HomeMy WebLinkAbout14-01 Ethics Opinion for Krauss re Campus Crest 2 24 14TO:
DATE:
City of Bozeman
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Formal Ethics Opinion 2014 -01
Jeff Krauss, Mayor
February 24, 2014
Greg Sullivan, City Attorney
Tim Cooper, Assistant City Attorney
J. Cory Allen, Chief Prosecutor
Kyla Murray, Prosecutor
Ryan McCarty, Prosecutor
Anna Saverud, Prosecutor
RE: Conflict of Interest re: Campus Crest Zone Map Amendment
QUESTION
You asked whether several issues related to your employment by the Museum of the Rockies and
your membership on the Montana Board of Regents creates a conflict of interest under the City
of Bozeman's Code of Ethics or under Montana law that would require you to recuse yourself
from participation in the public hearing and decision on the Campus Crest zone map amendment
on the City Commission's action agenda for Monday, February 24, 2014. You also asked
whether the current review of a Preliminary Site Plan application by the Department of
Community Development affects my response.
Specifically, you asked me to review the following:
1. Whether your employment by the Museum creates a conflict of interest in the
Commission's decision in the zone map amendment or preliminary site plan;
2. Whether your membership on the Montana Board of Regents creates a conflict of interest
in the Commission's decision on the zone map amendment or preliminary site plan; and
3. Whether the possibility of the Museum and/or MSU granting an easement for sewer
services to the City or Campus Crest Development, LLC across Museum or MSU
property for financial remuneration creates a conflict of interest in the Commission's
decision on the zone map amendment or preliminary site plan.
ANSWER
Your employment by the Museum of the Rockies and your position as a Regent for the Montana
University System does not create a conflict of interest under the City of Bozeman's Code of
Ethics or under state law that would disqualify you from participation in the decision on a zone
map amendment for Campus Crest Development, LLC. My response does not change because a
concurrent application for Preliminary Site Plan has been submitted to the Department of
Street Address: 121 North Rouse Page 1 of 9 Phone: (406) 582 -2309
Mailing Address: P.O. Box 1230 Fax: (406) 582 -2302
Bozeman, Montana 59771 -1230 TDD: (406) 582 -2301
Community Development. A development proposal for student housing that is not directly
related to the Museum, Montana State University, or the University System does not, on its own,
create a conflict as any benefit that would arise to the Museum or Montana State University from
the zone map amendment or the development of the Campus Crest project is sufficiently
attenuated so as to not create a direct conflict of interest. In addition, the purported interest in
providing additional off campus housing for Montana State University students is an interest that
appears to be common to many within the community and not just those affiliated with Montana
State University.
In addition, based on the current facts as represented by you, the mere possibility of the Museum
granting the City a sewer easement for sewer service to Campus Crest for possible financial
remuneration does not rise to a conflict of interest requiring recusal.
You provided me the following:
1. You are employed as the Museum of the Rockies' Director of Finance and
Administration. You are an employee of the Montana State University (MSU). You
stated your salary is paid, in part, by money transferred from the Museum to MSU.
2. You were appointed to the Montana Board of Regents by Governor Schweitzer. Your
term expires February 1, 2015.
3. The Museum of the Rockies (Museum) is both a college -level division of MSU and an
independent 501(c)(3) nonprofit institution.
4. You are currently the Mayor of the City of Bozeman.
5. You have no ownership interest, contractual relationship, business relationship, or other
relationship or other interest which will result in a monetary or other material benefit to
you, either tangibly or intangibly, which has a value of more than $15.00, with Campus
Crest Development, LLC, Madison Engineering, LLC, or Bon Ton Partners, LLC or any
of their members and, except for the possibility of granting a sewer easement for the City
as described below, neither does your employer.
6. Neither your spouse or any of your children have any ownership interest, contractual
relationship, business relationship, or other interest which will result in a monetary or
other material benefit to an official or employee, either tangibly or intangibly, which has
a value of more than $15.00 with Campus Crest Development, LLC, Madison
Engineering, LLC, or Bon Ton Partners, LLC or any of their members.
