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Kearns and Sons

Open Letter to County Commissioners

We greatly appreciate the fact that the Board of County Commissioners took the time and made the effort, while codifying its Public Participation Resolution, to address Judge Langton’s order in a recent lawsuit in which the Board was ordered 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.”

We applaud you in the direct manner in which you addressed the Judge’s first concern by adding to the resolution a definition of the term “ministerial act.” It clarifies and makes explicit in the county’s own regulations what the Supreme Court made clear in 2006, that any decision that requires an act of judgment, or as Deputy County Attorney Howard Recht put it, any act that requires some “discretion” on the part of the Board, is a matter of significant interest to the public. Only “ministerial acts,” which do not involve any decisions or judgment, such as signing a contract that was previously approved, to use your attorney’s example, are exempted from the public notice requirements.

Although a few of the commissioners apparently find this judgment of the Montana Supreme Court absurd and bound to lead to inefficient government, we are pleased to see the law of the land finally being made explicit in County policy.

As to the Public Notice part of the Resolution, our objections are a matter of record and still stand. If the only notice the Board is required to make is to post a copy in the display case on the third floor of the county’s Administration Building, we believe that is insufficient to meet the intent of the law. It allows the posting of an agenda on Friday at 4:55 p.m., for instance, of a meeting to be held on Monday at 10 a.m. If the building is locked at 5 p.m., as is the routine, this would drastically reduce the number of people who could possibly be informed to ridiculously few.  They would have to be on the third floor of the administration building during that five-minute span. Outside of that, the posted notice would not have any effect until Monday morning only two hours before the scheduled meeting. It doesn’t make sense to start the 48-hour-notice clock ticking when the door is shut on it after five minutes and not opened until too late to work effectively. It violates the intent of the law, which is to further public participation, not minimize it for increased “efficiency” or paranoia over potential electronic failures.

We submitted an alternative policy that would simply have committed the Board to doing what it already does, posting it on the bulletin board, notifying the press, and posting it on the county web site. The Board did not adopt this option.

But why have a policy that would essentially allow what on the face of it is unacceptable? Why not close that loophole simply by adding the requirement that you also notify the press and post it on the county’s website?

Our alternative is not the only alternative.

Commissioner Jeff Burrows offered one. Just put it in a display case that is accessible after hours and on weekends and holidays outside the building. The County’s Administrator, Glenda Wiles, noted that if cost was an obstacle, she believed it could be posted in a waterproof covering at the front of the building for an investment of $25 and that she would be glad to do the posting.

We hope that the Board reflects on this and soon entertains an amendment to the adopted Resolution that will contain one solution or another.

We are also appreciative of the fact that the Board, after a bit of prodding, also addressed the settlement agreement in a second lawsuit in which they agreed to review their policies with respect to Judge Haynes’ analysis of the closed door meeting involving the Human Rights Complaint filed by Deputy County Attorney Mahar and the subsequent Settlement Agreement. We are, however, very disappointed in the outcome.

We submitted some suggestions to the Board for a policy concerning the procedures for closing a meeting to the public based on Judge Haynes’ analysis. It was a set of questions plucked directly from his Summary Judgment that could serve as a partial guide in determining whether a person’s privacy claims might clearly exceed the public’s right to know and doing it in a fashion that any decision or action could survive judicial review.

This proposal was rejected by the Board. The Board’s attorney rejected the idea of a “check list” of any sort, arguing that in each case the questions might be different and should be approached independently and appraised on a case-by-case basis. The Board did not include in the final Resolution any policy for determining the balance of constitutional rights that is involved in making the decision to close a meeting.

We believe this is a mistake. If we look at the last three closed door sessions recently held by the Board, it becomes apparent that the lack of any policy in this regard has led to the persistent and routine violation of the Montana Open Meeting Laws.

Let’s just take a look at the most recent closed session on November 28. Without touching on the issues involved or any conclusions, let’s simply examine the process in which the meeting was closed.

The unofficial minutes of the meeting state:

“Commissioner Foss called the meeting to order reading the calendared item. She stated she believes the privacy of the individual outweighs any right for public disclosure and called for a closed door session under 2-3-203 MCA.”

That pretty much sums it up, and that’s when our reporter had to leave the room. No questions. No discussion. No weighing of any privacy claims against the public’s right to know. Just the pronouncement by the presiding officer that privacy claims trump the public’s right to know in this case.

This does not meet the standards set by law for closing a meeting. In the case examined by Haynes, he notes that “there is no indication in those minutes that the presiding officer determined that the demands of individual privacy clearly exceeded the merits of public disclosure.” He goes on to quote case law, “[A] governing body is not entitled to rely on an ‘it’s okay because we said it’s okay’ approach when developing the record underlying its decision.” Rather, “the governing body must develop a record that fleshes out all pertinent facts upon which its decision was based in order to facilitate judicial review.”

It is at this point that Haynes provides a series of questions that could have been asked and answered by the presiding officer in order to balance the privacy claims against the public’s right to know. Questions such as whether the employee had or had not waived his or her privacy rights (in this case there is no record that he was ever asked), whether the employee had an actual or objectively reasonable expectation of privacy (again no record in this case of any discussion), etc.

It couldn’t be plainer. There is nothing in the record indicating any considerations were made to determine the nature of the privacy claims in order to weigh them against the public’s right to know in the closure of the November 28 meeting. This case doesn’t meet the first check on the check list, which is creating a record of the facts being weighed and the reasoning involved in determining their weight.

If we go to the minutes of the two most recent previous cases of closed door sessions prior to this one, we see the same lack of any record documenting that any privacy claims had been identified and weighed against the public’s right to know.

What we see on a case-by-case basis is the persistent, routine and flagrant violation of the state’s Open Meeting Laws in this regard.

The point is that any decision made following a closed session that is lacking such a record, regardless of the issues involved, may be voided in a court of law. At best, if there really are solid facts and good reasoning to back up the decision, the Board can hold another meeting and do it right and come out with the same result. But why run the risk of having to do things twice the moment anyone files a complaint? Why not do it right the first time?

It is evident that flying blind into a case-by-case scenario is not yielding defensible results. The Board needs a policy to guide its actions in relation to closed meetings if it hopes to produce any decision that will survive judicial review.

Perhaps if the Board does reconsider and change its Public Notice Policy, at the same time it might consider adopting some sort of policy for closing meetings. Having none is not working and presents a serious liability to the county taxpayers.

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