Recall lawsuit fully briefed

The lawsuit filed by Stevensville Mayor Brandon Dewey aiming to stop the recall vote against him has been fully briefed in Ravalli County District Court. The lawsuit was filed by Dewey against the petition sponsor Leanna Rodabaugh and Election Administrator Regina Plettenberg and challenges the validity of the recall election. He claims that Rodabaugh’s petition is invalid because it is based on lies and misinformation and should not have been approved for circulation in the first place.

Rodabaugh’s petition claims that Dewey approved a $78,000 contract with an IT company without council approval. Dewey argues that the information presented in the petition is misleading. He claims the expenditures were approved in the budget and that the three-year non-binding agreement he signed was approved when the budget was passed and that town policy does not require council approval for the mayor to contract out the work. He claims that Rodabaugh knew all this when she filed the petition and thus swore a false oath about its truth. Dewey is represented by Missoula attorney Natasha Prinzing Jones of Boone Karlberg PC.

At the hearing, Judge Howard Recht asked the parties to provide additional briefing on a few issues facing the court. He asked how the court should deal with the possibility that it was a political issue that should be resolved in some other fashion. He also wanted to hear what legal standard the court would apply to determine whether it should invalidate a petition approved by an election administrator. Thirdly, he asked for briefing on whether supplementary information provided as part of the recall petition should have been more widely disseminated to the people who signed.

Dewey actually responded to the Judge’s questions in a motion for summary judgment in which he asked the judge to find the petition invalid because it was based on false and misleading information. He argues that the sworn statement supporting the recall petition asserts two false allegations as grounds for Plaintiff’s violation of oath of office: Plaintiff’s execution of the contract with FCCS was in violation of Mont. Code Ann. § 7-3-203(7); and Plaintiff denied citizens of Stevensville the Right to Participate, in accordance with Mont. Const. Art. II, §8, and Right to Know, Mont. Const. Art. II, §9.  

“Because Plaintiff’s actions were authorized by Montana law and the Stevensville Purchasing Policy, and because the FCCS contract amount was within the budget approved by the Town Council at a public meeting, summary judgment to permanently enjoin the Recall is proper,” Dewey argued.

In that submission, attorney for Dewey, Natasha Prinzing Jones, answered the judge’s questions, arguing that the issue involved in the case is “not one of political stature, but rather one of legal authority” quoting from case law (Foster v. Kovich), “the legal sufficiency of allegations in a recall petition is a judicial as opposed to a political question and is to be decided by the trial court in a proceeding for declaratory and injunctive relief against the recall.”

She states that the Montana Recall Act requires that the charges of violation of oath of office–when used for recall–be based on the “truth of purported facts contained in the statement” sworn to under oath by the petitioner.

Jones points out that no charges of official misconduct have been filed against Dewey and argues that none of the recall allegations meet the criminal definition of official misconduct.

As to whether reviewing the supplemental information  attached to the recall was part of the legal duties and authority of the Election Administrator, Jones stated that the review of the legal sufficiency of the petition was not in the purview of the election administrator who only reviews it for form. But it is within the province of the Court to make such a determination.

In his brief, attorney for Rodabaugh, Charles Carpenter, argues simply that it is the mayor who is mis-stating the facts. He claims that the undisputed evidence presented at the hearing supports the claims made by Rodabaugh and that the mayor is mistaking a legal issue for a fact when he claims that he had authority to sign the contract.

“The underlying facts here are not disputed. That Stevensville has a binding legal structure for town procurement is undisputed, even if the Mayor thinks his authority is greater than that actually granted, which is clearly a legal question. What the Mayor did with respect to the FCCS contract is also not in dispute – he claims that the Town Council ratified his actions -which is, again a legal question – and does not dispute that once the Council was fully aware of the FCCS contract, the Council rejected that contract. The evidence adduced at the hearing shows that the Mayor did not comply with the provisions of the procurement policy, as they had been applied in the past,” states the brief.

Carpenter claims that the town’s Procurement Policy “provides, repeatedly and in no uncertain terms, that ‘[a]ll contracts for services must be approved by the Town Council’.” He argues, although the policy may allow an exception for Department Heads to contract for services, it does not allow the Mayor.

The essential point of the recall petition, argues Carpenter, is that the Mayor exceeded his authority in executing the FCCS contract. He claims it is undisputed that the FCCS bid was not opened in the presence of the Town Council during an official meeting, and that at the time the bid was received from FCCS, there was no budget approval for this expenditure. 

He also claims it is undisputed that the Town Council did not approve the FCCS contract prior to execution. It is undisputed that the Town Council had not even seen, much less approved, the FCCS contract when it approved the budget, late on the night of December 12, 2019. 

“The Mayor argues that none of this matters because notwithstanding the provisions of the municipal code, and the repeated requirement in paragraph 7 of the Procurement Policy that all contracts require Town Council approval, he may use the limited authority granted to Department heads in subparts of that section to approve this substantial contract, because the Council approved a line item in the budget,” wrote Carpenter. “Rodabaugh does not agree that the Procurement Policy is ambiguous, but even if it was, there is no way it can be stretched to accommodate the interpretation offered by the Mayor.”

