Session
07-21 a Special Meeting of the Homer City Council was called to order on
PRESENT: COUNCILMEMBERS: HEIMBUCH, NOVAK, ROBERTS, STARK, WYTHE
ABSENT: SHADLE
STAFF:
DEPUTY
ATTORNEY
LEVESQUE
AGENDA APPROVAL
Agenda
was approved by consensus of the City Council.
Mayor
Hornaday explained the quasi-judicial proceeding. Attorney Joe Levesque advised
that public comments cannot be considered in the Council’s decision, only
testimony under oath can be considered.
PUBLIC COMMENTS UPON MATTERS ALREADY ON
THE AGENDA
There
were no public comments.
Attorney
Joe Levesque was hired by the City, as the regular City Attorney Gordon Tans felt
he had a conflict.
Attorney
Joe Levesque, with Walker and Levesque in
Having
read the letter himself, Mr. Levesque asked for a short break for the Mayor and
Mr. Taffe to look at the letter and decide if it is
to be read.
Council
recessed at
Complainant
Taffe objected to introduction of Councilmember Shadle’s evidence into the record, stating he needs to be available to answer questions.
Mayor
Hornaday objected to introduction of the letter, stating it was not timely, and
Councilmember was not present for questions.
Attorney
Levesque advised that the notice to parties says if information is not filed seven
(7) days before the proceeding, it will not be admitted, unless the person
shows good cause. That may occur if someone has an excuse for the lateness; the
presiding officer would then decide if it can be accepted late. The letter is
dated September 13th. There was no motion to show good cause why it
was not presented timely.
Councilmember
Novak said since the presiding officer made the determination not to admit the
letter it would be better if the letter were not read.
Councilmember
Heimbuch questioned if there were any situations, other than those presented
that would provide for extra-ordinary circumstances? Is there a duty to concur
with the Mayor?
Attorney
Levesque answered that submittal of evidence is a part of the procedural
process he set to keep the proceeding going in a timely fashion. If someone has
a problem with the date and time they can request a continuance; it must be a
serious condition or special excuse. It needs to be of an emergency nature.
Councilmember
Heimbuch said with the ethics code in ordinance and a penalty attached it could
be a criminal sanction. If the rule of procedure is determined by the attorney
he would not want to impose the sanction of procedural rule by the attorney.
Attorney
Levesque advised the notices went out August 22nd, allowing ample
opportunity for objection to the procedures.
Councilmember
Heimbuch voiced it could be considered a criminal sanction, if Council had the
wherewithal, yet the procedure was determined by the attorney. He wouldn’t want
a sanction imposed under procedural recommendation from the attorney.
Attorney
Levesque said the procedures were distributed
Decisions
will require a four-vote. Mayor Hornaday and two other councilmembers
may be challenged as having conflicts. In the absence of a quorum an attorney
can be appointed as a hearing officer.
Attorney
Levesque explained conflicts of interest to include financial and bias and ex-parte communications.
Mayor
Hornaday explained in the absence of a quorum, Attorney Levesque could be
appointed as a hearing officer, or another attorney could be appointed to
handle the hearing.
Councilmember
Heimbuch asked if there was leeway to the four-vote requirement. He suggested
three votes for determining the ethics violation. Attorney Levesque explained
the rule of necessity for voting purposes, which does not apply in the ethics
violation since an attorney could be chosen to decide the violation. The ethics
hearing process is new to Homer; one hearing has been conducted in the past and
it required four councilmembers.
Councilmember
Stark explained Council had deadlocked on a councilmember appointment and
amended code to allow only three votes when there are only five councilmembers. This code only applies when replacing a
councilmember.
Councilmember
Novak said Council is not the only body that can hear the complaint, and
without the rule of necessity, Council may decide whether a presiding officer
should make the decision. Councilmember Heimbuch clarified he was referring to
the number of votes required to make a determination.
WYTHE/HEIMBUCH
- MOVED IN THE PRESENCE OF A QUORUM
Councilmember
Stark noted the violation of code. Attorney Levesque was not prepared to advise, and suggested the precedence set be followed with a
four person unanimous vote.
Councilmember
Novak called for the question.
VOTE:
NO. ROBERTS, WYTHE, STARK, NOVAK, HEIMBUCH.
Motion
failed.
Attorney
Levesque said the record on appeal is what the Clerk’s office has put together
for today’s hearing.
Mayor
Hornaday asked Tom Taffe if he would be called as a
witness and Mr. Taffe responded affirmatively.
Mayor
Hornaday excused himself and passed the gavel to Mayor Pro Tempore Novak to
continue the proceeding.
Mayor
Pro Tempore Novak stated Councilmember
Attorney
Levesque asked Councilmember Stark if he had an ex-parte
communications with anyone regarding the merits of the case.
Councilmember
Stark answered no.
