HomeMy WebLinkAboutCouncil Workshop Minutes 03.26.2019MINUTES
CITY OF LAUREL
CITY COUNCIL WORKSHOP
TUESDAY, MARCH 26, 2019
A Council Workshop was held in the Council Chambers and called to order by Mayor Tom Nelson
at 6:32 p.m. on March 26, 2019.
COUNCIL MEMBERS PRESENT:
_x_ Emelie Eaton
_x_ Heidi Sparks
x Bruce McGee
x Richard Herr
x Scot Stokes
x Iry Wilke
x Richard Klose
x Bill Mountsier
OTHERS PRESENT:
Kurt Markegard, Public Works Superintendent
Nick Altonaga, City Planner
Public Input:
Karen Scovell, 706 Mullberry Avenue, spoke to the Mayor and Council regarding issues on her
street. She asked to have the circle around Mullbery paved. This area has large ruts during the
winter and caused $500 damage to her vehicle. Cars also get stuck in this area due to the mud.
Asking the City to blacktop the area. Previously gravel and millings neither of which worked.
She stated that drainage is an issue in this area and asked that be addressed as well. She also
stated the neighbor is building a shop and the road needs to be widened as the road is too narrow.
Across from her, there have been issues with containers and trees. This neighbor recently passed
away without a will. She was unsure of how this issue would be resolved. She thanked the
Council for their consideration.
General Items
1. Appointment - Laurel Police Officer (Ryan Sedgwick)
Both the Police Chief and Captain were unable to be present to introduce Mr. Sedgwick. Mayor
Nelson read the attached letter from Police Chief Langve.
A Council Member stated that Mr. Sedgwick has been a member of the Reserves and also served
as the President for the Reserves.
Mr. Sedgwick thanked the Council for this Opportunity.
Executive Review
2. Resolution - A Resolution Of The City Council Authorizing The Mayor To Sign A
Contract With The Billings Family YMCA For The Operation And Management Of
The City Of Laurel Municipal Pool.
The contract for the YMCA to operate the pool.
Kurt Markegard, Public Works Director, stated this contract is for the YMCA to provide
management and lifeguards for the pool. The City has had this agreement for about the last 10
years. This contract is the same as last year with no increase. The total cost of the contract is
$45,600.
It was questioned if this had gone to Parks Board. It was clarified that this contract had not as it
was time -sensitive.
It was questioned if there is any work needed on the pool this year. It was clarified that the City
would need to look at the ladders. The YMCA will come in approximately a week before
opening and clean up the pool and building. The pool will be filled approximately a week prior
to opening. It will take a while to get the temperature up and the chemicals to the correct levels.
Three staff members (Public Works Director, Public Works Superintendent, and Utilities
Superintendent) are certified pool operators as the water has to be fit for human consumption.
3. Resolution No. R19-07: A Resolution Of The City Council Authorizing The Developer
Of Iron Horse Station Subdivision To Install A Stormwater Pond Within Dedicated
Parkland Within The Subdivision Pursuant To LMC 16.40.040.
Kurt Markegard, Public Works Director, stated that this resolution was tabled due to Council
questions. He took pictures of the area to be able to show Council what is currently in this
location. See attached photos. The resolution was written to allow the building of the drainage
ponds. The intent was to allow design work to occur, then get further approval. This area may be
a wetland, and the developer will need to investigate further. Examples of how Billings has used
drainage ponds what shown to Council, see attached. The Public Works Director gave a brief
overview of the existing drains within the City and why tying into the existing network is not an
option.
The Iron Horse Station Subdivision was originally platted in 2005. Phase 1's stormwater runs
into the area along E. Maryland. Phase 2's stormwater was not addressed at that time. The plat
was approved without design for stormwater in Phase 2 of this project.
It was questioned if there could be clarification on the process. If was further questioned if Phase
2 is not in existence. It was clarified that no public infrastructure, except a waterline that
connects Phase 1 and Phase 2.
It was questioned if there are one or two ponds being considered by Council. It was clarified that
the pond on the western part of the subdivision will be placed on a private lot, lot 10, and will
have an easement. This pond is not before the Council. The pond on the eastern half is before
Council.