7. Neither MSU, the Museum, nor the Board of Regents is directly affiliated at this time
with the applicant, the landowner, or any agent of the applicant or landowner.
8. You indicated that Campus Crest Development, LLC approached representatives of the
Museum's Board of Directors with the possibility of obtaining right of way for a sewer
line in a location along the Galligator Trail on property that is owned by the Museum.
Page 2 of 9
You stated you attended a meeting on this topic along with your supervisor with
representatives of Campus Crest Development, LLC and representatives from the
Museum's Board of Trustees. You stated a determination on whether to grant the right of
way is up to an executive committee of the Museum's Board of Trustees. At this time,
you stated you know of no financial offer from the City or Campus Crest Development,
LLC regarding this sewer right of way.
9. You received an email from Craig Brawner, former Bozeman City Engineer and current
resident of a neighborhood adjacent to the subject property, on February 19u' alleging you
have a statutory conflict of interest because "the subject ZMA and subsequent proposed
MSU college student housing project are of particular and direct interest to MSU and the
University System." Mr. Brawner's email is attached.
In addition to the above, I note the following:
1. On Monday, February 24a', the City Commission will consider a zone map amendment
application from Campus Crest Development, LLC. The property subject to the
application is owned by Bon Ton Partners, LLC. Campus Crest Development, LLC, has
retained Madison Engineering, LLC to represent its interests before the City of Bozeman.
2. The City of Bozeman received an application for Preliminary Site Plan for Campus Crest
Development, LLC which is currently in review by the Department of Community
Development and is dependent upon approval of the zone map amendment.
3. The City Commission may by an affirmative simple majority vote of its members reclaim
to itself authority to approve applications for preliminary site plan pursuant to
38.34.010.B.2, BMC if the decision to reclaim is made prior to a final decision by the
Director of Community Development.
4. I was copied on an email from Rick Meis to Montana Governor Steve Bullock dated
Friday, February 21, 2014 positing the debate over the zone map amendment request has
turned into a debate over the need for student housing and that you, in your role as a
Regent for the Montana University System, are "expected to do whatever [you] can [to]
benefit the University." Mr. Meis' email is attached.
5. I also received the email from Craig Brawner. Mr. Brawner requests you recuse yourself.
He did not specifically request a formal opinion as you have done.
6. The Montana Board of Regents does not have regulatory jurisdiction over a zone map
amendment in the City of Bozeman nor does it have jurisdiction over a preliminary site
plan approval.
As you know, Section 7(a) of the Bozeman City Charter prohibits the use of public office for
private gain. The Charter requires that the Bozeman City Commission implement this restriction
through the adoption of ordinances. The Commission has done so through the City's Code of
Ethics. Chapter 2, Article 3, Division 4, BMC.
Page 3 of 9
Likewise, Article XIII, Section 4 of the Montana Constitution requires the Montana Legislature
"provide a code of ethics prohibiting conflict between public duty and private interest for (... ) all
( ... ) local officers ( ... )." The Montana Legislature has adopted Title 2, Chpt. 2, Part 1, MCA.
Generally, "public confidence requires that municipal officials avoid conflicting interests that
convey the perception that a personal rather than the public interest might affect decision - making
on matters of concern. Officials must be free of even the potential for entangling interests that
will erode public trust in government actions. Thus, it is the Potential for conflict, rather than
Proof of an actual conflict or of actual dishonesty, that commands a public official to disqualify
himself from acting on a matter of public interest." McQuillan Law of Municipal Corporations §
12:173.22. Conflicts of interest (2012) (emphasis added).
In addition, "the general rule is that there should be strict enforcement of conflict of interest
statutes so as to provide a strong disincentive for officers who might be tempted to take personal
advantage of their public offices. The test for disqualification is fact - sensitive and depends on
whether, under the circumstances, a particular interest had the likely capacity to tempt the
official to depart from his sworn public duty." Id.
