Libby Mayor recall can proceed until Roll files $25,000 bond

The effort to recall Libby Mayor Doug Roll is back in motion after a district judge on Thursday filed an order to delay an injunction on the recall until Roll files a $25,000 bond required of anyone who files an injunction.

Lincoln County District Judge James Wheelis Thursday afternoon filed an order announcing the court is awaiting more arguments from both sides of the injunction. The order delays Wheelis’ decision during Tuesday’s hearing to grant Roll an injunction on petitioner Tammy Brown’s recall effort until Roll files the $25,000 bond.

Elections Administrator Leigh Riggleman Friday morning said she’s been given the go-ahead by Lincoln County Attorney Bernard Cassidy to collect signatures from the recall effort.

“The process is back on the table, so if they have more signatures somewhere they’ve been holding they can drop those off,” Riggleman said.

Riggleman currently has 193 signatures, which she received on Aug. 5. Riggleman said she has not begun validating the signatures already submitted, but plans to begin the process Monday morning.

Until Roll files the $25,000 bond with district court, recall petitioner Tammy Brown is allowed to circulate the petition and collect signatures. The deadline for collecting the required 329 signatures is Sept. 17.

In his order, Wheelis said he is inviting Brown's attorney Doug Scotti and Roll's attorney Nicole Siefert to provide additional arguments before filing his final findings as to whether or not Roll violated his oath of office when hiring a city attorney.

“(The court) will consider whether, despite Ms. Brown’s statement to the effect that Petitioner had not committed any of the acts considered grounds for recall under (Montana state law), that the steps Petitioner took to hire a city attorney in possible violation of statutory or other requirements could have constituted a violation of his oath of office,” the motion reads.

Tuesday’s hearing in district court included arguments from Scotti and Siefert, in Wheelis’ decision to grant the injunction. While Siefert cross examined Brown, she asked Brown if she was alleging Roll of one of the five violations warranting a recall set by state law: physical or mental lack of fitness, incompetence, violation of the oath of the office, official misconduct or conviction of a felony offense.

But Siefert didn’t ask the question verbatim of the state law definition, so she answered “no” when Siefert worded the question.

In his order filed Thursday, Wheelis acknowledged that Brown may have misspoken in her testimony because it was a misunderstanding of the question, and that he would consider arguments as to whether or not Roll violated his oath of office in hiring former City Attorney David Tennant.

“The court recognizes that the Petitioner may have acted out of expediency to prevent dismissals of criminal charges, but it will consider whether Ms. Brown’s concession was a lay person’s misunderstanding of the statute.”

Scotti on Friday morning filed a 13-page motion asking Wheelis to reconsider his Tuesday decision. He did not return calls made The Western News for comment.

Siefert, who filed a motion on Wednesday asking Wheelis to waive the required bond, said on Friday that she plans to file a motion further arguing why the decision to grant the injunction was proper.

"The only thing that the court kind of points out as the possible grounds for recall would be the oath of office. He's giving them a chance to fight that one out," Siefer said. "I don't know how much further they're going to get on that argument but that's the only one."

Wheelis ruled to continue the preliminary injunction filed by Siefert in late July to halt the recall effort from collecting signatures and county officials from accepting the signatures. Wheelis also required that Roll file a $25,000 bond to be paid to petitioner Tammy Brown if she appeals the decision at the Montana Surpreme Court and wins.

Wheelis said that while the issues surrounding the recall may have some foundation, Brown did not describe any particular violations in her testimony.

“I think there may be grounds included that Mayor Roll violated the constitution in his oath by what seems to be illegal procedures on hiring a temporary city attorney,” Wheelis said from the bench on Tuesday. “On the other hand, Ms. Brown… she basically confessed that it wasn’t a violation of his oath.

I find that since given her testimony that any of the standard grounds for maintaining a recall petition are absent. I’m continuing the preliminary injunction.”

The crucial piece of Wheelis’ decision came during Siefert’s cross-examination of Brown, when Siefert described the five primary reasons that an elected official can be recalled: physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct or conviction of a felony offense.

Siefert asked Brown, item by item, if she was alleging Roll of any of those five reasons in her recall petition, and Brown said no to each item.

Siefert pressed Brown on the difference between her personal knowledge of the instances brought into question in the recall petition, and knowledge gained through going to council meetings and hearing from members of the council involved in the instances.

Roll was the first to testify Tuesday morning, noting that he’s never met Brown in person and wasn’t aware of her attendance at city council meetings. Throughout his testimony and cross-examination by Doug Scotti, Brown’s attorney, Roll echoed the same statements he had made throughout the recall effort: that he had hired David Tennant temporarily, which he said does not require council approval, and that a former council member did not follow procedure when requesting Roll put items on the agenda, so he didn’t.

Dejon Raines, the former city council member who requested the agenda items in April, said she is still not completely sure why Roll denied her request. Current council president Brent Teske testified that he was made aware of Tennant’s appointment on Feb. 10, and later requested Roll schedule a special meeting to discuss the appointment with the entire council, to which he never received a response.

After hearing Brown’s testimony, Wheelis granted the injunction to halt the recall effort. In the final seconds before the hearing was over, Scotti asked Wheelis to enforce the legal requirement connected to preliminary injuction, requiring Roll to file an undertaking to guarantee costs and damages to Brown if she appeals and the Supreme Court finds that the injunction was not filed properly. Wheelis set Roll’s undertaking at $25,000.

“If they appeal to the Montana Supreme Court and win, and Supreme Court says this judge is wrong in ordering this preliminary injunction, then Mayor Roll would pay $25,000,” Siefert said after the hearing on Tuesday. “The judge was in the best position to hear all the evidence, so they’d look to see if there was an abusive discretion, like if he wasn’t listening properly.”

Siefert said she believes Wheelis’s decision might stand because he gave specific reasons.

“Council members and obviously Ms. Brown are unhappy with the mayor. That doesn’t rise to the level where you need to recall someone,” Siefert said. “There’s a process for that. That’s the election process so that’s what we were trying to establish here today.”

Scotti did not return phone calls made by The Western News for comment on the chance for an appeal.

Reporter Seaborn Larson may be reached at 293-4124 or by email at slarson@dailyinterlake.com.