Sunday, January 29, 2023

Libby mayor, city attorney show flagrant disrespect for rule of law

| February 2, 2006 11:00 PM

To the Editor:

I've learned a lot in my years of trading letters with Charles Evans. He treated me to a series of letters in August 2003 at the behest of his client, Universal Land, represented by Tony Berget. He threatened to have me charged with criminal trespass for doing business with two of the mayor's renters. He and the mayor were upset that in the course of buying product from Millwork West, I had learned that the EPA had installed an illegal septic system on the mayor's property.

This is the first time I should have given the city council a pat on the back. They used that information to issue a violation notice to the mayor and threatened him with a misdemeanor charge if the situation was not rectified. I learned through that exchange that Mr. Evans is a master at avoiding the issues and he rarely answers a direct question. Which brings us to his reply on the illegal meeting concerning councilman Walt McElmurry.

Attorney Evans states that Mr. McElmurry was aware of the opinion before the election. Mr. Evans fails to mention why he and the mayor didn't take action at that time. They had the opinion before the election, before Mr. McElmurry, and could have put someone else on the ballot. That would still leave the issue in the hands of the voters.

So Mr. Evans calls an illegal meeting of a quorum of the council. Under Montana Freedom Of Information laws, there was nothing legal about the meeting that Mr. Evans forced on the personnel committee. Forgive me for stating the obvious, but there was absolutely no discussion involving Mr. McElmurry's employment, a requisite for establishing the authority of the personnel committee. The discussion was on how to hijack your vote. The committee would have no part of it and publicly apologized.

Now to the meat and potatoes of Mazurek's opinion. This is where having a brother who spent eight years in the Legislature is invaluable. I made one phone call to Helena explaining the situation and the e-mail replies kept me busy for some time. Mr. Mazurek's opinion is controlling, it is also irrelevant to this situation. The bottom line is it's a great tool of intimidation but it wouldn't hold up in court. There have been numerous AG opinions on the issue but no one takes it to court because it is a loser.

In fact, when former Montana Governor Marc Racicot was AG for Montana and this issue was raised he stated simply that the issue of incompatibility of offices is not a factor under the language of the constitution. If an issue like this goes to court, rules of statutory construction are applied and they require constitutional backing. That's why Mr. Evans correctly states this opinion is not binding on district courts. The only reason this would go to court would be to harass Mr. McElmurry and cost him money.

Another AG opinion was short titled: "No Prohibition on City Employee Holding City Office." The term "public office" has been narrowly defined by the Supreme Court. Characteristics of public office include, among others, taking an official oath, a definite term of service and prescription of duties by law. There can be no incompatibility of offices if Mr. McElmurry only holds one office, as councilman. None of these elements apply to his employment.

The mayor and his attorney want Mr. McElmurry off the council. From where I sit, Walt is as diligent in his official duties as he is in his employment. I used the term "honest and intelligent" in my last letter. If that makes him a threat to the mayor and his attorney, Mr. McElmurry is rapidly becoming my favorite councilperson among a group of fine officials.

The city has bigger issues to deal with. If Mr. Evans wants practice on studying properly legislated, codified law, I would direct his attention to the following codes and their short titles. MCA 2-3-202 and 2-3-203: Montana Open Meeting Law Article 2 Sections 8 and 9 of the Montana Constitution: Right of Participation and Right to Know respectively. 45-7-401: Official Misconduct (Especially; 1(e) knowingly conducts a meeting of a public agency in violation of 2-3-203. 45-7-101: Bribery in official and political matters. 45-7-104: Gifts to public servants by persons subject to their jurisdiction. 45-7-201: Perjury.

That is the gist of this issue. The mayor and his attorney have shown a flagrant disrespect for the rule of law. They will nitpick the law to death to torment their opposition while ignoring their own blatantly illegal actions. This is not leadership.

The rule of law requires all of us to submit to lawful authority, it's a Christian doctrine that was woven into our laws and holds up God as the source of all authority. Just as important as our submission, it requires us to resist unlawful authority because the authority covers both the citizens and their governors. When the citizens lose respect for the authority, there is anarchy. When the governors lose respect for the authority, there is tyranny. Somewhere in the balance lies proper civil harmony.

D.C. Orr