Board should welcome open, public comment

By Gene Mim Mack, Stevensville

As was reported in last week’s Bitterroot Star, I tried to object to the rehiring of the girls volleyball coach at Stevensville High School during the Board’s vote on the subject. I say “tried” because even before I could say anything I was gaveled down by the school board chair and was told that “I can’t.” Before one substantive word was uttered my right to speak was restricted because the chair of the school board apparently thought that she knew what I was going to say. I did not raise my voice or refuse to respect an order. I simply said “I object.” I submit that along with the many powers that the board may have, mind reading is not one of them. The meeting was then ordered closed to “protect the right of privacy” of the coach. The coach was asked “do you waive your right to privacy.” She said “no.”
Can a meeting be closed to discuss the discipline of a public employee who is charged with a violation of law?
The Court in a number of cases has found that when a public employee vested with the public trust (police officer, elected employee, school teacher, person in charge of public funds, etc.) is charged with a criminal offense or sexual harassment, the employee does not enjoy an expectation of privacy over the disciplinary proceedings.
Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 310, 777 P.2d 345 (1989). Bozeman Daily Chronicle v. City of Bozeman, 260 Mont. 218, 859 P.2d 435 (1993). Citizens to Recall Mayor Whitlock, 255 Mont. 517, 844 P.2d 74 (1992) and Billings Gazette v. City of Billings. 2011 MT 293. (lawsuit info taken from montanafoi.org)
The law on making a determination on when to close a meeting is MCA Sec. 2-3-203(3). The presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open.
The reason that the law is written with the words “clearly exceed the merits of public disclosure,” is because the right of the public is given significant consideration in making a difficult decision. Personnel matters are clearly an issue for which the public body may close a meeting. This was not the disciplinary hearing. But if the hearing itself cannot be closed then surely the public’s right to comment on the criminal record of a teacher cannot be restricted.
You must have a reason to restrict the public’s right to know and an individual’s right to speak. You cannot do it because you assume you know what will be said. The tyranny of this decision by a governing body is obvious. If they truly have a right to restrict the public’s right to say something based on the assumption of what they might say, then the public actually has no right at all. The governing body then becomes the sole arbiter of what is said by the public. At this board meeting not one board member raised an objection to the chair ruling. Silence is often a sign of agreement.
In addition to being the parent of a high school student, I also serve as Mayor for the Town of Stevensville. In this role I have sometimes been the object of intense public comment during meetings. