06/26/78 SP City Council MinutesSPECIAL MEETING
City Of Kalispell
Phone 406-755-5457 P.O. Box 1035 Kalispell, Montana 59901
TO THE HONORABLE BOARD OF COUNCILMEN
CITY OF KALISPELL, MONTANA
GENTY710:
There will be a Special Meeting of the City Council, Monday, June 26, 1978 at 7:30 p.m.
in the community room of the Conrad National Bank for the following purpose:
To discuss allegations against Police Chief McDowell
as made at the council meeting of June 19, 1978 by
Councilman Williams
We, the undersigned, being all of the
notice of the date and purpose of t
Monday, June 26,.—Yjr,�8 at 7:30 P. in
and consenter the Aransaction the
Ci
rs of the City Council, do hereby waive
al Meeting of the City Council to be held
community room of the Conrad National Bank,
Norma E. Happ'0M4yor
a I
n
LJ
838
MAYOR RAPP PRESIDED. ALL COUNCILMIIV WERE PRESENT.
Mayor Rapp announced that she had called the meeting for the purpose of discussing
the allegations of Councilman Williams at the last regular council meeting against
Police Chief McDowell in calling for his early retirement. Though no formal charges
were filed, a request for a public meeting was made.
Mayor Happ stated that she would read the allegations made by Councilman Williams and
he could explain each of them. The Chief would be given a chance to answer and the
council will then discuss. She stated that only facts pertinent to these allegations
would be permitted this evening.
Mayor Happ quoted the following allegations from Councilman Williams report from June
19th and Councilman Williams stated that he would wait until all allegations had been
read and answered before making any statement:
1) The Chief has openly and candidly stated many times that he has attempted to,
administer this department as a friend. But friendship has interfered in the proper
administration of that department and the Chief recognizes this fact. I don't believe
that the Chief can now substantially recover his position of leadership in that
department to properly administer or discipline his subordinates. Attorney Robert
Keller, counsel for Chief McDowell, answered this allegation by stating that there is
no statement that you can give. This is what we think of as a wife beating statement.
He says "I don't believe the Chief can substantially recover his leadership in that
department", which has to assume that he has lost it, and if he says yes I can recover,
then he has admitted he has lost it, and if he says no I can't recover it is no different
than if you ask Mr. Williams if he has stopped beating his wife. It is an improper
statement and there is no way to defend against it and I am satisfied he knows that.
2) The Chief was well informed of our city ordinance regarding residency requirements,
when that ordinance was adopted almost 3 years ago. It states, in short, that the
supervisor of his respective department first approves a change in residence from with—
in the City to outside the City and then in turn submits this change to the council for
approval. Yet a number of officers have moved outside the City with no explanation
being given or requests asked for by the Chief of Police to this body, as the stated
procedure in the ordinance. Attorney Keller answered this allegation by stating that
this council entered into an agreement with the Police Department 2 years ago which is
more recent than the ordinance and quoted Article I, Section 4 RESIDENCY REQUIREMENTS
as follows: The employer shall not impose any restrictions on the employee regarding
residency requirements. One short terse sentence. The Council said this is the
agreement and now they are criticizing the Chief for following this agreement. There
is no way he can follow the ordinance and follow the agreement and this body passed
both.
3) The Council has provided to all departments a medical policy that is consistent with
the public interest in keeping the best physically qualified personnel on the job. Yet,
to no one in the police department has stress tests been administered. An integral and
necessary part of the physical qualifications program of this department has been
overlooked. Attorney Keller replied to this allegation by stating that the physical
requirements of the council would be set forth either in the agreement or by some
statement to the Chief and nothing has been set forth. What the Council wants, if they
want stress tests, they would have either communicated with the Chief or they would
have budgeted for stress tests. There is nothing in the budget, nothing i4he agreement
and no communication to the Chief that says this force has to do something or has ever
been mentioned or budgeted for.
