4. Resolution 5607 - City Council Policies & Procedures (Tabled Feb 4)City of Kalispell
OFFICE OF THE CITY MANAGER
.. MON7�1YA.
TO: Mayor Fisher and Kalispell City Council
FROM: Doug Russell, City Manager
MEETING DATE: March 4, 2013
SUBJECT: Policies and Procedures for the Kalispell City Council
Attached is a tabled resolution for the "Policies and Procedures for the Kalispell City Council"
from a previous meeting. This item was tabled to a work session to allow council to consider
alterations in the document prior to formal action.
At the work session on February 25, 2013, council put forward two potential revisions to the
document. These revisions are attached.
Recommendation: It is recommended council remove Resolution 5607 from the table,
amend the resolution with the proposed revisions, and adopt the amended resolution.
www.kalispell.com
RESOLUTION NO.5607
A RESOLUTION FORMALLY ADOPTING THE "POLICIES AND PROCEDURES
FOR THE KALISPELL CITY COUNCIL" AS AN ETHICS POLICY AND
ORIENTATION MANUAL.
WHEREAS, the City Council has desired to investigate the adoption of local ethics policy that
complements existing regulation; and
WHEREAS, the City Council recognizes that governance presents opportunities where the
adoption of a standardized set of expectations may be advantageous to local
governance responsibilities; and
WHEREAS, the proposed document is in line with State Statutes, Municipal Code, and general
municipal practice; and
WHEREAS, Adoption of formal policies provides confidence to respective parties when
making decisions that are addressed in the document; and
WHEREAS, An adopted set of policies and procedures can and should be used as the first
document for newly elected member of the City Council, introducing them to the
expectations of the office;
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL, MONTANA, AS FOLLOWS:
SECTION 1. The City of Kalispell formally adopts the "Policies and Procedures
for the Kalispell City Council", attached hereto as Exhibit "A" and
incorporated fully herein by this reference, as its local ethics policy
and orientation manual.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF
THE CITY OF KALISPELL THIS _DAY OF , 2013.
Tammi Fisher
Mayor
ATTEST:
Theresa White
City Clerk
Proposed revisions from 2125/13 Work Session
3.3.5 It is the responsibility of City Councilors to publicly share substantive information that is
relevant to a matter under consideration that they have received from sources outside of
the public decision -malting process with ail other City Councilors and the public prior to
taking action on the matter. An judgmeni call an sharing or di-,(JoNure should he
resolved in favor of Auring or disclosure under an appearance of impropriety" standa_r_cl
and in order to further the guzils of fairness impartiality and trans amnc .
3-5 Appearance of Tn proves et_y
When participation in action or decision -making as a public official does not implicate
the specific statutory criteria for confficts of interest; however, participation still does not
"look" or "feel" right, that public official has probably encountered the appearance of
impropriety. Any such judgment call or question whvuld be resolved in favor of
Lii"closure.
For the public to have faith and confidence that government authority will be
implemented in an even-handed and ethical manner, public officials may need to step
aside event though no technical conflict exists. An examplc is where a long-term non-
financial affiliation exists between the public official and an applicant or- the applicant is
related by blood or marriage to the official. For the good of the communty, members
who encounter the appearance of impropriety should step aside.
City of Kalispell
OFFICE OF THE CITY MANAGER
TO: Mayor Fisher and Kalispell Ci Council
FROM: Doug Russell, City Manager'
MEETING DATE: February 4, 2013
SUBJECT: Policies and Procedures for the Kalispell City Council
BACKGROUND: Municipal governance entails a broad spectrum of activity in which
circumstances occasionally arise that may not have a formal policy guiding the response. At
times, these circumstances can create confusion as entities try to determine what to do. To
overcome this, some municipalities adopt a formalized set of policies and procedures to guide
activity, thus ensuring a standard base of expectations. Typically, the formally adopted
document includes, but is not limited to: Agenda Setting, Commission Communications (with
each other, the public, and staff), Legal Concerns, Roles and Responsibilities, and Financial
Matters.
Two work sessions have been held in which Council considered drafts of a policy and
procedures document that would serve as a local ethics policy and an orientation manual for
elected officials. Revisions from the last two work sessions have been incorporated and I have
attached an updated draft of the document and a redlined version that shows the changes that
were made, including annotations to the changes from the last work session.
In addition to incorporating ethical components that complement the State policy, this document
will also serve as an educational component for newly elected members of the governing body.
