Dillon treasurer appointment dispute escalates

Cobb hires lawyer

Edith Fletcher, a member of the audience, asked the probing question during a second meeting in which the Dillon City Council seemed reluctant to give their consent to Mayor Michael Klakken’s political appointments. J.P. Plutt photo

In the latest bombshell to fly out of left field and land in the Dillon City Council chambers, Ty Cobb announced at the Feb. 5 City Council meeting that he had retained the services of a lawyer from Missoula to challenge the legal right of Dillon Mayor Mike Klakken to replace him as city treasurer, along with the validity of a longstanding practice of American governments at the city, state and federal levels.

About a half hour into the meeting, Cobb introduced Sherine D. Fernando, an attorney with the law firm Datsopoulos, MacDonald & Lind hired by Cobb to bolster the argument put forth at the last Council meeting by several City Council members that even though Cobb’s latest two-year appointment as city treasurer expired at the end of last year, he remains an employee of the City of Dillon and cannot be replaced by the mayor without good cause.

“Mr. Cobb is still employed by the City of Dillon, he is still working in his position, a successor has not been appointed or qualified, he is still an employee, and because of that the Wrongful Discharge of Employment Act applies to him,” asserted Fernando, who came with a lengthy written opinion to back up her contentions, but was not on the agenda and her opinion was not included in the packet.

“He cannot be terminated or his appointment not renewed without good cause, and he’s not been provided with any information to say that his job has not been satisfactorily performed. There has been no notice given to him that he is not meeting his duties. He is still on the payroll, he’s still an employee, and because of that he is covered under the Wrongful Discharge of Employment Act,” continued Fernando.

“And I want the city to be on notice that they are subject to the Wrongful Discharge of Employment Act if they terminate Mr. Cobb’s employment without good cause.”

At the last City Council meeting, Mayor Klakken appointed local CPA Neal D. Straus as city treasurer to replace Cobb, who was appointed 12 years ago by former Mayor Marty Malesich.

But the City Council refused to consent to Klakken’s appointment of Straus, by a 1 to 7 vote.

Councilperson Lynn Westad said at the last City Council meeting that the Council voted against Straus because it was concerned not retaining Cobb could open up the City of Dillon to a lawsuit by Cobb, based on the recent Babb case in Butte.

Klakken then hired local attorney Adam Shaw, of Dillon law firm Erb & Suenram, to offer an opinion on if the Babb case applied to the City of Dillon’s situation. Shaw said it did not.

But Fernando attempted to dismiss the validity of Shaw’s opinion and the mayor’s right to seek it with city funds.

“Quite frankly, the mayor is overstepping his bounds by hiring separate counsel,” declared Fernando, who said Cobb was not overstepping his bounds by hiring separate counsel with his own money. “He is engaging the city in a legal collision course, and that’s our position.”

“Is your position that Mr. Cobb has a lifetime appointment?” asked Shaw.

“No,” said Fernando. “He is subject to the appointment.”

“You stated that your position is he’s subject to the Wrongful Discharge of Employment Act, so I guess I’d ask that you’d have to agree that he is also subject to Section 501 that states that his employment terminates at the end of his term,” asked Shaw.

“That is correct,” said Fernando. “And you also state in your legal opinion letter that he is subject to the Wrongful Discharge of Employment Act, but I would point to the city ordinance that says he is to hold office for a period of two years, or until his successors are appointed or qualified. He is still in office, he is still on payroll, he is still an employee of the City of Dillon—his employment has not terminated.

“My position is that he has been terminated,” said Shaw, “but if there’s a new appointment there is no termination because his term is expired.”

“Even if there is a new appointment, there has to be provided good cause,” said Fernando.

Local attorney Jean Bergeson took exception with Fernando’s opinion on Cobb’s status.

“I would like to clarity something that Ms. Fernando just said. I worked for a long time for the state before I became an attorney and with every change in government, every department head changes,” said Bergeson, a former Dillon City Council member.

“They are not subject to the Wrongful Discharge of Employment Act.”

But in her response to a question by Dillon Tribune editor J.P. Plutt, Fernando said her opinion should also apply to the Governor of Montana in his department head appointments.

Originally appointed 12 years ago as Dillon city treasurer by then-Mayor Marty Malesich, Cobb’s latest in a series of two-year appointments expired at the end of last year.

Klakken appointed Neal D. Straus as the new city treasurer in January, but the City Council refused to consent to the appointment, by a 1 to 7 vote, with only Councilperson Dan Nye voting in favor of Straus’s appointment.

Nye moved that Straus’s appointment be voted on again at last Wednesday’s meeting.

“As far as I can see, Straus is qualified for the position he is up for appointment for. And I feel that when Marty was elected mayor, he had the chance to get the people he needed to work with. And I only think it’s fair that the new mayor has the same right,” said Nye, who represents Dillon’s Ward 2, along with Westad.

“I feel the mayor has the right to put up an appointment,” continued Nye. “As long as they are qualified, why should we be blocking them?

“I think we should stop our politics and work for the city,” concluded Nye, to a round of applause from the public seating area.”

The Council voted 3-5 against consenting to Straus’s appointment, with Nye, Bill Shafer and Bob Cottom voting in favor of the appointment, while Westad, David Spehar, Dick Achter, Swede Troedsson and Derek Gore voted nay.

Norma Duffy, proprietor of a local taxi firm who lives just outside Dillon city limits, said the City Council was just exercising its rights in rejecting Straus.

“The mayor may make a case for who he wants to have next to him and on his side, but it is still subject to the Council [for approval],” said Duffy.

Dillon resident Edith Fletcher disagreed, saying something much more devious was afoot.

“You’re playing a really dirty deal and it’s not hard to see what’s going on,” Fletcher admonished the Council.

“Everyone I know feels that this is all very suspect,” continued Fletcher. “Something’s wrong, and it looks to me like someone is hiding something.

”I’m beginning to wonder if the next thing is maybe we’ll have a suit filed against Dillon voters for firing our former mayor.”

 

Reporter M.P. Regan may be reached at news@dillontribune.com .