The City's Code of Ethics implements these general principles and addresses conflicts of interest
and generally requires that "no official ( ... ) shall engage in any employment ( ... ) which conflicts
with the proper discharge of such official['s] duties." 2.03.520.A, BMC. In addition, the Code of
Ethics specifically prohibits an official from having a financial or personal interest in any
transaction) with the city as to which such official or employee has the power to take or
influence official action. 2.03.520.B. BMC 2
'2.03.470.A.12, BMC defines "Transaction" as "the offer of, or the sale, purchase, or furnishing of, any real or personal property or services, by
or to any person or entity directly or indirectly, as vendor or vendee, prime contractor, subcontractor, or otherwise, for the use and benefit of the
city or of such other person or entity for a valuable consideration"
'See. 2.03520, BMC. - Conflict of interest.
A. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising their own individual legal
rights as to their own personal interests in a transaction or matter pending before the city or any of its agencies, or to prohibit an official or
employee from testifying as a witness in any administrative orjudicial proceeding. However, no official or employee who represents their own
personal interest before an agency of which they are a member or employee, or a member or employee of an agency to which the matter may be
appealed, shall participate in the decision of that agency or the appellate agency.
B. No official or employee shall engage in any employment or business which conflicts with the proper discharge of such official or
employee's duties.
C. No official or employee shall take or influence official action if the official or employee has a financial or personal interest in a
transaction or matter with the city.
D. If an official or employee has a financial or personal interest in the outcome of a transaction or matter coming before the agency of
which they are a member or by which they are employed, such official or employee shall:
1. Publicly disclose on the record of the agency, or to their superior or other appropriate authority, the existence of such financial or
personal interest and
2. Except as authorized pursuant to 2.03.520.A and G, shall not engage in deliberations concerning the matter or transaction, shall be
disqualified from acting on the matte or transaction and shall not communicate about such matter or transaction with any person who will
participate in an action to be taken on such matte or transaction.
E. No employee, whether paid or unpaid shall represent or appear on behalf of any individual or entity before any agency of the city, or
take any appellate proceedings from any action of such agency, either personally or through an associate or partner.
F. No official whether paid or unpaid, shall represent or appear on behalf of any individual or entity in transaction or matte of concern to
the agency on which that official serves, either before that agency or any other agency of the city, or before the city commission, or take any
appellate proceedings from any action of such agency or the commission. Such representation may be made by the official's associate or partner,
Page 4 of 9
Section 2.03.470.A.10, BMC, defines personal interest 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.
Section 2.03.470.A.6, BMC, defines financial interest as:
any ownership interest, contractual relationship, business relationship, or other interest which will result in
a monetary or other material benefit to an official or employee, either tangibly or intangibly, which has a
value of more than $15.00, other than the official or employee's duly authorized salary or compensation for
the official or employee's services to the city, and which interest is not common to the interest of all other
citizens of the city. The following financial interest shall be imputed to be those of an official or an
employee of the city: that of a spouse or child of an official or employee; that of any prime contractor or
subcontractor of the city, in which the official or employee or any member of the official or employee's
immediate family has any direct or indirect interest as the proprietor, by ownership of stock or partnership
interest.
As for a personal interest, I first note that while you are the Director of Finance and
Administration for the Museum you are an employee of MSU. The question here is whether your
position with the Museum and employment by MSU and your position on the Board of Regents
in consideration of the possible benefit to MSU and the University System from the development
by Campus Crest Development, LLC of additional off campus student rises to the level of an
interest in the zone map amendment or possible hearing on a preliminary site plan so as to affect
your actions as Mayor thus requiring your disqualification. From what you have told me, neither
the Museum, MSU, nor the University System is directly affiliated with the applicant (Campus
Crest Development, LLC), the owner of the real property (Bon Ton Partners, LLC) or the
applicant's representative (Madison Engineering, LLC).
