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Commission Memorandum

REPORT TO: Honorable Mayor and City Commission

FROM: Andrea Surratt, City Manager


Greg Sullivan, City Attorney

SUBJECT: Adopt Resolution 5051, a resolution ratifying the City Manager’s approval
of settlement and waiver of appeal rights in Roger Koopman & Paul F. Johnson v. City of
Bozeman (Cause Nos. DV 18–1166B and DV 18–1215C, Montana Eighteenth Judicial District
Court, Gallatin County)

MEETING DATE: April 22, 2019

AGENDA ITEM TYPE: Action

RECOMMENDATION: After accepting public comment, adopt Resolution 5051.

SUGGESTED MOTION: Having considered public comment, I hereby move to adopt


Resolution 5051.

STRATEGIC PLAN: The Bozeman Public Safety Center is one of the City’s top seven
priorities as listed in the City’s Strategic Plan. Under the vision statement of “Safe Welcoming
Community (We embrace a safe, healthy, welcoming and inclusive community)” the first action
item is “3.1 Public Safety – Support high quality public safety programs, emergency
preparedness, facilities, and leadership.”

BACKGROUND: This past November, city voters approved the sale of bonds to construct a
new Bozeman Public Safety Center (the “BPSC”) on Rouse Avenue between Oak Street and
Tamarack Street. The development of a safety center to provide updated facilities for police, fire,
municipal courts, prosecution, and victim services has been a priority of the City Commission
and City Management for years. Information on the background of the Safety Center can be
found in the April 23, 2018 City Commission packet materials and on the BPSC project page on
the City’s website. The remainder of this memo is dedicated to discussion on the proposed
settlement agreement.
At the time of the election plaintiff Roger Koopman filed a complaint in Gallatin County District
Court seeking a ruling from the district court that the City and Commissioners violated State law
and that the election should be overturned. Because the City determined the district court was not
the appropriate legal forum for resolving the issues raised in the complaint, the City self-served
the complaint with the Commissioner of Political Practices (CoPP) – the forum we believe to be
the proper body to hear the type of issues included in Mr. Koopman’s complaint. The CoPP
dismissed the complaint finding City educational materials for the BPSC were educational in
nature and not improper advocacy, and that the City did not coordinate any BPSC activities with
an outside citizens group.

Mr. Koopman also filed his district court complaint with the City’s Board of Ethics. The Board
dismissed the complaint indicating “The uncontroverted evidence shows that Mayor Andrus,
Deputy Mayor Chris Mehl, and Commissioners Jeff Krauss, Terry Cunningham, and I-Ho
Pomeroy did not violate either the Bozeman Code of Ethics or Sect. 2-2-121(3), MCA.”

As for the district court case, the District Court recently ruled in the City’s favor determining Mr.
Koopman did not have a private right of action to challenge the election in the manner in which
he did. After judgment was entered on March 28th, by rule Mr. Koopman has 60 days to file an
appeal with the Montana Supreme Court. This means the time to file an appeal will run at the
end of May. An appeal to the Montana Supreme Court could take at least six to nine months. If
Mr. Koopman were to wait the maximum time to file a notice of appeal a decision on the appeal
may not come until early next year.

As such, the simple act of an appeal even if the City were to succeed upon appeal will be enough
to delay the BPSC for an entire year resulting in increased costs to the project and an indefinite
delay in addressing the inadequate facilities the BPSC will address.

RAMIFICATIONS OF SETTLEMENT:

Throughout this litigation, we have recognized the litigation has had significant impact on the
future of the BPSC. With litigation in place, the City will not market and sell bonds – the
primary source of financing for the BPSC. This means that during litigation and during any
appeal funding for the project through the sale of bonds is not possible. While the City has some
funds available for the project, the vast majority of construction costs will come from revenue
from the sale of bonds. We estimate that as construction costs increase continually in the Gallatin
Valley a year of delay could mean an increase of at least $2,000,000 in costs for the project.

