Stevensville Mayor Lew Barnett and Council members Robin Holcomb, Desera Towle and Pat Groninger took their oaths of office for a second time, this time in public, at the January 25 meeting of the Stevensville Town Council.

The issue of the legitimacy of the first swearing in ceremony, held privately at the home of former Mayor Susan Evans on December 31, was placed on the Council’s agenda at the request of the the Bitterroot Star newspaper.

Prior to consideration of any old and new business agenda items, in the public comment portion of the meeting, Star publisher Michael Howell asked the Council to consider moving the issue from the order of new business to first in the order of old business, since the question being raised could affect the validity of any decision made that night under old business.

Howell said the newspaper had received a legal opinion indicating that the private swearing in ceremony was in violation of the state’s constitution and open meeting law and that under the law, “a citizen could ask the District Court to set aside the swearing in, if done in private, and could have the effect of voiding any decision made by the officers sworn in at the private ceremony.”

Councilor Desera Towle said that she had no problem advancing the time on the agenda.

Councilor Groninger said, “Have we not paid for legal advice saying that we were not wrong in the way we conducted it?” He said there was no quorum at the private meeting. He said it was on the agenda for new business and he was against moving it forward.

Councilor Clayton Floyd said, “I have no problem moving it forward.” He said that he brought it up at the last meeting that if it turns out that it was not legal, then every decision made by the new council would be invalid. He said it was important to address that possibility.

“I think if it’s on the agenda for new business, we ought to just go along with our agenda,” said Councilor Robin Holcomb.

A vote was held. Towle and Floyd voted to move the item up on the agenda. Holcomb and Groninger voted no.

Mayor Barnett broke the tie, simply saying, “I’ll break the tie and we’ll take care of it right now.”

Howell addressed the Council, saying that his newspaper had received a legal opinion that was contrary to the advice the Town had received from its counsel. He said that neither he nor the town probably want to go to court over the issue

“We could just let this legal question lie,” said Howell, but he said it could be raised by any third party in the future. “It is something that could come back and bite you at some point, if it’s not addressed now,” said Howell.

Howell said that beyond the legal considerations it was important to address other aspects of the issue as well. He said holding a private swearing in ceremony violated the essence of what oath taking is all about. He said that Ravalli County Sheriff Chris Hoffman aptly described the essence of oath taking when his oath of office was questioned recently.

“He said, ‘I have already taken an oath before God, before my family and before the community’,” said Howell. “That’s something you guys haven’t done yet. Maybe before God, maybe before family, but the community was excluded. I think the Sheriff summed up the essence of what this is all about.” By not inviting the public, said Howell, an essential part of the oath taking had been left out.

Howell also stated that there was a long tradition in the Town of Stevensville of taking the oath of office in public. He said that there was probably not another official in the state that was sworn in at a private ceremony. He said it was not something Stevensville would want to be the first at.

Howell asked the Mayor and new Council members to take their oath in a public forum. He also read into the record a letter from Helena Attorney Peter Michael Meloy, stating that the private ceremony was in violation of the Montana Constitution and the Open Meetings law. He said although the Montana Supreme Court has not ruled on it specifically they would likely rule that a private ceremony was illegal because oath taking “is not a private action.”

Meloy also stated in his letter that the private swearing in ceremony violated the state’s Open Meeting Law because “although not taking office until January 5th, they were in fact sworn in and participated in the first meeting of the council.”

Meloy also argued that it was traditional in Montana to take the oath of office in public. He called it “an important first step in gaining the trust of the citizens of Stevensville and it is simply against public policy to perform this ceremony in private.”

Town Attorney Keithi Worthington said that she was familiar with Meloy. “Frankly, while he is respected throughout the state, I don’t think this opinion is worth the paper it was printed on.” She said that Meloy takes a lot of liberty with the law and fails to recognize what’s actually written. She said that nowhere in the Constitution is the oath required to be taken in public.

“It is not a public oath,” said Worthington.

Worthington said that in the Open Meeting Law it refers to a “public body” making “a decision.”

“No decision was made here,” said Worthington. “The decision was made by the public in the election. That was the opportunity for public comment.” She said that there was no quorum present because the newly sworn officers had not yet taken office, which they could not do, by statute, until the first meeting in January.

“I don’t think there was an error,” said Worthington, and no one who challenged the validity of the oath taking would prevail in court.

Councilor Clayton Floyd said that both arguments were compelling.

“But it is a tradition,” he said.

Floyd also recognized that there was a legal dispute and said that he felt the best course of action would be to take the oath in public.

