Posted: 1/15/03

Wyoming police chief faces discipline

Alice Pickering
Wyoming Area Reporter

Wyoming City Council members, polled one by one Monday, voted 4-1 in support of some form of discipline for Police Chief Mike Temte. The ìnoî was cast by CM Ted Phillips.

Before the vote, Mayor Vern Haag suggested any further action be taken at the meeting Jan. 21st. That date conflicts with a scheduled vacation for Temte and his family, so the request was made by Temte that this take place at the following meeting on Feb. 3. Council members unanimously agreed to the postponement.

Mondayís meeting was to clarify issues between city council and Temte and Dean Tharp, AFSME union representative.

City Attorney Tom Miller had reviewed tapes of the meeting Jan. 6, and offered legal opinions about the laws referenced Jan. 6. Miller said he was serving in an advisory capacity and not advocating a particular path of action.

Miller said, ìThere is no disagreement as to the stated purposes for which the funds may be spent,î for police department expenses. But the forfeiture laws ìcannot reasonably be read to provide that such funds are not subject to the controls of the Wyoming City Council and its policies and procedures,î Miller said.

Taking a normal approach to statutory reading Miller said, ìOperating funds of the police department are controlled by the city council; funds supplementing the operating fund must also be controlled by the city council.î Because, ìother state statutes place the responsibility and the liability for the receipt and management of the funds on the city council, the forfeiture statutes must not be read to abridge the responsibility to allow the funds, whether or not tax payer dollars, to be spent without pre-approval and control by the city councilî as set forth in their policies and procedures.

Miller did not view this as a legal issue, but ìwhether the forfeiture statue overrides the policies and procedures.î In his view, ìThe city council is ultimately responsible for how the money is spent.î

Miller said the statutes must be read to ìoperate in concert with state statutory framework and the cityís policies and procedures.î If there was to be separate accounting and oversight of the forfeiture funds, he said it would have been addressed in the statute. The fact that it is not, is further evidence the funds are to be ìmanaged and controlled by the city council.î

He concluded that ìnone of the cities that I represent, none of the cities in the surrounding area, have interpreted or applied the forfeiture statutes in the manner argued by Chief Temte.î

Other issue

When Miller addressed the ìwhistle blower actî as it applies to the dispute between the city and Temte, he focused on the applicable part of the law that says that an employee cannot be disciplined for refusal to obey an order when there is an objective basis for the refusal (i.e. violation state or federal law) and he informs supervisor(s) of the reason for refusal to obey.

In Millerís opinion, neither of these elements was present in Temteís refusal to turn over the control of forfeiture funds. He said use of the word ìobjectiveî is deliberate in the law.

Chief Temte, who has been charged with insubordination, admits he did not seek out the advice of the city attorney or other legal counsel or enquire how other cities handled funds, but relied on his own opinion about the matter.

Other than a clarification request in Temteís letter of August 1, Miller was unaware if the position taken by the chief was ever ìactually articulated.î Miller said Tharp mistakenly applied the requirements of the whistle blower statute.

Since council had determined disciplinary action was appropriate, the Jan. 6 meeting had to be open. A written summary of Millerís opinions was given to Tharp, Temteís representative. Tharp had a written summary of Millerís comments.

Auditor reports

Auditor Steve McDonald reported on his letter to the council May 2, 2002. In the 2001 audit letter he noted the bank accounts outside city council control. According to the tests of legal compliance, state statute 412.27, no disbursements are to be made except by order of council.

The bank account should be maintained by the city, though never combined with general funds, he said.

Temte was present at the meeting with McDonald and City Administrator Dennis Coryell. A remedy was provided at that time for Temte to comply with all parts of the purchase policy, including pre-approval for larger purchases. A management letter was sent in early July.

McDonald was asked for his opinion about a transaction for a vehicle purchase, in November 2002, and judged it not in compliance with rules regarding forfeiture funds. The money spent out of the account must be pre-approved, he said.

