OpenCDA

August 4, 2012

Undivided Loyalty

Public policy demands that an officeholder discharge his or her duties with undivided loyalty.  When an official is elected by her constituents to a position of public trust and responsibility, those constituents have every right to assume that the official will put the duties of that office ahead of those duties required of any and all other offices the official may hold.  Indeed, the official’s constituents have every right to assume the official will voluntarily and even automatically vacate any office whose duties are incompatible with those of a position she already holds.  This is the common law doctrine of incompatibility of office.  The Idaho Legislature and the City of Coeur d’Alene have chosen to ignore this.

Here is a concise explanation of the incompatibility of office doctrine.  It is quoted directly from  The Law of Municipal Corporations, 3rd Edition, 2012 Revised Volume, § 12:112, pages 501-502, by Eugene McQuillin,   © 2012 Thomson Reuters:

“The common-law rule is that the acceptance by a public officer of another office which is incompatible with the first thereby vacates the first office; that is, the mere acceptance of the second incompatible office per se terminates the first office as effectively as a resignation.  Public policy demands that an officeholder discharge his or her duties with undivided loyalty.  The doctrine of incompatibility is intended to assure performance of that quality.  Its applicability does not turn upon the integrity of the person concerned or his or her individual capacity to achieve impartiality, for inquires of that kind would be too subtle to be rewarding.  The doctrine applies inexorably if the offices come within it, no matter how worthy the officer’s purpose or extraordinary his or her talent.” 

The key sentence is, “Public policy demands that an officeholder discharge his or her duties with undivided loyalty.”  It is unfair for constituents to expect even the most dedicated, honest, well-intended public official to effectively serve two masters.  The constituents rightly expect that an officeholder will make a choice between the two rather compromise her duty in order to serve both.

But when the Idaho Legislature enacted the state’s urban renewal laws in Idaho Code, Title 50, Chapters 20 and 29, the Legislature decided that serving two masters was good public policy.

Idaho Code § 50-2006(b)(3) expressly authorizes “By enactment of an ordinance, the local governing body may appoint and designate itself to be the board of commissioners of the urban renewal agency…”  It goes on to say,  “…the local governing body, who shall, in all respects when acting as an urban renewal agency, be acting as an arm of state government, entirely separate and distinct from the municipality …”  This happened in Eagle, Idaho, in 2012 when the Eagle City Council passed an ordinance terminating the appointments of the Eagle Urban Renewal Agency commissioners and appointing the Mayor and City Council as the new commissioners.

With this action and with the 1986 amendment of Idaho Code § 50-2017,  the Legislature has statutorily adopted an absurd fiction that the same officeholder can have loyalty to two separate and distinct public entities that might foreseeably become antagonistic to each other and have competing interests.

The Legislature gave itself the authority to ignore good public policy when it passed Idaho Code § 73-116.  That section states, “The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state.” [Emphasis mine]

When it adopted § 73-116, the Legislature directed Idaho’s courts to ignore a de facto incompatibility of office conflict if the Legislature has passed a law creating or  allowing it.  Idaho’s courts will not second-guess the Legislature on the wisdom of its legislation, because they are not allowed to.   To do so would violate the separation of powers prescribed by the Idaho Constitution, Article II, Section 1.  Simply put, Idaho’s courts do not have the authority to fix stupid laws.  Fixing stupid is the responsibility of the same Legislature that created it.

Remember, Idaho’s urban renewal agencies are separate and distinct from the local governing bodies that created them.  That is in the statutes, and it has been affirmed by the Idaho Supreme Court.

Because they are separate and distinct entities, an urban renewal agency can enter into contracts with the local governing body that created it.  When one party to an agreement violates the agreement and the difference can’t be resolved between the agreement’s parties, a lawsuit pitting one party against the other can be the outcome.   So here’s the quandary:  What happens if and when the urban renewal agency has to sue the local governing body (or vice versa),  and the officials of both entities (plaintiffs and defendants) are some or all the same people?

It could happen in Coeur d’Alene.

Coeur d’Alene currently has one sitting city council member (Deanna Goodlander) serving simultaneously as an appointed urban renewal agency commissioner.   A former council member (Al Hassell) who decided not to run for re-election retained his position as an urban renewal agency commissioner.   Since the agency’s inception, it has typically had two elected city council members serving simultaneously on the agency’s commission.

If the reader wants a clear and compelling example of incompatibility of office in Coeur d’Alene, the reader need only review the digital video disc recordings of the Coeur d’Alene City Council meeting of July 17, 2012, and the urban renewal agency (LCDC) meeting on July 18, 2012.

In the July 17th City Council meeting the Council was deliberating toward a vote on a proposed contract between the City and the urban renewal agency, the LCDC.  The contract would have the LCDC  giving the City approximately $11,500,000 to modify a city park.  During the City Council’s deliberation, City Councilman Edinger offered a motion to amend the agreement by dropping one section of it.   Edinger’s motion to amend was seconded, and the Mayor called for discussion on it.