RECOMMENDATION: It is recommended that Council approve Resolution 5607, which
formally adopts the "Policies and Procedures for the Kalispell City Council".
ALTERNATIVES: Modifications have been made by Council at the previous work sessions.
Additional modifications can be incorporated.
FISCAL IMPACTS: There are no fiscal impacts directly associated with adopting the Policies
and Procedures document.
www.kalispell.com
POLICIES & PROCEDURES FOR THE KALISPELL CITY COUNCIL
CHAPTER I —MUNICIPAL POWERS
1.1 State Statutes
CHAPTER 2—FORM OF GOVERNMENT
2.1 City Council
2.2 Mayor
2.3 President of Council
2.4 City Manager
CHAPTER 3—LEGAL AND ETHICAI, STANDARDS
3.1 Preamble
3.2 Public Interest
3.3 Conduct
3.4 Conflict of Interest
3.5 Appearance of Impropriety
3.6 Implementation
3.7 Disclosure Statement
CHAPTER 4—COMMUNICATIONS
4.1 Ex-parte Communications
4.2 Communications with Staff
4.3 Handling of Litigation and Other Confidential Information
4.4 Representing an Official City Position
4.5 Communications with Each Other
4.6 E-Mail Communications
4.7 Unofficial Settings
CHAP,rER 5-crry COUNCIL MEETINGS
5.1 Regular Meetings
5.2 Special Meetings
5.3 Work Sessions
5.4 Public Access to Meetings
5.5 Voting Procedure
5.6 Placing Items on the Agenda
5.7 Rules of Procedure
5.8 Decorum
5.9 Agenda Packets
CHAPTER 6—COUNC11, FINANCIAL MATTERS
6.1 City Council Budget and Expenses
The residents and businesses of the City of Kalispell are entitled to have fair, ethical and
accountable local government. Such a government requires that public officials:
■ Comply with both the letter and the spirit of the laws and policies affecting operations of
the government.
■ Be independent, impartial and fair in their judgment and actions.
■ Use their public office for the public good, not for personal gain.
• Conduct public deliberations and processes openly, unless legally confidential, in an
atmosphere of respect and civility.
To this end, the City of Kalispell City Council has adopted this formal Policies and Procedures
(Code of Conduct) document to encourage public confidence in the integrity of local government
and its fair and effective operation.
"Nothing within this document shall be meant to supersede any State Statute (including the
Code of Ethics for municipal officials), municipal ordinance, or other regulatory obligation.
CHAPTER 1 - MUNICIPAL POWERS
1.1 Municipal powers, as outlined in State Statues
7-1-4122(MCA). Distribution of powers.
(1) A municipality has legislative, executive, and judicial powers.
(2) All legislative powers are vested in the governing body of the municipality.
(3) Executive powers are vested as provided in the form of government adopted by
the municipality.
(4) The judicial powers of a municipality are vested in the municipal court.
7-1-4123(MCA). Legislative powers.
A municipality with general powers has the legislative power, subject to the provisions of
state law, to adopt, amend, and repeal ordinances and resolutions required to:
(1) preserve peace and order and secure freedom from dangerous or noxious
activities;
(2) secure and promote the general public health and welfare;
(3) provide any service or perform any function authorized or required by state law;
(4) exercise any power granted by state law;
(5) subject to 15-10-420, levy any tax authorized by state law for public or
governmental purposes as described in 7-6-2527;
(6) appropriate public funds;
(7) impose a special assessment reasonably related to the cost of any special service
or special benefit provided by the municipality or impose a fee for the provision
of a service;
(8) grant franchises; and
(9) provide for its own organization and the management of its affairs.
7-1-4124(MCA). Powers.