Delay also means the issues associated the need for the BPSC continue to go unaddressed. The
practical impacts of not constructing the BPSC are significant. These include: City staff must
indefinitely continue to work from and within inadequate facilities. This includes employees in
police, fire, and municipal court services. Next, appeal and continued litigation means an
indefinite delay for addressing the safety concerns for City employees and the public who enter
the current Law & Justice Center for city related purposes. In addition, indefinite delay means
financial issues related to inadequate facilities at the current Fire Station One (especially in
relation to the historic boiler) go unaddressed. Other impacts include indefinite delay to
addressing inadequate police facilities related to evidence storage, inadequate facilities for the
municipal court file storage, etc. These deficiencies in City facilities have been well documented.

Resolving this case through settlement means Mr. Koopman waives his appeal rights. This is the
most important aspect as it means the case is over. City staff can begin immediately to
implement the process to sell bonds, provide revenue for final design, and have a chance of
staying on time with the proposed schedule of bidding construction at the end of 2019 or early
2020. As such, we consider settlement a business decision of the City. He has approximately five
more weeks to file a notice of appeal with the Montana Supreme Court.

TERMS OF SETTLEMENT:

The settlement agreement contains several terms. These include:


• Payment of $21,955 in attorney fees and costs;
• Waiver of appeal rights by Mr. Koopman;
• Requirement that the City Manager include in her proposed budget for future bond
elections a budget for any proposed educational efforts (this has been done in the past);
• Placement of a banner on the homepage of the City’s website to provide a link to
information on the proposed ballot initiative (this is what the City already did with the
BPSC);
• Filing of a joint notice of final settlement and plaintiffs’ waiver of appeal rights in the
District Court; and
• No admission of wrongdoing by the City.

As stated, this is a business decision of the City. We continue to assert, as has been shown
through dismissal of Mr. Koopman’s complaint by the CoPP, the City’s Ethics Board, and the
District Court, that the City did everything related to the educational efforts for the BPSC within
the requirements of the law.

UNRESOLVED ISSUES: None identified. If the Commission adopts the Resolution, the case
will be over and the Bozeman Public Safety Center can continue as planned.

ALTERNATIVES: None suggested. If the Commission does not ratify the settlement, we
are uncertain whether any additional room for negotiation exists. The Commission may reject
ratification, which would put the City into the same position – awaiting whether Mr. Koopman
will appeal to the Montana Supreme Court.

FISCAL EFFECTS: The fiscal effects of this decision are significant. While the City would
agree to pay $21,559 in attorney fees and costs to Mr. Koopman, resolving this case will result in
the Bozeman Public Safety Center moving forward. Absent resolution of this case (and should
Mr. Koopman appeal) as noted above, the City will face significant cost increases due to delay in
selling bonds. This could be over $2,000,000 in delay costs. In addition, in order for the City to
continue with conceptual design, the City adjusted the current fiscal year’s budget to provide
additional funds from other projects – delaying those other projects to a future time. The funds
were necessary to keep the design on schedule. These other projects (PROST plan update,
Commission Room safety and tech upgrades) may now continue.

Attachments: Resolution 5051 with Attachments


Settlement Agreement
Joint Notice of Final Settlement and Plaintiffs Waiver of Appeal
Report compiled on: April 18, 2019
RESOLUTION NO. 5051

A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,


MONTANA, RATIFYING THE CITY MANAGER’S APPROVAL OF A SETTLMENT
AGREEMENT AND WAIVER OF APPEAL RIGHTS AGREEMENT IN KOOPMAN ET
AL. v. CITY OF BOZEMAN (CAUSE NOS. DV 18–1166B AND DV 18–1215C, MONTANA
EIGHTEENTH JUDICIAL DISTRICT COURT, GALLATIN COUNTY)

