04/08/98 SP City Council Minutes1159
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A SPECIAL MEETING OF THE KALISPELL CITY COUNCIL WAS HELD AT 11:00
A.M. WEDNESDAY, APRIL 8, 1998, IN THE COUNCIL CHAMBERS AT CITY HALL
IN KALISPELL, MONTANA. MAYOR BILL BOHARSKI PRESIDED. COUNCIL
MEMBERS JIM ATKINSON, NORBERT DONAHUE, JOHN GRAVES, DALE HAARR,
DUANE LARSON, RON VAN NATTA AND DOUG SCARFF WERE PRESENT. GARY
NYSTUL WAS ABSENT.
Mayor Boharski called the special meeting to order pursuant to
Section 2-8, Ordinance 1166.
DISCIPLINARY HEARING
Mayor Boharski said he feels the individual's right to privacy
outweighs the public's right to know and asked City Attorney Glen
Neier if he would like the meeting closed.
Neier said he would like the meeting to remain open.
Mayor Boharski explained the special meeting was called to discuss
a personnel issue involving Neier, and asked Assistant City
Attorney Richard Hickel to apprise the Council of the current
situation.
Hickel said Neier was charged with Driving Under the Influence and
Speeding which took place in Columbia Falls on April 7. He said at
that time he was taken into custody and transported to the Columbia
Falls Police Department. Hickel said Neier consented to a
breathalyzer test. He said because Neier coughed a couple of times
the officer felt he could not get an accurate test and offered
Neier the opportunity to have a blood sample drawn by an authorized
practitioner, which Neier agreed to. Hickel said Neier was then
transported to North valley Hospital where a blood sample was
drawn, which has been sent to the State Crime Lab in Missoula for
analysis. Hickel said at this point Neier has entered a not guilty
plea before Columbia Falls Judge Susan Gordon and the matter has
been set for an Omnibus Hearing.
Boharski informed Council members they have a number of options
that can be considered. He said Neier is the City Attorney for
Kalispell and is in a position to try cases dealing with this sort
of situation. He said it puts the City in a difficult position, as
it would be with any of the law enforcement officers. Boharski
recommended Neier be suspended indefinitely with pay pending the
outcome of the case.
Neier asked to speak, saying he has prepared a written statement
and would get a copy to anyone who wishes it. Neier said he was
arrested in Columbia Falls at approximately two a.m. on April 7 and
was charged with DUI and Speeding. He said based upon the advice of
counsel, he must decline to discuss any of the substantive issues
involved with the arrest, however he wants to dispel the rumor that
he refused the breathalyzer test. Neier said he did not refuse the
test. He said he coughed a couple of times during the machine's
warm-up period and the officer decided he would rather have a blood
test. Secondly, Neier said he is naturally embarrassed as to the
situation in which he has placed himself, whether guilty or not
guilty. He said he doesn't offertany excuses or justifications and
doesn't expect any sympathy, however he pointed out he is charged
with the offense of DUI and has not been found, nor plead guilty,
to the offense. Neier said under our system of justice, as Hickel
indicated, he is entitled and must be afforded a presumption of
innocence until this case is disposed of. He said he is not
certain for the need or the urgency in calling this meeting of the
City Council. He stated if he was not involved as a principal in
this matter, he would advise against any action until an actual
disposition of this case was made. Neier added the Council has
very competent legal counsel in this matter, Rich Hickel, and he
expects the Council to seek and heed his advice in dealing with
this situation. Neier said as a prosecutor of DUI cases for over
twenty years, he is well aware of the consequences and
ramifications of a DUI conviction, however he added he doesn't
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believe even a conviction of the crime of DUI is a sign of moral
turpitude, nor can it be construed to affect job performance. He
said this incident, whether guilty or not guilty, took place at two
o'clock in the morning and he was not in a City vehicle, he was not
on City time and he was not on City business. Neier said he was,
under the terms of the law, on a "frolic of his own." He said
whether he is convicted of the DUI or not, the issue would not be
relevant to any Court in any cases he would be obliged to
prosecute. He said he must deal with the circumstances that will
occur as a result of these charges. Neier said he will deal with
his situation and he is sure the City Attorney's office in Columbia
Falls will handle the matter professionally. He said the matter
will be disposed of in the ordinary manner of affairs and everyone
can continue on with their lives regardless of the ramifications of
his situation.
Boharski said his recommendation of suspension would require a
motion by a Council member.
Haarr asked Boharski to restate his recommendation.
Boharski stated because of the nature of the office that Neier
holds, in essence, the chief law enforcement officer of the City of
Kalispell, he is recommending suspension with pay, pending the
investigation of the Columbia Falls Police Department, for an
indefinite period of time.
Scarff asked Hickel for his opinion or recommendation.
Hickel answered he can give the Council the legalities of what it
can or cannot do, but as far as making a recommendation it would
not be his place to do so.
Larson questioned Boharski as to the other options he mentioned and
asked him to explain.
