COVID-19 Legal problems with Declaration and ordinance 1840 Public Comment from Jim Cossitt2From:Jim Cossitt
To:Aimee Brunckhorst
Cc:Doug Russell; Charlie Harball; Kalispell City Council; Kalispell Meetings Public Comment
Subject:[EXTERNAL] Re: Legal problems with Declaration and ordinance # 1840
Date:Monday, April 13, 2020 2:48:02 PM
Attachments:2020-03-18 - County 2508_Emergency_Dec.pdf2020-03-19 - Wfish Order Dec.pdf
BTW, the declarations by the County and our sister city to the north, Whitefish, were
not nearly so broad and appear to have been drafted / tailored to the goal of tapping
into funding sources. I've attached them for your perusal.
Thanks.
Jim Cossitt
Mail: PO Box 1889 Kalispell MT 59903-1889 USA
Physical locations (no US mail): Primary = 19 Happy Dream Trail, Coram MT or: Secondary = 922 Thornton
Avenue, Des Moines, IA
Cell: 406-260-6969 | Work: 406-752-5616 | www.cossittlaw.com
“Integrity is doing the right thing, even when no one is watching.” CS Lewis
“The last and greatest human freedom: the ability to choose one’s own attitude in any given situation.” Elie
Wiesel
On Mon, Apr 13, 2020 at 2:07 PM Jim Cossitt <jim.cossitt@gmail.com> wrote:
Aimee, Thanks, got it and will look for it.
_______________________________
Mayor Johnson, Members of the Council, Doug and Charlie:
I've looked much more carefully at the ordinance and the Declaration that were
unduly hastily proposed and considered.
The Declaration contains a broad grant of power that the CM can exercise
unilaterally and without oversight or even citizen awareness. The Declaration
states:
8. The City Manager has authority to approve contracts and expenditures in
furtherance of implementing the Resolutions passed by the City Council and
this Declaration, and taking all measures deemed necessary to address
the emergency, subject to retroactive approval by the council.
9. The City Manager, pursuant to KMC 2-26, upon ratification of this
Declaration by a 2/3rd vote of the City Council, is authorized to enter into
agreements and contracts, and make purchases and expenditures without
adhering to state and local procurement requirements, including
those in Titles 7 and 18, MCA and to the City’s purchasing policy.
This authorization is limited only to agreements, contracts, purchases, and
expenditures reasonably necessary to implement the Declaration and to no
other agreements, contracts, purchases, or expenditures.
The broad scope of power contained in ¶¶ 8 and 9 of the Declaration is a “a carte
blanche handover of power to our city manager”.
Ordinance # 1840 lacks any guidance to the CM, lacks standards and lacks
oversight on the powers in ¶¶ 8 & 9, including the power to spend. Not only does
the ordinance lack standards and oversight, it purports to sidestep state law and
allows the CM to make purchases: “without adhering to state and local
procurement requirements, including those in Titles 7 and 18, MCA and to the City’s
purchasing policy.”
Can a Montana City Manager really override applicable state law by merely issuing a
Declaration of Emergency or Disaster ? Can a Montana City Council really over
ride applicable state law ?
In the process of displacing state law, the Declaration and the Ordinance wipe the
CM’s need to comply with Title 18 of the Montana Code and the public’s right to
conduct independent oversight:
18-4-126. Public access to procurement information -- records --
retention. (1) Procurement information is a public record and must be
available to the public as provided in 2-6-1003, 18-4-303, and 18-4-304.
(2) All procurement records must be retained, managed, and disposed of in
accordance with the provisions of Title 2, chapter 6, parts 10 and 11.
Even if the Council is comfortable with complete abdication of its responsibility for
oversight and to confirm it’s employees comply with state law, the public still has
the right to know how the City’s money is spent. That right is enshrined in
Montana’s Constitution and is specifically applicable to public contracts via § 18-4-
126, MCA.
The Montana Constitution provides: “ARTICLE II. DECLARATION OF RIGHTS
Section 8. Right of participation. The public has the right to expect
governmental agencies to afford such reasonable opportunity for citizen
participation in the operation of the agencies prior to the final decision as may be
provided by law.
Section 9. Right to know. No person shall be deprived of the right to examine
documents or to observe the deliberations of all public bodies or agencies of state
government and its subdivisions, except in cases in which the demand of individual
privacy clearly exceeds the merits of public disclosure.”
The CM’s Emergency Declaration (¶ 9) appears to be directly contrary to both the
public inspection statute in § 18-4-126, MCA and Article II, § 9 of the Montana
Constitution.
I request you folks look at these concerns and consider revocation of the ordinance
and / or modification of the ordinance and the Declaration to address the problems
noted above.
Thank you.
Jim Cossitt
Mail: PO Box 1889 Kalispell MT 59903-1889 USA
Physical locations (no US mail): Primary = 19 Happy Dream Trail, Coram MT or: Secondary = 922
Thornton Avenue, Des Moines, IA
Cell: 406-260-6969 | Work: 406-752-5616 | www.cossittlaw.com
“Integrity is doing the right thing, even when no one is watching.” CS Lewis
“The last and greatest human freedom: the ability to choose one’s own attitude in any given situation.”
Elie Wiesel
On Mon, Apr 13, 2020 at 11:32 AM Aimee Brunckhorst <abrunckhorst@kalispell.com>wrote:
Jim,
I will be linking the public comment received on this agenda item to the minutes,
so a records request will not be needed. When I have the minutes finished I will let
you know.
Sincerely,
Aimee Brunckhorst
City Clerk & Communications Manager
City of Kalispell, Montana
Office: (406) 758-7756
Cell: (406) 223-1187
From: Aimee Brunckhorst Sent: Monday, April 13, 2020 8:35 AMTo: Jim Cossitt <jim.cossitt@gmail.com>Cc: Doug Russell <drussell@kalispell.com>Subject: RE: [EXTERNAL] Public records request / public comments on ordinance #
1840
Jim,
Please fill out and return the city public records request form located on thefollowing webpage to request these records: https://www.kalispell.com/200/Public-Records-Request
Sincerely,
Aimee Brunckhorst
City Clerk & Communications Manager
City of Kalispell, Montana
Office: (406) 758-7756
Cell: (406) 223-1187
From: Jim Cossitt <jim.cossitt@gmail.com> Sent: Sunday, April 12, 2020 8:45 PMTo: Kalispell City Council <citycouncil@kalispell.com>; Kalispell Meetings PublicComment <publiccomment@kalispell.com>; Doug Russell <drussell@kalispell.com>;Charlie Harball <charball@kalispell.com>Subject: [EXTERNAL] Public records request / public comments on ordinance # 1840
Folks, Please accept this email as a public records request
under applicable Montana law for copies of all the public
comments that were received related to the consideration of
Ordinance # 1840.
Please confirm receipt of this email and provide an estimated
date of production.
Thank you.
Jim Cossitt
Mail: PO Box 1889 Kalispell MT 59903-1889 USA
Physical locations (no US mail): Primary = 19 Happy Dream Trail, Coram MT or: Secondary = 922
Thornton Avenue, Des Moines, IA
Cell: 406-260-6969 | Work: 406-752-5616 | www.cossittlaw.com
“Integrity is doing the right thing, even when no one is watching.” CS Lewis
“The last and greatest human freedom: the ability to choose one’s own attitude in anygiven situation.” Elie Wiesel
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