A municipality with general powers has the power, subject to the provisions of state law,
to:
(1) enact ordinances and resolutions;
(2) sue and be sued;
(3) buy, sell, mortgage, rent, lease, hold, manage, or dispose of any interest in real or
personal property;
(4) contract with persons, corporations, or any other governmental entity;
(5) pay debts and expenses;
(6) borrow money;
(7) solicit and accept bequests, donations, or grants of money, property, services, or
other advantages and comply with any condition that is not contrary to the public
interest;
(8) execute documents necessary to receive money, property, services, or other
advantages from the state government, the federal government, or any other
source;
(9) make grants and loans of money, property, and services for public purposes;
(10) require the attendance of witnesses and production of documents relevant to
matters being considered by the governing body;
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(11) hire, direct, and discharge employees and appoint and remove members of boards;
(12) ratify any action of the municipality or its officers or employees that could have
been approved in advance;
(13) have a corporate seal and flag;
(14) acquire by eminent domain, as provided in Title 70, chapter 30, any interest in
property for a public use authorized by law;
(15) initiate a civil action to restrain or enjoin violation of an ordinance;
(16) enter private property, obtaining warrants when necessary, for the purpose of
enforcing ordinances that affect the general welfare and public safety;
(17) conduct a census;
(18) conduct inventories of public property and preparatory studies;
(19) condemn and demolish hazardous structures;
(20) purchase insurance and establish self-insurance plans;
(21) impound animals and other private property creating a nuisance or obstructing a
street or highway;
(22) establish quarantines;
(23) classify all violations of city ordinances as civil infractions, with civil penalties, as
provided in 7-1-4150; and
(24) exercise powers not inconsistent with law necessary for effective administration
of authorized services and functions.
CHAPTER 2- FORM OF GOVERNMENT
The City of City of Kalispell municipal government operates under a Council -Manager form of
government as established in 1989 by a vote of the people.
2.1 City Council
Under this form of government, the Council provides legislative direction, sets City policy and
monitors its execution by City staff through the City Manager. The City Manager serves as the
City's chief administrative officer and is responsible for directing the day-to-day operations of
the City.
State Statute
7-5-4101(MCA). General powers of municipal council.
The city or town council has power to make and pass all bylaws, ordinances, orders, and
resolutions not repugnant to the constitution of the United States or of the state of
Montana or to the provisions of this title, necessary for the government or management of
the affairs of a city or town, for the execution of the powers vested in the body corporate,
and for carrying into effect the provisions of this title.
Municipal Code
2-1 City Council (Kalispell Municipal Code).
The commission shall be referred to as the City Council and shall consist of eight (8)
members serving terms of four (4) years. (Ord. 1166 § 2-1)
Page 2
2.2 Maw
Municipal Code
2-2 Mayor (Kalispell Municipal Code).
The chair of the City Council shall be known as the Mayor, shall be elected at large and
shall be the ninth voting member of the Council. (Ord. 1166 § 2-2)
2-3 Duties of Mayor (Kalispell Municipal Code).
The Mayor shall:
A. Preside at all City Council meetings;
B. Appoint, with the consent of the City Council, all members of advisory boards and
commissions;
C. Execute all ordinances and resolutions on behalf of the City after Council approval;
D. Perform ceremonial functions as Mayor of the City of Kalispell;
E. Perform any other duties specifically designated by ordinance or resolution.
Except for the above, the Mayor shall have no other executive or administrative duties,
those being the responsibility of the City Manager. (Ord. 1398, 9-17-2001; amd. Ord.
1680, 10-18-2010)
2.3 President of the Council
Municipal Code
2-4 President of the Council (Kalispell Municipal Code).
A. Election: At its first meeting of each even numbered year, the Council shall elect, by
nomination and roll call, a president from its membership. In the Mayor's absence
from Council meetings, the president shall preside over the meeting. Whenever the
Mayor is unable to perform the functions of his or her office, the president shall act as
Mayor.
B. Successor: In the event the president of the Council resigns or becomes ineligible to
serve, the Council shall elect a successor from its membership. (Ord. 1166 § 2-4;
amd. Ord. 1680, 10-18-2010)
2.4 City Manager
The provisions that outline the City of Kalispell's Council -Manager form of government are
found in Chapter 7-3-301 of State Statutes and section 2-29 of Kalispell Municipal Code, which
outline the duties and responsibilities of the City Manager.
2-29 Statutory Authority and Duties.
The City Manager shall:
A. Enforce laws, ordinances and resolutions;
B. Perform the duties required of him or her by law, ordinances or resolutions;
C. Administer the affairs of local government;
D. Direct, supervise and administer all departments, agencies and offices of the local
government unit except as otherwise provided by law or ordinance;
Page 3
E. Carry out policies established by the City Council;
F. Prepare the City Council agenda;
G. Recommend measures to the City Council;
H. Report to the City Council on affairs and financial condition of the City;
I. Execute bonds, notes, contracts and written obligations of the City Council, subject to
the following limitations:
1. All bonds, notes, contracts and written obligations, including accumulated
contract change orders in excess of fifty thousand dollars ($50,000.00) must
have prior written approval of the City Council regardless whether or not
previously approved in the annual City budget,
2. Any bonds, notes, contracts and written obligations less than fifty thousand
dollars ($50,000.00) may be executed by the City Manager without prior
written approval of the City Council only if such amount was previously
approved by City Council in the annual City budget;
J. Report to the City Council as the Council may require;
K. Attend City Council meetings and may take part in the discussion, but shall have no
vote;
L. Prepare and present the budget to the City Council for its approval and execute the
budget adopted by the City Council;
M. Appoint, suspend and remove all employees of the local government except as
otherwise provided by law or ordinance;
