I don't have much to add to this wacky situation, other than to note that it came just as I was concluding that Mayor Ron Tussing really will be a city employee. That's a point I had decided earlier to leave to the lawyers, but I can play lawyer, too.
I came to the conclusion by the process of elimination. I can think of only four reasons why the city would write a check to anyone:
1. The person has a claim against the city, due to some tort or contractual obligation. Not the case here.
2. The person is a vendor who sells a product to the city. Not the case here.
3. The person is an independent contractor who is paid to provide a specific service to the city. Don't jump on this train too fast. Independent contractor status is governed by state and federal law. The requirements are strict, and I don't think there is any way an elected official could qualify.
4. The person is an employee. Sounds right to me. The fact that Tussing didn't go through the normal application process strikes me as irrelevant in terms of his employee status (although it may be relevant to the question of whether he breached his agreement). But I would argue that he did go through a standard application process, called a primary and an election, before becoming an employee entitled to receive paychecks and other benefits from the city.
Does this mean that he should have to quit or pay back the money? Not necessarily. I still think that the key questions don't concern what would hold up in court. Rather, they are:
1. What did both parties think they were agreeing to? Good faith is more important in this case than legal precision.
2. Has the city honored its obligation to protect Tina Volek from having to work with Tussing again? I still think that question outweighs the sentiments of voters. In my mind, the whole dispute evaporates if she is adequately protected.
3. Does the city has a fiduciary obligation to pursue the recovery of taxpayers' money if an agreement has been breached? Generally, yes. But this is strictly a dollar and cents question. This case is unlikely to set a meaningful precedent; I mean, what are the odds? And the cost of recovery could easily equal or exceed the dollars at stake.
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57 comments:
If the City Council attempts to nullify a legal election there will be another election-to vote in a new City Council after a recall.
I must say David, your legal reasoning is very good for a non-lawyer--much better than the first year law student slop Petroleum Engineer turned Lawyer turned Small Business Owner turned Politician Joy Stevens cranked out after the election.
That being said, I must politely disagree with you. The Mayor is an elected official of the City not an employee. His only employer are the citizens who elected him and who will ultimately rehire him in 4 years or fire him.
The mayor finally becomes an employee when he fills out his W4 form indicating his preferred withholding numbers for his paycheck. It is sad that he chooses to hang his hat on a weakness in the original contract. But then, if you look at every thing he has had his hand in since his time in Billings, you see he is an opportunist--and they have no time for good faith. I wish he heard the ranch calling.
I think it's bending the language beyond the breaking point to call going through a primary and general election "a standard application process." Until this whole sorry mess got started, I never in my life heard anyone compare running for office with applying for employment. And the point that has been consistently overlooked is this: If the council all along was interested solely in enforcing its agreement with Tussing, its case was as strong on the day Tussing filed for office ---if you're calling that applying for employment---as it was on the day he was elected. To wait until after the election makes it appear as though the council was not concerned with the agreement, but only with whether Tussing became mayor or not. This might seem like parsing the words a little closely, but that's what contracts and severance agreements and treaties always come down to---the precise meaning of specific words and phrases. If the council did not want Tussing to run for office, the agreement should have said so. That was a much more likely eventuality than his seeking regular employment with the city.
I agree that it stretches the language, but that's what lawyers are for. I honestly can't think of any other way to describe the relationship between the city and mayor in legal terms. And it really doesn't seem hard to grasp that, for example, Max Baucus and Denny Rehberg are public employees, earning retirement and benefits, with taxes withheld from their paychecks, just like any other federal employee, and ultimately accountable to their employers, the voters.
Nor does it seem hard to think of, say, Max Lenington as a county employee, even though he is elected and answers to no one but the voters.
But I also agree that the matter should have been settled when the deal was made. Why it wasn't remains a mystery to me. Several people have suggested that the council wasn't adept enough to think of that possibility; perhaps not, but apparently Tussing was.
I can't help but think that the council, or the city attorney, might have thought a provision barring a run for public office would have looked bad to the public. And it would have. But it might look better than where we are now.
Sure wish more of the electorate DID consider running for office as effectively seeking employment. Aren't we the city? We hire managers of various sorts, yes, but WE are the city.
I look forward to the day when David Crisp's faulty logic is proven wrong...again. the legal definition of employee goes to the matter of hiring and ability to fire. the only definition that matters now is the legal one, not simpwy somebody's feewings.
cases like this potential one have been tried in other states. Oregon is one example. Guess what happened? The elected official was found NOT to be an employee.
Source?
Billings Gazette Opinion page 12-12-05:
...if you actually believe that the mayor is a city employee, there is a quick and simple way to solve the problem. In one section of the agreement, Tussing promised not to apply for employment, while a second part provides: "Further, Ron Tussing understands and agrees that the city will terminate any such future employment if he is hired by an individual without knowledge of this agreement." The voters hired him without knowledge that the agreement pertained. Thus, under the agreement, the council must direct interim City Administrator Tina Volek to fire the mayor-elect. If she lacks the authority, then the mayor isn't a city employee. If she has the authority, we may be contacting her regarding the possibility of terminating some council members.
