District Court Judge James Haynes issued an order on February 9, in part denying and in part granting a motion to dismiss the case filed against the County Commissioners over their decision to sign a settlement agreement with Deputy County Attorney Geoffrey Mahar. That agreement, decided upon by the County Commissioners on August 15, 2011, following a closed door session, resulted in the withdrawal of Mahar’s human rights complaint against County Attorney William Fulbright for political retaliation and age discrimination. The Bitterroot Star and Ravalli County Watchdog filed suit on October 6, 2011, alleging that the commissioners’ settemeent decision was in violation of the state’s open meeting laws, and laws governing public notice and public participation.
Judge Haynes denied in part the county’s motion to dismiss because he found that the county had “failed to meet its summary judgment burden to establish that its actions in approving the Settlement Agreement were adequate under the notice, public participation and open meeting provisions” of the law and constitution.
But Haynes granted in part the motion to dismiss because the lawsuit was filed too late to meet the 30-day statute of limitations to have a decision voided under the enforcement provisions and voidability provisions in the law.
The Court first takes on the issue of whether the commissioners’ decision met the requirements of the law. It is noted that the county does not dispute that a meeting occurred on August 15, that a closed session occurred in which the settlement agreement was reviewed, and that following the closed session the commissioners approved the settlement agreement “without further discussion, input, or details.”
The Court notes that the county commissioners are conflating the adequacy of public notice and public participation statutes with open meeting statutes.
“However helpful such a merger of issues may be in situations in which a meeting was literally open, in the context of this case – involving a closed meeting – such a conflation is unnecessarily confusing. For example, RCC appears to justify a closed meeting by arguing that the notice for the August 15, 2011 closed meeting was adequate, instead of that the meeting was properly closed. Similarly, RCC’s fusion of the public participation and open meeting issues obscures any possible distinctions between the enforcement provision (2-3-114 MC A) and the voidability provision in (2-3-213 MCA). In pursuit of a cleaner analysis, therefore, the Court will treat these inquiries separately, beginning with the open meeting inquiry.”
The Court found, first off, that no admissible evidence was presented that the commissioners had met the open meeting requirements of the law. The only evidence that the presiding officer had weighed the demands of privacy to see if they “clearly exceed the merits of public disclosure” were copies of unofficial minutes. Those minutes simply state that the Board invoked closed door “due to the nature of the issue.”
Pointing to two case histories, the Court notes that “[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.”
The Court notes that closing a meeting simply “due to the nature of the issue” shows “no record evidencing of a balancing of privacy and disclosure concerns or of the pertinent facts upon which such a decision was based.”
Some facts that could have gone into the balance, the Court notes, are “whether an employee would be attending the meeting, whether that employee had or had not waived his or her privacy rights with respect to the meeting, whether the employee had or had not waived his or her privacy rights in connection with the underlying dispute, whether the employee had an actual or objectively reasonable expectation of privacy, whether the meeting involved the actions of a public officer or employee in the scope of his or her employment while occupying a position of public trust, whether the subject of the meeting was personal in nature or related to the employee’s position of public trust, the policy considerations making any actual expectation of privacy reasonable, and why the employee had an actual and reasonable expectation of privacy with respect to even his name.”
Aside from this lack of evidence and factual determination, another problem exists in the fact that on August 24, 2011 the Commissioners recorded the entire settlement agreement in the Ravalli County Clerk and Recorder’s Office, “creating the inference the RCC determined during the closed meeting on August 15, 2011, that pursuant to Section 2-9-304 MCA, the Settlement Agreement was a public document because the right of individual privacy in all circumstances did not clearly exceed the merits of public disclosure.”
The Court concludes that, based on the evidence, the Commissioners did not meet the open meeting law requirements.
On the issue of public notice and public participation the Court notes the law prohibits any agency from taking action on any matter discussed “unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter.”
The Court notes that, according to case law, the public participation provisions “are only triggered when action of significant public interest is taken.”
The Court states, “Indeed, the facts fully indicate that the matter was an action of significant public interest,” noting that the newspaper article of September 2, divulging that the $180,000 plus settlement agreement had been made, also noted that the decision was made less than two weeks before the RCC publicly informed Ravalli County department heads of a 10% reduction in the Ravalli County workforce due to budget shortfalls.
The agenda for the issue on August 15 simply stated “Personnel Matter – Closed door may be invoked under MCA 2-3-203…other administrative matters.” With no mention of the review of, and decision resulting in, a Ravalli County obligation of over $180,000, the Court concludes that the public notice was inadequate to meet the law.
The Court also notes that, based on the unofficial minutes, there is no record that any public comment was taken or considered at the meeting.
The Court then applied a two-part test to the claims about Mahar’s privacy interests: (1) whether the person had a “subjective or actual expectation of privacy” and (2) whether “society is willing to recognize that expectation as reasonable.”
The Court points out that the fact that Mahar acknowledged in the settlement agreement itself that he understood that once his human rights complaint was filed that it may be accessible to the public, suggests there was no expectation of privacy.
The Court goes on to state that even if Mahar did have some subjective expectation of privacy it would not be considered “reasonable” by society. The court analyses eight items that Mahar may have had some expectation of privacy about and explains how none of them could be reasonably considered private in society’s view.
The Court concludes that the commissioners did not provide evidence to show that they had met the public notice or public participation laws.
The Court then noted that both the voidability and enforcement provisions of the law require a lawsuit contesting a decision to be filed within 30 days of the date on which the plaintiff or petitioner “learns or reasonably should have learned, of the agency’s decision.”
The Plaintiffs both argued that their lawsuit was filed within 30 days of the day they learned about the settlement agreement on September 6, 2011. But the commissioners argued that the petitioners should have reasonably learned of the decision the day it was published in the Ravalli Republic on September 2, 2011. After examining the plain language of the law and the dictionary definitions, the Court concludes that the plaintiffs should have come to know about the settlement agreement on September, 2, 2011, when it was published in an “above the fold front page article.”
“The fact that petitioners were out of town or had scheduled a medical procedure over the Labor Day weekend, does not diminish the fact that they reasonably should have learned or become informed of the RCC’s decision September 2, 2011 because that information was widely and publicly available even without the exercise of ordinary diligence,” wrote the Court.
The Court concludes that the commissioners are entitled to summary judgment that the petitioners’ claims,” to the extent they request that the court void or set aside the RCC’s August 15, 2011 decision to approve the Settlement Agreement…are untimely.”
Both sides are ordered to file separate status reports with the Court within 45 days of the date of the ruling, specifying whether this case may be dismissed, or whether substantive disputed issues remain and a scheduling order issued.