MINUTES OF THE MEETING
TOWN COUNCIL
BAR NUNN, WYOMING
The regular meeting of the Town Council of Bar Nunn was held on Tuesday, November 5, 2013, 7:00 P.M., at 4820 N. Wardwell Industrial Avenue, Bar Nunn, Wyoming.
The meeting was called to order by Mayor Jerry Petty.
The roll was taken by Carol Pendley, Clerk Treasurer. Those present were Mayor Petty and Councilmen Blase, Brown, Martin, and Bigelow.
Mayor Petty led in the Pledge of Allegiance.
Next item on the agenda was Minutes of the October 15, 2013, meeting. A motion was made by Councilman Brown, seconded by Councilman Bigelow to approve the minutes. During discussion, Counselor Chapin indicated as a ‘point of order’, minutes can be amended prior to vote on the motion for approval.
Councilman Blase noted Councilman Martin’s motion was to have a sign on the town counter door to read Authorized Personnel Only, Authorized Personnel being Employees, Elected Officials and Appointed Officials.
Councilman Blase said he made a motion last meeting on office hours being changed and following discussion a resolution to be done. It was seconded and passed.
Mayor Petty called for a vote on the motion on the floor to approve the minutes, as amended. Motion carried unanimously.
Payable List for October 2013 was next on the agenda. Councilman Brown moved to accept the payable listing, seconded by Councilman Blase. Motion was unanimous.
Attorney’s Report was next on the agenda. Attorney Chapin reported having written the letter (council copied) to Ken and Darla Woods on Antelope regarding the overhanging branches. Councilman Brown questioned when the action would occur. Following discussion, it was agreed it should be addressed in the spring since foliage has dropped this fall.
Attorney Chapin stated a request for payment for meetings attended by council members with other civic groups or governmental entities, at which the Bar Nunn Town Council member votes on behalf of the Town, was brought up last meeting and he has researched and provided legal opinion by e-mail, to council. Attorney Chapin reported City of Casper does not reimburse council members for such meetings. The Town of Bar Nunn (council) which operates under Town ordinances, are not authorized for payment for meetings other than attendance of regular or special meetings of the Town council.
Attorney Chapin provided council a copy of the Opinion from Roxy Skogen, and the e-mail from Rich Cummings of the Audit Department of the State of Wyoming.
Councilman Brown’s opinion from review of the documents is there isn’t any legal statute or basis for recoupment, or a timeframe for it to be taken care of.
Attorney Chapin stated there is legal precedent for recoupment, and citing Cummings letter, also indicates the court has the right of determination of reasonability.
Conflict of duties and responsibilities among Treasurer and Council is a problem.
Councilman Brown reads Mr. Cummings e-mail as this is not a criminal but civil matter up to the courts to decide and for the Town to recover would be a Civil Court procedure.
Attorney Chapin agreed it would probably be a civil matter, there are statutes citing additional penalties which could be assessed for non-payment.
Councilman Bigelow stated his opinion of the letters are, Roxy’s letter is a reiteration of Cumming’s letter. They are ‘opinion’, not legal standard or statute beyond set precedent, above and beyond being inconvenient for the Town to recoup costs after the fiscal year.
Councilman Blase asked if an Executive Session should be called to discuss this issue since it deals with an employee payroll. The answer was no since it involves elected officials, it is public.
Councilman Bigelow asked if discussion should be delayed until the end of Council Miscellaneous. Mayor Petty said it could be discussed now.
Councilman Brown made a motion effective this meeting a rate of $50 per meeting be reinstated to council members; the previous three months of wages withheld as well as the over payment, done in good faith and not done in any willful violation of unknown conflict be excused, and in a sense start over from square one. Everything that was (paid) over and everything withheld, be forgiven based on the information as he reads it from both letters. Councilman Bigelow seconded, then repeated the motion in his words.
Councilman Blase stated, citing the determination by the Attorney General, morally and ethically there is a responsibility to return the overpayment, and he believes the issue of concern on the table is the time frame in which the overpayment is returned.