It is possible the development of additional off - campus student housing will benefit the Museum,
MSU, and the University System; however, from the facts before me I believe any such interest
provided no reference to the participation of the involved official is made except for certification or other required identification on prepared
documents. The involved official shall not engage in deliberations concerning a transaction or matter represented by an associate or partner, shall
disqualify himself/herself from acting on the transaction or matter, and shall not communicate about such matter with any person who will
participate in the action to be taken on such transaction or matter.
G. A city commissioner or mayor, as authorized pursuant to 2- 2- 121(10), MCA, may take action despite a conflict of interest described in
this section if that commissioner's or mayor's participation is necessary for the city commission to obtain a quorum or to otherwise enable the city
commission to act. If so, the commissioner or mayor shall disclose the interest creating the conflict prior to performing the official act.
H. This section does not absolve any official or employee from complying with Title 2, Chapter 2, MCA. If any provision of this section
is in conflict with Title 2, Chapter 2, MCA the more stringent provision, the provision that requires greater disclosure, or the provision that
provides less authority to act in furtherance of a conflict, shall apply.
1. Any official or employee with a conflict of interest under this section shall, in addition to other requirements in this section and when
required by law, comply fully with the disclosure requirements of 2 -2 -131, MCA, and shall file this disclosure with the Montana Commissioner
of Political Practices prior to acting.
communicate about such matter with any person who will participate in the action to be taken on such matter.
Page 5 of 9
in off campus housing tailored for students of MSU is indirect and common to many within the
community. As such, I believe the interests of the Museum, MSU, and the Board of Regents in
additional off campus student housing, if any, is sufficiently attenuated from the zone map
amendment and possible review by the Commission of the preliminary site plan and sufficiently
common to others within the community so as to not rise to a personal interest requiring your
recusal from actions related to the Campus Crest zone map amendment or preliminary site plan.
See 38 Mont. Op. Atty. Gen. No. 79 276 (1980) citing 38 Op. Att'y Gen. No. 55 (1979) (stating
courts have generally held monetary or proprietary interests to be the focus of conflict of interest
statutes as opposed to merely abstract interests).
As for financial interest, I first note you indicate that neither you, your spouse or children have
any ownership interest, contractual relationship, business relationship, or other interest with
Campus Crest Development, LLC, Madison Engineering, LLC, or Bon Ton Partners, LLC or any
of their members which will result in a monetary or other material benefit to you, either tangibly
or intangibly, which has a value of more than $15.00. As with my analysis of personal interest,
there is the possibility that additional off campus housing may benefit MSU and, indirectly, the
University System and the Museum. However, I believe this mere possibility does not rise to the
level of a financial interest. To require recusal from participation by a public official on a matter
where that public official's participation is required by law see Sect. 2.03, Bozeman City
Charter) a conflict of interest must be at a minimum a reasonable probability and must be more
than merely speculative. Section 1 -3 -221, MCA (That which does not appear to exist is to be
regarded as if it did not exist).
Next, I recognize Campus Crest, if developed, must connect its sewer service line to the sewer
main underneath Kagy Boulevard and to that end has approached the Museum regarding the
possibility of the Museum, for financial remuneration from Campus Crest, granting an easement
to the City for a sewer main across the Museum's property along the Galligator Trail. I also
understand that several options exist at this time for how Campus Crest will connect its sewer
service to the sewer main under Kagy Boulevard. You stated the decision whether to grant such a
sewer easement across Museum property will be made by the Museum's Board of Trustees and,
while you attended a preliminary meeting on the issue with representatives from the Museum
and from Campus Crest, you have not participated in any additional discussions on this issue and
you are not going to participate in any more discussions with Campus Crest or internally within
the Museum regarding the possible easement. I also understand the location of the installation of
a sewer line is within the authority of the City Engineer.
If your active participation in the easement discussion is required on behalf of the Museum and if
the Commission was to reclaim authority over the preliminary site plan for Campus Crest it is
possible that you would be directly involved as Mayor in a decision that could result in your
employer gaining financially by receiving payment for such an easement from Campus Crest.