Complainant
Taffe confirmed he was calling Councilmember Stark as
a witness.
Councilmember
Stark was excused from the proceeding.
Mayor
Pro Tempore Novak stated a question has been raised with Councilmember Heimbuch’s discussion with both parties in the hearing.
Attorney
Levesque asked Councilmember Heimbuch if he had ex-parte
communications with anyone regarding the merits of the case.
Councilmember
Heimbuch answered no.
Attorney
Levesque asked Councilmember Heimbuch if he had ex-parte
communications at all with the complainant or respondent, ie.
Tom Taffe or
Councilmember
Heimbuch answered affirmatively. He stated he approached both gentlemen due to
his concern that an ethics complaint was before the Council, after his two
month absence commercial fishing. Having just been through one and knowing the
cost he didn’t care what the outcome was, just spending the money. He
approached both individuals and asked under what conditions would
the complaint go away. He was told by both of them that dropping the lawsuit
would result in a resignation. Neither one of them were his ideas. There was no
further ex-parte communication. A record of the
outcome was a public document in the Homer News outlining what both parties
were willing to do under certain circumstances. One was dropping of the ethics
complaint and the other was the willingness to resign. The basics of something
that would save the City money were right there.
Attorney
Levesque asked if the ex-parte conversations were not
at the same time, Councilmember Heimbuch answered no. Asked if the
conversations were more akin to procedure conversations rather than merit,
Councilmember Heimbuch stated there was no discussion of the merits. He had
just gotten off the boat and had not yet read the complaints. He dissuaded
Councilmember Shadle from talking about the complaints. Mr. Taffe
did not talk about the complaints.
Attorney
Levesque asked Councilmember Heimbuch if there was an opportunity for
Councilmember Shadle to discuss the merits, but he had told Mr. Shadle not to
discuss them? Councilmember Heimbuch answered that he
did not have to, as the subject never came up. Councilmember Shadle got ready
to tell his side of the story and Councilmember Heimbuch shut him up by telling
him he was not even interested in it. There would have been an opportunity at
any time, as either party could have engaged him in conversation by picking up
the phone.
Attorney
Levesque asked Councilmember Heimbuch if he was aware if he was a witness in
the case. Councilmember Heimbuch
answered no, he did not feel he was well grounded in
the complaint.
Mr.
Taffe was asked if he intended to call Councilmember
Heimbuch as a witness and he answered no.
Attorney
Levesque asked Councilmember Heimbuch if he could be neutral in the matter.
Councilmember Heimbuch stated he could, although he was confused about what
Council would be deciding. He has a basic understanding if there was a conflict
of interest that may lead to an ethics violation. He is unhappy of the
financial burden on the City. He has heard lots of different opinions. Asked if after hearing the evidence if he could make a finding,
Councilmember Heimbuch answered yes.
Attorney
Levesque stated he had no recommendation for Councilmember Heimbuch’s
conflict of interest or ex-parte communication.
Mayor
Pro Tempore Novak ruled Councilmember does not have a conflict of interest.
Attorney
Levesque explained Council will proceed in the same process it did in the only
other precedent the City has. The Presiding Officer is Mayor Pro Tempore Novak.
Any decisions he makes regarding ex-parte
communication and conflicts of interest will stand. He will solely run the
hearing and respond to objections. If he hears evidence that is redundant he
will rule.
Preliminary
matters were complete.
Councilmember
Wythe said she never had conversation with Mr. Taffe
or Mr. Shadle regarding the complaint. There were a couple communications from
Mr. Heimbuch noting that he was having communication with them trying to
eliminate the problem. Councilmember Wythe sent Councilmember Heimbuch an email
telling him she did not want to be in an ex-parte situation.
Attorney
Levesque said that is exactly what you do as an elected official. Asked if
there was any reason why she could not hear the evidence and make a decision,
Councilmember Wythe answered no.
Attorney
Levesque recommended that Councilmember Wythe could sit.
Mayor
Pro Tempore Novak ruled Councilmember Wythe could remain.
Councilmember
Roberts stated she had no ex-parte communication with
either of the parties regarding the issues to be decided today. She too spoke
with Mr. Heimbuch and he explained what he way trying to do, but she had no
discussion about the merits of the case.
Attorney
Levesque asked Councilmember Roberts if there was a reason why she could not
sit.
Councilmember
Roberts answered no.
Attorney
Levesque recommended that Councilmember Roberts could sit.
Mayor
Pro Tempore Novak ruled Councilmember Roberts could remain.
Mayor
Pro Tempore Novak stated he has had no ex-parte
communication with the defendant or complainant and has no conflict of interest
in the case. There is nothing to cause him to have a bias.
Attorney
Levesque recommended Mayor Pro Tempore Novak could sit.
Councilmembers
Heimbuch, Roberts and Wythe did not perceive a conflict.