It was questioned if this resolution before Council is correct. It was further questioned what the
pond will look like and if there will be any public safety risks and require a fence.
The City Attorney stated the resolution could be edited. The council can place conditions such as
to authorize the design and allow permits to be obtained and then have it come back for final
approval.
It was stated that this matter did go before Park Board. At Park Board, there was a discussion on
raising this area and removing the wetlands. It is stated that they wanted to see some plans prior
to moving forward.
It was questioned why this matter went to Park Board and not Planning Board. It was clarified
that this matter went before the Planning Board in 2005. The land in question is a City Park and
therefore sent to Park Board. It was reiterated that the question Council needs to answer is will
the City allow stormwater to be placed on City parkland. It was further reiterated that if this area
is a wetland area, then the federal government will have a say. There is another area that could
also hold stormwater. It currently has Russian Olive trees. However, this area could be turned
into a picknick area. The most logical place for stormwater is the area proposed by the developer.
It was clarified that there had been changes in laws between 2005 when this Platt was accepted
and today when Phase 2 is going to be developed. The changed occurred after the Elena
subdivision. Stormwater ponds can no longer be part of the park dedication. Prior to Elena, the
stormwater pond could be part of the park dedication. The pond in Elena drains into the Big
Ditch, because of this the Big Ditch also has a share in the Elena drainage pond. For Iron Horse
Station this land has already been dedicated.
Colton from Territorial Landworks stated this subdivision was platted in 2005. At the time
Engineering Inc. was the design firm for this project. The plan was to build enough room in the
drainage ponds that when Phase 2 was built stormwater would have already been addressed.
Since then the rules have changed. The stormwater drainage ponds from Phase 1 does not have
enough capacity to deal with all stormwater from Phase 2. The stormwater for Phase 2 needs to
be addressed. There is a ridge in the middle of the property. It does not allow for water to be
moved from one side of the property to the other. He reiterated the pond on the west half of the
property would be located on private property with an easement. The original plan for the eastern
half drainage pond was to build it next to the park and use the fill to raise the level of the
wetlands area to make it a more usable space. After meeting with Park Board, the issues of
maintaining the wetland was brought forward. The goal is to disrupt the area as minimal as
possible. The pond will only be full a few days out of the year. He reiterated that it is an
expensive process to design the pond and go through the permitting process. Needs reassurance
that Council will entertain the idea of place stormwater on parkland. The expected total depth of
the pond is three feet. They do not expect to have issues with permitting as they are not removing
wetlands, just deepening the existing area.
It was questioned if the Council has the wrong diagram. It was clarified the map included in the
packet was the initial proposal that was brought to Park Board. There is an updated version
Colton has to pass around if needed. It was further clarified that no additional parkland is being
proposed. There is still the parkland to the south that has the Russian Olive trees.
It was stated that there is a spring that feeds that area. It was questioned if that spring will still be
able to flow. It was clarified that that spring will still be able to flow.
It was reiterated that Council could conditionally approve this resolution. It was further clarified
that this request would go through an engineering review, both internally with City Staff and
externally with KLJ. All permits would need to be approved as well. The request must meet the
Montana Public Works Standards as adopted by the City. The last major subdivision was Elena.
Currently working on Regal, but it is significantly smaller than the one being discussed.
The staff does not have the ability to approve the stormwater in a park. When in question the
local governing body makes the decision. Council was reminded that this project would have to
obtain DEQ approval as well. Currently, Public Works cannot sign off on the streets until
stormwater is addressed.
It was questioned if there are any obvious drawbacks to having this pond. It was stated that if
rocks are present, they can get dirty like those in the Walmart drainage pond. Outfall structures
can have cattails. It was reiterated that there would be some maintenance associated with
stormwater.
A Council Member stated that they are not opposed to retention areas. However, they do not
want to sign off on what we don't know is going to be done.
It was clarified that stormwater regulations require drainage ponds to hold up to a 100 -year storm
event. There cannot be more stormwater than when the area was native ground. Colton with
Territorial Landworks asked for clarification if Council wants rocks or a native design. To go
through the entire process and receive permitting is costly. He stated he does not want to go
through the entire process and find the Council is not satisfied with the final product and need to
go through the process again.