Page 6 of 9
However, I believe that at this time the mere possibility of such an easement does not create a
financial interest so as to require you to disqualify yourself from acting on the zone map
amendment or preliminary site plan should the Commission reclaim review authority. First, at
this time, several options exist as to the location of the easement and other options may in the
end be more feasible and thus implemented. The riming of a decision would come after the zone
map amendment and the approval of a preliminary site plan. The specific location must be
determined, approved by the City, and installed prior to final site plan approval and occupancy.
Second, from what you've stated, you have not been involved in any discussions with Museum
officials or with Campus Crest other than the initial meeting with Campus Crest and Museum
representatives. You stated the initial meeting was a request by Campus Crest for the Museum to
consider the granting of such an easement but no specific amount of remuneration was discussed.
Third, even if the Commission reclaims authority to review Campus Crest's preliminary site
plan, the decision on whether Campus Crest's proposed sewer location meets City design and
public works requirements rests with the City Engineer. The decision on location is not generally
under the jurisdiction of the Commission even under review of a preliminary site plan.
As such, at this time, I believe you do not have a financial interest that would rise to a conflict of
interest requiring recusal because of the request by Campus Crest to the Museum for the possible
granting of a sanitary sewer easement through Museum property. Again, a conflict of interest
must be at a minimum a reasonable probability and must be more than merely speculative.
Should conditions change or should your involvement in negotiations with Campus Crest be of a
scope different than described herein my opinion may change.
As for Montana law, it has long been recognized that a public office is "created in the interest
and for the benefit of the public." State ex rel. Bell v. McCullough, 85 Mont. 435, 438, 279 P.
246 (1929). Based on the concept that "[t]he holding of public office or employment is a public
trust," 2 -2- 103(1), MCA, the Montana code of ethics recognizes "that some actions are conflicts
per se between public duty and private interest while other actions may or may not pose such
conflicts depending upon the surrounding circumstances," 2 -2 -101, MCA (emphasis added).
Thus, "it is necessary to look at each particular transaction or relationship in conjunction with the
surrounding circumstances before a determination can be made as to whether or not a breach has
occurred." 45 Mont. Op. Atty. Gen. No. 10 (Mont.A.G.) (1993) (citing 37 Op. Att'y Gen. No.
104 at 431, 434 (1978)).
Pursuant to Sect. 2- 2- 121(2)(e), MCA, a state officer or employee may not "perform an official
act directly and substantially affecting to its economic benefit a business or other undertaking in
which he either has a substantial financial interest or is engaged as counsel, consultant,
representative, or agent."
Page 7 of 9
I believe your participation in decisions regarding the Campus Crest Development, LLC zone
map amendment or possible City Commission action on a preliminary site plan does not present
a circumstance where you will directly and substantially benefit from participation as "[tjhe
circumstances described in your inquiry do not present a situation in which you, as a public
official, are at risk of advancing your own interests at the expense of the public welfare." 45
Mont. Op. Atty. Gen. No. 10 (1993). Conflict of interest laws are designed "to prevent honest
government agents from succumbing to temptation by making it illegal for them to enter into
relationships which are fraught with temptation." Id. citing United States v. Mississippi Valley
Generating Co., 364 U.S. 520, 549 (1961). As discussed above, that is not the case here. I
caution, however, that should conditions change regarding your involvement on behalf of the
Museum regarding financial remuneration for the granting of a sewer easement my opinion may
change.
Given the facts as presented it is my opinion you do not have a legal conflict of interest under
Montana law. In addition, 2 -2 -121, MCA, lists additional acts that are breaches of public duty.
Your situation does not at this time appear to involve any of these delineated acts. As such, I find
no violation of the relevant statutory guidelines found in Title 2, chapter 2, part 1, MCA,
pertaining to the state standards of conduct. Likewise, I found no violations of 7 -5- 4109(1),
MCA'.