Mayor
Pro Tempore Novak remained as Presiding Officer.
Asked
if Council would now determine if they would use Attorney Levesque as hearing
officer or proceed with the hearing, Attorney Levesque answered it was
Council’s discretion.
Council
did not request to refer to a hearing officer.
Attorney
Levesque stated that a letter was sent to both parties outlining how evidence
would be taken. Asked if he had any questions about the procedure, Mr. Taffe answered he was troubled by the fact that
Councilmember Shadle was not present. He understands that was his decision. Mr.
Taffe stated he needs to question him as to his
intent. Mr. Taffe understands he is able to file a
civil lawsuit if unable to fully present the case here today.
Attorney
Levesque referenced
Mr.
Taffe stated he will proceed in Superior Court. He withdrew
the complaint, stating he will take it to Superior Court.
City
Clerk
Mayor
Pro Tempore Novak asked if Councilmember Shadle commented why he is not here
today. City Clerk Johnson stated he made several comments to her, that the
hearing could go on without him, that type of comment. Asked if there were any
comments as to why he wasn’t here, City Clerk Johnson responded that he said he
was going fishing and left Monday night. Asked if Mr. Shadle made any other
comments, City Clerk Johnson answered he made several comments, they could do
what they want to do in my absence, Council could go
ahead and decide it without him. Asked if he made any indication that he wanted
to be here, City Clerk Johnson said he told her he did not wish to be here.
Councilmember
Heimbuch asked about intent, whether Council could make a decision without
judging someone’s intent.
Attorney
Levesque said evidence could have been presented and Council could have
rendered a decision. Whether or not Mr. Taffe would
be able to present evidence regarding willful or intentional action or acts is
an unknown answer. He does not know what the evidence was.
Councilmember
Heimbuch asked if there was a strict liability doctrine incumbent on someone to
act in a certain way by virtue of the act.
Attorney
Levesque answered it would not be a strict liability offense.
Councilmember
Heimbuch asked how Council could engage the content without Councilmember
Shadle present. He asked why the hearing was designed in a manner allowing him
not to be here.
Attorney
Levesque answered the ordinance may be tightened up. He does not have advice as
to compelling someone to be present. It would depend on what the ordinance and
Title 29 state. If municipalities use subpoena powers they generally go to
court.
Councilmember
Heimbuch noted many resources were mobilized to get to this point. He asked
where the complaint go from here. Attorney Levesque said if the complaint is
withdrawn, it is withdrawn; Council may investigate on its own.
Mayor
Pro Tempore Novak said taking the complaint to Superior Court just moves it to another
legal body. The complaint is alive, just out of Council’s hands. Mr. Taffe has made the decision to withdraw because Councilmember
Shadle is not present to speak for himself or present anything to the body. It
does not resolve anything.
Councilmember
Roberts noted
Attorney
Levesque said if the court finds a crime committed or the court finds a
violation the City Council still has the power to admonish, sanction or
penalize the accused.
Mayor
Pro Tempore Novak asked if there was another situation where a violation could
be found serious enough for a penalty. Attorney Levesque answered he was not
aware of one.
Mr.
Taffe stated he would be willing to have the process
continue if there was a chance of getting Councilman Shadle here. If he could
be convinced to appear and handle questions, Mr. Taffe
has no objection to hearing the matter before Council. He objects to him not
being here, as he needs to get Councilmember Shadle’s
testimony. In a civil lawsuit he can subpoena and take a deposition. There are
two types of problems, conflict of interest and misuse of office. The code
calls for establishing if the actions were intentional. If he went forward
today it may preclude the opportunity for a hearing in Superior Court. We need
to look at the ethics code as there are a lot of uncharted waters. We need to know
how to address issues. Stated for the record Mr. Taffe
said his experience with city government here is very good. He has had a variety
of dealings, including filing this complaint, and it is very unusual for
someone in city government to do something he would even ask the question
whether or not they were acting in an ethical manner. He has dealt with all
different branches of city government. This is not an indictment of city
government, or the City of
Mayor
Pro Tempore Novak asked Attorney Levesque for the option to continue the
hearing when Councilmember Shadle is present and Council’s option to request or
demand his presence.
Attorney
Levesque answered that Mr. Taffe has withdrawn his
complaint; it is done. Unless there is some subpoena power he is not aware of
he is not sure how to get Councilmember Shadle here. Council may consider if
there is anything they can do. He was charged under the code, notified to be
here and failed to appear for whatever reasons. He asked what Council normally
does when councilmembers don’t show at regularly
scheduled hearings.
Mayor
Pro Tempore Novak said councilmembers requesting excusal
would notify the City Clerk and councilmembers would
be notified. If they had an issue they would say so.