A Council Member read LMC 16.48.040. It was questioned how this drainage pond is an
amenity to the park. The Council does not have a clear picture of how this park is supposed to
look let alone determine that the drainage pond is an amenity to the park. It was further
questioned how the Council is to make a decision on this matter since one entity wants
assurances; this will proceed while the other wants designs that are palatable.
In 2005 parkland dedication rules were different. This was accepted prior to the current Public
Works Director's time. The park was accepted as is. Because the parkland was approved prior to
the change, this is not a black and white decision. The question is does Council want to allow
stormwater on parkland.
It was clarified that Park Board does not have an issue with the ponds.
It was clarified that the engineering firm would like parameters on the aesthetics of the design. It
is very clear the storm event these ponds would need to handle. What is not clear is what the
Council would want to see in that location to address stormwater needs.
Public Works and Planning are focused on what to do with the water if it leaves the subdivision.
The goal is to keep stormwater off City Streets.
The City Attorney questioned how long it would take to put a design together. It was clarified
that it takes approximately 90 days to go through DEQ's process. There would not be bulldozers
and equipment out there tomorrow there is a process that would need to take place prior to the
installation of the drainage pond. However, establishing a design and submitting for permitting
would be tomorrow. The question before Council is to grant permission to put a water collection
area in this park.
The Public Works Director did have City crews work to clear an area. If Council Members
would like to go view this area they can. This is City property they are able to walk in there and
see what has been discussed this evening.
It was stated that there are quite a few jurisdictional entities that will need to review these plans.
The resolution will be written to give the developer the clarity they need while also protecting
the Council. Council was reminded that these issues would not be present on future subdivisions
as the rules have changed.
It was clarified that the parkland just South of this area that is currently Russian Olive trees could
be a dog park or a picknick area. The area to the north will never be developed as a park area; it
is a wetlands area. There are a lot of federal regulations regarding wetlands. Wetlands are great
in helping filter water. Billings has placed a wetlands area out on Shiloh for that very reason. It
was clarified that if wetlands are removed, they will need to be moved to another area around the
State.
The Nutting Drain is located in this area. It does have water in it year-round. There are no fences
around this ditch. The Public Works Director has been a big proponent of keeping the pool open
to assist in teaching kids how to swim.
It was questioned if Council will be voting on the resolution as it is or will it be amended. It was
clarified that this resolution would be amended.
4. Resolution No. R18-84: A Resolution Of The City Council Granting Permission For A
Property Owner to Utilized Decorative Gravel And Rock Along A Portion Of The
Boulevard Adjacent To The Owner's Property Located In The City Of Laurel.
George Eastman, 519 5t" Avenue, planned to have this done all done last fall. He had a stroke,
then it snowed. He has been waiting for the yard to dry out so he can get move the rock into his
backyard where it belongs. The request is for 30 to 45 more days to move the rocks.
It was questioned if Mr. Eastman is withdrawing this request. Correct, the boulevard will remain
grass.
It was questioned if 45 days will be sufficient. It was questioned if May 15th would be sufficient.
It was stated that the May 15`' deadline is a hard deadline. The applicant agreed that it would be
no problem.
It was questioned what will happen with the rest of the folks in town added rock to their
boulevard.
Mayor Nelson stated many do not know they cannot place dry scaping in the boulevard. Some
gravel may not be a bad thing as it is better than dry grass.
A Council Member recently went for a walk. He noticed at least four residents that had rocks in
the boulevard within six blocks of his home. It was questioned what will be done in the future.
Mayor Nelson stated that he would direct Staff to work on an ordinance and bring it forward to
the Public Works Committee.
Resolution No. R18-84 will be removed from next weeks Council agenda.
5. Resolution - A Resolution Of The City Council Authorizing The Property Owner At
519 5th Avenue To Utilize The Boulevard Adjacent To The Property For Storage Of
Materials Until The Weather Allows The Owner's Project To Proceed.
Discussed with the previous agenda item. The resolution will be modified for next weeks
Council meeting.