4) In the Chiefs position lies the responsibility for maintaining manpower and offer—
ing promotions to qualified candidates, yet the only obvious qualifications for pro—
motion remain fixed to an antiquated seniority system and the structure of that
department now gives us more officers than we now have as patromen. Over 50% of the
force now sits in administrative positions. Attorney Keller replied to this allegation
that the promotion system is predicated first on a vacancy, then the Chief meets with
the Safety Committee, a committee of this council, and goes over those applicants he
thinks are qualified to fill that vacancy, and he gives his reasons to the safety
committee as to why he has a preference and is discussed fully by the safety committee
and then it goes to the council. All promotions are approved by the council. The
Chief doesn't make the promotions, the council does. For whatever its worth the
seniority system was bypassed in the course of the last 3 sergeants' promotions. That
in itself ought to be self—evident that it is not an antiquated seniority system. The
real concern that we have is that we do not have a merit system, and I think that the
allegations are unrealistic. There is nobody on this council, and nobody in this room
that has ever gone to school but what knows that you have good teachers and bad
teachers, yet no one has ever devised a merit system by which you are going to grade
your teachers and nobody has devised a merit system by which you are going to grade your
patrolman. When you start using a subject of test, then you allow favoritism and you
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allow the charge of favoritism. This is something that the Police Department, Fire
Department, school system has been fighting with for years trying to come up with something
equitable, and now out of the clear blue, this Chief is criticized for not having something
that no one else can come up with. The real concern of this, to the Chief, has been
totally bypassed in the allegations. When you start to promote a man and you jump seniority
without having some fundamental reason, you not only have done something to the man that
you have bypassed, without giving him cause, but when you bypass to rapidly, the man that
you have promoted, you have undermined him. He is working, in this case, in a system with
21 other patrolmen, and speaking personally, I have watched two real fine officers in this
department in the last 22 years get jumped and get ruined. They lost the support of their
men, favoritism was charged and they were no longer effective as patrolmen. There is
nothing in this allegation that says that this man, on his own, without the benefit of '
counsel has been approving these promotions and should come up with something. It was
an unfair charge. Now,, here are 21 men on the force counting the Chief, Asst. Chief,
1 Lieutenant and 6 sergeants, a total of 9 officers and something less than 50%. Only
2 of those officers are on a truly administrative position, the Chief and Asst. Chief.
All the others work in the same capacity whether they have stripes or not The stripes
only relate to who is in charge, and the nature of the work is unchanged. So to say
that they are in an administrative position is to imply that they are sitting somewhere
and not out on the beat. Someone has to be in charge of each shift, somebody has to
wear the stripes, but it does not change the nature of his duty and I am satisfied that
Councilman Williams knows that.
5) Sure no one here will forget the acceptance by the Chief of two police cars which,
were not to bid specifications and when delivered spent nearly more time in the dealers
garage attempting to bring them to specifications by modification than on the street in
their first few weeks of operation. Nor could anyone in this body forget the selling
job done on the need for the van purchased by the City for the force, and following the
purchase the amount of usage for the van weighed against the economic practicality
seriously question the reasoning behind the purchase in the first place. Attorney Keller
answered the first of the two allegations concerning the police cars by stating that
perhaps the public was not aware of it, but the council was aware that when these cars
came in the Safety Committee met on this and the committee not only handled it, but handled
it well. Roy Stanley brought his care up to specifications of the safety committee,
the safety committee accepted the cars and that was the end of it. Why it surfaces now,
and why it surfaces in terms of Chief McDowell, is something only Mr. Williams knows. The
other objection has to do with the van. Nothing has changed in the need for the van. ,
After getting the van, objections arose that it just sat, and it has now been put to
another use. It does not change the need for the van that is fully equipped for
investigation and emergencies involving lives and whatever. This van has shotguns,
protective vests, fingerprint eqa-Ipment, tear gas, ammunition. It meant that all the
men could meet at the scene of an emergency and the van had all the equipment. What
you are saying is that you have a greater need for that van to be mobile than to have a
collection of that equipment and that is the judgment of the Chief and that is not a
matter of criticism. It went out in the field when that happened. It is no different
than a fire truck. If you are going to check the mileage on a fire truck every day then
we have a problem — no fires.
6) Since more recently the purchase of seat separator screens for the 2 newest cars in
the vicinity of $300.00 versus the same design that could have been obtained for $60.00.