Robert and Helen Webb
Billings
End of story David.
Internal Revenue Code 3401 (c) Employee
For purposes of this chapter, the term ``employee'' includes an
officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any
agency or instrumentality of any one or more of the foregoing. The term ``employee'' also includes an officer of a corporation.
The ability to hire and fire goes to the determination if an employee is exempt or non-exempt.
See IRS Publication 963, chapter 4.
Another employee definition utilized at both the state and federal level is for distinguishing between an employee and an independent contractor. Billings treats its elected officials as employees. Not sure why, but that is the mechanism that has been decided on. Perhaps Ms. Volek will have means by which to terminate this individual. The contract, as written, was minimal and therefore requires interpretation beyond its authors. Judicial interpretation preferred. If the mayor is terminated on this basis, perhaps he'll agree.
I can't wait to see the temp city administrator attempt to terminate an elected official. Ed and Co., will have enough to write about for the rest of the year.
"Perhaps Ms. Volek will have means by which to terminate this individual"
Lets put that one on the laugh meter.
If the mayor is an employee, then filing for office is "seeking employment". Seeking employment violates the contract. Show us the money Ron!
The people elected Tussing, only the people can terminate him. He is an employee of the people. Ms. Volek's powers are irrelevant.
paying money back is not an answer if it isn't warranted. Tell it to a judge. file a lawsuit! Ron Tussing shouldn't acquiesce to bullying by a vocal but legally-challenged group of hecklers. If an elected official caves in to every irrational demand, where would we be? We need leaders who stand for something or they'll fall for anything.
The mayor is an employee of the people, as is the city administrator and according to the Billings city code the city administrator "can appoint, suspend and remove all employees of local government."
I hope this last comment is an attempt at humor. The charter gives the City Council and mayor the power to hire and fire the city administrator. If the charter can be read to give the city administrator power to fire the mayor, obviously he also has the power to fire everyone else on the council. Technically, the name for this sytem of government would be anarchy.
So the mayor could fire the city administrator, the city administrator could fire the mayor, and they both could apply for each other's jobs. Now we're getting somewhere.
In heaven the French are the cooks, the Germans are the mechanics, the Italians are the lovers, the Swiss are the hotel managers, and the English are the police.
In Hell the English are the cooks, the Italians are the mechanics, the Swiss are the lovers, the French are the hotel managers,
and the Germans are the police.
Maybe we could have an election to disincorporate and start all over again...with a new name.
I like the idea of a recall election.
To: I like the idea of a recall election.
By Anonymous, at 12:25 PM
Have you ever looked up at the cost and time to do a recall? Even so, it is harder than you can imagine albeit warranted in some of their cases.
Unfortunately the solution is to VOTE them in or out and that I'm afraid takes time and effort as well...not to mention a good deal of people to carry the petitions necessary to even get it to that point.
It is almost Christmas Day. There are children homeless in Billings, literally. Why does anyone spend their valuable time/energy or cash on this sort of public discord? 160K? Whatever. Mr. Bauer's settlement? Whatever. Give him his darn cell phone and computer for goodness sakes and be done with it. How much will this local attorney cost too? It's all billable. Buzz word, billable. Billable. Yes the word billable has now been mentioned about four times, but who's counting? How much time, energy or attorney fees could have been spent on the children or school issues in Billings? Education? Priority? Children. It is Christmas, a time that should be 365 days/year, but it appears that there is not really even one day allocated. Plain and simple. Enough of this petty squabble that has gone on for almost a year. Whatever & enough.
I dont think I have ever seen a case that warrantred a recall election more.
I think virtually the entire city would give 'most anything to just see this all go away. ? a legal opinion from another attorney ? The operative word here is opinion. Talk to 5 attorneys and you'll undoubtedly get at LEAST 5 differing opinions. Unfortunately, it seems to me that there are only two ways to get a resolution - 1) drop the entire matter, just let it go; or 2) take it to court. I sincerely hope that the Council does not opt for the latter. We have spent way too much time and money on this as it is. Just let it go . . .
Hopeful, You are completely correct in your comments. We are all tired of this mess. I am sure all they want is to be able to say to Mr. Tussing, give us back our money so we can foolishly spend it elsewhere. The council people act as if this is their money and the mayor works for them. He works for the city of Billings and our tax dollars is what pays for his small wage. I liked the guy yestereday in the Gazette that said " get you head out of you know where and get on with it" Im willing to walk and get names for a few recalls.