Council Issues
6. Ordinance No. 019-01: An Ordinance Amending Title 2, Chapters 2.08, 2.12, And 2.60
Of The Laurel Municipal Code For The Purpose Of Clarifying That Current City
Employees Are Not Eligible To Serve As Members Of City Committees And
Commissions Or To Serve As Elected City Officers In Accordance With Montana Law.
The City Attorney gave some background on this topic. The last election cycle Council was
faced with the question if an employee can serve in an elected position. In this case that elected
position was Mayor. Sam read portions of the attached letter. By stating that no employee can
serve as an elected official is the clearest to defend in a Court of law. Council can exempt certain
positions, but the more exceptions make it more difficult to defend. Suggestions for changes to
this ordinance can be sent to the Mayor for review. A few examples were given. Such as an
employee running for Mayor, not defendable, or the Fire Chief running for Mayor, not
defendable, or a Police Reserves Officer running for Council, could go either way, etc. Flat
prohibition is the easiest to defend in court.
It was questioned if someone wanted to be a Police Reserve Officer they would answer to Police
Chief and not the Mayor. It was clarified that the Police Chief answers to the Mayor. Where the
grey area it is as you move towards Council and Boards/Commissions. Mayor Nelson stated he
could not remember a time when the Reserves had an item before Council. It was clarified that
the Reserves are required to volunteer at least 8 hours a month. They receive a stipend twice a
year for $60 for uniforms.
A Council Member stated they agreed that an employee should not be allowed to serve as Mayor
as they would supervise themselves. However, this is a volunteer community that has run for
years on the backs of its volunteers. To say those volunteers cannot run for Council, making sure
this is what the Council wants prior to voting on this matter.
Multiple Council Members agree that Council does not have oversight over a volunteer body.
The City Attorney read page two third paragraph from the bottom for the Missoula City Attorney
letter, attached. The one problem is what is a volunteer if the volunteer is receiving a stipend for
their service. The conflict of interest comes when money is taken. If a Council Member is also
associated with volunteering in one of the emergency services branches, then they should not
vote on items such as the budget.
A Council Member agreed that no employee should serve as Mayor or Council as there are
checks and balances. There is a grey area when it comes to volunteers. It questioned if
mandatory recusals are written into this ordinance. It was clarified that MCA addresses conflicts
of interest. Council Members are required to announce their conflict of interest and not be
involved in the discussion nor subsequent vote on the item. It was requested the definition of
who is an employee and who is a volunteer would help clarify this ordinance.
It was questioned if this is why Council Members are unable to serve on the Police Commission.
It was clarified that Montana law does not prohibit a Council Member from serving on Police
Commission. However, the intention of the law is that they be community members, not Council
Members.
It was questioned what the difference between a stipend and a salary are. It was clarified that
they are taxed differently and stipends typically cover expenses such as uniform or equipment
whereas a salary is a payment for a service. When stipends are hourly, this creates an issue. The
Fire Department stipend was to cover wear and tear on the equipment. The ambulance has
different stipends based on being available for a call, going out on a call, and transporting.
Other Items
Mayor Nelson read the attached statement.
Review of Draft Council Agendas
7. Review Draft Council Agenda for April 2, 2019.
All changes as previously discussed.
Attendance at Upcoming Council Meeting
All in attendance will be at next weeks meeting.
Announcements
House Bill 285 which was presented to the House by Representative Vince Ricci passed the
House 98-2. It passed the Senate last Thursday and will be presented to the Governor. House Bill
285 is to name Buffalo Trail Road from mile marker 1 to 2 as Pearl Harbor Veterans Memorial
Highway.
The council workshop adjourned at 8:59 p.m.
Respectfully submitted,
L I �
Brittney Moorman
Administrative Assistant
NOTE: This meeting is open to the public. This meeting is for information and discussion of the Council for
the listed workshop agenda items.
pDUCE
pr�pARTiNE�yT
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March 19, 2019
Mayor Nelson
City of Laurel
Lauri, '
215 W. 1" Street L
RE: Police Officer Appointment
Dear Mayor Nelson,
Chief of Police Stanley J Langve
It is my pleasure to write this recommendation letter for you to appoint Ryan
Sedgwick as a Police Officer for the City of Laurel.
