if the Board finds that Director Bentley violated the Bozeman Code of Ethics her employment with the City be terminated. 7. On March 22, 2024, Director Bentley, through her counsel Amy Christensen, submitted a response to Mr. Carty’s Complaint. In her response, Director Bentley: a. Argues Mr. Carty’s Complaint’s fails to identify or explain how her conduct on the leaked video violates the Code of Ethics; b. Asserts that while the Ethics Handbook lists core values, such values are not included in the Code of Ethics or state law, and asserts that an alleged violation of the core values cannot serve as the basis for an ethics complaint; c. Disputes that she violated any of the core values in the January 17 meeting; d. Denies that she violated the Bozeman Code of Ethics standards of conduct; and e. Denies she used City resources for personal use in violation of the Bozeman Code of Ethics. 8. Director Bentley requests the Board dismiss Mr. Carty’s Complaint for failure to allege sufficient facts to constitute a violation pursuant to BMC 2.03.640(M)(1)(a). Or in the alternative, if dismissal is not granted, Director Bentley requests the Board find that no violation of the Bozeman Code of Ethics occurred pursuant to BMC 2.03.640(M)(2). 9. On April 8, 2024, pursuant to BMC 2.03.640(D), 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: a. Decline to further review or make findings as to whether there was a violation of the City’s core values and pursuant to BMC 2.03.640(M)(1)(b) dismiss Mr. Carty’s first complaint as moot for lack of jurisdiction. Or in the alternative, Ms. Crosby recommend the Board vote to dismiss Complaint 1 because it does not allege facts sufficient to constitute a violation of the Code of Ethics (BMC 2.03.640(M)(1)(a)) or because the Complaint is defective in a manner which results in the board being unable to make any sound determination (BMC 2.03.640(M)(1)(d)); DocuSign Envelope ID: 46A5941D-FE7A-4429-B636-9A038810CA37 3 b. Dismiss Complaint 2 pursuant to BMC 2.03.640(M)(1)(a), because Mr. Carty’s Complaint does not allege facts sufficient to constitute a violation of BMC 2.03.490(A) or BMC 2.03.490(B) of the Bozeman Code of Ethics; and c. Dismiss Complaint 3 pursuant to BMC 2.03.640(M)(1)(a), because the Complaint does not allege facts sufficient to support a violation by Director Bentley of BMC 2.03.500. 10. The Board held a public meeting on April 25, 2024, at 8:00 a.m., to address Mr. Carty’s Ethics Complaint, Director Bentley’s response, and legal 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. Questions were asked by the Board to the participants and legal counsel and public comment was taken. VIOLATION OF CITY CORE VALUES 11. Montana law and Bozeman code define the jurisdiction and authority of the Board, limiting the Board’s jurisdiction to hearing complaints regarding alleged violation(s) of the Bozeman Code of Ethics (Part 1, Chapter 2, Article 3, Division 4) and/or the Montana Code of Ethics (Title 2, chapter 2, part 1 of Montana Code Annotated). See § 2-2-144(5)(a), MCA; BMC 2.03.600(A)(3) and 2.03.640(E). 12. Mr. Carty’s Complaint asserts that the leaked video demonstrates Director Bentley violated the City’s four core values of integrity, leadership, service, and teamwork. 13. The City Commission, via Resolution No. 3832, adopted the four stated core values on August 8, 2005. 14. The four core values are not ethical standards included within the Bozeman Code of Ethics. Nor does Resolution 3832 indicate an intent by the City Commission to include the core values in the Bozeman Code of Ethics. 15. Since the adoption of Resolution 3832, the Bozeman Code of Ethics has been amended five times by the City Commission. See Ord. No. 1726 (11/26/07); Ord. No. 1759 (5/11/09); Ord. No. 1775 (12/28/09); Ord. No. 1856 (5/22/13); and Ord. No. 2092 (11/16/21). 16. The Board presumes that the City Commission was aware of these core values during each amendment and could have, but did not, exercise its legislative authority to formally adopt and incorporate such core values within the Code of Ethics and the Board’s jurisdiction. 17. Because the City Commission has not adopted or incorporated the City’s four core values within the Bozeman Code of Ethics and the Board’s jurisdiction, it would be improper for the Board to consider them at this time. 18. Additionally, while the City’s four core values are referenced in the City of Bozeman Ethics Handbook, the Handbook specifically includes the following disclaimer directly below such reference: DocuSign Envelope ID: 46A5941D-FE7A-4429-B636-9A038810CA37 4 Ethics Handbook (7/12/10), p. 3. 19. Because the Board lacks the ability to provide relief related to the alleged violation of the City’s four core values, any decision on Mr. Carty’s Complaint would be merely advisory. 20. While the Board is allowed to render advisory opinions, it is only able to do so regarding matters “within the scope of the board’s authority” and “regarding the propriety of any matter or matters to which the person is or may become a party”. See BMC 2.03.600(B)(3), 2.03.610(A). 21. Issuing an advisory opinion regarding Mr. Carty’s ethical complaint related to the City’s four core values would require the Board to act beyond the scope of its responsibilities and its jurisdiction, and thus would be improper. 