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04/08/98 SP City Council Minutes1159 1159 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 1160 1160 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 1161 1161 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 1162 1162 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 f s WM.F-.Bohar*I . Wm. E. Boharski, Mayor 1 11