Stevensville Mayor Brandon Dewey’s hopes of stopping the recall election against him were recently dashed by District Court Judge Howard Recht when he denied Dewey’s lawsuit against the recall petitioner Leanna Rodabaugh and Clerk and Recorder Regina Plettenberg in an order issued August 13, 2020.
In his lawsuit, Dewey claimed that Rodabaugh’s statements in the Recall Petition “were deliberately and recklessly false and misleading and are contrary to Montana law.” He contends the statement in the Recall Petition contains two false allegations. One, that he executed the First Call contract in violation of state law, and secondly, that he denied the citizens of Stevensville their constitutional rights to participate and to know. He further contends the first sentence in the statement is false and was made recklessly to mislead the citizens of Stevensville by failing to inform the citizens that the contract was a three-year contract, it covered services for eight different Town departments, and it included a one-time onboarding fee of $4,200. Dewey contended that he has shown that he is entitled to injunctive relief and that he and the Town will suffer damages for which there is no plain, speedy and adequate remedy in the ordinary course of law if the Recall Petition is allowed to proceed to an election. He further contended that he has shown his entitlement to a declaration that the Recall Petition is fatally defective and must be enjoined.
Rodabaugh countered that Dewey engaged in an official act without legal authority and then sought to conceal his actions. Once the scope of his actions became known and the recall drive began, she contended that Dewey began arguing that he had legal authority to execute the contract and that she had misstated the facts. Rodabaugh contended the governing statutes and ordinances are unambiguous, and she argued that Dewey’s interpretation of the Town’s Purchasing Policy would require the Court to ignore other provisions in the policy. She contended that the Purchasing Policy was adopted for the purpose of advancing transparency and Dewey’s actions have failed to meet that goal and in the process have deprived her and other citizens of their rights to participate and to know. She asked the Court to deny Dewey’s motions and to dismiss the temporary restraining order issued on June 30, 2020.
Following a two-part analysis, Judge Recht found the Recall Petition statement accurate and that the acts alleged in the petition statement are sufficient to make a charge of violation of the oath of office.
Recht first notes that the case does not turn on whether the factual basis for the petition is true or not. “The issue presented here is one of statutory construction,” wrote Recht. “Dewey contends his actions were legal under the governing authorities, and Rodabaugh contends they were not. Both parties contend the governing legal authorities are unambiguous.”
In his analysis, Recht found Dewey’s arguments that the town’s Purchasing Policy grants him authority to execute contracts “unpersuasive.”
“Although §7-5-4301(2)(a) excludes contracts for technical services from the bidding process requirement, nothing in this statute exempts contracts for technical services (or any other services) from statutory-required approval by a town council. Dewey has cited no legal authority – statute or ordinance or other – that excludes technical contracts (or any other contracts) from the Town Council’s authority granted by the legislature to make and approve contracts, pursuant to §§ 7-3-203 and 7-5-4121(2), MCA; and § 2-59, SMC.”
“The provisions on which Dewey rely [sic] govern the purchasing authority of Departments and their Supervisors, not the Mayor,” states Recht, “…Nothing in this provision addresses the Mayor’s
purchasing authority or authority to execute contracts. Furthermore, despite Dewey’s argument that he was delegated authority to contract without Town Council oversight because the contract was funded in the 2020 Budget, the 2020 Budget funded only a fraction of the multi-year contract. The contract that Dewey executed was required for the purchase of IT services and was in Dewey’s hand weeks before the Town Council’s meeting on December 12, 2019.” Recht rejects what he calls “Dewey’s tortured interpretation of the Purchasing Policy” stating “Dewey’s argument is not supported by the plain language of the Purchasing Policy.”
Recht called Dewey’s argument that the Town Council ratified his authority to execute the First Call contract when it approved the First Call claim at its meeting on January 9, 2020, “disingenuous.” Saying, “Dewey does not even attempt to explain how the Town Council could ratify a contract it did not know existed.”
Recht called Dewey’s argument that Rodabaugh not only was able to exercise her constitutional rights to participate and to know but did so when she attended the public Town Council meetings in December 2019 and January 2020 and participated in the budget process and approval of claims, “nothing short of specious.”