N. Appoint members of temporary advisory committees established by the Manager.
(Ord. 1166 § 2-29; amd. Ord. 1680, 10-18-2010)
CHAPTER 3—LEGAL AND ETHICAL STANDARDS
3.1 Preamble
The residents and businesses of the City of Kalispell are entitled to have fair, ethical and
accountable local government. Such a government requires that public officials:
Comply with both the letter and the spirit of the laws and policies affecting operations of
the government;
- Support the maintenance of a positive and constructive environment for residents,
businesses and City employees;
- Be independent, impartial and fair in their judgment and actions;
- Use their public office for the public good, not for personal gain; and
- Conduct public deliberations and processes openly, unless legally confidential, in an
atmosphere of respect and civility.
3.2 Public Interest
3.2.1 Recognizing that stewardship of the public interest must be their primary concern,
City Councilors shall work for the common good of the people of the City of Kalispell
Page 4
and not for any private or personal interest. City Councilors must endeavor to treat all
members of the public and issues before them in a fair and equitable manner.
3.2.2 City Councilors shall comply with the laws of the nation, the State of Montana
and the City of Kalispell in the performance of their public duties. These laws include,
but are not limited to: the United States and Montana constitutions; laws pertaining to
conflicts of interest, election campaigns, financial disclosures, employer responsibilities
and open meeting acts; and policies of the City of Kalispell.
3.3 Conduct
3.3.1 City Councilors shall treat all persons in a courteous, respectful and dignified
manner. , ,
. (Amended February 4)
3.3.2 Council member duties shall be performed in accordance with the processes and
rules of order established by the City Council.
3.3.3 In order to best accomplish City business, City Councilors shall inform
themselves on public issues, listen attentively to public discussions before the body and
focus on the business at hand.
3.3.4 Council decisions shall be based upon the merits and substance of the matter at
hand.
3.3.5 It is the responsibility of City Councilors to publicly share substantive
information that is relevant to a matter under consideration that they have received from
sources outside of the public decision -making process with all other City Councilors and
the public prior to taking action on the matter.
3.4 Conflict of Interest
3.4.1 In order to assure their independence and impartiality on behalf of the public
good, City Councilors are prohibited from using their official positions to influence
government decisions in which they have a financial interest.
3.4.2 City Councilors shall not take advantage of services or opportunities for personal
gain by virtue of their public office that are not available to the public in general.
3.4.3 City Councilors shall respect and preserve the confidentiality of information
provided to them concerning the confidential matters of the City. They must neither
disclose confidential information without proper legal authorization nor use such
information to advance the personal, financial or private interests of themselves or others.
3.4.4 City Councilors should avoid any action that could be construed as, or create the
appearance of, using public office for personal gain, including use of City stationery or
other City resources to obtain or promote personal business.
Page 5
3.4.5 Public resources not available to the general public (e.g., City staff time,
equipment, supplies or facilities) shall not be used by City Councilors for private gain or
personal purposes.
3.4.6 To the best of their ability, City Councilors shall represent the official policies and
positions of the City Council. When presenting their personal opinions or positions
publicly, members shall explicitly state they do not represent the Council or the City.
3.5 Appearance of Impropriety
When participation in action or decision -making as a public official does not implicate the
specific statutory criteria for conflicts of interest; however, participation still does not "look" or
"feel" right, that public official has probably encountered the appearance of impropriety.
For the public to have faith and confidence that government authority will be implemented in an
even-handed and ethical manner, public officials may need to step aside even though no
technical conflict exists. An example is where a long-term non -financial affiliation exists
between the public official and an applicant or the applicant is related by blood or marriage to
the official. For the good of the community, members who encounter the appearance of
impropriety should step aside.