Ryan has successfully completed all of his requirements that were set forth in his
conditional job offer. Ryan was required to complete a comprehensive back ground
investigation, psychological exam, medical exam and a drug screen.
Before Ryan was given a conditional job offer, he had to pass the Montana Testing
Consortium testing. Ryan then passed the B -Pad exam and then was interviewed
by the Laurel Police Commission.
I am looking forward to having Ryan Sedgwick be a member of this fine police
department.
I am asking that Ryan Sedgwick be appointed by you on April 2nd, 2019.
Respectfully,
i�
Chief of Police
Stanley J Langve
11
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ATTORNEY GENERAL
STATE OF MONTANA
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May 4, 2018
Brian J. West
City Attorney
Town of Stevensville
P.O. Box 30
Stevensville, MT 59870
Re: Request for guidance — doctrine of incompatible offices
Dear Mr. West:
On behalf of the Town of Stevensville, you have requested "legal guidance" under facts which
indicate the "doctrine of incompatible offices." Because your question is answered in cases and
Attorney General Opinions that your research revealed, as well as others, we provide a letter of
advice. This is not a formal Attorney General Opinion and should not be presented as such.
As explained in Klick v. Wittmer, 50 Mont. 22, 24-25, 144 P. 648, 649-50 (Mont. 1914) (which
you cite), offices are incompatible when one has power of removal of the other, when one is in
any way subordinate to the other, when one has power of supervision over the other. or when the
nature of the duties of the two offices are such as to render it improper, from considerations of
public policy, for one person to retain both.
In this situation, the recently elected Mayor of Stevensville was at the time of election also a
fireman in the town's volunteer Eire department. Under Title 7 of the Montana Code Annotated
— Local Government — the mayor exercises appointment authority for the fire chief, assistant
chief and all firefighters. Mont. Code Ann. §7-33-4106, cited in your request. The mayor may
also suspend the chief, assistant chief or any firefighter for neglect of duty. Id. at § 4122. The
hearing procedure after suspension is detailed in Mont. Code Ann. §7-33-4124. After hearing,
the firefighter may be removed. Id. at § 4124(4).
The request points out that the mayor has no statutory authority to remove a firefighter, but the
mayor may certainly suspend a firefighter and initiate the removal process. Under Klick and the
statutes, the mayor arguably has "power of removal" over firefighters by initiating the process
with a suspension. As such, firefighters are subordinate to the mayor. The doctrine explained in
TELEPHONE: (406) 444-2026 FAX: (406) 444-3549 E-MAIL: contactdoj@mt.gov mt.gov WEB: mtdoj.gov
MONTANA DEPARTMENT OF JUSTICE
Legal Services Division * Division of Criminal Investigation * Highway Patrol Division * Forensic Science Division
Gambling Control Division * Motor Vehicle Division * Information Technology Services Division * Central Services Division
Tif'n Fox ?� .
Department of justice
Attorney General • C; � *�� ` .. ti �'
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Joseph P. Mazurekjustice Bldg.
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215 North Sanders
P.O. Box 201401
CkVt:lt�
Helena, MT 59620-1401
��E C►lE+I�'J�E
May 4, 2018
Brian J. West
City Attorney
Town of Stevensville
P.O. Box 30
Stevensville, MT 59870
Re: Request for guidance — doctrine of incompatible offices
Dear Mr. West:
On behalf of the Town of Stevensville, you have requested "legal guidance" under facts which
indicate the "doctrine of incompatible offices." Because your question is answered in cases and
Attorney General Opinions that your research revealed, as well as others, we provide a letter of
advice. This is not a formal Attorney General Opinion and should not be presented as such.
As explained in Klick v. Wittmer, 50 Mont. 22, 24-25, 144 P. 648, 649-50 (Mont. 1914) (which
you cite), offices are incompatible when one has power of removal of the other, when one is in
any way subordinate to the other, when one has power of supervision over the other. or when the
nature of the duties of the two offices are such as to render it improper, from considerations of
public policy, for one person to retain both.