The use of regular gas in unleaded cars. The failure to keep needed supplies on hand
for proper booking and identification of violators of the law, whereby forcing the City
Attorney to dismiss charges. Attorney Keller stated that regarding the $300.00 spent on
screens for the 2 newest police cars, Mr. Williams states that these could have been
obtained for $120.00 and Attorney Keller presumed this meant $60.00 apiece. Attorney
Keller presented to the council a copy of a claim voucher showing the cost of these screens
to be $117.00 a total cost of a little less than $60.00 apiece, signed by Councilmen
Saverud and Daley, members of the finance committee. Attorney Keller said that on the
allegation of the Chief using regular gas instead of unleaded gas, the city pump for
unleaded gas was broken. The Chief authorized the use of regular gas instead of unleaded
gas until the pump was fixed. There must have been some kind of complaint made, because
subsequent to that, Mayor Happ told the Chief to buy unleaded gas for the cars at
regular pump prices, which were substantially higher than the bid price. The Chie£
knew it would be just a temporary delay and he did not have the budget to pay more, so he
did what he thought was best. He checked with mechanics all over town and there is a
split opinion. Some mechanics say if you use regular gas once, you damage the catalytic
burner and other mechanics say you can use it for a prolonged length of time before there
is damage. In'any case the burner is not an expensive item to replace if it is damaged.
You are talking about $75.00 per car. On the allegation that there were needed supplies
not on hand causing the City Attorney to dismiss changes, City Attorney Donahue recalled
one instance involving the shoplifting at the B & B of a double six-pack of beer. There
were 3 people involved (it was later learned they were professional shoplifters) and
when the one accused was brought to trial, the security officer stated that he was not
the right person. There had been no pictures or fingerprints taken, so the case was
dismissed. Chief McDowell said there was film available and there was ink for finger
printing. It was just a plain oversight, a minor two—bit shoplifting offense and out
of this comes a request for the Chief to retire.
7) The apparent failure to review any of the logs to insure that Lawrence Park in one
example is locked at the prescribed time schedule as posted. This by the way has not
been done according to residents of the area and by personal observations for nearly a
year and hundreds of thousands of dollars of city property was virtually unguarded.
Attorney Keller read the following letter:
Re: Gate Closing Lawrence Park
In the spring of 1977 on my request a meeting was held in Kalispell City Hall (Mayors
Office) between Mayor Norma Happ, Police Chief McDowell and myself regarding night closure
of the gate at Lawrence Park.
I requested the gate be left open citing the following reasons: 1) Repeatedly the lock
was stolen, broken or jimmied and the bar blocking the entrance crashed into causing
delays in entering the park and opening the gate; 2) On several occasions the gate was
locked by unauthorized persons causing visitors to the park to call City Hall or me at
home; 3) Due to the nature of the gate, the park was still easily accessible to anybody
wanting to enter, especially children and bike riders. After closure of the gate, officers
did not enter the park for inspection, consequently if there were children playing in
the gravel they were not detected. If there had been an injury, emergency vehicles could
not have entered -with help;- 4) The police department was in charge of closing the gate
at night whoever entered first in the morning opened it. Lawrence Park is used by all
departments and the Kalispell Golf Association at times. Lost keys or unatailable keys
caused delays and sometimes people were locked in.
It was agreed at that meeting that closure of the gate would be dispensed with on a trial
basis and if no troubles were encountered they would dispense with locking the gate for
good.
To my knowledge no more than normal damage has been caused to city property in Lawrence
Park since this policy has been in effect.
/s/ Pieter M. Drent
Pieter Drent, Park Supt.
June 22, 1978.
8) And finally the seemingly indiscriminate shift changes that seem to have in some
instances prevented continuity in the thoroughly and proper investigation of complaints.
Attorney Keller stated that we do not know what Councilman Williams is talking about.
Mr. Williams may be able to talk about specific names of the officers, but it is our
position that there be no mention of specific officers in this department without a
closed meeting. We do not want Mr. Williams doing to officers of this department what
he is doing to Mr. McDowell. There was only one way for Mr. Williams to bring up these
allegations and that is at a closed meeting. Then Chief McDowell be given the opportunity
to be present and at his request it could be an open meeting. We simply don't want Mr.
Williams doing to these men what they have done to the Chief.
