Attorney Tom Singer's 11-page report to the Billings City Council about potential litigation with Mayor-elect Ron Tussing was on my fax machine this morning. You can find the Gazette story, with a link to the full report, here.
The report agrees in essential points with my own analysis here (skeptics who said I didn't know what I was talking about can ease their guilty consciences by donating to PayPal on the Outpost site). And the Gazette didn't have to take legal action to see my analysis. Key points:
1. Tussing probably is a city employee for purposes of the agreement.
2. Pursuing litigation probably isn't such a hot idea.
3. The city's key concern is acting City Administrator Tina Volek, who might reasonably have expected the agreement to protect her from working with Tussing again. Money quote: "The Mayor, as presiding officer of the Council, generally participates in the annual performance review of the City Administrator. ... Were Mr. Tussing to participate in such a review and disparage Ms. Volek's performance in any way, she might allege his disparagement of her was related 'to matters at issue that led to' the settlement agreement, or in retaliation for her role in those matters. Based on such an allegation, she could assert a claim for breach of the agreement against Mr. Tussing, the City, or both."
Bottom line: "Whether it is possible or practical to exclude the Mayor from supervising and interacting closely with the Acting City Administrator is a question I cannot answer. I have no way of predicting whether Ms. Volek will ask that a barrier be erected, or if she would assert claims against the City or Mr. Tussing. The answers depend on what issues arise, and how people handle themselves over the next four years. It is possible to imagine may things that could go wrong, and our imaginations are never as wild as what reality dishes out. A year ago, no one foresaw the situation that exists today."
UPDATE: Matt Singer agrees with me.
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14 comments:
The newly elected council memebers have not been sworn in and people are lining up to run in two years. A good friend of mine is lining up to run against one of Bauer's shills on the council. I have $10,000.00 I will channel into inkind donations to candidates running against Bauer/Volk supporters on the Council
Should be no shortage of news stories for the next couple of years!
The most important point made by the attorney was rendering the "employee" argument completely irrelevant. Any attempt to abridge Tussing's constitutional right to run for elected office in a contract would be indefensible. By saying so, Mr. Singer completely invalidated the nauseating employee argument altogether. Don't pat yourself on the back too hard, David. You hung your hat on an irrelevant argument, as usual.
The attorney also said if the severance amount agreed upon were demanded in refund, Mr. Tussing would also deserve reinstatement as police chief. (sweet)
Now let's see if the council decides to seek a second opinion.
Anonymous, I think you misread the report. Singer does cite a 9th Circuit opinion that appears to uphold a constitutional right to run for office, but he notes that the Supreme Court has rejected that notion.
He also notes that the 9th Circuit case did not prevent the school board involved from seeking to recover the money that had paid out in the agreement. Even under the 9th Circuit's reading of the law, the candidate could hold the office, but might still have to pay for breaching the agreement.
And assuming the City Council has the good sense today to give up the lawsuit fight, then the Volek issue I have raised not only is relevant, it's the only issue that really matters.
Back patting continues unabated.
As far as I am concerned, the biggest unanswered question is how the city feels about these positions. Are they paid subject to withholding of taxes, FICA, etc., or are they paid as individuals who are serving in advisory or other positions? Do they get their year-end report in a W-2 or in a 1099-Misc?
Singer says the 9th circuit ignored Supreme Court precedent and created a new right. Nice zing.
I found out today that city councilmen are apparently paid as employees with wages (not meeting minimum wage standards) that have all kinds of items withheld, including fica and state and federal taxes. That would seem to make them, technically, city employees rather than councilors who would receive 1099s from which fica is not withheld. Veeeery interesding.
I'd think the "honorable" thing to have happen is that the Mayor "recluse" himself or abstain from any involvement in the performance appraisal of Ms. Volek, to saisfy many who still do not accept Mr. Singer's findings/ advice nor Mr. Tussing's positon as Mayor. A Committee of the Council could well provide a finding on Ms. Volek's performance.
Chuck, they are not meeting the federal minimum wage requirements in order to be EXEMPT salaried employees. In other words, if the mayor or a councilperson works in excess of 40 hours in a week, that person would have a wage claim against the city for overtime pay. Although minimum wage is an hourly wage, employees can be paid a salary provided the total amount paid divided by the total number of hours worked is equal to at least the minimum wage. For councilpersons, this works out to be 26.9 hours per week ($600/month) and for the mayor, 35.9 hours per week ($800/month). Any hours worked in excess of those numbers puts the city in violation of the federal minimum wage requirement. Wonder if any of them are going to start keeping track of hours worked?
A city official in Oregon tried suing for overtime and lost. He was found by a state court not to be a state employee. Would it be any different in Montana? I doubt it.
...found not to be a CITY employee, I meant to say in previous post.
Ms. Volek could challenge anything Mayor Tussing might say that disparages her, but she would have to prove the disparagement was connected to the Bauer issue. That would be difficult, if not impossible for Ms. Volek to prove. She would only prevail if she could prove the disparagement were connected.
For Mr. Singer to worry about a lawsuit is silly. We already know anyone could file a lawsuit about anything. This is America, after all.
The mayor should evaluate Ms. Volek, along with all other members of the council. His is one vote among 11. If a majority of the council finds her incompetent on some point, it will be at least six members who think so. One of them may or may not be the mayor.
The only sort of vote Tussing should recuse himself is one which he stands to financially benefit by the outcome. At least, that's my understanding of the rules.
Montana probably would be different. Oregon law definitions of who is excluded from minimum wage requirements and OT are different than Montana's.
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