Recht notes that, “Rodabaugh’s beef is not with the budget process or the items discussed at the meetings she attended but is with Dewey’s unilateral execution of a contract out of sight of the Town Council and the public. It is the Town Council’s responsibility to notice the public of the subjects of future meetings; however, the Town Council cannot be expected to notify the public of topics of which the Mayor has not made it aware. Despite his extensive motion briefing, Dewey does not attempt to explain how Rodabaugh (or any other citizen) was reasonably able to exercise constitutional rights to participate and to know with regard to the First Call contract when the contract was not made public or placed on an agenda until three months after the deed had been done.”
“By soliciting a quote from First Call outside of the channel utilized by the Town Council, by receiving and opening the quote in private, and by proceeding to execute the First Call Contract on his own without notice to or approval from the Town Council and outside of a public meeting, Dewey acted outside of the law and without legal authority. By doing so, he violated several statutes, ordinances, and the Purchasing Policy, as well as the policy’s stated purpose to ensure compliance with federal and state laws and Town ordinances for all expenditures and to make “open purchasing decisions”; and he deprived the citizenry of Stevensville of their rights to participate in and to know what their government was doing,” wrote Recht in his order.
In his examination of the claim that Dewey violated his oath of office, Recht states that “The legal issue here is whether Dewey’s actions taken with regard to the First Call contract that did not comply with governing statutes, ordinances, or policies constitute the discharge of the duties of his office without the requisite fidelity or faithfulness. The Court determines they do.
“The discharge of the duties of the office of any elected official requires compliance with governing legal authorities. In the case of a mayor in a council-mayor government, the duties of the office require clear and adequate communication with the Town Council. Montana’s constitutional guarantees of its citizens’ rights to participate in their government and to know how their government is conducting its business require transparency in the discharge of the duties of the office of a mayor. Dewey has failed to meet his burden to show that he is entitled to summary judgment as a matter of law. His motion for summary judgment should be denied.
“Having determined that Dewey has failed to meet his burden to show that the Recall Petition is legally insufficient, and having further determined that the statement in the petition is legally grounded, the Court determines that summary judgment should be granted in favor of Defendants. Because the Recall Petition is legally sufficient, it should proceed to a recall election where the citizens may decide whether Dewey should be recalled.”
Recht denied Dewey’s motion on Summary Judgment and granted judgment in favor of the Defendant. The Temporary Restraining Order was dissolved. Plaintiff’s motion for a preliminary injunction, a Temporary Restraining Order and Writ of Prohibition was also denied.
Recall of the mayor will be on the November ballot.
Leanna Rodabaugh, who filed the Recall Petition against Dewey, issued a written statement, saying, “As a citizen of our town of Stevensville, I am strengthened by the ruling made by Judge Recht regarding Mayor Dewey’s lawsuit and restraining order to prevent the recall of the Mayor. This ruling shows the prevalence of justice for the electors of Stevensville and an enforcement of the process of participation by our citizens, a basic right guaranteed by the Constitution of the State of Montana. It is an awesome responsibility to carry forth this right and use it responsibly for the citizens of our town. Our citizens will now be able to choose the direction of their future.”
Mayor Dewey issued his own response, stating, “Judge Recht’s order and opinion is a disappointing one and while his ruling stands, we respectfully disagree with his conclusion. The judge appears to overlook many vital facts that we presented that speak to the Town Council’s intentional delegation of authority within the Town’s purchasing policy.
The administration and I have always acted with the community’s best interests in mind, and the decision to contract with First Call Computer Solutions was no exception. The need for managed IT services was not disputed by either party in this case, which speaks to our intent to provide responsible and efficient everyday services that our residents rely on and can count on us to deliver. The agreement was executed in good faith and based on our interpretation and understanding of the relevant policies. Those understandings and interpretations, coupled with the opinion of the City Attorney, gave us no indication that a violation would occur. According to the judge, we got it wrong this time. Our commitment to the community and to do better has not changed.
Ultimately, it is the voters who will get to decide whether the dedication I have demonstrated to this community is enough to forgive an oversight that hinges on a grey-area of law where legal experts have landed on different conclusions.”