By Michael Howell
The Ravalli County Attorney’s office placed “discussion and possible decision” concerning the County’s regulations governing public participation and notice of meetings on the commissioner’s agenda last Tuesday, October 30. At the meeting Deputy County Attorney Howard Recht explained that Deputy County Attorney Dan Browder had been drafting an ordinance as part of a codification process in county regulations. He said the changes to the existing regulations, contained in a resolution, were mainly a matter of formatting.
But Recht went on to say that he had also reviewed the proposed codifications with respect to a recent court case involving the news media and the subsequent order from District Judge Jeffrey Langton for the county to review its policies on these matters.
In the case referred to, involving the decision on road repairs along Upper Woodchuck Road, Langton concluded that the Board of County Commissioners’ failure to properly notice the meeting “violated the Petitioners’ constitutional rights to participate and to know, violated Montana’s Open Meeting law and violated the Board’s own procedure posted on its web page.”
Langton then ordered the county “to create, adopt, and publish guidelines for determining whether an issue is ‘of significant interest to the public,’ pursuant to 2-3-103(1) MCA, and for how it will notify the public of issues of significant public interest.” He gave the county 90 days from the date of his decision on August 8, 2012 to comply.
As a result of his review, Recht said, he was suggesting that the commissioners consider adding the definition of “ministerial act” to the ordinance. The proposed language was: “Ministerial act means an act performed pursuant to legal authority and requiring no exercise of judgment.”
Recht said that, according to statute, there were only two exceptions to the requirement of public notice. One was in the case of emergency, when the time required to give notice would impact public health, welfare and safety. The other was when an action involves no more than a purely ministerial act, which is defined as requiring no exercise of judgment. Recht said that every other decision or act by the board, with only these two exceptions, is considered a matter of significant interest to the public.
Recht said that this has been the law all along and that they are merely making it obvious by putting the definition in the document. He said it was not a definition from his office, but one that was first expressed in an Attorney General’s Opinion and subsequently adopted by the Montana Supreme Court.
“No exercise of judgment is a pretty broad statement,” said Commissioner Greg Chilcott. “It means there is no such thing as a ministerial act. I can’t think of something that doesn’t require some judgment that we make on a decision.”
Commission Chair Suzy Foss agreed, saying it was her first thought. “Do you turn your brain off,” said Foss. “Of course you’re using judgment.”
Recht responded, saying, “Essentially I think the term judgment refers to the exercise of discretion. So, if it requires some sort of discretion, it’s not a ministerial act. If it’s obvious from what’s been decided before, for example, if the board has decided to contract an entity and pay the entity according to the contract, then the board sees a bill that clearly complies with the contract and the work performed, through no discretion, you have to pay the bill.” He said a ministerial act was generally things of this sort.
Chilcott said, “It’s quite a leap from a decision of significant interest to the public to anything that has to do with discretion. I’m not sure how we get here from there.”
Recht said, “The way you get there is essentially the Supreme Court has ruled that everything is of significant interest to the public except ministerial acts. So they made that leap for us.”
Chilcott remarked that this would “make the government very inefficient.”
Recht said, “This is not a change in the law or the way the county is operating. It’s the same process that existed before under the resolution. The laws have been in existence for years. We are simply making it clear about what a ministerial act is.”
Commissioner Jeff Burrows wondered how this would affect the Commissioners’ “flow days,” that is Tuesday and Thursday when the Commissioners may flow through scheduled items at a fast pace and not necessarily at the time set on the agenda.
Recht said that it would not affect anything because the law requiring public notice does not require that it contain the exact minute or second that a decision will be considered or made. He said the county could just list the agenda items on those days as the court does on law and motion day with a block of time set aside and all cases set at 1:30 p.m.
Chilcott said that he was under the impression for years that “routine matters” versus “ministerial acts” were also not considered of significant interest to the public. He said he was getting educated on the matter.
“It takes discretion to brush your teeth,” said Chilcott. “That’s an absurd extension of that, but that’s where we have to rethink the way we do business.”
“Where we are at now is that any citizen could walk in and say the way you part your hair is of significant interest to me,” said Foss. “I’m getting silly here, but that’s what makes it a difficult thing here. Because if someone wants to challenge us on anything we do that opens the door to, in my mind, anything we do is significant, it may be only to the person in that chair. But to try and work within that scope and have every minute accounted for, you know, you have to have some latitude.”