“Because then it meets all the requirements, it puts the matter behind us, and it eliminates the question that is looming over the Council now,” said Floyd.

“Even though the whole Town wasn’t there,” said councilor Robin Holcomb, “we did have some family members and we were told that we could invite anyone we wanted to bring. I don’t think we did anything wrong and I don’t think we should do it all over again.”

Councilor Desera Towle said that as a new council member and a new council, “We want to seek openness and bring a new resolve to Stevensville that we are accessible. I don’t think I want to be a part of a question that goes into the future about the decisions we are making.” She said that after listening to both sides she would like to support a public oath, “just so there is never a question.” She said that the Town needs to look at formulation of a policy to address the process in the future.

Councilor Pat Groninger said that he had researched the matter and looked at the statutes, “and I cannot support our attorney more on the fact that nothing states it has to be done in public.” He said that he was going on the recommendation of the town attorney that nothing was done wrong.

“If it was a matter to have it in public with the cake and ice cream, whistles and bells and everything else, that’s fine,” said Groninger, “but what really gets me right now is we’ve got a lot more important things to be worried about here.” He said they had taken an oath on December 31 so they could be ready, be accountable and able to take office.

“If our attorney or the Mayor says we have to do it again, fine,” said Groninger, “but I feel like, why are we even discussing it.”

Attorney Worthington then made an additional comment, saying, “Should it have been done publicly? Sure, I think it would have been better to have been done publicly. I think we all agree on that. But there is the distinction of whether it is illegal because it wasn’t done publicly. Absolutely not.”

Mayor Barnett said that he was in agreement with the town’s attorney.

“That being said, to put aside any further delays, and potential court costs, court challenge and lawyers, I’ll put it to a vote.”

The council then voted on a motion to perform the oath of office again in public. That motion was approved on a vote of 3 to 1, with Councilor Holcomb casting the lone dissenting vote.

Worthington administered the oath of office to Barnett and the three new members of the council, after which the council tackled the pressing business of town government.

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Stevi to challenge denial of water right application

Water/sewer rate hikes in the works

By Michael Howell

The Town of Stevensville has received word that its water right application with the Department of Natural Resources and Conservation (DNRC) for its proposed new well field, tied to the approval of the Twin Creeks subdivision, has been denied.

Developer of the Twin Creeks subdivision, John Anderson, agreed as a condition of approval of the subdivision to provide the Town with a well and a well site to house up to three additional wells to supply water to the Town of Stevensville. The subdivision cannot be finally approved until that condition is met.

In order to accomplish that condition the Town applied for a water right for the Twin Creeks subdivision, with the aim of converting the existing irrigation water right held by Anderson into a full year round water right for the Town.

Councilor Clayton Floyd read from an e-mail received on January 21 from Andy Medford at PCI informing the council of the denial of the application primarily over the issue of changing the irrigation rights into a year-round right. The e-mail said that Ross Miller, water rights attorney for the Town, indicated in a phone call that DNRC had recently changed the rules about how irrigation water could be used for mitigation. He said that previously irrigation water rights could be allowed for a year-round new use, but that it was no longer allowed at face value.

The recommended course of action, according to the e-mail, is for the Town’s consulting firm on the matter, Geomatrix, to provide additional evidence that even though the previous right is an irrigation right, it would equal or exceed the requested change in use.

Floyd emphasized that there was a thirty-day window to file for a Show of Cause Hearing to present this data for an action to reverse the denial

“If we don’t get that done, all the rest of this is for naught,” said Floyd.

Councilor Desera Towle wondered if any other option had been considered. She said that she had stopped into the DNRC office while in Missoula on other business and based on her discussion with a DNRC official she thought the option of starting a whole new application should be discussed. She said that maybe starting a whole new application “on a fast track” would be a better idea.

Councilor Pat Groninger questioned the appropriateness of her action when they had paid consultants and attorneys working on the application.

Towle said that she was just seeking information that might be helpful to everyone.

Councilor Floyd said, “There is no fast track at DNRC.” He said that Miller seemed confident that, given the required new information, the DNRC would reverse its denial.

Ed Sutherland, head of the Stevensville Road Department, reminded the Council that it had made an agreement with the County to get the well field done and the water mains across the road and be totally done by the first of August.

“We can’t go backwards in the water right application,” said Sutherland. “We need to keep on going and get that well field and get the job done by the time we agreed to with the County.”

The Council voted unanimously to authorize Geomatrix to provide the data and have Miller file for a Show Cause Hearing to seek reversal of the denial of the water right application.

In other business, Mayor Lew Barnett raised the issue of the water and sewer rate hikes recommended in the recent analysis of rates done by PCI.