22. Accordingly, pursuant to BCM 2.03.640(M)(1)(b), Mr. Carty’s Complaint that Director Bentley violated the City’s four core values during her participation in the January 17 meeting on the leaked video shall be dismissed for lack of jurisdiction over the matter. VIOLATIONS OF STANDARDS OF CONDUCT 23. Mr. Carty’s Complaint asserts that Director Bentley violated BMC 2.03.490(A) and (B) during the January 17 leaked video because she failed to discharge her responsibilities as Director of Community Development morally, honestly, impartially, and fairly. 24. Pursuant to BMC 2.03.490(A) and (B), City employees “have an obligation to act morally and honestly in discharging their responsibilities” and “shall conduct themselves with propriety, discharge their duties impartially and fairly, and make continuing efforts toward attaining and maintain high standards of conduct.” 25. The purpose of the Montana Code of Ethics is to prohibit “conflict between public duty and private interest”. See § 2-2-101, MCA. 26. The Bozeman Code of Ethics similarly adopts this purpose noting that the code of ethics’ purpose is “to prohibit conflict between public duty and private interest.” See BMC 2.03.460. 27. Mr. Carty’s written complaint and his statements at the April 25, 2024, meeting failed to provide a factual basis or establish for the Board how Director Bentley’s conduct on the leaked video, while in the discharge of her duties as Director of Community Development, were impartial or unfair. Nor did Mr. Carty demonstrate how Director Bentley on the January 17 leaked video acted in a way which demonstrated a conflict between her public duty and private interest. DocuSign Envelope ID: 46A5941D-FE7A-4429-B636-9A038810CA37 5 28. It would be improper for the Board to review behavior on the video in a subjective way and/or make assumptions about why Director Bentley acted in a certain way. Stated differently, it is inappropriate for the Board to discern whether a person is being honest or acting morally based on subjective observations. The Board is unwilling in this instance to extrapolate that a person’s behavior is an ethical violation merely through observed facial expressions and gestures. 29. Accordingly, pursuant to BCM 2.03.640(M)(1)(a), Mr. Carty’s Complaint that Director Bentley violated the Bozeman City Code of Ethics standards of conduct found in BMC 2.03.490(A) and/or (B) shall be dismissed because the Complaint does not allege facts sufficient to constitute a violation of the Bozeman Code of Ethics pursuant to BMC 2.03.640(M)(1)(a). USE OF CITY RESOURCES FOR PERSONAL GAIN 30. Mr. Carty alleges that Director Bentley’s participation in the conversation with former City Manager Jeff Mihelich on January 17, 2024, in which disparaging comments were made about other City employees, City officials, and the public, was in violation of BMC 2.03.500. He claims Director Bentley and former City Manager Mihelich were conducting City business during the meeting by discussing a future City meeting on City-issued electronic devices while on City time. 31. BMC 2.03.500 provides in pertinent part that: “[n]o official or employee shall use, or permit the use of, city-owned vehicles, equipment, material, or city personnel for personal use of the employee or official or anyone else or to be used in any manner prohibited by state statutes or city ordinance….” 32. “Personal use” is not defined in the Bozeman Municipal Code, however, it is commonly known to refer to use of an item not for City purposes, but for individual or personal enjoyment. 33. In the leaked video, Director Bentley is remotely appearing for the meeting via her City- owned computer. 34. A plain and unambiguous reading of BMC 2.03.500 indicates that the intent of this standard is to preclude City officials or employees from using City-owned property, including vehicles or equipment, for their own personal benefit. An illustrative example of this unethical conduct is an employee’s use of a City owned vehicle to run personal errands over a lunch break. 35. Mr. Carty’s Complaint and presentation at the April 25, 2024, meeting did not substantiate, however, how Director Bentley’s use of her work computer during work time on January 17 was for Director Bentley’s personal use, personal enjoyment, or personal gain. 36. Accordingly, pursuant to BCM 2.03.640(M)(1)(a), Mr. Carty’s Complaint that Director Bentley violated the Bozeman City Code of Ethics by using City-issued electronic devices for personal gain shall be dismissed because the Complaint does not allege facts sufficient to constitute a violation of BMC 2.03.500. DocuSign Envelope ID: 46A5941D-FE7A-4429-B636-9A038810CA37 6 CONCLUSION 37. For the reasons stated herein, and the oral findings entered into the record by the Board at the public meeting on April 25, 2024, the Board accordingly dismisses the entirety of Mr. Carty’s March 8, 2024, Ethics Complaint pursuant to BMC 2.03.640(M)(1)(a) and (1)(b) with prejudice. DATED this _____ day of May, 2024. Board of Ethics: ___________________________________ ____________________________________ Chairperson Sara Rushing Board Member Kristin Taylor ____________________________________ Board Member Mark Bond DocuSign Envelope ID: 46A5941D-FE7A-4429-B636-9A038810CA37 30th