WHEREAS, The Bozeman Public Safety Center (BPSC) is one of the City’s top seven
Strategic Plan priorities as listed under the vision statement of “Safe Welcoming Community
(We embrace a safe, healthy, welcoming and inclusive community)” wherein the first action item
is “3.1 Public Safety – Support high quality public safety programs, emergency preparedness,
facilities, and leadership”; and

WHEREAS, At the November 2018 general election, city voters approved the sale of
bonds by a vote of 13,580 in favor to 9,134 opposed to construct a new Bozeman Public Safety
Center (BPSC) on Rouse Avenue between Oak Street and Tamarack Street; and

WHEREAS, In November, 2018 Roger Koopman and Paul F. Johnson filed a complaint
in the Eighteenth Judicial District court alleging the City, its elected officials, and unidentified
employees, violated Montana law in the City’s educational effort related to the BPSC bond
election; and

WHEREAS, the Montana Commissioner of Political Practices dismissed the complaint


finding City educational materials for the BPSC were educational in nature and not improper

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Resolution 5051, Settlement and Waiver of Appeal Rights Agreement in Koopman v. City

advocacy, and that the City did not coordinate any BPSC activities with an outside citizens group;
and

WHEREAS, Mr. Koopman filed the same compliant with the City’s Board of Ethics
who also the dismissed Mr. Koopman’s complaint indicating “The uncontroverted evidence shows
that Mayor Andrus, Deputy Mayor Chris Mehl, and Commissioners Jeff Krauss, Terry
Cunningham, and I-Ho Pomeroy did not violate either the Bozeman Code of Ethics or Sect. 2-2-
121(3), MCA;” and

WHEREAS, The District Court dismissed Mr. Koopman’s complaint ruling Mr.
Koopman did not have a private right of action to challenge the election in the manner in which
he did; and

WHEREAS, Mr. Koopman has approximately five more weeks from the date of this
Resolution to determine whether to appeal the District Court ruling to the Montana Supreme Court;
and

WHEREAS, an appeal to the Montana Supreme Court could take a minimum of six to
nine months; and

WHEREAS, while the City is confident it would be successful on appeal it recognizes


as with all litigation that uncertainty, albeit it minimal, as to the legal outcome of this case exists;
and

WHEREAS, an appeal will most certainly result in delay of design and construction of
the BPSC for at least one year resulting in significant increased costs to the BPSC with such costs
potentially exceeding $2,000,000 per year of delay; and

WHEREAS, the City Commission recognizes and affirms all aspects of the City’s
educational effort related to the BPSC were lawful; and

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Resolution 5051, Settlement and Waiver of Appeal Rights Agreement in Koopman v. City

WHEREAS, the City Commission determines ratification of this settlement and waiver
of appeal rights agreement is in the best interest of the City as it creates certainty for the financing,
designing, and construction the BPSC, avoids future costs of litigation, provides certainty for the
employees of the City and members of the public who work and visit the City’s facilities at the
Law & Justice Center, provides certainty for correcting inadequate facilities for the Bozeman Fire
Department, Bozeman Police Department, and Bozeman Municipal Court, and will provide the
City the best opportunity to keep the BPSC on schedule and within the costs approved by the voters
of the City.

NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of


Bozeman, Montana:

Section 1

The City Commission hereby ratifies the City Manager’s approval of the Settlement Agreement
and the release of appeal rights attached as Exhibit A to this Resolution.

Section 2

The City Commission authorizes the City Manager and the City Attorney to take all steps
necessary to implement the settlement agreement.

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Resolution 5051, Settlement and Waiver of Appeal Rights Agreement in Koopman v. City

PASSED, ADOPTED, AND APPROVED by the City Commission of the City of


Bozeman, Montana, at a regular session thereof held on the 22nd day of April, 2019.

___________________________________
CYNTHIA L. ANDRUS
Mayor

ATTEST:

_____________________________________
ROBIN CROUGH
City Clerk

APPROVED AS TO FORM:

___________________________________
GREG SULLIVAN
City Attorney

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