In this situation, the recently elected Mayor of Stevensville was at the time of election also a
fireman in the town's volunteer Eire department. Under Title 7 of the Montana Code Annotated
— Local Government — the mayor exercises appointment authority for the fire chief, assistant
chief and all firefighters. Mont. Code Ann. §7-33-4106, cited in your request. The mayor may
also suspend the chief, assistant chief or any firefighter for neglect of duty. Id. at § 4122. The
hearing procedure after suspension is detailed in Mont. Code Ann. §7-33-4124. After hearing,
the firefighter may be removed. Id. at § 4124(4).
The request points out that the mayor has no statutory authority to remove a firefighter, but the
mayor may certainly suspend a firefighter and initiate the removal process. Under Klick and the
statutes, the mayor arguably has "power of removal" over firefighters by initiating the process
with a suspension. As such, firefighters are subordinate to the mayor. The doctrine explained in
TELEPHONE: (406) 444-2026 FAX: (406) 444-3549 E-MAIL: contactdoj@mt.gov mt.gov WEB: mtdoj.gov
MONTANA DEPARTMENT OF JUSTICE
Legal Services Division * Division of Criminal Investigation * Highway Patrol Division * Forensic Science Division
Gambling Control Division * Motor Vehicle Division * Information Technology Services Division * Central Services Division
Brian Nest
May 4, 2018
Page: 2
Klick is still recognized. See Zunski v. Frenchtoivn Rural Fire Dept Bcl. o frs., 2013 MT 258
111! 20-21.
As stated in 43 Op. Att'y Gen. No. 47 (1989), "the operation of the doctrine of incompatible
offices is quite simple. Acceptance of a second public office incompatible with a current public
position operates as an implied resignation from the latter position." Ict, at 165, citing Klick. The
facts of that AGO involved one person being a board member of both a volunteer fire department
and a fire service area board, The two entities were separate government entities, and one was
not dependent upon the other for creation or continued existence. In 27 Op. Att'y Gen. No. 81
(1958), one person being, both a deputy school superintendent and a deputy probation officer did
not violate the doctrine, since one did not control the other. "Plainly the deputy probation
officer has no authority or power to supervise the deputy superintendent of schools or appoint or
remove her from office or vice versa," Id at 177.
However, 46 Op. Att'y Gen. No. 26 (1996) determined that one person cannot be both a county
commissioner and the county coordinator of disaster and emergency services, since "the
commissioners have the power of supervision, revision, and removal over the position of DES
coordinator." Id. at 2. The Missoula City Attorney also relies on K'lick in this regard, See Legal
Opinion 2011-001, attached, which determined that a city employee may not also serve as a city
council member. These last two opinions are most analogous to the situation that you have
described in Stevensville.
Under these authorities, because the mayor has appointment and suspension control over
firefighters, the doctrine of incompatible offices as explained in K:lick applies, preventing the
recently elected mayor from maintaining his position as a firefighter in StevensvilIe's volunteer
fire department.
Again, this letter is in re�ponse-to y(.
Attorney General and -should not be
Very truly yours
PATRICK M. RISKEN
encl.
request for a letter of advice, is not a formal Opinion of the
ted as an Attorney General Opinion.
OFFICE OF THE CITY ATTORNEY
435 Ryman ■ Missoula MT 59802
(406) 552-6020 • Fax: (406) 327-2105
attorney (cilci.missoula.mt,us
Legal Opinion 2011-001
TO: John Engen, Mayor; City Council; Bruce Bender, Chief Administrative Officer;
Brentt Ramharter, Finance Director; Dept. City Clerk; Dept. Human Resources
CC: Legal Staff
FROM: Jim Nugent, City Attorney
DATE January 7, 2011
RE: A city employee may not simultaneously serve as a city council member
pursuant to the legal doctrine of incompatible offices
FACTS:
Ward 2 currently has a vacant city council position after the resignation of Roy
Houseman. Reportedly, a city employee has expressed interest in appointment to fill the vacant
position.
ISSUE:
May a city employee simultaneously serve as a city council member?
CONCLUSION:
No. pursuant to the legal doctrine of incompatible offices, a city employee may not
simultaneously serve as a city council member.
LEGAL DISCUSSION:
The Montana Attorney General held a city public works employee or director cannot be
a member of the city council. 47 Op. Att'y Gen. 19 (1998). Pursuant to Mont. Code Ann. § 2-
15-501(7) "the attorney general's opinion is controlling unless overruled by a state district court
or the supreme court."