“It’s time to get going on this,” said the Mayor.

Councilor Floyd said, “It’s past time.” He said the Town couldn’t move forward on grants and planning and the scheduled water and sewer improvements without implementing the recommended hikes.

The study recommended an initial 40 percent hike in rates.

“It’s time to bite the bullet and get the revenue we need,” said Floyd.

Councilor Groninger said that it was a bad time to be raising rates with the economy suffering the way it is, “but we are in need too and its overdue,” he said.

Councilor Towle said that she was in agreement that the rate hike was needed, but she said that the public needed to be provided the information they need to understand it.

“It is past due and we need to let the people know why,” said Councilor Holcomb in agreement.

Andy Medford, of PCI, outlined the process that any rate hike would have to follow. The first item would be a Resolution of Intent to raise the rates, followed by publication of three notices followed by a public hearing. The final act would be a Resolution of Rate Increase.

The matter was tabled until the next meeting, scheduled for February 8.

In other business the Town Council:

-Approved to pay the monthly claims submitted with the exception of payments to PCI, at the request of Councilor Towle, who wanted time to review them.

-unanimously acclaimed Pat Groninger as Council President

-approved signing a CDBG grant contract with Janet Cornish with an amendment to the insurance liability provision

-unanimously approved adding the Pledge of Allegiance to the Council agenda

- established a Budget Committee and appointed Councilors Towle and Holcomb to the committee

-established a Water and Sewer committee and appointed Councilors Floyd and Groninger to the committee.

-tabled until February 8th consideration of a Rural Development Grant contract with HDR engineering.

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Recycling business to close

There is an old saying, “You never know what you’ve got, till it’s gone.”

If that’s true, residents of Ravalli County may soon come to know what it means to have a recycling center in the valley, once they don’t have one anymore.

Ravalli Recycling, the only recycling center in the Bitterroot, will be closing its doors by the end of April, according to CEO for Ravalli Services, Mike Sadowski. Ravalli Services is a company dedicated to serving developmentally challenged people. It runs a thrift store that employees some of their clients and generates some income for the enterprise. The Ravalli Recycling business was started with the same intention. It functioned that way for a long time, according to Sadowski, but no longer does so, leading to the decision to close the business down.

Sadowski said that there were two main factors involved in the decision.

One factor is the decline in the number of Ravalli Services’ clients that were willing or able to work at the recycling center.

“Even if we didn’t have clients working there, but we made a profit that could go back to Ravalli Services, it could be a worthwhile enterprise,” said Sadowski, “but when you are not even making a profit, then you need to go back to your original mission.”

Ravalli Recycling is losing money, not making money. It lost about $20,000 between July and October this year. And, according to Sadowski, given the state of the economy, the future does not look any better.

“Without either, we are forced to confront the reality,” said Sadowski.

Sadowski said that the company had looked at all its options. He said that no government dollars were available in the state for recycling and it was not a viable operation. He said the same factors contributing to the company’s demise may well prevent the remaining recyclers in Missoula, Allied and Pacific, from coming to the Bitterroot. The distance that recyclables have to be shipped is a major part of the cost and benefit equation.

“People may be unhappy,” said Sadowski, “but you just can’t keep operating a business that is losing money.”

Although there may be some small metal recycling businesses going on in the valley due to the high price of metals, said Mark Hammond, who has worked at the plant for 11 years, there is no other major recycler for handling cardboard and newsprint and batteries on the scale that Ravalli Recycling has.

“What does not go into recycling will go back into the waste stream,” said Hammond.

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Group asks for further analysis of proposed septage dump site

By Michael Howell

The Ravalli County Fish and Wildlife Association has written to Governor Brian Schweitzer and a few other officials, including Richard H. Opper, Director, Montana Department of Environmental Quality, Joe Maurier, Director, Montana Fish, Wildlife and Parks and Renai Hill, DEQ Waste & Underground Tank Management, asking them to delay the pending decision on permitting a proposed septage dumpsite near Stevensville.

The group is asking for a 90-day grace period before any decision is made so a site specific and thorough environmental assessment can be conducted.

The dumpsite being considered would be on about 75 acres of land owned by Ed Cummings northwest of Stevensville.

“A recent public meeting disclosed frighteningly inadequate environmental assessment of materials from the waste site that might reach the nearby Bitterroot River, in a Blue Ribbon Section of the stream, should even a minor combination of rain-snow and snowmelt conditions occur at that location, as they often have in the past. While we recognize the need to locate an appropriate site in the Bitterroot Valley for these sorts of waste, we believe the risk we’d take by putting this waste treatment system at this site is too profound to take, particularly when DEQ is proceeding without really having done a full EIS at the site – instead basing its plans to move ahead on the basis of its own incredibly inadequate EA assessment and the failure to be site-specific in terms of potential negative impacts to the Bitterroot River, plus other concerns,” states RCFWA President Tony Jones in his letter.

