Town Attorney Returns Legal Opinion of Mayor's Actions to Town Council

At the July Whitehall Town Council Meeting, held Monday, July 17, 2023, Town Attorney Ed Guza was asked by the Council to look into two issues in regard to Mayor Mary Janacaro-Hensleigh’s recent actions.

The first was the addition of a four-way stop sign at First Street and A Street; the Town Council requested Guza’s professional opinion on whether the Mayor had violated the Town’s purchase order (PO) process by ordering the four-way signs without an approved PO from the Council.

“I conclude that she did not [violate the Town’s purported PO process]” Guza said in an email to the Town.

“The reason I reach this conclusion has nothing to do with the Mayor’s power to dictate the placement of signs, it is unquestioned that she has that power; it is because the Town was unable to find where any purchase order policy had been enacted by the Town via a resolution or ordinance. Instead, the attached policy was apparently adopted via motion on December 10, 2018,” Guza continued.

Section 7-1-4123(9), MCA, instructs: 7-1-4123.Legislative powers. A municipality with general powers has the legislative power, subject to the provisions of state law, to adopt, amend, and repeal ordinances and resolutions required to: provide for its own organization and the management of its affairs.

“A PO policy is clearly a policy that is part and parcel of the management of the Town’s affairs to be adopted via resolution or ordinance,” said Guza. Guza concluded that he and Town Clerk Kennedy Kleinsasser have discussed the creation of a resolution to adopt a policy moving forward. He added that if a PO policy with a spending cap was properly enacted by the Town, the power of the Mayor to dictate the placement of signs “is not unchecked by the power of the Council to control the spending.

“In other words, the Mayor can say I want a stop sign at a location, and the Council needs to approve the spending to pay for the sign,” added Guza.

“The Council wants to thank Ed the city attorney for his quick response to one of the legal opinion questions asked by the Council at the July 17th meeting. The Council was not aware the PO Policy was not properly put into law. This was done on December 10, 2018, by a motion that was passed by the council. To put a policy into place it needs to be enacted by Council via a resolution or ordinance. Obviously, the Council and our staff were not aware of the discrepancy. The Council will do our due diligence to remedy this discrepancy at our next Council meeting. We need our checks and balances in town government. We want the citizens to be confident that we will follow procedures and policies and function properly,” said the Town Council in an email sent to the Ledger.

The second issue, Town employees being given Juneteenth (June 19) and July 3rd off for holiday time.

“My conclusion is that without a policy in place adopted via resolution or ordinance by the Town that gives the Mayor the right to unilaterally give Town employees paid time off, the policy must be followed. In this case, the latest policy manual provides for specified days that the Council has approved, and “Juneteenth” (June 19, 2023) is not one of those days. The policy also states that the Town will “observe the same holidays as recognized by the State of Montana.” Juneteenth/June 19, 2023, is not a holiday listed by the State as recognized by http://www.mtcounties.org/resources-data/montana-state-holidays,” said Guza in a second email.

“The policy also goes further in that it states that “the policies, practices, rules, and regulations may be established or changed/abolished with the sole discretion of the Town of Whitehall.” The Town is the Council. So the Council must agree to a paid day off according to the policy,” Guza said.

“This also conforms with Montana law Section 7-5-4101 states that the Council “has the power to make and pass all bylaws, ordinances, orders, and resolutions not repugnant to the constitution of the United States or of the state of Montana or to the provisions of this title, necessary for the government or management of the affairs of a city or town, for the execution of the powers vested in the body corporate, and for carrying into effect the provisions of this title,” Guza concluded.