Councilman Bigelow agreed he has a problem with the time frame. He said he sides with Councilman Brown about wiping it clean, but understands (Councilman Blase’s) concern with paying it back. He stated his concern is the requirement of paying back a fairly large amount of money in a short period of time. He wonders if it would be more beneficial to go with Councilman’s Brown’s motion as it stands or would it be more beneficial, because there isn’t a standard there is a recommendation as to when it is to be repaid, that there be a longer amount of time to repay for those unable to meet the recommended deadline, through their own means or through withholdings of council pay. His question (to Attorney Chapin) is ‘legally speaking’ either of those options not being within the opinions given, does it allow the town to file civilly against each council member who did not repay as recommended.
Attorney Chapin stated it is his opinion the money has to be paid back the same as any other overpayment. If inappropriate payment is made, it is to be collected. The Attorney General has stated it is inappropriate. If the Town wants the money back, it does have the right to bring suit and collect. His recommendation, conservatively, is if going to ‘mess with’ anything, the time frame may be available, but should be reasonably conservative as well.
Councilman Blase asked if a payment plan could be set up which is agreeable to the Town with the Councilmember involved. He acknowledged being done by the end of the year would make the bookkeeping expedient, but concern is whether there is another option if council member is unable to pay it in that amount of time.
Attorney Chapin stated arguably the gray area is the payback time, and asked what the preference of the Clerk Treasurer is. Clerk Treasurer Pendley said she would defer to the recommendation of the Auditor (Roxy), for procedures and process. Attorney Chapin suggested if the council members are proposing to structure a payback plan agreement it should be done conservatively and consistently.
Councilman Bigelow said the issue is more whether morally or legally speaking it should be paid back. Morally he believes he should pay it back, but legally he doesn’t think it necessarily means he has to pay it back. He’s hearing opinions, but no state statute and doesn’t believe there is any state statute to pay the money back. His opinion is the Town has to file civil suit against the council member if they want the money back.
Attorney Chapin stated, legally the obligation is to repay, not purely moral. The Attorney General has stated the payment was inappropriate, his opinion is they received funds they were not entitled to, unjust enrichment to the person receiving the funds, Council were not supposed to have them. He said that is his opinion and that is the best he can offer at any time, his opinion. He also offers, not giving political advice, to not repay them doesn’t look good legally, morally, or politically. He also said the council still has the right to disregard his opinion. Highly imprudent legally, practically, and otherwise to forgive the debt.
Councilman Brown questioned Attorney Chapin’s ability to speak from a legal and prudent standpoint when there is no state statute for repayment from the auditor’s point of view.
Attorney Chapin cited there is no specific state statute relating to repayment of monies paid to Councilmen. There are any number of statutes relating to “unjust enrichment and individuals receiving payments they should not receive, and the rights of those parties that paid those to retrieve those monies from them,” according to Case Law.
Attorney Chapin also stated, at some point the auditors, with the letter from the Attorney General’s Office, are going to note no payments have been made or those have been forgiven within the public audit of the Town. He indicated if the Town miss paid someone else the Town would want the money back. Funds that were paid were public funds that belong to the Town.
Mayor Petty stated there is a motion on the table and a second and called for a vote. Councilman Brown and Councilman Bigelow voted for and Councilmen Blase, Martin, and Mayor Petty voted against. Motion failed by majority vote.
Councilman Brown stated his intention since the payment needs to be repaid is to allow 100 percent of any payment he receives as compensation from the Town to go towards that debt until it’s repaid in full however long that may be.
Councilman Bigelow stated he will also go on record that he will repay the debt to the Town for overcompensation in the form of 100 percent withholding of any Town Council salary owed to him until the debt is paid.
Councilman Blase asked if the State Auditor’s Office should be contacted about this arrangement. Attorney Chapin said he could do that, and respectfully submits the Council has to agree to the two councilmen’s repayment terms, as of audit, acknowledging Councilman Martin has repaid in full. Attorney Chapin requested detail of the remaining balance for each of the Councilmen to ‘run by’ the Auditor’s Office and Roxy. Vote on the acceptability of the payback could be brought up next meeting.
