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County settles lawsuit over Mahar agreement

 

By Michael Howell

The Ravalli County Commissioners voted to settle a lawsuit filed by the Bitterroot Star and Ravalli County Watchdog over the Settlement Agreement signed between the county and Deputy County Attorney Jeffrey Mahar last August.

Mahar had filed a human rights complaint against the county and County Attorney Bill Fulbright, claiming discrimination based on his political support of former County Attorney George Corn in the last election. The Commissioners signed a Settlement Agreement with Mahar in August in which Mahar agreed to drop his human rights complaint and in exchange the county agreed to keep him on the payroll but not have him come to the office until May of 2013. The total cost of the settlement has never been calculated but includes wages, benefits and payment of Mahar’s retirement insurance as well as attorney fees. The total cost has been variously estimated at from $80,000 to $250,000.

The news organizations sued the county, claiming that the decision was made at an improperly noticed meeting, and that the meeting was illegally closed to the public, violating the constitution and state law.

District Court Judge James Haynes’ summary judgment Opinion and Order issued last February 9, 2012, was split. In part, he denied the county’s motion to dismiss the case because they had not sufficiently proved that their actions in approving the settlement agreement met the law. But he also upheld the motion to dismiss on the basis that the lawsuit was not timely filed because it did not meet the statutory deadline of 30 days.

In his split ruling he upheld the claims of the news organizations that the county had violated the open meeting laws, and the laws governing public notice and public participation. Haynes stated that there was no evidence that the county had closed the meeting properly, that is, after first explicitly weighing the right to privacy claims against the public’s right to know and participate and stating their reasoning. He also found no evidence that the county properly noticed the meeting on its agenda which simply read: “Personnel Matter – closed door may be invoked under MCA 2-3-203,” making no mention of  any discussion or decision about a settlement agreement that would cost a significant amount of money. He also found no compelling argument for privacy in this case and noted no evidence of any chance for public participation.

However, Haynes found the county’s motion to dismiss the case valid on the issue of timeliness. Haynes reasoned that the lawsuit was filed too late to meet the statutory deadline, which is 30 days from the time that a person “learned or reasonably should have learned” of the occurrence of the act being challenged. In this case an article had been published on the front page of the daily newspaper about the decision. Since a person should reasonably have learned of the decision being challenged on the day of that publication, the 30-day timeline to file suit to void the decision would begin on that date. The lawsuit was filed 32 days after that date which does not meet the statutory deadline.

In the agreement reached between the county and the news organizations, the county agreed to timely review its existing policies for providing public notice and assuring the public’s rights to participate, and to create, adopt and publish guidelines for determining whether an issue is of significant interest to the public and for how it will notify the public of issues of significant interest. The policies will also take into account Judge Haynes’ analysis in the Mahar settlement case. The county also agreed to pay attorney fees to the news organizations of $3,500 and $600 in settlement master fees.

The county was recently ordered by District Judge Jeffrey Langton, in a separate case, to create, adopt, publish and follow (judge’s emphasis) a policy for determining if an issue is of significant interest to the public and how it will adequately notify the public about those decisions. In that case the same news organizations and Bill LaCroix challenged the Commissioners’ decision to spend over $46,000 on road repairs on Upper Woodchuck Road.

Inadequate public notice was also an issue in that case.

One of the “undisputed facts” noted by the judge in his order was that Commissioner Ron Stoltz had the matter placed on the county agenda only two hours before the scheduled meeting, despite the fact that he was told by his administrator that such short notice was in violation of the law. The judge also noted that if anyone had responded to the agenda item they would have gone to the wrong place since it referred to an “on-site visit” when, in fact, the meeting was held at the county administration building.

Although the judge didn’t know it at the time, this actually happened to Commissioner Greg Chilcott. Chilcott showed up at the edge of the county line in the upper Eight Mile area that day based on the agenda item which called it a continuation of an “on-site” visit. He ended up participating in the vote by telephone.

Judge Langton decided in favor of the news organizations despite county arguments that the issue was moot because the money had already been spent and the work done. Langton found that the issue was not moot because it was a repeatable action that would lead to continual infractions of the law if not addressed.

Judge Langton ordered the county to create and adopt a policy setting out criteria for determining if an issue is of significant public interest and how the meeting will be noticed within 90 days of his ruling. The county agreed in the latest settlement agreement to consider Judge Haynes’ analysis of the Mahar case in its policy making effort as well.

Dustin Gahagan, of Gahagan Law Offices, represented the plaintiffs in both cases.

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