Process of filling council vacancies called into question over legal concerns
At its first regular meeting, on January 13, the new two-person council and new mayor convened to consider applications for the two vacant council seats and to consider appointments of council members to various town boards.
The council received five applications. Leanna Rodabaugh, Sharon Laramie and Wallace Smith applied for the Ward 1 seat. Bob Michalson and Raymond Smith, former council members both of whom have previously resigned before their terms were up, applied for the Ward 2 seat.
Any possible discussion on those applications came to an abrupt halt when the agenda item came up. Before the council could take any action, Mayor Steve Gibson said that the Town had received an email from “an individual” outlining a number of potential legal issues concerning the process of filling the vacancies.
In an email sent to the mayor and the two council members and copied to the town clerk and the town attorney, former town clerk Audree Tribbensee listed six issues of concern regarding the handling of the current town council vacancies. They included:
1) Exceeding the required time frame for filling vacancies, which are to be filled within 30 days.
2) Failure to meet public notice requirements. The vacancy was not announced on the Town’s website, which is required by the Council Rules. Tribbensee wrote, “Because a notice was not posted on the Town’s webpage as required, we were not aware that the Town had begun seeking applicants. There are individuals who are upset that they missed the opportunity to submit an application because they were not informed that applications were being accepted, even though they checked the Town’s webpage daily for the announcement.”
3) The application period was not left open for the full 10 days, which is required by Council Rules.
4) The January 13th Council packet did not include a list of applicants and status of eligibility for each applicant. “Council Rules clearly state that a list of all applicants as well as the status of their eligibility shall be submitted by the Town Clerk to the Town Council at its next regularly scheduled meeting after the application deadline,” wrote Tribbensee.
5) Vague agenda language which could affect the public’s right to know and participate. “Because the Council packet is missing the critical Council Communication historically utilized to explain the agenda item, what actions can be taken and other important information for Council and the public to consider, there is a lack of apparent transparency and a cloak of secretiveness as to what Council intends to do. The absence of any backup documents for these agenda items may be problematic in satisfying the public’s right to know, scrutinize and participate in this significant event,” wrote Tribbensee.
6) Missing significant and required steps to fill a vacancy. “None of the preliminary work appears to have taken place as required by the Council Rules, as there is no Council Communication or other backup documentation explaining what steps have taken place, what steps are in process, and what steps are outstanding,” Tribbensee wrote. “The missing and required procedural steps in addition to those outlined above, include, but are not necessarily limited to: Council discussion on individual selection or nomination of candidates, Council’s final slate of candidates to interview, Council’s direction to the Clerk to prepare interview questions, scheduling individual interviews, ensuring that the interview questions to be utilized are not provided in advance to any of the applicants, ensuring that other applicants will not be present during the interviewing process for the other applicants, and finally Council’s discussion/decision to appoint candidates that allows for public participation through comments. Many of these steps should and must take place in an open meeting, not secretly behind the scenes as they are considered Council actions,” wrote Tribbensee.
“Even though the posting delay has caused the Town to be in violation of the Town Council Rules and State statutes, I sincerely hope that you postpone the two items, 12a and 12b listed on the January 13, 2022 Agenda related to the vacancies on Council until all of the required public noticing and procedural steps are completed correctly and legally by the Clerk and Council as well as addressing the apparent lack of transparency and sense of secrecy,” wrote Tribbensee.
“Finally, as a reminder, the processes and laws are designed to provide adequate information, representation and continuity. The public has a right to know, scrutinize and participate in all Council decisions. I cannot say it enough, as there are a number of potential legal issues identified above that could create unnecessary legal issues for the Town if not properly addressed and corrected, please halt and re-initiate the process in order to achieve compliance with State statutes and Town Council Rules.”
Mayor Gibson said that, due to the concerns raised, he was postponing the January 13th agenda items related to the council vacancies. He said they would be starting the process over. There will be new public notices and website notices, and a 10-day application period. A special meeting has been tentatively set for February 3rd to address the vacancies. Public notices advertising the vacancies are currently running in the Bitterroot Star.
The Star spoke with Greg Overstreet, Town Attorney, regarding Tribbensee’s claims. In Overstreet’s view, numbers 1-4 have merit. He noted, however, that the 30-day period from the time of the resignations began on Mayor Brandon Dewey’s watch. He said that council members can still be appointed even though the 30 days had run out.
Overstreet said that the public notice of the vacancies should have been posted on the website. He said the normal notice procedure doesn’t include the website, so it’s a unique requirement for council vacancies. Again, he said the notice omission happened while Dewey was still mayor. He agreed that the application period should have been 10 days, and that the list of applicants and status of eligibility should have been submitted by the town clerk to the town council. “But again, all of this happened in the month of December,” under the old mayor, said Overstreet.
Overstreet did not think that items 5 and 6 had any merit. “I don’t think the agenda language was vague,” said Overstreet. He said the resolution covering council vacancies clearly spells out the process. “There’s no additional requirement to spell out the specific steps to fill a vacancy,” he said. “The resolution sets it out very clearly.” He also noted that Tribbensee mentioned Bob Michalson, one of the applicants for a council seat. “Additionally, following the legal process is even more imperative as there is a high probability that the Council may make the appointment of an extremely controversial, polarizing and quite frankly a huge legal liability to the taxpayers of the community (Mr. Michalson),” wrote Tribbensee.
“There’s no legal requirement to over-comply with the legal procedures because of who might be applying,” said Overstreet.
In other Town news, the new two-person town council, along with the new mayor, actually held its very first meeting on January 11, a special meeting for the purpose of approving a temporary contract agreement with Robert Underwood, the Town’s former finance officer.
Mayor Gibson said that Jenelle Berthoud, the Town Clerk, had been doing the work of four people for the last few weeks. “There is no utility clerk, no deputy clerk, no finance officer,” said Gibson. He said the office was missing 75% of its usual staff. “Jenelle was pretty much alone during December,” said Gibson. He thanked Berthoud and also thanked police and fire department staff that stepped in to help.
“We got the payroll checks and utility bills out,” said Gibson.
Most people who commented were in favor of approving the agreement with Underwood, but a couple of people expressed concern over the fact that Underwood was being hired as an independent contractor. “Does he have insurance? Is he bonded and licensed?” asked Susan Devlin. Karen Wandler, former council member, said she was concerned that, when Underwood left the Town’s employ, “he was 18 months behind in reconciliations.” Wandler also thought it should be made clear whether this was a “contract” or an “agreement.”
Gibson called on Greg Overstreet, Town Attorney, to address the concerns. Overstreet said that the criteria they used for independent contractors is the same as what the state uses and he was unaware of any license needed to be an independent contractor. He said the agreement was based on a template from another professional services agreement, one they used with the building inspector. The contract was unanimously approved. Underwood will be paid $30 per hour for up to 20 hours per week or a maximum of $1499 per month, to perform such tasks as bi-weekly payroll, monthly payroll, payroll liabilities (bi-weekly and monthly), quarterly and year-end payroll reports, payroll audit, bi-weekly claims processing and payment, and reconciliation of bank and credit card statements.
“I think you noticed something that’s different,” said Mayor Gibson to the audience. “We are going to do the best we can to answer your questions… That is your right and that is our job… I may make mistakes but when I do I will own them.”