This
opinion is provided
pursuant to
my authority under 2.03.630, BMC.4
Pursuant
to
2.03.630.13
you
may rely upon this
opinion in
regards to the specific transaction or activity
to
which this
r 7- 54109, MCA. Control of conflict of interest. (1) The mayor, any member of the council, any city or town officer, or any relative or
employee of an enumerated officer may not be directly or indirectly interested in the profits of any contract entered into by the council while the
officer is or was in office.
(2) The governing body of a city or town may waive the application of the prohibition contained in subsection (1) for a city or town officer or
employee, or to the relative of an officer or employee, if in an official capacity the officer or employee does not influence the decisionmaking
process or supervise a function regarding the contract in question. A governing body may grant a waiver under this subsection only after publicly
disclosing the nature of the conflict at an advertised public hearing held for that purpose. In determining whether to grant a waiver, the governing
body shall consider the following factors, where applicable;
(a) whether the waiver would provide to a program or project a significant benefit or an essential skill or expertise that would otherwise not be
available;
(b) whether an opportunity was provided for open competitive bidding or negotiation;
(c) whether the person affected is a member of a clearly identified group of persons that is the intended beneficiary of the program or project
involved in the contract; and
(d) whether the hardship imposed on the affected person or the governmental entity by prohibiting the conflict will outweigh the public interest
served by avoiding the conflict.
4 Sec. 2.03.630, BMC. - City attorney opinions.
A. At the request of a person, the city attorney may render an informal or formal advisory opinion with respect to the prospective conduct
of such person. An informal advisory opinion need not be written, and may be provided directly to the requestor of such opinion. A request for a
formal advisory opinion must be in writing and include all the information and documents related to the request. The request for either an
informal or formal advisory opinion most state all the material facts so the city attorney may render a complete and correct opinion. TTte city
attorney's formal advisory opinion must be in writing. Nothing in this division shall be construed to prohibit a request for an opinion by any
public servant from the city attorney regarding a potential conflict of interest. Neither a request for an informal or formal advisory opinion, nor
the making of a statement concerning a potential conflict of interest made by a member of the city commission in the course of abstaining from
voting or making a motion of self- recusal, shall create a presumption or inference that a public servant actually has a personal interest in the
matter about which the opinion was requested; if the city attorney elects to render an opinion, the city attorney shall, within a reasonable time,
submit a written summary of the opinion to the ethics board for the board's information; if the city attorney declines to render an opinion, nothing
shall preclude the person requesting the opinion from requesting the ethics board for an opinion.
� ,,
opinion pertains. In addition, pursuant to 2.03.630.C, if you act in good faith in accordance with
the provisions and findings herein and on the facts as presented herein, you may not be subject to
prosecution or administrative action under the City's Code of Ethics. However, I am unable to
provide you immunity from prosecution under state law.
This opinion is issued in my capacity as the City Attorney for the City of Bozeman and done so
on behalf of the City of Bozeman (2.03.630.D, BMC) and is based on facts as they were
represented by you and exist today. If facts change my opinion may change.
My inquiry is limited to role your role as Mayor for the City of Bozeman and I provide no
opinion regarding these issues related to your ethical duties as the Director of Finance and
Administration for the Museum or in relation to your role as a Regent for the Montana
University System.
I hope you found this helpful. If you have any questions about this matter, please contact me.
BOZEMAN CITY ATTORNEY'S OFFICE
Greg Sullivan
City Attorney
B. Any formal advisory opinion issued pursuant to this section may be relied upon by the person directly involved in the specific
transaction or activity to which such advisory opinion has been issued, and any person directly involved in any specific transaction or activity
which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion was rendered.
C. Any person who relies upon a formal advisory opinion pursuant to this section, and who acts in good faith in accordance with the
provisions and findings of such opinion, shall not, as a result to such act, be subject to prosecution under this division or, in the case where the
opinion is exculpatory, be subject to any administrative adverse action or civil action based upon legal authority cited in that opinion.