In his 1998 opinion, Attorney General Joe Mazurek stated in pertinent part:
As noted in Mr. Bums' letter, the question of whether a city employee sitting on
the city council presents a conflict of interest was previously addressed in 41 Op.
Att'y Gen. No. 81 (1986). In that opinion, former Attorney General Mike Greely
held that there is no inherent conflict of interest when an employee of the City of
Glendive is also an elected member of the city.council. That opinion provides the
controlling answer to Mr. Bums' initial question regarding a possible conflict of
interest.
However, adoption of a conflict-of-interest statute in no way abrogates the
common law rule against the holding of incompatible positions. Tarpo v.
Bowman Pub. Sch. Dist. No. 1, 232 N.W.2d 67,71 (N.D. 1975). Because I
conclude that the doctrine of incompatible offices prevents a public works
employee or director from serving as a city council member, as well as a hospital
employee from serving as a trustee of the hospital district, it is not necessary to
further analyze the conflict of interest issue.
The Montana Supreme Court has recognized that two offices are incompatible
when one has the power of removal over the other, when one is in any way
subordinate to the other, when one has the power of supervision over the other, or
when the nature and duties of the two offices are such as to render it improper,
from considerations of public policy, for one person to retain both. State ex rel.
K1ick v. Wittmer, 50 Mont. 22,144 P. 648 (1914).
The doctrine of incompatible public offices eliminates the public policy concerns
inherent in the simultaneous holding of multiple public offices or positions by:
(1) preventing multiple position -holding, so that offices and positions of
public trust do not accumulate in a single person; (2) preventing
individuals from deriving, directly or indirectly, any pecuniary benefit by
virtue of their dual position -holding; (3) avoiding the inherent conflict
which occurs when an employee's elected position has revisory power
over the employee's superior in another position; and (4) ensuring,
generally, that public officeholders and public employees discharge their
duties with undivided loyalty.
46 Op. Att'y Gen. No. 26 (1996), citing 43 Op. Att'y Gen. No. 47 at 165 (1989),
which cites Acevedo v. City of North Pole, 672 P.2d 130, 134 (Alaska 1983).
In 46 Op. Att'y Gen. No. 26, I also concluded that the common law doctrine of
incompatible public offices applies to public employees, as well as to public
office holders. and that a county employee appointed by a board of county
commissioners and paid by the county cannot serve on the board of
commissioners for the same county.
-2-
The common-law doctrine of incompatibility extends to positions of public
employment as well as public offices. See, e.g., Otradovecy. City of Green Bay,
347 N.W.2d 614 (Wis. Ct. App. 1984). As the Wyoming Supreme Court has
stated, it is "inimical to the public interest for one in public employment to be
both the employer and the employee or the supez-visor and the supervised."
Thomas v. Dremmel, 868 P.2d 263, 264 (Wyo. 1994), quoting Haskins v. State ex
rel. Harrington, 516 P.2d 1171 (Wyo. 1973).
46 Op. Att'y Gen. No. 26.
47 Op. Att'y Gen. 19 (1998) (copy attached).
CONCLUSION:
No, pursuant to the legal doctrine of incompatible offices, a city employee may not
simultaneously serve as a city council member.
-3-
CITY HALL
115 W. Ist. St.
PUB WORKS: 628-4796
PWD FAX: 628-2241
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Mayor of Laurel
March 26, 2019
City of Laurel
P.O. Box 10
Laurel, Montana 59044
To whom it may concern:
MAYOR
DEPARTMENT
The City CAO, Mathew Lurker, worked for the City of Laurel for nearly a year. During
that time Mr. Lurker did his best to fulfill his responsibilities. It had come to a point
where both the CAO and I had different expectations of each other which led to the hard
decision for us to dissolve our professional relationship. As of today, Mr. Lurker is no
longer an employee of the City of Laurel. We wish best for Mr. Lurker.
Regards,
Tom Nelson
Laurel City Mayor
City Hall
PO Box 10
Laurel, MT 59044-0010
406.633.3809
City of Laurel is an EEO Employer
Equal Housing Opportunity