3.6 Implementation
3.6.1 Ethics standards shall be included in the regular orientations for City Council.
3.7 Disclosure Statement
3.7.1 Disclosure statement.
Members of the City Council shall file with the City Clerk, by January 3 1 " of each year,
a disclosure statement that will include the following information:
A. The name and address of the Councilmember and describe any current employment
in addition to the elected position with the city;
B. The name of boards on which the Councilmember currently serves.
CHAPTER 4—COMMUNICATIONS
4.1 Ex -pane Communication
In instances where the Council will be making an adjudicatory decision, each Council member
should refrain from discussing the merits of that decision outside an officially called public
meeting.
Page 6
4.2 Communications with Staff
4.2.2 A Council member shall not direct the City Manager or staff to initiate any action,
change a course of action or prepare any report, nor shall a Council member initiate any
project or study without the approval of the majority of the Council.
4.2.3 City Councilors shall not attempt to pressure or influence discussions,
recommendations, workloads, schedules or department priorities absent the approval of a
majority of the Council.
4.2.4 Any concerns by a member of the City Council regarding the behavior or work of
a City employee should be directed to the City Manager privately to ensure the concern is
resolved.
4.3 Handling of Litigation and Other Confidential Information
4.3.1 All written materials and verbal information provided to City Councilors on
matters that are confidential under State law shall be kept in complete confidence to
ensure that the City's position is not compromised.
4.4 Representing an Official City Position
4.4.1 City Council members may use their title only when conducting official City
business, for information purposes, or as an indication of background and expertise,
carefully considering whether they are exceeding or appearing to exceed their authority.
4.4.2 In most instances, the Council will authorize the Mayor to send letters stating the
City's official position to appropriate legislators.
4.4.3 If a member of the City Council appears before another governmental agency or
organization to give a statement on an issue affecting the City, the Council member
should indicate the majority and minority position of the Council.
4.5 Communications with Each Other
4.5.1 Council members meeting together as a quorum outside of a publicly announced
meeting may be in jeopardy of violating respective open meeting acts. Should the
occasion arise, when a quorum is gathered unexpectedly, city business should not be
discussed.
4.6 Email Communication
4.6.1 Email communications have in many cases been considered public documents and
are requested as such under respective open record acts. Both public and private
computers that contain public records are subject to subpoena.
Page 7
4.7 Unofficial Settings
4.7.1 It is appropriate that Council members recognize that as elected officials, their
conversations when out in public will be overheard. Members of the Council should take
care to be aware of what they say in public, whether in private or public conversations.
CHAPTER 5—CITY COUNCIL MEETINGS
5.1 Regular Meetings
5.1.1 The City Council shall hold regular meetings on the first and third Monday of
each month at 7:00 p.m. in the City Council chambers or any other location or time they
so designate. The City Council chambers is located in City Hall, 201 First Avenue East,
Kalispell, Montana. (Ord. 1166 § 2-6; amd. Ord. 1680, 10-18-2010)
5.2 Special Meetings
5.2.1 Per City Code, section 2-8 Special meetings may be called by the Mayor, or in
his or her absence, the president of the Council. A special meeting may also be called at
the request of three (3) members of the Council.
Whenever a special meeting shall be called, a notice in writing signed by the Mayor or
the Council President shall be served upon each member of the Council either in person
or by notice left at their place of residence, stating the date and hour of the meeting.
Notice of a special meeting must be served upon the Council at least twenty-four (24)
hours prior to the meeting and the public media shall be notified as soon as practical prior
to such meeting.
5.3 Work Sessions
5.3.1 Work Sessions are conducted as a public meeting which the Council may set from
time to time to allow for a detailed review of important matters. All study session
meetings are open to the public.
5.4 Public Access to meetings
5.4.1 Under state law, MCA 2-3-203, all meetings of the council or city committees
must be open to the public.
Exceptions:
A. A meeting may be closed when discussion relates to a matter of individual privacy
if and only if the presiding officer determines that the demands of the individual
privacy exceeds the merits of public disclosure.
B. A meeting may also be closed to discuss a strategy for litigation when open
discussion would have a detrimental effect on the position of the public agency,
unless litigation is between two public agencies.