D. The City Attorney's client is the City of Bozeman and not the individual requesting the opinion. No request for an opinion from the
City Attorney shall constitute the establishment of an attorney- client relationship with the individual requesting the opinion.
Page 9 of 9
Greg Sullivan
From: clbrawner @aol.com
Sent: Wednesday, February 19, 2014 1:41 PM
To: Greg Sullivan; Jeff Krauss; Carson Taylor; Chris Mehl; Cyndy Andrus; 1 -Ho Pomeroy
Subject: Campus Crest Zone Map Amendment Z13268 - RE: Conflict of interest and requested for
Recusal
Honorable Mayor Krauss, City Commissioners, and City Attorney Sullivan;
The Residents and citizens of the neighborhood surrounding the above - referenced ZMA are
concerned that Mayor Krause has a statutory conflict of interest in the above - referenced Zone Map
Amendment (ZMA).
A major Site Plan for a college student housing project on the subject site was reviewed and
processed by the City, prior to the ZMA being considered and acted upon by the City Commission.
The Final Site Plan currently requires only Planning Director approval pending the outcome of the
Commission's action on the requested ZMA.
While normally a Legislative issue, this ZMA, (also previously reviewed by Zoning Commission based
on proposed specific site development issues), is being considered by the City Commission
concurrent with a pending Final Site Plan Proposal approval, and so involves consideration of the
specific development of the property. and, is therefore a quasi - judicial process.
Mayor Krauss is currently employed by MSU and is on the Montana University System Board of
Regents. The subject ZMA and subsequent proposed MSU college student housing project are of
particular and direct interest to MSU and the University System. Therefore, we believe Mayor
Krauss, has a statutory conflict of interest in a quasi - judicial process from which he needs to
recuse himself.
As such, we respectfully request Mayor Jeff Krauss recuse himself from any action involving
this subject ZMA and any subsequent administrative Site Plan approval process.
Respectfully;
Craig Brawner
Greg Sullivan
From: rick meis [rmeis @centurylink.net]
Sent: Friday, February 21, 2014 11:08 AM
To: governor @mt.gov
Cc: Greg Sullivan
Subject: MUS Regent with potential conflict of interest
Dear Governor Bullock,
I want to be sure you are aware that one of the members of the University System Board of Regents is in a situation here
in Bozeman where there is an appearance of impropriety and a potential conflict of interest.
Bozeman Mayor Jeff Krauss, who is also a Regent of the University System, chose not to discretionarily recuse himself
when asked from being involved in his role as a City Commissioner on a zoning issue that has degraded into a debate on
the need for more student housing around MSU. The thread of that communication is at the end of this letter.
Since this question has been raised as to whether Mayor Krauss has an actual or potential conflict of interest, residents of
the affected neighborhoods would like the appropriate person to look into it. Representing my neighborhood in Bozeman,
I would request that you, as Governor, ask Mayor Krauss if it would not be to the benefit of both organizations he
represents to recuse himself from this issue.
The background: A property owner and developer have applied for a zoning change that would create a high density
zoning for an area that is currently mostly zoned for single family homes. It is adjacent to an elementary school and an
existing single family neighborhood. While these kind of applications are supposed to be assessed on the basis of code -
the MCA and Bozeman UDO - the debate at the Bozeman Zoning Commission hearing degraded into a debate on the
need for student housing to serve MSU. This debate over the need for student housing overshadowed the zoning criteria
that should be the focal point of discussion of this zone change application. In front of the City Commission and
Mayor /Regent Krauss, we expect the same debate on MSU student housing.
Jeff Krass, as both an elected City Commissioner and an appointed Regent of the MUS Board of Regents, is on a slippery
slope here with the appearance of a conflict of interest. I would assume, as many of my neighbors do, that Regent Krauss
is expected to do whatever he can that would benefit the University. That could affect his decision as a City
Commissioner.
