They Made the Accusations. Now the Commission Has to Act.

On August 18, Commissioner Cindy Daniels publicly accused an unnamed City employee of submitting false information, falsifying credentials and being unqualified for the position. She said she had “factual documentation and public records” to support those conclusions. Chair Melissa Nootz then expanded the discussion to possible fraud, City liability, violations of state law and constitutional rights. Only after making those statements publicly did the Commission move to send their information to City Manager Grant Gager for review.

That matters because the Commission is not supposed to manage day-to-day employee matters. Under Livingston’s Commission-Manager structure, those administrative responsibilities belong to the City Manager, while commissioners act collectively on policy and on the specific matters the law places before them.

At the September 1 meeting, former Commissioner Quentin Schwarz made the connection much clearer. He said he had been on the Commission when the fire chief was hired, had “inferred that's who the commissioners were referring to,” and had since done some of his own “digging” into the former chief’s résumé and credentials.

So, thank you for clearing that up, Quentin.

The public accusations are now plainly connected to former Fire Chief Josh Chabalowski.

What we still have not seen is the evidence behind them.

The City was already paying for a lengthy outside investigation of Josh while Daniels and Nootz were apparently gathering and evaluating information of their own. The City has refused to provide Josh with the investigator’s report, leaving him unable to fully see and answer what that investigation concluded about him. The commissioners likewise have not publicly produced the records supporting their separate accusations.

Josh was then terminated. According to his termination letter, the number-one stated basis was “the length, content, and tone” of the May 19 PowerPoint presentation.

That means he has been investigated through one process, publicly accused through another, terminated, and still has not had access to the information necessary to fully confront and answer both sets of allegations.

That is a serious process problem.

Commissioners Act as a Body

Livingston uses a Commission-Manager form of government. Individual commissioners do not independently exercise the authority of the Commission.

Vice Chair Willich said it plainly at the June 16 meeting:

“We act as a body that's codified in law and that no single commissioner will act as a representative of this body unless agreed upon by the body. And so what we do up here is as a unit, but individually we don't make decisions, promises or anything for ourselves.”

The Commission Handbook says the same thing: commissioners “shall only act collectively as a body in a properly noticed and constituted public meeting.”

The problem is not that Daniels or Nootz looked at public records. The problem is that they went further. They evaluated information about an employee, reached conclusions and announced those conclusions publicly before the information had gone through a formal process where the employee could respond.

The handbook also warns that commissioners may expose themselves to personal liability when they act outside the course and scope of their official duties, and notes that legislative immunity does not extend to administrative actions.

Whether personal liability ultimately exists would be a legal determination. But Daniels and Nootz did what Willich himself said individual commissioners are not supposed to do: they acted individually rather than through the Commission as a body.

Why Josh Being a Firefighter Makes This More Serious

This issue has particular importance in Livingston because the Montana Supreme Court has already addressed the termination of a Livingston firefighter.

In Phillips v. City of Livingston, the City allowed its City Manager to conduct a firefighter’s termination hearing and make the discharge decision. The Montana Supreme Court held that Livingston could not substitute its own personnel procedure for the statutory process governing firefighters. The required hearing had to occur before the City Council or Commission.

That should sound very familiar.

Livingston’s current handbook still recognizes firefighter discipline and termination as a quasi-judicial function of the Commission and requires fairness, notice and an opportunity to be heard.

The handbook also directs commissioners to avoid ex parte communications concerning factual or legal issues in a pending quasi-judicial matter and provides for disclosure of outside information so the affected person can respond.

So the obvious question is whether that process was actually followed here.

Josh was terminated by the City Manager. At the same time, two commissioners had already publicly announced serious conclusions about him before he had an opportunity to answer them, and the City still refuses to provide him with the outside investigator’s report.

If Josh was entitled to the statutory Commission process recognized in Phillips, then Livingston may be confronting the same basic problem it already lost before the Montana Supreme Court more than thirty years ago. The Phillips court found that Livingston had a clear legal duty to follow the firefighter hearing statute and could not replace that duty with its own City Manager process.

At some point, the City has to learn from its own history.

Compare That With Grant Gager

The contrast is difficult to ignore.

When City Manager Grant Gager was the employee under review after the now-infamous Grant-trum in the hallway, the Commission held a formal hearing. City Attorney Jon Hess repeatedly instructed commissioners to stay within a narrow evidentiary record and consider only the information properly before them.

The Commission ultimately ordered documented counseling and de-escalation or stress-management training. Daniels seconded that motion.

Gager remained City Manager. He was not suspended, removed from City Hall, subjected to an outside investigation or terminated.

Even that modest corrective action was later erased.

On September 1, the Commission unanimously rescinded its June 10 action and then unanimously voted to “exonerate Grant Gager's record.” 

So Gager received a tightly controlled proceeding with clear limits on what commissioners could consider.

Josh was publicly accused while an outside investigation was already underway, has not been given a full opportunity to answer everything developed against him, and was ultimately terminated.

Whatever anyone thinks of either man, those are very different standards of process.

What Happens Now?

The Commission’s own handbook provides the first step.

It allows the Commission to determine whether reasonable grounds exist to believe a commissioner violated its rules and, if the allegation is disputed, to hold a public hearing before the Commission as a whole.

Montana law also allows the Commission to punish members for improper conduct and, by a two-thirds vote, expel a member.

At the September 1 meeting, I publicly asked Commissioners Daniels and Nootz to resign.

They have not.

So now the Commission needs to act.

I will formally ask the remaining commissioners to hold the hearing provided for in their own rules, examine what Daniels and Nootz did, and determine whether discipline or removal is warranted.

If the Commission refuses to police itself, I will ask that Livingston seat an ethics board so these complaints can receive independent local review.

And if City Hall still refuses to act, I will begin the recall process.

It should not have to come to that.

A recall means more petitions, more election administration, more staff time and more taxpayer money. Livingston residents should not have to pay again because elected officials refuse to deal with misconduct inside City Hall.

The choices are simple.

Daniels and Nootz can resign.

The Commission can hold them accountable and remove them if the law and evidence support it.

Or the City can force the public into a recall election because it was unwilling to do the job itself.

That is where this is now.

The rules are already written. The record is already public. Livingston has already been to the Montana Supreme Court once over bypassing firefighter protections.

It should not take another lawsuit or another taxpayer-funded election for City Hall to learn the same lesson twice.