Councilman Brown wished to reiterate, in the letter from Roxy, for bookkeeping purposes, it is to be paid by that time (December 1st). He continued that 100 percent is more than fair and reasonable compensation to expect, if expecting the person to continue to work and due diligence to the Town is more than fair.
Councilman Bigelow stated he would also ask we not receive Roxy’s opinion for time to pay back, as it has been made clear it is for bookkeeping purposes. If what is going to be done, when the legality of the proposed payment plan by Councilmen Brown and Bigelow is validated, at 100 percent reimbursement, he would like Richard Q. Cummings of the Auditor’s Office to submit their precedent, not opinion. He would like to know what the state requires or what would be allowed legally. Councilman Bigelow stated he is not interested in their opinion, he is interested in what his legal responsibility is for repayment timeframe, and “whether withholding 100 percent of our salary would be reasonable and prudent and show good faith in the attempt to pay back the debt.” Attorney Chapin said he can do that.
Councilman Brown had a question about an item on Attorney Chapin’s bill, a case ‘Town vs. Bilek’ and what it was that was dismissed. There was an agreed upon fine and penalty and trial was waived.
Next item on the agenda was third and final reading of Ordinance #2013-04 “AN ORDINANCE ADDING AND AMENDING A PORTION OF CHAPTER 6, ‘TOWN OFFICIALS’, SECTION 1-6-7 THRU 1-6-10, SPECIFICALLY PROVIDING FOR THE CREATION AND APPOINTMENT OF A DEPARTMENT HEAD OF MAINTENANCE.” A motion was made by Councilman Bigelow, seconded by Councilman Blase to adopt the Ordinance. Councilman Blase asked the wording maintenance certificates, be changed to “maintain” certificates. Motion was unanimous with the change.
Next on the agenda was second reading Ordinance #2013-05 “AN ORDINANCE OF THE TOWN OF BAR NUNN REPEALING AND AMENDING A PORTION OF TITLE 1, CHAPTER 6, SECTIONS 4, 5, AND 6; AND CHAPTER 7, SECTION 2 C TOWN OF BAR NUNN TOWN CODE.” Councilman Blase made a motion, seconded by Councilman Bigelow to approve the Ordinance. Motion was unanimous.
Resolution #2013-14 “A RESOLUTION DESIGNATING NEW OFFICE HOURS FOR BAR NUNN TOWN HALL.” Councilman Blase made a motion, seconded by Councilman Brown to adopt Resolution #2013-14. Following discussion Council agreed effective date to be Monday, December 2, 2013. Motion was unanimous.
Resolution #2013-15 “A RESOLUTION ELIMINATING MILEAGE REIMBURSEMENT TO AND FROM EMPLOYEE RESIDENCE AND BAR NUNN TOWN HALL TO EXTEND TO MEETINGS OUTSIDE OF REGULAR BUSINESS HOURS.” Councilman Martin made a motion seconded by Councilman Bigelow to adopt Resolution #2013-15. Following discussion of the reason for the resolution being to eliminate council issue not addressed in the personnel policy, motion was unanimous.
Engineer’s Reports were next on the agenda. Clyde Dolan, 609 Consulting, reported the Sunset Blvd. Project construction was completed October 23rd. Final inspection is scheduled for November 14th, 2 P.M. Remaining is paperwork closeout. Mr. Dolan believes there will be an estimated overrun of $35,400. There were no complaints, and a thank you note was received, also saying the interruptions were worth the finished project. Mr. Dolan thanked the Town and the Council for the opportunity to work on the project.
Engineer Bill Johnston reported a collaboration with Town Hall Staff to redo the Town street maps, previously done 2008. The new subdivisions and Business Center are on the new ones. Bill submitted the information to Town Hall Staff who produced the books.
Mr. Johnston reported he has been doing grading and layout for the new Town Hall project. The layout is marked with lath for anyone interested in going to look at the layout.
Councilman Martin asked Mr. Johnston how long the poles were to remain in the area of the new sidewalk on McMurry (Unity Park). Chuck Johnson was asked to comment and explained they are marking/protecting the sprinkler system there and will remain until post and cable is installed around the area, probably next spring.