Councilmember
Roberts said when the hearing was scheduled it was scheduled for a couple
different dates. The Clerk’s office kept checking back to see when everyone
could come. The only thing on the record is the attorney’s letter to Mr. Shadle
indicating the date. She asked if that was part of the process, setting the
date with Mr. Shadle?
City
Clerk Johnson was recalled to testify.
City
Clerk Johnson stated she worked with all the councilmembers
emailing or telephoning them to find a compatible date for everyone. She stated
she believed Mr. Shadle was out fishing at that time in the
Councilmember
Heimbuch asked if moving the complaint to Superior Court would result in the
City’s liability for legal costs for Councilmember Shadle.
Attorney
Levesque said although he had not reviewed the City’s ordinance, his experience
is that many municipalities do have a defense and indemnification provision for
appointed and elected officials and employees. There are exceptions. If someone
is found guilty of doing something intentionally the municipality does not
defend. If it’s a matter of someone conducting themselves in their normal
course of business, city ordinances that provide defense and indemnification
are triggered.
Councilmember
Heimbuch noted Councilmember Shadle is on public record stating if the ethics
complaint is pulled from the body he will resign. He asked if Council could
find it as a verbal or written contract and that Mr. Taffe
has lived up to his agreement and Mr. Shadle’s
resignation is effective.
Mr.
Taffe stated his resignation was conditioned by not
only withdrawal of the complaint, but that he would be allowed to run in a
special election. It would be difficult to hold him to that promise. Mr. Taffe stated if a city official has an ethical violation
that is not part of his normal business. He does not believe the city is
required to provide representation.
Mr.
Taffe stated when a city official does an ethical
violation it is not part of his normal business. He is on his own, the city is
not responsible.
Councilmember
Heimbuch asked if a suit in Superior Court could be brought against Mr. Shadle,
not against him as a councilmember.
Attorney
Levesque answered although he was not sure everything Councilmember Shadle is
accused of doing, he was in his official capacity as a councilmember.
Mayor
Pro Tempore Novak referenced
Attorney
Levesque said the lack of Councilmember Shadle’s
appearance falls within the area city councils often discuss. Depending on
precedent, councils self police themselves on members
attendance, responsibility, and snubbing their nose at the rest of the council.
Councilmember
Roberts referenced
Attorney
Levesque said Council polices itself and ethical violations within. Council
makes a determination whether the complaint is valid. It has thirty days to
make the conclusion, extended with good cause, and the City Council has a
hearing. Council could order a third party to investigate the matter.
Councilmember
Roberts asked if anticipation of the hearing today, and then it withdrawn, be
good cause for the hearing within thirty days.
Attorney
Levesque answered the code could be read different ways. Some could read it as
Council must decide a complaint within thirty days. He believes that to be
unreasonable. It would be intolerable to violate the fundamental due rights of
process. There are thirty days to look at the complaint, see it is meritorious,
take responsibility and enforce. Mr. Taffe’s
withdrawing the complaint today will have no impact on the thirty day or good
cause extension. Council needs to see if there will be a court action and then
act accordingly.
Councilmember
Heimbuch asked if Councilmember Shadle, given the time and opportunity to show
up and request an extension without doing so, puts the City in financial
jeopardy? Will the City be forced to pick up the tab for Superior Court action
when reasonable action on Councilmember Shadle’s part
could have on forestalled this?
Mayor
Pro Tempore Novak said court time and additional costs for Councilmember Shadle
will be addressed in the future.
Mr.
Taffe said we have to educate our community about the
importance of ethical issues. Anyone who looks at the newspaper sees unethical
behavior. It affects everyone, affecting
COMMENTS OF THE AUDIENCE
Michael
Armstrong, reporter for Homer News, referenced the document Councilmember Shadle
presented to Council and Mayor earlier. He requested a copy as qualified under the
open records act. It is a transmission between City Council and Mr. Shadle.
Attorney
Levesque stated no councilmembers have read the
letter. He asked that Council and the City Manager be allowed time to read the
letter and then Mr. Armstrong go through the normal request procedure.
COMMENTS OF THE
Attorney
Levesque stated he intended to be resolved today, and then he could assist Council
in drawing some type of conclusion. You cannot anticipate everything that will
happen in these proceedings. He came here fully believing there would be some
type of closure to this issue.
COMMENTS OF THE
City
Clerk Johnson had no comments.
COMMENTS OF THE
City
Manager Wrede had no comments.
COMMENTS OF THE MAYOR
Mayor
Pro Tempore Novak had no comments.
COMMENTS OF THE
Councilmembers
Heimbuch, Roberts, and Stark had no comments.
ADJOURNMENT
There
being no further business to come before the Council, Mayor Pro Tempore Novak
adjourned the meeting at 1:32 p.m. The next Regular Meeting is scheduled for
Monday,
______________________________
JO
JOHNSON,
Approved:
_____________________