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5.5 Votina Procedure (Kalispell Municipal Code: 2-14)
Affirmative Vote Required: In order for a motion to be adopted by the Council, the motion must
receive an affirmative vote from the majority of the Council present at the meeting, unless
otherwise provided by State law or ordinance.
a. Roll Call; Recording: Votes on resolutions and ordinances shall be taken by roll call
and each member's vote shall be recorded in the minutes.
b. Voice Votes: Votes on motions other than resolutions and ordinances shall be taken
viva voce. If any member of the Council requests, or if the Mayor determines it
necessary, a show of hands may be used to verify a vote.
c. Member Vote Required; Exceptions: When a question is stated upon any matter
before the Council, every member of the Council present shall vote unless:
1. Excused by a majority vote of the Council present;
2. Directly interested in the question; or
3. Prohibited by State law; in which case the Council member shall not vote.
4. For reasons that will be stated in minutes of the meeting
d. Rotate Call: The clerk, in calling the roll call vote, shall rotate the call each meeting
to members of the Council present, except that the chair of the meeting shall vote last.
e. Economic Benefit of Member Prohibited: No Council member shall perform any
official act directly and substantially affecting to its economic benefit a business or
other undertaking in which he or she either has a substantial financial interest or is
engaged as counsel, consultant, representative or agent.
f. Voluntary Disclosure: A Council member may perform an official act
notwithstanding the provisions of subsection F of this section when his or her
participation is necessary to obtain a quorum or otherwise enable the body to act, if he
or she complies with the voluntary disclosure procedures under Montana Code
Annotated Section 2-2-131. (Ord. 1166 § 2-14)
5.6 Placing Items on Agendas
An adopted agenda setting policy facilitates a consistent process for staff to research and provide
equal and thorough information to the entire council.
5.6.1 Per City Code, 2-29 (F) One of the duties of the City manager is to "Prepare the
City Council Agenda"
5.6.2 To place an item on an agenda, a Council member can request that an item be
introduced during the "Mayor/Council/City Manager's Report" section of the meeting.
The item may first be placed as a discussion item at a future work session for the Council
deliberation.
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5.6.3 Nothing in this section prohibits or is intended to impede a member of the public
from approaching the Council during the "public comment" section of the meeting to
request consideration of a respective public policy matter.
5.7 Rules of Procedure
5.7.1 In instances not addressed by adopted policy, meetings will be conducted using
"The Modern Edition of Robert's Rules of Order" as a reference and/or guidance.
(Kalispell Municipal Code, 2-13).
5.8 Decorum
5.8.1 While the City Council is in session, all persons shall conduct themselves with
reasonable decorum.
5.8.2 The Chief of Police or such member or members of the Police Department as the
Chief may designate, shall be the sergeant -at -arms of the Council meetings.
1. Sergeant -At -Arms: The sergeant -at -arms shall carry out all orders and
instructions given by the presiding officer for the purpose of maintaining
order and decorum at the Council meetings.
S.) Agenda Packets
5.9.1 Agenda packets are to be made available for council members the Mayor's office,
the City's web site (www.kalispell.com).
5.9.2 Agenda packets are to be prepared for pickup Council members on the Friday
prior to (Monday) Council meetings.
CHAPTER 6—COUNCIL FINANCIAL MATTERS
6.1 City Council Budget and Expenses
6.1.1 On an annual basis, the City Council passes a budget that includes anticipated
expenditures for the upcoming year for the Council. Expenditures outside of routine
expenses and budgeted items shall be pre -approved as needed by the City Council. These
expenditures may include but are not limited to: seminar and conference registrations,
travel expenses, and Council equipment purchases. Expenditures that cannot be pre -
approved due to time limitations may not be reimbursable.
Page 10
Jim Cossitt
jim.cossitt@yahoo.com
(4o6) 26o-6969
MEMORANDUM
To: Kalispell Mayor and City Council
From: James H Cossitt
Re: Ethics Procedures: Resolution 5607
Date: March 4, 2013
1231 61b Street W
Kalispell MT 59901
www.cossittlaw.com
Thank you for your past attention to the various concerns I have expressed about
the ethics policies and your willingness to amend the resolution to include more
direction on what needs disclosed in order to meet the "appearance of impropriety"
standard. I understand and applaud councilman Kenyon for his efforts to drive the
adoption of the ethics code and his sponsorship of some of the amendments I have
advocated. Like him, I also recognize political reality. Even though lacking in some
respects, the City Council is to be applauded for a good start on a functioning ethics
code.
DISCLOSURE STATEMENT UNDERMINES ABILITY TO RECRUIT
QUALIFIED CANDIDATES FOR OFFICE:
Speculative concern has been expressed about the potential negative impact of a
more robust disclosure statement and the ability to recruit leadership to city
governance. I believe that concern is misplaced: Why ?