Carpenter agrees that the issues in question about the validity of the petition are to be decided by a court. But, “the Court is permitted to examine the statements in the petition for factual accuracy. It is not the Court’s role to determine whether or not the Mayor should be recalled for his conduct.”

On the other hand, he claims, the Mayor is, of course, free to argue in the election campaign that he did in fact act in fidelity to his oath, that he thought he had the authority to conceal a significant contract from the Council and the public, and that even if he did not, the contract has been terminated, and so recall is not warranted. But, “These are all questions for the voters, not the Court,” wrote Carpenter.

As to the question about the signature gathering process itself, Carpenter wrote, “Rodabaugh is not aware of any failure on her part, or on the part of any of the other signature gatherers, to comply with all mandates of the recall statute. The requirements in those statutes are already quite onerous, and the imposition of additional requirements, without evidence of malfeasance on the part of petition gatherers, is not warranted.”

Carpenter asks the judge to deny the motion for an injunction and dissolve the restraining order entered on June 30.

In the county’s response brief on behalf of Election Administrator Regina Plettenberg, it was claimed that “Here, the District Court likewise must decide whether the allegations stated in the petition by Rodabaugh fall within the meaning of ‘violation of oath of office.’ Like Foster, the Court should examine whether the allegations are conclusory or indefinite. Because the Foster court came to its decision by looking at the petition language for the specificity of the allegations, Foster implies that this Court could do the same and focus on (and make its decision based solely upon) the petition language.”

“In summary, while there is no precedent establishing a defined standard under which the District Court should review the allegations, Foster and Sheehy demonstrate that the District Court should use all of the evidence before it to determine the patent truth or falsity of the allegations set forth in the recall petition.”

The county suggests that the Court could determine whether, under the Town’s Purchasing Policy, entering into a contract for services (and thus creating obligations that the town must follow, such as the penalty provisions discussed at the hearing) falls under the same process as a one-time purchase of services.

“In other words, does the Town Council adopting a budget authorize the Mayor to then enter into a contract, with its attendant terms and conditions, without further public or council review?” they ask.

They claim the Court could further examine the Town of Stevensville Purchasing Policy. The Town Purchasing Policy states that the Department Supervisors are able to purchase services with the Mayor’s approval. The Court could consider whether this language means that the Mayor has the authority to consolidate all of the Department Supervisors’ Information Technology budgets in order for the Mayor to enter into a contract for services.

The county also said the Court could examine whether Dewey’s conduct in signing the Information Technology contract precluded the public the “Right of Participation” in violation of Article II, Part II, Section 8 of the Constitution of the State of Montana, which could be determined to be a violation of the oath of office. 

“Specifically, the Court would need to determine whether the public had a right to have input on the contract and its specific terms, or the public’s right was limited to participation in the budget itself, and whether Dewey violated his oath of office by not permitting such participation,” they argued.

The county also agreed that the legal sufficiency of allegations is a judicial question, not a political question, and is to be decided by the trial court in a proceeding for declaratory and injunctive relief against the recall.

“Thus, regardless of potential political issues, the District Court must first look at the facts and the sufficiency of the allegations alleged in the petition. At issue is whether the supplementary information provided as part of the recall petition should have been more widely disseminated to people who signed the petition. Foster, Sheehy, and Steadman imply that an insufficient petition cannot be made sufficient by additional, supplementary materials…Any added materials are not relevant because a petition must stand or fall on its own. Id. Here, because the petition must be sufficient on its own, the Court could determine that while supplementary materials might assist the electorate, it is not necessary that the material be reviewed,” wrote the county.

Dewey did submit a last minute “update” to the court on July 24th. It was an affidavit to the court in which he pointed out that the Town Council approved the contract with First Call Computer Solutions at its July 22 meeting saying the proposed and approved contract contains identical terms to the contract that was executed last December. He said the Fiscal Year 2021 Budget was also approved in the Town Council meeting on July 22, 2020, and there was no council discussion with regards to the IT service line items, or the budget allotted thereto, prior to the Town Council’s vote of approval. 

In conclusion, he states that after the FCCS contract was approved by the Town Council, Defendant Leanna Rodabaugh commented on the Facebook live broadcast of the Town Council Zoom meeting, stating: “slit your throat mayor. Bye bye. Recall.”

In his brief supporting Rodabaugh’s petition, Carpenter spoke to the issue of the contract signing being remedied, stating, “That the misconduct has been remedied in part is not relevant to the truth of the assertion: a shoplifter cannot say he did not steal an item from a convenience store if, having been caught, he returns the item to the store owner. Nor would it change the accuracy of a description of the shoplifter’s conduct if he returned to the store the following day, but this time paid for the items. For this reason, the Town Council’s approval of the FCCS Contract at a hastily called July 22, 2020 special meeting, even if valid, has no impact on the Court’s review of the Recall petition. 

“Obviously, subsequent events have an impact on whether further punishment is warranted: here, it is for the voters to decide whether the Mayor’s breach of faith – even if cured after he was caught – justifies his removal. The Court though is only judging the truth of the statement about the Mayor’s course of action before he was caught. The statement in the recall petition is true.”