A carte blanche handover of power
On April 6 the Kalispell City Council voted, with almost no advance notice and very limited public notice, to approve and ratify a Declaration of a State of Local Disaster Emergency drafted by the city manager. In an Inter Lake editorial dated April 9 seeking to put this “in context”, the mayor and city manager were quoted as stating:
“It’s important to identify that day-to-day activities aren’t going to change,” Russell pointed out. “No one should notice anything different.” “This isn’t just a carte blanche handover of power to our city manager,” Mayor Mark Johnson said at the council meeting.”
Whoa, wait a minute Mr. city manager and mayor. That is not true. The declaration contains a broad grant of power that the city manager can exercise unilaterally and without oversight or even citizen awareness. The declaration states:
8. The City Manager has authority to approve contracts and expenditures in furtherance of implementing the Resolutions passed by the City Council and this Declaration, and taking all measures deemed necessary to address the emergency, subject to retroactive approval by the council.
9. The City Manager, pursuant to KMC 2-26, upon ratification of this Declaration by a 2/3rd vote of the City Council, is authorized to enter into agreements and contracts, and make purchases and expenditures without adhering to state and local procurement requirements, including those in Titles 7 and 18, MCA and to the city’s purchasing policy. This authorization is limited only to agreements, contracts, purchases, and expenditures reasonably necessary to implement the declaration and to no other agreements, contracts, purchases, or expenditures.
The broad scope of power contained in 8 and 9 of the declaration is a “a carte blanche handover of power to our city manager” and both the mayor and city manager either overlooked it or chose to make false and misleading public statements in their rushed effort to ram it through the legislative process. They should explain to the citizens of Kalispell why their public statements do not accurately describe the content of the declaration.
Ordinance No. 1840 lacks any guidance to the city manager, lacks standards and lacks oversight on the powers in 8 and 9, including the power to spend. Not only does the ordinance lack standards and oversight, it purports to sidestep state law and allows the city manager to make purchases: “without adhering to state and local procurement requirements, including those in Titles 7 and 18, MCA and to the city’s purchasing policy.”
Can a Montana city manager really override applicable state law by merely issuing a declaration of emergency or disaster? Can a Montana city council really over ride applicable state law?
In the process of displacing state law, the declaration and the ordinance wipe the city manager’s need to comply with Title 18 of the Montana Code and the public’s right to conduct independent oversight.
Even if the Council is comfortable with complete abdication of its responsibility for oversight and to confirm it’s employees comply with state law, the public still has the right to know how the City’s money is spent. That right is enshrined in Montana’s Constitution and is specifically applicable to public contracts.
The Montana Constitution provides:
• Right of participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.
• Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”
The city manager’s emergency declaration appears to be directly contrary to both the public inspection statute and the Montana Constitution. The mayor, city manager and the Daily Inter Lake all appear to have overlooked, misunderstood or intentionally misled the citizens of Kalispell about the impact of this action.
The council can and should fix these problems by:
1. Rescind the approval of the Ddeclaration and ask the city manager to submit a narrower one, limited to the express purpose of seeking federal, state or other funds to respond to the COVID-19 pandemic.
2. Refuse to approve any declaration until 8 and 9 come out or are substantially modified;
3. Refuse to approve any declaration in which a city employee rejects the applicability of state law or the state constitution;
4. Refuse to approve any declaration that lacks proper oversight of the spending or contracting powers delegated to the city manager;
5. Refuse to approve any declaration that is in conflict with or undermines the public inspection statute of the Montana Constitution.
If the council and city manager don’t adequately address these problems promptly, concerned citizens should considering filing a lawsuit and seeking full relief to enforce the rights granted to them in the Montana Constitution and to do the job of oversight that the Council has abdicated.
—Jim Cossitt has lived and practiced law in the Flathead Valley since 1998.