What you have proposed to adopt is a voluntary disclosure procedure - to whom
and for what purpose is still unclear. The Implementation portion, § 3.6 of the policy,
is void of how such disclosure is to be made, to whom and how it will be resolved.
- That leaves us with the present situation: members of the public raise these
issues during public comment, the affected council member is automatically on the
defensive and the matter is addressed without adequate investigation, deliberation or
due consideration in the public forum and the media. Not a good outcome or process.
The current lack of process or machinery, lacking a clear process to address and
Board Certified, Business & Consumer Bankruptcy Law
a° Bankruptcy & Workouts; Business & Commercial Litigation
Real Estate, Landlord/Tenant & Construction Law
s x r
To:
Kalispell Mayor and City Council
From:
James H Cossitt
Re:
Ethics Procedures: Resolution 5607
Date:
March 4, 2013
Page 2
resolve these issues, may well discourage more candidates than a better defined process
that includes a more robust disclosure statement requirement.
THE SPECIAL PROBLEMS OF LAWYER LEGISLATORS:
BASIC LAWYER DUTY: The fundamental fiduciary duty of an attorney is
undivided loyalty to the client. As one commentator has described it:
"The fiduciary duty of undivided loyalty is the foundation of our adversary
system of justice. We believe that the best way to effect justice in a
cause is to have each party represented by a zealous advocate who places no interest,
including the lawyer's own, above those of the client."
httD://www.americanbar.org/content/dam/aba/miizrated/cnr/nubs/Johnson Wevmul
ler.atithcheckdam.pclf
Defining Fiduciary Duty
The essence of the fiduciary relationship is best described in a 1972 court decision which
held that a franchisor owes a fiduciary duty to a franchisee:
...a fiduciary relationship is one founded on trust or confidence reposed by one
person in the integrity and fidelity of another ... the rule embraces both technical
fiduciary relations (i.e. trustees, executors) and those informal relations which
exist whenever one man trusts in and relies upon another ... A fiduciary relation
exists when confidence is reposed on one side and there is resulting superiority
and influence on the other...
Thus, the placement of one's trust, confidence and responsibility in another person or
persons is the hallmark of a fiduciary relationship. The investiture of such trust,
confidence and responsibility in the fiduciary bestows upon him or her a position of
influence and superiority over the person(s) with whom he deals. As such, he is charged
with an extraordinary degree of moral accountability to these people. The scope of this
moral accountability is most dramatically described by Judge Cardozo in the classic case
of Meinhard v. Salmon:
A trustee (i.e. fiduciary) is held to something stricter than the morals of the
marketplace. Not honesty alone but the punctilio of an honor the most sensitive
is then the standard of behavior...
Thus, certain types of conduct which might be permissible in the context of ordinary
business dealings are off limits to a fiduciary because of the special attributes (i.e. power
To:
Kalispell Mayor and City Council
From:
James H Cossitt
Re:
Ethics Procedures: Resolution 5607
Date:
March 4, 2013
Page 3
and influence gained by virtue of the repose of trust) of his relationship with his
dependents. The courts have articulated two basic precepts of fiduciary conduct which
define the contours of what Justice Cardozo referred to as the punctilio of honor
standard: The duty of undivided loyalty by a fiduciary to those
under his care; and the duty of a fiduciary to exercise the utmost
of good faith towards his dependents. The duty of undivided
loyalty basically requires the fiduciary to at all times put his
charges' interest ahead of his own self interest and to refrain
from profiting at their expense (i.e., no self -dealing). The duty of
utmost good faith basically requires the fiduciary to at all times treat his dependents
fairly and equally.
http: //cooperator.comlarticles/178/1/Is-Your-Board-Carrying Out-Its-Fiduciary-
Duty/Pagel.html
BASIC LEGISLATOR DUTY: To act in fairly, impartially and solely in the
public interest, free from influence of other interests. The Montana Code Annotated
states it this way:
2-2-103. Public trust -- public duty. (1) The holding of public office or employment is a
public trust, created by the confidence that the electorate reposes in the integrity of public
officers, legislators, and public employees. A public officer, legislator, or public
employee shall carry out the individual's duties for the benefit of the people of the state.