Rather than calling on Councilman Edinger who offered the motion, the Mayor immediately called on City Councilman Deanna Goodlander who said,

 “Yes, I would like to ask Danielle if she would come forward.  Danielle is our attorney for urban renewal – um, for LCDC – and, um,  Danielle and Tony [Tony Berns, the LCDC executive director] maybe together – I don’t know, but I think Danielle can cover this.  I know that much of this agreement has been, um, clarified as being what we have to do as an urban renewal district under the laws.  So Danielle, sorry to put you on the spot, but (chuckles).” [Emphasis mine]

“Danielle” is Danielle Quade, the attorney hired by the LCDC to represent its interests.   Coeur d’Alene City Attorney Mike Gridley was present at the council meeting to represent the City’s interests.

So during the July 17th Coeur d’Alene City Council meeting in which Councilman Goodlander and the other five council members were meeting and deliberating toward a vote on an agreement to which the City is one of the two parties, Councilman Goodlander did not summon the Coeur d’Alene City Attorney Mike Gridley to give legal counsel to the City Council.  Instead, she summoned the other party’s legal counsel, Danielle Quade, to explain the contract to the City Council!   Councilman Goodlander sought legal counsel not from the City Attorney but from the attorney who would be representing the City’s adversary in a lawsuit!  Sitting as an elected Coeur d’Alene City Councilman in a properly convened City Council meeting, Councilman Goodlander repeatedly conducted herself as if she were representing the interests not of the people of the City of Coeur d’Alene but rather the interests of the statutorily separate and distinct urban renewal agency, the LCDC.

As a city councilman, Goodlander then voted in favor of the agreement between the City and the urban renewal agency.  The next afternoon at the scheduled meeting of the LCDC, sitting now as a Commissioner of the LCDC, Commissioner Goodlander abstained from voting, saying, “I voted on it last night as a Councilman, so I think I probably shouldn’t vote on both sides of the ledger.”  Really, Deanna?  Ya think?

Councilman/Commissioner Goodlander’s conduct is precisely why the remedy for incompatibility of office is that one office, usually the first, is vacated automatically by accepting the second office.   Recusal or mere abstention from voting does not alter the fact that the offending official (Goodlander) has deliberated and perhaps even voted on earlier related matters in both bodies.   In this example of incompatibility of office, Councilman/Commissioner Goodlander chose to abstain from the vote at the LCDC.  If abstention were a valid remedy, she should have abstained from both votes.  Naturally she didn’t, because if she had chosen to abstain from the City Council vote, the motion to accept the City-LCDC agreement would likely have failed.

What if the City violates the contract it has with the LCDC?  For example, suppose the City Council takes some action which jeopardizes the tax-exempt status conferred on the interest payed to the bank which loaned the money to LCDC?  If the LCDC sues the City to enforce the contract, will Commissioner Goodlander sit at the plaintiff’s table with the LCDC or will Councilman Goodlander sit at the defendant’s table with the City?  Which attorney, the LCDC’s (Quade) or the City’s (Gridley), will she confer with without compromising the legal position of the other?

The Legislature ought to address the incompatibility of office issue again in the composition of the state’s urban renewal agencies.   It defies logic for the Legislature to continue to promote the absurd fiction that an elected city councilman can throw some magic loyalty switch from giving his undivided loyalty to the electors to  suddenly giving that undivided loyalty to an unelected body whose function (in Coeur d’Alene at least) appears to me to be to serve as the First Unregulated Bank of Idaho and dole out money  for City Council patronage projects.

If the Idaho Legislature’s intention is to remedy the incompatibility of office conflict it created and supported, it needs to carefully and explicitly amend Idaho Code Title 50 Chapters 20 and 29.  The Idaho Legislature already has sufficient authority to do this.

 

4 Comments

  1. I wonder if our local elected state officials will do anything about this, now or in the upcoming session?

    After further thought, they won’t do anything before the next session because they’re up for re-election between now and then.
    Then they’ll just put their heads in the sand.

    Comment by Ancientemplar — August 4, 2012 @ 3:23 pm

  2. I seriously doubt that many legislators, if any, will see it as something that even needs to be fixed.

    Comment by Bill — August 4, 2012 @ 4:54 pm

  3. It was apparent that Deanna was serving two masters when she made the comment. I wasn’t surprised that the mayor said nothing to her. I did have a brief conversation with Mike Gridley after the meeting as I felt it was a conflict of interest. Unfortunately, I used the incorrect term. He essentially told me I was wrong and he walked away stating that he would not argue the point with me.

    Comment by Susie Snedaker — August 7, 2012 @ 8:55 am

  4. Susie,

    Gridley wouldn’t argue the point because he couldn’t argue it. It is what it is, and what it is is an untenable conflict of duties.

    Comment by Bill — August 7, 2012 @ 9:33 am

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