Volume XX, Number 14

Wednesday, November 3, 2004

Page One News at a Glance

Hamilton City Council President gets no confidence vote

County quits funding cemeteries

Gravel pit reclamation not complete

Hamilton City Council President gets no confidence vote

By Michael Howell

Hamilton City Council members passed a vote of no confidence in their President, Bob Scott, at their meeting Monday night, November 1. Scott and Council member Bob Sutherland abstained from voting. The rest of the council voted in favor of the no confidence motion.

"I'm just tired of old issues being brought up and re-brought up," said Councilman Steele, who made the motion of no confidence. "We need to move on to City business and quit rehashing everything."

Council members Philip, Anderson and LaSalle agreed.

Philip said that she lamented the state of affairs that have paralyzed the Council. "Innuendo, without anything backing it up, is destroying this Council and tying the hands of the administration," said Philip. She added, however, that some of the Mayor's actions have also contributed to the situation.

Councilman Anderson criticized Scott for having an agenda and keeping the Mayor and other council members "out of the loop."

Councilman LaSalle said that both Scott and Sutherland brought "a lot of fresh air" and new ideas with them when they joined the Council but he condemned what he called the "aggressive and inquisitorial nature" of their treatment of the administration and other council members. But, like Philip, he also criticized Mayor Joe Petrusaitis for some of his behavior, saying it contributed to the situation.

The vote of no confidence passed on a 4-0 vote as both Scott and Sutherland abstained.

When asked during the foregoing discussion for an example of an issue that has been rehashed too often, Councilman Steele mentioned another item on the night's agenda concerning the payment of a $1,200 invoice for tree trimming that was not approved by the Council.

Steele pointed out in subsequent discussion that the City Attorney, Ken Bell, had already responded to a request from some Council members that he investigate the problem with a memo stating that he could not properly address the matter because he is an employee of the Mayor, and that an independent investigator should be used.

Sutherland said that a check was written without Council approval and in violation of policy and that the Council needed to address the issue. He proposed that the funds be repaid to the City by "the people that issued the check."

In May City Attorney Bell addressed the issue in a memorandum stating that the Mayor had the authority to take emergency action to cut down the tree which he perceived to be a safety and hazardous condition.

Scott and Sutherland pointed out that the attorney was only addressing the issue of having the tree cut down. They both argued that this did not address the question of an unauthorized payment for the action.

Scott said that the payment of the claim was not only made illegally without Council approval but that the payment was purposely concealed from the Council and he called it attempted fraud.

The Mayor defended his action in having the tree cut, saying it was a safety hazard and required emergency action.

Sutherland pointed out that the check was written even before the work was completed.

Scott made a motion to ask the City's bonding company if they would cover the repayment of the illegally written check.

LaSalle said that it did not make sense to ask a bonding company if they would cover the repayment when there has been no legal opinion offered that it was in fact illegal and no investigation done.

After some discussion , including accusations of fraud in the affair, Scott withdrew his original motion and presented a new one asking the City Attorney to investigate the $1,200 payment in all its aspects. That motion was unanimously approved.

In other business, the Council agreed unanimously to waive the fee requirement for use of the Council meeting room for the Hamilton Art in Our Schools display. They also approved some minor changes in a previously approved agreement to have a Washington company install a traffic signal on a street that may see significant use during the construction of the new facilities at Rocky Mountain Laboratory.

County quits funding cemeteries

By Michael Howell

Based upon a series of memorandums from Deputy County Attorney James McCubbin concerning the legality of granting of any County tax money to Community Based Organizations (CBOs) such as the Hamilton Senior Center, the Humane Society, museums, libraries, and cemeteries, the Ravalli County Commissioners decided not to include any funding for the County's nine cemeteries in their budget for the upcoming 2004-2005 fiscal year. Funding for the Florence Library is also in jeopardy.

