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Letter on councilman inaccurate with regard to facts, law

| January 31, 2006 11:00 PM

To the Editor:

This letter is in response to a recent letter written by D.C. Orr with regard to the legality of Walt McElmurry being both a supervisory employee of the city as well as being on the City Council. Because of inaccuracies in the letter with regard to the law and the facts, I am making this response.

First of all, I would like to state that I am not aware of any dissatisfaction by any member of the City Council or of the mayor with the work performance of Walt McElmurry or of his performance as a City Council member. In my communications with Mayor Berget, he stated that Walt was a good employee and City Council member. He stated he was uncomfortable dealing with this issue because of his respect for Mr. McElmurry in both positions.

The law in question is an opinion by a Montana attorney general. He prepares an opinion when there is no statutory or case law that addresses a particular issue of importance to cities and counties. He researches law found in other states as well as law in the state of Montana in arriving at his opinion. His opinion is binding on cities and counties but is not binding on district courts.

The latest attorney general opinion was written in 1996 by Attorney General Joe Mazurek. A recent check with the present office of attorney general confirms that it is still good law and is binding on cities and counties. The legal basis for that decision is the common law doctrine of incompatible public offices. The opinion addresses law in Montana and other states. It deals with a situation where a county commissioner also held the county position of county coordinator of disaster and emergency services. The opinion held that holding both positions was incompatible, and that one person may not hold both positions.

It is my understanding that Mr. McElmurry was informed of the law prior to his running for office during this last election but, apparently, chose to ignore it. After the election, I was asked by the mayor and more than one council member as to what the city should do about the situation, because of the requirements of the law. The first option I suggested was for the mayor to meet with Mr. McElmurry and try to persuade him to resign his position on the council. I understand that such action was taken but without success.

The second option was to involve the council. Mayor Berget, hoping there was still a way to persuade Mr. McElmurry to resign, preferred an alternative other than presenting the issue at a public council meeting which would be embarrassing to Mr. McElmurry. We decided, instead, to call a meeting of the personnel committee at which I could appear and explain the law to Mr. McElmurry and the members of the committee. No public notice was given so as to protect the individual privacy of Mr. McElmurry as an employee.

At the committee meeting, I was presented with an older Attorney General opinion which had held that there was no inherent conflict of interest when a city employee is also an elected city councilman. I was already aware of the opinion, and it had been addressed in the opinion of Mr. Mazurek. I pointed out that this decision was based on the issue of "conflict of interest" and that the opinion of Mr. Mazurek was based on the doctrine of "incompatible public offices." Therefore, the holding of Mr. Mazurek, being the latest opinion, was controlling.

After making my presentation, I was excused from the personnel committee meeting and am unaware of their deliberations. Apparently, they did not feel comfortable dealing with the issue and decided to take a position that they had no jurisdiction. That position was expressed at the next council meeting.

When asked for my comment, I explained that I had researched the law and spoken to another prominent city attorney about the situation. I explained that, if Mr. McElmurry refused to resign, the mayor could simply not recognize Mr. McElmurry for discussion and voting purposes, or a district court action could be commenced for the purpose of declaring void Mr. McElmurry's election. No further action was taken at the meeting to deal with the legal issue. One member of the council, also a member of the personnel committee, personally apologized to Mr. McElmurry for having put him through this situation.

I hope this letter helps the citizens of Libby to better understand the issues raised in Mr. Orr's letter.

Charles Evans

Libby City Attorney