INHERENT CONFLICT: The fiduciary duty of the lawyer to a client collides
with the duty to act in an impartial manner in the public interest in § 2-2-103. In order
to fulfill the fiduciary duties to the client and the statutory duties of public trust
disclosure and either:
1) Informed consent or permission;
MV
2) Recusal
Should be required. Thankfully, § 3.5 of Resolution 5607 provides a voluntary step
aside procedure if an appearance of impropriety is encountered. However, § 3.5 is
completely voluntary, lacks enforcement, any third party oversight or review.
To:
Kalispell Mayor and City Council
From:
James H Cossitt
Re:
Ethics Procedures: Resolution 5607
Date:
March 4, 2013
Page 4
The problem was summarized as follows:
"The lawyer -legislator issue always has the potential for conflicts, either in
appearance or substance," said Scott Harshbarger, a former state attorney general.
"The other side is: The rules are very clear."
State law forbids legislators with legal practices from appearing before most state
agencies on behalf of clients, if they are getting paid for their work.
Legislators are also barred from acting on budget items and bills that benefit a single
community or entity, if they or their law partners have a financial interest. Those are
all considered substantive conflicts.
http://www.boston.comlne- �vsolities articles 2011 0 0 lawver legislators
face conflicts but dont always disclose them/
LEGAL PROFESSION SOLUTION: Model Rule of Professional
Conduct 1.7 provides for disclosure and informed consent:
Client -Lawyer Relationship
Rule 1.7 Conflict Of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a
client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to
each affected client;
(2) the representation is not prohibited by law;
To:
Kalispell Mayor and City Council
From:
James H Cossitt
Re:
Ethics Procedures: Resolution 5607
Date:
March 4, 2013
Page 5
(3) the representation does not involve the assertion of a claim by one client against another client represented by the
lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
KALISPELL CITY SOLUTION: Again, Resolution 5607 lacks any meaningful
disclosure statement requirement and falls far short of what state law imposes on other
public officials.
The added direction in §§ 3.3.5 and 3.5 to resolve judgment calls in favor of
disclosure lacks any means of effective monitoring, compliance testing, procedure for
whom the matter should be disclosed and what action should be taken. The Resolution
simply lacks any effective oversight or enforcement mechanism.
Another option is the 3 person panel set forth in subsection 5 below.
2-2-144. Enforcement for local government.
(1) Except as provided in subsections (5) and (6), a person alleging a violation of this part by a
local government officer or local government employee shall notify the county attorney of the
county where the local government is located. The county attorney shall request from the
complainant or the person who is the subject of the complaint any information necessary to make
a determination concerning the validity of the complaint.
(2) If the county attorney determines that the complaint is justified, the county attorney may
bring an action in district court seeking a civil fine of not less than $50 or more than $1,000. If
the county attorney determines that the complaint alleges a criminal violation, the county
attorney shall bring criminal charges against the officer or employee.
(3) If the county attorney declines to bring an action under this section, the person alleging a
violation of this part may file a civil action in district court seeking a civil fine of not less than
$50 or more than $1,000. In an action filed under this subsection, the court may assess the costs
and attorney fees against the person bringing the charges if the court determines that a violation
did not occur or against the officer or employee if the court determines that a violation did occur.
The court may impose sanctions if the court determines that the action was frivolous or intended
for harassment.
(4) The employing entity of a local government employee may take disciplinary action against an
To:
Kalispell Mayor and City Council
From:
James H Cossitt
Re:
Ethics Procedures: Resolution 5607
Date:
March 4, 2013
Page 6
employee for a violation of this part.
(5) (a) A local government may establish a three -member panel to review complaints alleging
violations of this part by officers or employees of the local government. The local government
shall establish procedures and rules for the panel. The members of the panel may not be- officers
or employees of the local government. The panel shall review complaints and may refer to the
county attorney complaints that appear to be substantiated. If the complaint is against the county
attorney, the panel shall refer the matter to the commissioner of political practices and the
complaint must then be processed by the commissioner pursuant to 2-2-136.
(b) In a local government that establishes a panel under this subsection (5), a complaint must be
referred to the panel prior to making a complaint to the county attorney.
(6) If a local government review panel has not been established pursuant to subsection (5), a
person alleging a violation of this part by a county attorney shall file the complaint with the
commissioner of political practices pursuant to 2-2-136.
Thank you for your assistance.
JHC: chj
C:\Users\jhc\Documents\JHC\City\Ethics\2013-03-04 - Memo KCC ethics.docx
Revised 3/4/13 JHC