Billings City Council seeks attorney general's opinion on NDO

2014-06-23T23:00:00Z 2014-08-13T06:25:08Z Billings City Council seeks attorney general's opinion on NDOBy MIKE FERGUSON mferguson@billingsgazette.com The Billings Gazette

Even as city staff continues using City Council input to revise language in Billings’ proposed nondiscrimination ordinance, the council voted 6-5 Monday to seek an opinion from Attorney General Tim Fox’s office on whether it’s legal for Billings to enact such an ordinance.

Joining Mayor Tom Hanel in support of council member Denis Pitman’s initiative were Pitman, Angela Cimmino, Shaun Brown, Rich McFadden and Mike Yakawich.

Voting against the initiative were Al Swanson, Ken Crouch, Becky Bird, Brent Cromley and Jani McCall.

It’s uncertain whether seeking the opinion will slow down a council decision on the NDO — or its possible referral to the voters.

City Administrator Tina Volek said after the meeting that Yellowstone County Elections Administrator Bret Rutherford has set an Aug. 11 deadline for receiving information from Billings officials in order to place the NDO on the Nov. 4 ballot, if that is the will of the City Council.

The council will next take up the NDO during its work session July 7. That will give the council only two regular meetings — July 14 and 28 — before the Aug. 11 ballot deadline. Rutherford said it would be too late if the city reported to him following the Aug. 11 council meeting, Volek said.

Passing an ordinance requires a public hearing and two readings, followed by 30 days before it takes effect.

After the meeting, Hanel — who cast the decisive vote seeking the opinion from Fox’s office — said it wasn’t his intention to slow down the NDO process. Nor was

Monday’s vote any indication how he’ll vote on the proposed ordinance, which in most past council votes has included five supporters and five detractors.

Hanel said he believes it’s wise to get an opinion from the attorney general’s office even as the work rewriting and reconsidering the NDO continues.

“Have you ever been sued? I have, and it’s not fun,” said the mayor, a former police lieutenant. “If you think this (lengthy public testimony process) is stressful, this is nothing. We want to avoid a lawsuit at all cost. If there’s a way to avoid it, why not use it?”

But Volek counseled council members to be careful what they ask for.

“My obligation at this point is to remind you that we are a charter form of government,” she said. “We are given authority by the state to undertake activities not available to non-charter organizations. … If you ask for an opinion and the city’s authority is limited, there are potential challenges and problems and limitations that could be visited upon us in the future.”

“An attorney’s general’s opinion has binding state authority,” Volek said, “and it could have implications we have not entirely thought of.”

“If we do get an opinion and we find we don’t have the authority, we may have to look retroactively at ordinances we have passed,” said council member Brent Cromley, an attorney. “This is not a light decision you are about to make.”

“This is something that has captivated the entire state,” Pitman said. “Hopefully we can get the attorney general to put this on the front burner. We are Billings. Asking for this (opinion) should have some weight with the attorney general’s office.”

City Attorney Brent Brooks said attorneys general issue two kinds of opinions — a letter of advice, which is a more streamlined process, or a full-blown opinion, which can take months. He said one potential stumbling block is that the attorney drafting the opinion or the letter of advice might ask, “Why are you asking for my opinion?” if the ordinance is still being drafted.

“This situation has a lot of unknowns,” Brooks told the council. “I don’t know if the attorney general has looked at an opinion simultaneously with an ordinance in the drafting stage.”

After the vote on that initiative, council members had others to present. Cimmino suggested the City Council allocate enough money to purchase flags in time for the Fourth of July celebration in order to decorate the downtown area. Then the council found out from Liz Welch of Billings that her mother still has flags left over from a display at the Billings Logan International Airport, flags she’d be happy to loan to the city. Cimmino withdrew her initiative.

Bird suggested that council members and department heads undergo cultural diversity and sensitivity training. That initiative passed 8-3, with Cromley, Pitman and McFadden voting “no.”

Pitman said he was “highly offended” by Bird’s “words, innuendo and assumptions, and your basic discontent with our council that we don’t have the sensitivity to ascertain what this issue is doing to our city. … I believe in each one of us, who are here doing the best job we can. I don’t see anyone behaving in a way that is inappropriate or unacceptable to this community.”

Finally, Cromley suggested this initiative: Council members should disclose their initiatives 24 hours in advance so that they don’t come as such a surprise near the end of meetings.

Then, realizing what he’d done, Cromley withdrew his initiative.

“I didn’t give you 24 hours to think about it, so I will withdraw it and present it next time,” he told his colleagues.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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