Boharski said the Council can "go as far as it wants to," but he
doesn't think at this point in time any termination or suspension
without pay would be appropriate. He said the City doesn't really
have a probationary, "per se," status in the policy manual and
suspension with pay seems to be the only appropriate action the
Council can take at this time.
Van Natta commented Neier is innocent until proven guilty and the
City should be "getting some value out of Glen if we're going to pay
him." He said perhaps a moratorium should be set prohibiting
Neier from prosecuting DUI cases. Van Natta said he feels
suspension is a drastic move when the Council doesn't have a finding
yet.
Boharski compared the situation to one involving a law enforcement
officer. He said if the same thing happened to a police officer he
feels this is exactly how the Council would handle the situation.
Scarff asked Hickel what he would do if it were somebody Hickel
supervised.
Hickel told the Council he can give them different types of things
he would look at. He said to respond to the Mayor's comment, as far
as equating this situation with a law enforcement officer, he said
there are distinctions that can be drawn. He said for one, you can
look at our recent history regarding dealings with law enforcement
officers who have been charged with a crime. Hickel said an
individual in a high position of the Police Department was charged
recently in an unfortunate instance last fall with a relatively
serious felony crime. He said the officer was, at that time,
placed on suspension with pay. Hickel said the policy and
procedures manual addresses the matter of imposing disciplinary
action against employees charged with felonies and gross
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misdemeanors. He said in his opinion, a DUI does not fall within
the category of a gross misdemeanor, and it's definitely not a
felony. Hickel said the second factor is to look at the job related
duties. He said in the case of a law enforcement officer, one of
his duties is going to be to drive a City vehicle. He said if the
infraction impacts his ability to carry out that particular
function, then you have to take a good, hard serious look at that.
Hickel said Neier's position doesn't involve operating a City
vehicle or require him to do City business while behind the wheel
of a vehicle. He added Neier has not had his license suspended and
his license will not be suspended pending the resolution of the
this charge. Hickel said thirdly, there is a "laundry list" of
disciplinary actions that can be imposed, but at the top of the
list the wording says types of disciplinary actions "may include."
He said if the Council can find an appropriate sanction that is not
included in the list, then he feels the Council is within its
authority to do that.
Larson said he, like Van Natta, would like to see Neier continue
his work with possibly a restriction on dealing with DUI cases. He
said at the time when Neier is either found guilty, changes his
plea or is found not guilty, then the Council will have to make
another decision.
Graves agreed, saying if everyone that has had a DUI in the private
sector was suspended, we'd have a line at the unemployment office.
He said he doesn't think it is fair of the Council to make any other
decision until the case is settled.
Atkinson moved that Council suspend Neier from prosecuting DUI
cases until the disposition of the charge. The motion was seconded
by Larson.
There was discussion.
Haarr concurred with the motion and said in this instance the
Council is dealing with a situation in which they are very familiar
with the person's reputation. He said Neier has a long history of
employment with the City and has done a good job. Haarr said Neier
is innocent until the disposition of the case and it would be
ridiculous to suspend him and not have him accomplish the things on
his agenda.
Donahue said having sat in the same chair as Neier for many, many
years, he can recognize his position and also recognize the
position of the Council. Donahue said the Council is now under
public scrutiny as to whether "we are trying to whitewash the
situation or not." He said it's clear from the law that if the
Council takes punitive action against Neier, then he is entitled to
a full-blown hearing and the Council would sit in a judicial -type
capacity. Donahue said the Council can't do that until there is a
specific charge that has been proven. He said on the other hand,
he doesn't look upon a suspension as punitive as long as Neier is
paid his salary. Donahue said if the Council suspends Neier then
the City would have an empty c air in the administration which
would put an undue burden on Rickel. He said Neier has been
embarrassed, the City has been embarrassed, the lawyers have been
embarrassed, but he doesn't think the Council can right that wrong
at this point. Donahue said he feels an adequate action would be
to suspend Neier from carrying out his duties in relation to
criminal matters until the matter is disposed of.
Boharski pointed out that Donahue mentioned all criminal matters
and the motion specifically deals with DUI cases.
Donahue moved to amend the motion to include all criminal matters.
The motion was seconded by Larson.
Van Natta asked for a clarification as to what percentage of the
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work load that would include.
Hickel said he handles ninety percent of the criminal matters and
Neier only fills in on those rare occasions when he takes time off
or he's involved in another matter and can't be there.
The amendment carried upon vote with Donahue, Graves, Haarr,
Larson, Scarff, Van Natta and Mayor Boharski voting in favor, and
Atkinson voting against.
The motion as amended carried unanimously upon vote.
Atkinson moved to adjourn. The motion was seconded.
The motion carried unanimously upon vote.
ADJOi7RN
The special meeting was adjourned at 11:40 a.m.
ATTEST:
Theresa White
Clerk of Council
approved 4/20/98
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WM.F-.Bohar*I .
Wm. E. Boharski, Mayor
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