For the record, I went to the Town Council meeting in question to address the matter of the Mayor moving out of Town before I ever decided to run for mayor.
At that meeting I read to Council from Montana Code Annotated (MCA) 7-4-4301 which states “(2) The office of Mayor of a city or town is considered vacant if the individual elected as Mayor ceases to be a resident of the city or town.” Then I suggested to Council that they could be setting a terrible precedent that likely would bind all future councils to the same consideration they might grant for Mayor Mim Mack.
MCA 7-5-4101 states, “The city or town council has power to make and pass all bylaws, ordinances, orders, and resolutions not repugnant to the constitution of the United States or of the State of Montana or to the provisions of this title….”Since MCA 7-4-4301 is a State Law, Town Council does not possess the authority to circumvent state law.
The Mayor did ask Mr. Brian West (Town Attorney) to provide an opinion if what he wanted to do was legal. Contrary to what the Mayor said in his letter, Mr. West suggested the action “could be challenged but he felt a challenge could be rebutted.” Mr. West cited a 1996 Supreme Court Case, Walker v. Higgins (who was Mayor of Darby at the time – Higgins did resign after it became widely known that he lived outside the town), as guidance of how the courts interpret statutes, but this case alleged five voters were not qualified and had cast votes in the election which, of course, has nothing to do with the residency requirement of the mayor. The only way we would know who is right here is to go to District Court or request an Attorney General’s Opinion. Only the Mayor, a Town Council member or the Town Attorney may make such a request and that suggestion was made by Mr. West on August 8, 2012 and not acted upon.
My brochure states the Mayor violated State Law, because I believe he did. Neither my brochure nor my testimony before Town Council once mentioned the Mayor’s wife, cast doubt on the seriousness of her condition or suggested any course of action to be taken. In my opinion, the Mayor could have avoided the entire matter by simply locating to a residence providing ground floor living within the incorporated Township – problem solved. He chose to ask Council for the consideration when he had other options.
Clayton D. Floyd Jr.