The affected neighborhoods are up in arms over this proposed zone change. It will cause property values to fall and there
is a question of safety since one of two streets to access the proposed development goes by the elementary school and
onto a small neighborhood street. It would be a bad reflection on the MUS and Board of Regents if this zone change were
to pass with Mayor /Regent Krauss at the helm. I do not think that you, as Governor, would want this kind of potential
problem to arise.
Do note that while I am the person writing this letter,
have spoken
to many neighbors and all
are in agreement about this
concern of a conflict of interest and agree that this issue needs to be addressed. Therefore I
represent not just myself,
but a significant number. Time is short. The hearing
is Monday. I
write today because I have the day off.
Thank you for your time. I can provide any other information you may want regarding this issue and concern.
Sincerely,
Rick Meis 406 - 586 -1999
Bozeman, MT
�I
Rick Meis 406 - 586 -1999
Bozeman, MT
Here is the thread of contact between Mayor Krauss and the Bozeman resident who took it upon himself to contact the
mayor about this issue and concern.
- - -- Original Message-- -
From: Jeff Krauss <Jkrauss @BOZEMAN.NET>
To: clbrawner <clbrawner @aol.com>
Sent: Wed, Feb 19, 2014 3:03 pm
Subject: Re: Campus Crest Zone Map Amendment Z13268 - RE: Conflict of interest and requested for Recusal
Likely not. It's three business days away
On Feb 19, 2014, at 2:58 PM, " clbrawner @aol .com <mailto:clbrawner @aol.com >"
<clbrawner @aol .com <mailto:clbrawner @aol.com>> wrote:
Understood, thank you. Any chance you would let us know the status before the
24th Commission meeting venue?
- - - -- Original Message---- -
From: Jeff Krauss <Jkrauss @BOZEMAN. NET <mailto:Jkrauss @BOZEMAN.NET>>
To: clbrawner <clbrawner @aol .com <mailto:clbrawner @aol.com>>
Sent: Wed, Feb 19, 2014 2:30 pm
Subject: Re: Campus Crest Zone Map Amendment 213268 - RE: Conflict of interest
and requested for Recusal
So to be clear, 2 requested and I will rely on the City Attorney's opinion.
On Feb 19, 2014, at 1:41 PM,
"clbrawner @aol. com <mailto:clbrawner @aol. com ><mailto: clbrawner @aol.com> "<mailto:clbrawner@
aol.com > " ?>
< clbrawner @aol.com<mailto:clbrawner @aol. com > <mailto: clbrawner @aol.com<mailto:clbrawner @ao
1. com ? >>>
wrote:
Honorable Mayor Krauss, City Commissioners, and City Attorney Sullivan;
The Residents and citizens of the neighborhood surrounding the above - referenced
ZMA are concerned that Mayor Krause has a statutory conflict of interest in the
above - referenced Zone Map Amendment (ZMA).
A major Site Plan for a college student housing project on the subject site was
reviewed and processed by the City, prior to the ZMA being considered and acted
upon by the City Commission. The Final Site Plan currently requires only
Planning Director approval pending the outcome of the Commission's action on the
requested ZMA.
While normally a Legislative issue, this ZMA, (also previously reviewed by
Zoning Commission based on proposed specific site development issues), is being
considered by the City Commission concurrent with a pending Final Site Plan
Proposal approval, and so involves consideration of the specific development of
the property; and, is therefore a quasi - judicial process.
Mayor Krauss is currently employed by MSU and is on the Montana University
System Board of Regents. The subject ZMA and subsequent proposed MSU college
student housing project are of particular and direct interest to MSU and the
University System. Therefore, we believe Mayor Krauss, has a statutory conflict
of interest in a quasi- judicial process from which he needs to recuse himself.
As such, we respectfully request Mayor Jeff Krauss recuse himself from any
action involving this subject ZMA and any subsequent administrative Site Plan
2
approval process.
Respectfully;
Craig Brawner