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County considers further allegations of insufficient public notice

By Michael Howell

The County Commissioners’ agenda for Friday, October 7, 2011 stated simply: “First Friday – Commissioners meet with constituents.” Hoping to participate, a reporter for the Bitterroot Star called the commissioners’ office early that morning and asked if the meeting was about anything specific. County Administrator Glenda Wiles said that there was no meeting. She said that she believed the commissioners were simply going out in the community and meeting with constituents. In response to questioning, she stated that Commissioner Greg Chilcott was in his office. She said she did not know where the other commissioners were, whom they were meeting with or what was being discussed. Chilcott did not know where his fellow commissioners were either or whom they were meeting with. He said that the “morning coffee with constituents” that they had been regularly hosting on Fridays had sort of fizzled out and that this was an attempt to get out in the community to visit with constituents. When the reporter complained about the public notice being inadequate since it did not clearly state where the meeting was taking place or with whom, Chilcott agreed to place the matter of agenda wording on the commissioners’ agenda for the next week.

At that meeting, on Thursday, October 13, reporter and publisher for the Bitterroot Star, Michael Howell, delivered a letter from Meloy Law Firm in Helena outlining the general parameters of public notice under Montana law.

“The general parameters of what constitutes adequate public notice include providing information in the agenda item that is sufficient to give a reasonable person interested in the issue notice of what will be discussed at the meeting so that the citizen can exercise the right to participate in the decision. Whoever drafts the agenda should ask themselves ‘have I provided enough information about the nature of the issue to be discussed such that a person interested in the issue can make an informed decision about whether to attend and participate?’ If not, then the agenda item should be made more specific to afford adequate notice,” wrote Meloy.

Meloy noted, concerning the agenda item in question, that there is no description of what the topic of discussion will be, the “constituents” are not identified and, of course, there is no location.

“This agenda item is simply inadequate. None of your uninvited ‘constituents’ have any idea about the matters to be discussed or where the discussions will take place. You have simply deprived most of your constituents of their rights to participate and observe this meeting,” he writes.

Howell went on to add a few other examples of what he believed were “insufficient public notice” of commissioner meetings. Howell claimed that the commission has habitually been giving insufficient notice of meetings dealing with “personnel” issues and “legal strategy” issues. He stated that in his opinion simply stating on the agenda that it is a personnel issue and may be closed or a legal strategy issue and may be closed was insufficient.

Howell asked the commissioners to consider stating the name of the individual involved so that it could be determined if the individual will waive the right to privacy so the meeting may be open, and enough information about the grievance to allow the public to determine if it falls within the parameters allowed by law to close a meeting.

The newspaper is currently involved in a lawsuit against the county alleging insufficient notice of a meeting at which the county made a $180,00 to $250,000 settlement agreement with deputy county attorney Geoffrey Mahar. That meeting notice simply said “personnel issue – may be closed…”

Howell said an example of insufficient notice of a legal strategy meeting would be the one held recently over the county’s lawsuit with the Justice Courts. Howell pointed to former County Attorney George Corn’s letter concerning that meeting in which Corn expresses the difficulty involved in determining that the meeting might be about his clients.

“Luckily, the Justice Courts had an experienced attorney watching out for their interests and he was able to guess and, based on other circumstantial evidence, conclude that the meeting might pertain to his clients. The public is at a greater disadvantage, of course, as most read your agendas without expert legal help,” said Howell.

Howell stated that the problem of insufficient notice went beyond the matters of personnel and legal strategy issues. As an example he brought up some agenda items from August 18, 2011 concerning “Dispute over road work on Eight Mile,” and on August 26 and 29 stating “On site visit 8 Mile Road and Woodchuck”.

“This sounds like a visit to look at some road problem out in the Eight Mile area. Not an agenda item likely to draw much interest, except perhaps among local residents in the area. But if you stated that you might be deciding to spend close to $50,000 on the work being requested by one local resident you might have piqued a lot of interest. I would remind you that pursuant to 2-4-102(12), MCA, spending that amount of money is an action of significant public interest. Since that is what you did at one of these meetings it is clear that your agenda notice was insufficient,” said Howell. He gave the commissioners 10 days to respond to his complaint about improper notice of the meeting on August 29, at which it was decided to spend $46,780 on road repairs. He referred to Meloy’s letter to the commissioners which states that, under the Montana Administrative Procedures Act, the Legislature defined “significant public interest” to include issues involving a significant fiscal impact to or controversy involving a particular class or group of individuals.

The Commissioners took Howell’s comments under advisement and referred them to the County Attorney’s Office for assessment.

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