Jones goes on to state in the letter that, “Assurances made by Ms. Hill at the public meeting to the effect the site could always be closed down if a problem develops is disingenuous thinking. The Bitterroot River is too valuable a resource environmentally, biologically, sociologically and economically for us to take such an unwarranted risk. Please give us time to ensure that what is proposed here is right, and if we find it’s not right, then we shouldn’t put the waste disposal site where it could endanger the very vitality of the Bitterroot River.”

A motion to make this request was approved unanimously by the members of the RCFWA last Monday at its regular monthly meeting in Hamilton.

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Stevi school hires Kalispell firm to manage building project

At a special school board meeting held Tuesday, January 26, the Stevensville School Board of Trustees agreed to hire, with a few conditions, Swank Enterprises of Kalispell as the contract manager at risk to manage the construction of a new school building on campus. The $8.8 million building project was approved by voters last November. The project calls for a new 4-8 building, and a percentage of a music center, multipurpose room, stage and kitchen, and the demolition of the junior high building, 4-6 building and junior high shop and English building.

The school?s facility committee received about 15 submissions for the job and winnowed that down to four companies that were interviewed for the job. Interviewed were representatives of Swank Enterprises of Kalispell, Martel Construction of Bigfork, Quality Construction of Missoula, and BN Builders of Seattle.

School Board Chair Cathy Cook said that Swank had a lot of experience building more than a hundred K-12 schools in Montana. She said that Swank had a history of providing local contractors a chance to bid on portions of the projects they managed.

Facility Committee member and trustee, Kirk Thompson, said that all four companies had employees living in the valley, making it a difficult decision. Although details of the contract are yet to be negotiated, Thompson moved that the contract for general manager not exceed five percent of the total construction costs.

Superintendent Kent Kultgen said that the role of the construction manager was to provide the organizational structure for the project, choose the types of materials to be used and make recommendations on the kinds of heating and lighting systems to be installed. He said that hiring a construction manager at risk guarantees the final price of the project.

Trustee Gary Burgett remarked that, while Swank was not initially at the top of his list, “the interviews made it clear to me that Swank ranked far above the others.” Trustees Ed Cummings and Roger Bardsley were in agreement.

A few people attending the meeting stated that they were disappointed in the committee recommendation. They urged the Board to hire a local contractor for the job, claiming that it was more important than ever to support the local economy. One person claimed to have checked the safety record of the companies involved and determined that Swank had more OSHA violations than some of the other candidates.

The school did receive a letter from the Carpenters Local #28 union stating that the union was investigating that all elements of the law had been met.

“As President of the Local and a father and resident of the Stevensville area, I am extremely disappointed that the project was awarded to a nonresident contractor of the community when multiple quality union contractors were available in the city and Missoula,” wrote Eric Lanthrop, President of the Union.

Superintendent Kultgen has responded in a letter from the school stating that the entire process was totally transparent and properly noticed. He notes that one law referred to in the union’s letter applies to state agencies but not to schools. Requirements for schools are outlined in another section of the law.

Kultgen noted that the motion passed by the Board was contingent on the negotiation of the contract, which is set for Thursday, and that it is also contingent on the selling of the bonds. Kultgen also notes that Swank is a non-union contractor.

Swank has stated in its draft contract proposal that it will “provide a maximum possibility for local firms to participate in the bidding and construction process. It shall be an expressed priority to encourage each participating subcontractor to utilize local crews to perform the work.” Swank also agrees that if their company is the successful bidder on any other portion of the work that it will utilize local workers to make up the crew.

“In the event the school bonds do not sell there will be no contractual and/or financial obligation between Swank Enterprises and Stevensville School District,” it states in the contract proposal.

In other business the Board of Trustees approved making an application for a grant for more building funds. Although the voters approved the elementary school building bond last November, they rejected an associated high school building bond. The total amount requested was $860,000 and would have paid for a percentage of the construction of a music center, multipurpose room, stage, kitchen and building demolition.

Superintendent Kent Kultgen told the Board that he had only recently been informed of some stimulus money that is available for school building construction. He said that the factors that could give the high school portion of the project a leg up in the application process were the student safety factors and the fact that other means of funding have already been exhausted. The grant requires no matching funds and the application must be in by March

1. Grants will be awarded April 1.

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