In response to a request concerning possible County funding for the Hamilton Senior Center, McCubbin wrote the Commissioners on August 2 concluding that the County does not generally have the legal authority to give away taxpayers' money to private organizations. He recommended, based upon his research of the law, that the County not pursue establishing a tax for, nor providing public funds to, Hamilton Senior Center, Inc. He went on to recommend that the County's budget be reviewed and scrutinized with regard to payments to any organizations which are not a part of and controlled by Ravalli County, including those referenced as "Community Based Organizations."

"Funding of these organizations should cease immediately unless and only to the extent the funding can be identified as payment for contracted services within the County's power to contract for legally authorized County services, or otherwise specifically authorized by law," McCubbin wrote.

While he drew a direct conclusion concerning the legality of funding the Hamilton Senior Center, McCubbin called funding of the valley's cemeteries "suspect." He suggested that any funding under the heading "Contribution to Communities," which includes several valley non-profit organizations, that is not supported by a specific contractual relationship for services may not be legal.

He used the Humane Society as an example and suggested that funding for the use of Humane Society facilities could be legal if supported by a contract for services and placed under the line item for Public Safety in the budget.

Although he recognized that counties in Montana are authorized to operate cemeteries independently or in cooperation with municipalities, as well as cemeteries operating in established Cemetery Districts funded by their own tax levy, he warned that these provisions in the law "do not authorize County funding of private cemeteries... (and) any private cemeteries which are neither operated at least in part by the County nor are part of a cemetery district, should not be funded" under the Cemetery Fund line item in the budget.

As a result of this and a few subsequent memos in early September, the Commissioners decided not to fund any of the valley's cemeteries for the coming year.

This decision came as a shock, however, to board members on at least a few of the organizations running cemeteries in the valley. Don Thorson, who sits on the board of the Corvallis Cemetery, Inc. and Dean Whitesitt, on the board of the Stevensville Municipal Cemetery, both said that they had no indication from the County that their funding for the coming year was going to be cut until they got their tax bills from the county indicating that no money was being collected for the cemeteries.

Thorson said that when they attended the budget hearings before the Commissioners this year they left with the impression that they would be funded at least as much as they were in the previous year, which was $1,800. He said that he was upset to discover that the Commissioners had cut the cemetery completely from their budget, but doubly upset to discover that they had been considering this since August and failed to mention it at the budget hearing or to notify the cemeteries at all that they were considering such an option.

"This is not the way to do business," said Thorson.

Commissioner Alan Thompson told the Star on Monday that he was not sure why the cemetery boards had not been notified in advance of what they were considering. He said that he assumed that the cemetery boards had been notified and was apologetic about the "oversight."

"Don't they have to sign any letters that are sent out?" Thorson remarked when informed of Thompson's response. "He would have known if we were notified or not."

Thorson also said that Commission Chairperson Betty Lund had told him that she had tried to call him several times about the matter but that he must not have an answering machine. "I've got an answering machine and it worked for everyone calling me but her," said Thorson. "Am I saying she was lying to me? Darn right I am," said Thorson.

Thorson said that the Corvallis Cemetery Board purchased five acres of land last year and has mortgage payments to meet and they were counting on the County's contribution.

"If they had informed us in a timely manner we might have been able to get an initiative on the November ballot to create a cemetery district," said Thorson. "It is really disturbing to find out that they knew about this in August."

Thorson said that in addition to not being notified in a timely manner, he also disagrees with the idea that they are a private cemetery. He said that they are a non-profit organization taking care of an essential public need in his view. He also mentioned that the past funding was also inequitable between the valley's cemeteries. He said that the Hamilton cemetery got $6,700 from the County last year while the Corvallis cemetery, which is the same size, got only $1,800.

He also said that he thought the whole matter boiled down to the County trying to save tax money for other uses by defunding the cemeteries.

"The taxable mills did not go down," said Thorson. "We still pay the same amount of taxes, but the money that once went to cemeteries is going to go some where else."

Dean Whitesitt, on the Stevensville City Cemetery Board, also expressed shock at learning about the funding cut last week. He also disagrees with the idea that they are private cemeteries. He said that the St. Mary's cemetery recently decided to become private so they could refuse service to non-Catholics if they so chose.