In answer to CM Lynn Koalskaís question, McDonald said he was not recommending anything unusual about handling the account. Other cities, with which he works, including many local ones, have accounts governed by councils.

Further, the state auditor would review or investigate anything irregular.

Responding to Haag, McDonald said the consequence of non-compliance could be financial penalty for the city up to and including loss of local government aid. For Wyoming in 2002, this amounted to $110,000. Haag said this is an ìincentive for the council to gain control (of the forfeiture fund) immediately.î

Letters to department heads in July 1, ìnot a penny is to be spent without council approval.î Council concluded that a clear order was given.

Tharp asked why there was no response from council when Temte sought clarification in his letter to them Aug. 1, 2002, for specific directions about the account.

Responding to Phillips, McDonald said all city funds are to be overseen by council because there is no other mechanism for accountability. Supplemental funds also fall into this category. Phillips said he did not see a written order to surrender the account. The order to surrender the account was given in December because Temte continued to disregard the purchase policy, McDonald said.

Koalska said the letter was in the packet of his monthly report. She believed council had dealt with it. She questioned why, if the issue was so important, he did not attend the meeting.

According to the cityís purchase policy, purchases under $100 are permissible without prior approval. Larger purchases must be bid or pre-approved by the city council. Council members review the bills at the end of each meeting. The chief financial officer, Coryell, represents council.

Haag spoke to Tharp saying in his work experience, when there is occasion for disagreement, the plan is to obey orders, then bring the grievance. Haag said there should be a working relationship between employees and employers.

Referring to the July 18 letter, Tharp confronted council that if control of the account was ìsuch a vital issue, he should have been disciplined immediately.î

Haag said council was ìtrying to do the right thing,î by following proper procedures.

Asked by Phillips how he felt now about the situation, Temte said, ìI feel Iíve been wronged.î

ìWe werenít asking you to give up the account, only to place it under our accountability,î Koalska said. She has checked with police chiefs and financial officers in other local cities, was shown the books in Forest Lake and Lindstrom, and found all have policies of accountability similar to those in Wyoming. Phillips had done the same thing and got the same answers.

Temte said he supplied copies of the ledger and activity in the account as requested. Koalska said the third part of the directive, providing pre-approval requests for purchases, ìyouíve never done that.î

Haag said this question came after the letters from council. Temte had two alternatives, one of which was to walk across the hall and speak directly with the Coryell, or to speak with police liaison, Ed Andler.

ìHe had resources available and did not use them,î Haag said. concluded.

Temte acknowledged that he answers to the city council.

Koalska said she never heard Temte say he thought obeying a directive would be illegal until this meeting. She said because most council members have other jobs, the best time to ask about council business or seek clarification is at council meetings.

CM Martin English was puzzled because Temte did not address the problem. ìThe city canít be held accountable because you disregard what youíre being told to do,î he said.

Council decision

Council members were polled by Haag about whether a direct order was given to the chief. The vote was 5-0 that he was given an order.

But Phillips said he did not believe Temte was given a direct order to turn over control of the account until Dec. 2. Other council members said yes and specified a letter sent to Temte dated July 18, 2002; Standridge and Haag also specified a letter July 11, 2002. Standridge further specified the meeting, December 2, 2002.

Further, council members were asked if one or more of those orders was refused, with the result a 4-1 vote. In Phillipsí opinion none were refused. All other council members specified at least one date when an order was refused, all referencing letters from council dated July 11 or July 18, or both.

With regard to a legal reason for Temte to refuse an order, the vote was 4-1. Phillips said Temte had several reasons for the refusal.

Because of legal advice given the council, Standridge did not believe Temte had a legal reason to refuse orders. English said Temte had no legal reason to refuse the orders and Koalska said she thinks Temte believes he had a legal reason to refuse, but she does not. Haag, based on the legal advice given council, said Temte had no reason to refuse the order to turn over control of the passbook.

Mitigating factors to be considered before a final decision is made about disciplinary action, are likely to include tenure, record of accomplishments, prior misconduct if any, and severity of present misconduct on role of employers.

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