Bitterroot Star reporter and publisher, Michael Howell, stated that, if the board is thinking that these changes address the judge’s order in the lawsuit his newspaper was involved in, he would urge the commissioners to delay making any decision until he could review it and have his attorney review it to see if, in their opinion, it met the judge’s order.
“I’d like the chance to at least review it,” said Howell.
Howell also questioned the adequacy of the notice requirements which state only that a notice will be placed on the third floor of the Admininstration Office building at least 48 hours in advance. He said if this is done on Friday at 4:55 p.m. and the building is closed and locked at 5 p.m. and the meeting is set for Monday morning, it technically meets the requirement but not the requirement’s “intent.” He said the commissioners should be looking to “maximize public participation and not minimize it.”
Foss said that she did not believe that anyone on the board would intentionally try to cut the public out. But, she said, mistakes do happen.
Chilcott said that his frustration as a “citizen” and not as a commissioner is inefficiency in government.
“We just want to see things move along,” he said. “We want to see things get done. But what some people want is a letter sent out to every individual.”
Recht said that 48-hour notice had been suggested in an Attorney General’s Opinion as being sufficient. He said it was the de facto standard in Montana. He said if the commissioners were considering changing that, they would want to look into the impact on their ability to do business. It could mean that to do business on Monday would require posting notice on the previous Wednesday, he said.
Recht’s own suggestion on how to state it was submitted in a memo to the commissioners that read:
“WHERE NOTICE POSTED: Notice will be posted on the bulletin board on the third floor of the Ravalli County Administrative Center. Supplemental notice may be posted at additional public places, electronically mailed or otherwise provided to local media, and published on the County’s website.”
Recht noted that, according to Langton’s ruling, “we should have proceeded differently in providing notice.”
“It wasn’t a matter of not following policy that existed then, or the policy that you are looking at,” said Recht. “It was a matter of statutory interpretation.”
“Obviously, with no intent to violate the law, the county, the county attorneys at the time, consulted extensively with attorneys at MACo and the best judgment of the interpretation of that law was followed,” said Recht. “Judge Langton disagrees with that interpretation. Fine. He gives us a different interpretation that we can follow from here on out. But it is not a matter of interpreting policy. It is a matter of interpreting statute.”
“Where you have policy and statute,” Recht continued, “it’s got to be interpreted. You are always going to have, on a case by case basis, some questions that require interpretation. The fact that you have a policy doesn’t eliminate the need to interpret statute and apply them as they come on a case by case basis. Again, I don’t see a deficiency in this policy.”
Recht said that he suggested including the wording he had submitted and make a decision as to whether they wanted to proceed or wait.
Commissioner J.R. Iman said, “In my opinion we should make editorial comments at this time and have that available to the public for a period of time.”
The commission then reviewed the proposed changes in the ordinance, discussing each strike out and addition. In that process they discussed what constituted a quorum. Commissioner Burrows pointed out that in the definition of a meeting, state law stated explicitly that a quorum could include electronic as well as physical presence. So a commissioner could participate in a meeting by telephone or even Web-Ex.
As far as time limits on public comment, Recht said that limiting public comment to two or three minutes, as has been the practice, was reasonable in the attempt to allow all those present who wanted to, to have a say. They could also ask for a summary of written material if the material was going to be submitted.
“But you run risks both ways,” said Recht. “If the allotted time is too short they don’t have a meaningful opportunity to comment. On the other hand, somebody doesn’t even get the chance to step up to the mic.”
Burrows noted that the law requires the county to establish a procedure or method, “but it still goes back to ‘reasonable opportunity’.”
In the public comment portion of the meeting one citizen put forth a few ideas.
He suggested that if the commissioners were “creating something, abolishing something, or changing the way you do something,” that it be scheduled at a specific time on a non-flow day.
He also suggested that the commissioners use their Web-Ex camera and site to its full capacity. It would allow the press, or anyone, to review recordings of all the commissioners’ meetings.
“The ability is there if you choose to make it so,” he said.
He also suggested that if the commissioners want to limit public notice to a bulletin board that they could consider an outside bulletin board that would be accessible after hours.
He also asked the commissioners how adoption of this ordinance would affect other policies that deal with similar issues, such as the one on their website. He wondered if they would still be in effect or if they would be displaced.
In response to a comment by Foss about how overly strict requirements on public notice could lead to inefficient operation in government and government should be run like a good efficient business, he asked, “If county government is going to be run like a business, where do I go to get some service from its competitors?”
“Missoula County,” said Commissioner Chilcott, which was followed by a burst of laughter in the room.