Councilman Williams stated that Chief McDowell has served this community for 20 years,
and I congratulate him for that service. Chief McDowell's character has been, I believe,
beyond reproach and I congratulate him for that. But we all must recognize that as a
good bank teller does not always make a bank president, as a good attorney does not always
make a judge, as a good reporter does not always make an editor, a good sergeant does not
always make a good chief of police. I remember a conversation in the Mayor's office in
March, where Mayor Happ, Chief McDowell, Francis O'Boyle and myself were participants. I
remember vividly Mayor Rapp telling Chief McDowell that his main problem had been a lack
of discipline, because his friendship clouded his ability to discipline. I remember
Councilman O'Boyle and myself agreeing, and stressing that the professionalism of that
job required a professional to handle it. Friendship was an ingredient that could work
for or against an administrative department head. As long as proper perspective was kept
between job responsibility and personalities. I remember my asking Chief McDowell if he
had indeed lost his position of authority or leadership and whether in: fact he believed
he could recover such. I remember being told that under no circumstances would he retire
unless charges were brought he would resist any attempt to retire him by the Mayor, and
the council. I remember too, a number of discussions in April, May and June by us all of
the problems identified in that department, and of discussion of possible alternatives,
as they related to Chief McDowell, and of being told that the decision rested solely with
the Mayor. A week ago this evening I explained to the council in part why I could no
longer support Police Chief McDowell in that role. I identified the problems which we
have all discussed but have failed to reach a conclusion. Late Friday evening I received
a legal opinion from our City Attorney. The contents of that memorandum is clear. The
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Council is not by statute in a position to weigh evidence or make the judgment as to
the guilt or innocence of an officer. That duty and responsibility lies solely with
the police commission. The council is not in any position by statute to terminate or
demote any officer. That responsibility lies solely with the police commission or
Mayor. I brought the allegations to the Council because we have all been part and
party to their discussion. I bring this matter to the council because I believe that
it is the councils' responsibility to protect the individual liberty of Chief
McDowell, to administer that department in a manner that he sees fit or to end the
rumors that have been abundant with respect to his position. I believe that the Council
has the obligation to protect the individual rights of Chief McDowell given to him by
statute in placing the investigation of allegations and the judgment of his actions in
the hands of the police commission and not on this council floor. I further believe '
that it is in the best interest of Chief McDowell and this council, and that if the
council believes that this problem is worthy of investigation, then no member of this
body should refase the opportunity for Chief McDowell to defend himself before the
entity created by statute to review such allegations and thejudgmentof that body can
only reaffirm the power of our democratic system and our commitment to the public good.
Therefore your Honor, I would move the following resolution:
That whereas the City Council has become aware of allegations made to the possible -neglect
of duty by Police Chief McDowell, and whereas, the police commission by the powers of
the State of Montana vested in statutes 11-1806 is the only body to have the respons—
ibility of reviewing the allegations, weighing the evidence and rendering a decision,
be it resolved that the City Council of Kalispell turn the allegations over to the
police commission of the City of Kalispell. Seconded by Councilman O'Boyle.
Mayor Happ asked for discussion. Mayor Rapp explained that this resolution would mean
that the City Council will file the charges before the police commission.
Councilman Daley stated that overall Councilman Williams' charges are minor, considering
the overall problems of the police department. I do not think it is worth putting it
before the police commission.
Councilman Williams stated that the council is making no judgment on Chief McDowell.
And if the allegations are true, they can in fact be a basis for dismissal, but that
is not our decision - it rests with the police commission. Chief McDowell can be
exonerated as well by that body and should be exonerated by that body if the charges
do not prove fruitful.in the investigation. by that body. I believe that if the '
council fails to act, then in any citizen in Kalispell has the right and responsibility
to bring the charges before the police commission and if they are found proved, then
I think the decision by the police commission destroys the basis of authority by which
the council can govern within the law.
CouncilmanGraingerstated that in July 1977, he moved (and he was after no police or
fireman) as chairman of the employment committee that money be budgeted for stress and
physical exams for police and fireman and the council defeated the motion. Councilman
Grainger continued, "In all fairness to the public, Mac and myself, I did make the
motion and it was defeated, and -1 feel that that item should not be included in the
allegations."
Councilman Williams called for the question. Roll call vote. Councilmen O'Boyle and
Williams voted aye. All other councilmen voted nay. Motion defeated.
Councilman Williams stated that he would abide by the decision of the council, and I
would hope that any further discussion either after council meetings or on street
corners, or whatever regarding the Chief and his position not be held as we have re—
affirmed his position, and we owe it to the Chief of Police not to bring those discussions
out any further.
Councilman Allen moved to adjourn. Seconded by Councilman, O'Boyle. Motion carried.
Minutes approved as presented July 7, 1978.
Norma E. Happ, Mayo Rom/
ATTEST:
Marjolle Giermann, Deputy City Clerk