Ron Tussing was elected by a majority to serve as our mayor - so let him serve. He wants to help the city get back on track, something that hasn't happened since Tooley has been mayor. I doubt if Tina Volek cares one way or the other. Once this Singer gives his opinion, the City Council will hire someelse to interpret his opinion, then spend the next six months debating whether to go to Court - and cost our tax dollars more money.
Get a life, Council members, or sell your house and move with Bauer to North Dakota.
Maybe McDermott, Gaghen, Boyer, Stevens, Veis and Brewster will "burn the Reichstag" in January...
Mark, "should have" isn't the same as "did."
The election "majority" didn't exactly constitute a mandate. Of the 21875 ballots cast, only 19948 included mayoral votes: 10741-T, 9207-G. What about the 1927 who didn't bother to vote for either mayor candidate. Had those votes been cast for Garver...
Anything over 50% is a mandate. Furthermore, even if those voters who chose not to vote for either person for mayor had all voted for Garver, Tussing still would have won.
Al Garver was to nice - he should have figured the Tussing people to do the last-minute attack ads, and he should have been putting the Volek Report on peoples doorsteps. He would have won a landslide if people REALLY knew about Tussing.
ha ha ha ha.
The people of Billings REALLY knew Ron Tussing and what a great job he would do for the citizens; that's why he was elected as Mayor.It was obvious after seeing Garver in action why he didn't win.
ha ha ha ha ha. Too? As usual, Mark remains firmly entrenched in his alternate reality.
Is this new mayor you are so infatuated with the same man that stole from the animal shelter to pad his foundation? Couldn't find any widows or children to steal from?
My question is...couldn't our City attorneys write a better contract for dismissal for Tussing? Doesn't our great City have administrators and a council that realize ambiquous wording when they see it. I find this disappointing. Go for it Mr. Tussing!
How about a new blog section called "Bauer's New Run at City Administrator"? That was nice of him to attach his new contract with his email to the City. Would the people responsible for hiring this clown please stand up and face reality. Reality Check!
How about a new blog on why the Billings Police Foundation is giving back $47k in donations it stole from the animal shelter?
Stole is a strong word. Can we have some proof?
http://www.bigskybusiness.com/modules.php?op=modload&name=News&file=article&sid=1095&mode=thread&order=0&thold=0
Sounds pretty strange to me and may be more than $47,000. Stole sounds a little strong to me also but it sure appears to be a conscience attempt to divert the donations.
Checks written to the animal shelter (the city) and endorsed by the BPF (a private entity). If someone did that to a check written to you, you would use the word "stole" too.
I see your point! Is this action legal and couldn't the BPF be held responsible? Isn't there any accountability in our City government?
A well written document describing Tussing's settlement could have prevented this huge waste of the taxpayers time and money.
My question to the City Council, Mayor, City Administrator, and City attorneys is...how did you let this happen?
Of course its not legal. Why do you think they are giving it back without a fuss? How much more is out there? How many people wrote checks to the BPF intending for the money to go to the animal shelter? FRAUD!
The contract said he couldn't seek employment with the city. The mayor is an employee. What is unclear? The only one confused about this seems to be Tussing and his lawyer.
"Seek employment" and "elected to office" are not the same. These two scenarios do not equat. Well written legal documents leave out wiggle room for misinterpretation. The wording "not to seek employment" is not enough. The agreement should have been written "not to seek employment or acquire employment through election". Any good lawyer knows this.
Hence, from the previous blog. We welcome you to office, Mayor Tussing!
One can become an employee without "seeking employment"? Great parlor trick. Pardon me, I wasn't paying attention. Liigation rates have plunged recently as lawyers have learned to anticipate every hole a snake can "wiggle" through.
Lawyer fee have plunged? Come on.
Mr. Tussing deserves a chance since he was elected by the people of Billings. The parties and individuals that approved an ineffective aggreement should let this go and, again, take some responsibility. How about the concept of looking forward. Those without vision look backward.
I think 6:21 meant the number of trials have decreased, not the fees the lawyers charge.
Couldn't all you anonymous people at least go to the trouble of choosing a cyber-handle so we can keep track of who the hell is saying what? It's so confusing.
From all the comments of Mr. Tussing regarding the BPF,the city's disregard for its departments,and lack of budgetary propriety (hence the need for things like the BPF) I am inclined to think he needed his opponent's campaign slogan of "taking back our city." I have no idea what the outcome of the contractual review will be, but if he takes office as Mayor I hope he works very hard to repair all the wrongs he has identified, taxpayers deserve it.
Has anyone else considered that we should distinguish between "eligible to office" and "hold office."
The internet is great, I found this language in an Ohio court of appeals case: "Ohio follows the general rule for elections that, absent express constitutional or statutory language to the contrary, a disqualification from holding public office does not prevent one from running for the office as a candidate." (Case #2002-10-039, decision date: 11-17-03, 2003-Ohio-6104)
You gave me an interesting idea. Thx.
Steve
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