"We are not private and anyone can take advantage of our services," said Whitesitt. He also said that burial service was an essential public service and he did not understand how the County could not help support it. He also expressed the belief that that the Commissioners' decision was essentially political and aimed at diverting the County's tax money to other functions.

"It's a real blow," said Whitesitt. "We counted on that money for maintenance of the cemetery. Now I don't know what we will do."

Commissioner Lund said that she favored funding the cemeteries this year even if it might not be legal.

"They already made their budgets and they counted on this. I felt like we should act with a little common sense, even if it might not be technically right, but I was overruled," said Lund.

In his follow up memos to the Commissioners, McCubbin recommended that the Commissioners continue funding the Darby Public Library and the Bitterroot Public Library in Hamilton based upon the inter local agreements that established them and give some County control, but said that "it is inappropriate to give money to the private organization that informally runs the Florence Library." The North Valley Independent Library District in Stevensville operates on a separate voter-approved mill levy.

Gravel pit reclamation not complete

By Michael Howell

Thomas Bowe, a Hearings Examiner for the state Board of Environmental Review, issued a preliminary order last week in favor of Jim and Glenda Anderson of Stevensville, in a long standing dispute over a County gravel pit located up the Burnt Fork east of Stevensville. The Andersons, current owners of the land on which the Ravalli County Road Department mined gravel over a period of years, have long claimed that the County and the Department of Environmental Quality (DEQ) failed to reclaim the land as required after the mining operation.

The Andersons filed a lawsuit in District Court to force the County and DEQ, the agency that permitted the project, to finish the reclamation work, which they determined was inadequate. In the meantime, they have entered an administrative process before the State Board of Environmental Review looking for the same relief.

More than 16 hours of testimony and argument were heard over two days in Hamilton on October 18 and 19. The main issue in the case concerned the restoration of the soil in the area next to the gravel pit where equipment had been parked and where mined material had been stockpiled.

The restoration of the pit area itself was not an issue. Revegetation at the site has not yet been accomplished. Thus DEQ has not yet released the County from liability for successful revegetation. But the County was released from partial liability by DEQ for re-soiling the former facilities area.

Ravalli County initially made a deal with the former owners of the land, the Christiansens, to mine gravel on five acres of their property. The County then received a permit from DEQ which required a reclamation plan under the Montana Opencut or Strip Mined Land Reclamation Act of 1971.

The Andersons claim that the reclamation work was never completed and that the DEQ should not have released the County from liability over the resoiling of the area around the pit. They also argued that the ground should have been restored to a condition that would allow farming.

DEQ argued that the reclamation plan only called for restoration of the land to a condition that would allow grazing and that the work already done was sufficient.

The Hearings Examiner found that reclamation of the land to the condition that it would allow farming of hay or oats was not required by the initial contract, but that the land around the pit should be restored to a condition that would allow grass pasture. He did find that the failure of the Ravalli County Road Department to salvage top soil from the facilities area and to stockpile it was proven to be a violation of the Reclamation Plan. Because of this violation, topsoil was buried under mined material and compacted causing the reclamation process to be more difficult and less effective than it would have been had this violation not occurred.

The Hearings Examiner also found that the County violated the plan by mining more than the five acres originally agreed to between the landowners and the County and between the County and the State. He found the re-soiling of the site to be inadequate for grazing.

As a result, he also found that the DEQ erred in releasing the County from liability for re-soiling the area. He said that this error was in part caused by the incorrect information supplied to DEQ by Ravalli County that the stockpiled gravel was left on the site at the request of the landowner. He also found that the release of liability was caused in part by the "mutual mistake of fact" by DEQ and the County that reclamation undertaken up to that time had succeeded in removing the gravel from the buried topsoil, relieving the compaction of the soil.

He found the release of reclamation liability for re-soiling the site in the facilities area to be "clearly erroneous."

The proposed order issued by the Hearings Examiner will now be considered by the State Board of Environmental Review, which will make a final determination in the case.