The Heights Water District Board removed from their leadership positions President Dennis Cook and Vice President, Brandon Hurst, and elected in their place Ming Cabrerea as President and David Graves as Vice President.
The board took the action at a special meeting held Monday afternoon, after adopting the draft of their proposed bylaws. They were unable to adopt the draft at their regular meeting on Nov. 17 because of a lack of a quorum.
The board continues to be split regarding many issues along a 4-3 dynamic, causing considerable controversy and efforts to shift the balance. One board member, Laura Drager, received an email threat just prior to their monthly meeting resulting in a lack of a quorum, and county commissioners received a letter, hand-delivered by President Dennis Cook, asking that they remove their representative, Pam Ellis, from the board, calling her “divisive” and violating bylaws. The letter accused Ellis of “unethical” actions, saying that she had released privileged information to the media, and “has undermined legal negotiations that were privileged confidential attorney client information,” which resulted in their attorney withdrawing as their legal representative. It also objected to the board’s invitation to the city administrator to attend the regular district board meeting.
The letter also stated that Ellis’ actions has opened the district to potential harassment lawsuits by creating a “hostile” work environment as a result of her “micro managing day-to-day operations” which has caused “angst and anxiety among the staff and other directors.”
During the Monday meeting, audience member, Tom Zurbuchen challenged the four board members in attendance, claiming the meeting was illegal, and he read a statement from Cook which said that the three board members who were not present had prior commitments, and they did not believe the meeting was legal.
Zurbuchen asked why they had not posted the meeting or published an agenda.
Ellis explained that they tried to do so, but the district’s administrating staff had refused to put it on the district’s website. She said that she did send a notice to emails of district members, posted it on Facebook and in other media. It was a legal meeting of a quorum of board members, she declared.
While state law requires posting public meetings, it is silent about what constitutes “posting” a meeting.
The board also engaged Mark Noennig as their attorney, replacing Jeff Weldon who resigned following their Nov. 17 meeting.
In registering complaints about the legality of the meeting, Zurbuchen referenced the board’s “current” bylaws – bylaws which were adopted in 1958 as a private organization. Noennig said that in essence the board did not have any bylaws at present, since they were not changed nor new ones adopted when the district became a public entity.
To Zurbuchen’s claim that the new bylaws were not made available to the public prior to the meeting, board members said that they were given to staff and were available from staff, who had refused to post them as part of the meeting notice on the website. Also the draft by laws were made available at earlier meetings of the board; they were developed by the board members working with their attorney, Jeff Weldon, in public meetings, and in fact, Zubuchen had been in attendance at the meeting and had made recommendations, some of which were included in the draft. The draft bylaws had also been included in emails regarding previous notices.
In hiring Noennig, newly-elected Cabrera asked him if he would represent all seven members of the Heights Water District Board. One of the issues that the four board members have been concerned about was that Weldon would only communicate with President Cook, as they said Cook had directed him to do.
The board also passed a resolution that directed Noennig to settle as soon as possible with the City of Billings in regard to the on-going dispute about a $2.9 million water bill the district owes the city. Board members said that the full board had issued similar direction to Weldon and their negotiating committee last May. City officials had indicated that they would settle for payment of the principal and would drop interest and penalty charges.
Board members explained that they were surprised when they came to understand that the committee was deep into continued negotiations and were not following the direction of the board. They also claimed that the legal committee – comprised of Cook, Jeff Engel and Brandon Hurst – was named by Cook, and they were not reporting back to the board, and Weldon was only talking to Cook. They were also surprised to learn that one committee member, Brandon Hurst, had never attended any of the negotiating committee meetings.
Noennig pointed out that settling with the city is complicated by a lawsuit the city has filed, and that will have to be dealt with in some manner to advance negotiations. One of the questions Noennig had was a requirement raised previously by the city as part of their agreement to settle to open the contract they have with the district. Board members said that the negotiating committee and the city had entered talks with the understanding that contract negotiations would be a separate issue from settling on the bill. Noennig said that he needed to understand what was involved in the lawsuit to know what could be accomplished as long as it was in place. The city filed the suit in December 2020.
The board appointed a new legal committee to work with Noennig. Those committee members will be David Graves, Pam Ellis and Jeff Engel.
Members in the audience expressed great concerns about opening the contract. They said that doing so could give the city control over future development of the Heights, raise rates and usurp the board’s ability to administer the district. They didn’t want the district to open the contract. Ellis said that she believed they had no choice because in not paying their water bill, the district broke the contract which automatically opened it up for changes.
Noennig expressed doubt that that was true.
One man was concerned about what the new bylaws would do. Noennig explained that the bylaws only dealt with the procedures that would be followed in how the board functions.
Ellis went on to explain that there is no way that the district could be dissolved under current Montana law. She said that to dissolve the district would require that it have no assets and no debts. “That’s not going to happen,” she said. The other option available by law is to for 51 percent of the district’s members to petition for an election. That would be 9000 people, she said, reiterating, “That’s not going to happen.”
Among the explanations for electing a new president and vice president, the board said the reasons included not attending meetings, not communicating with other board members. Cabrera said that the president has acted on his own in dealing with the city, which he does not have the authority to do. And, he added that Cook has refused to provide the board with information.
Ellis said that she didn’t believe that President Cook understood his role as president. She pointed out instances in which he believed he could make unilateral decisions without involving all of the board. “He cannot run the board as a sole person. It is a seven-member board, not one,” she said.
Drager said that when the new board members got elected, she was excited about the board’s diversity and the broad range of experience and knowledge they would bring. She said she has been disappointed at how little most board members have been able to participate.
Cabrera said, “Four of us are not included. Three have made decisions for seven of us.”
Because of the conflict and delayed meetings which meant no board decisions were being made, Cabrera said that they are three months behind in matters that they need to deal with as soon as possible.
Ellis said that she appreciated and respected the fact that board members might not be able to attend because of work, but it is still important to be able to conduct the business of the district.
That point was evident when the board had to make a decision about a subdivision application. With neither the district’s manager nor the assistant manager present, the board had no one to field technical questions about the project. They did not want to postpone acting on the matter because that impacted the ability of the applicant to move forward. They queried field staff, who were in attendance at the meeting, and proceeded to approve the application.
The board also adopted a job description for the position of manager, for which there has never been a job description. They then approved paying for the costs involved in posting the manager’s position to fill the position that will be open with the retirement, on Dec. 11, of current manager, Duke Neiskens. Job Service will accept the applications. The board said they will continue accepting applications until the position is filled. They will begin reviewing applications on the date of their next board meeting, December 15.
Among other business conducted, the board approved an insurance plan for the next year for district employees. They asked district staff for input and then adopted a plan which the staff seemed to prefer. They will also invite the company, Raftelis, whom they have engaged to do a rate study, to attend and make a report at the next meeting.
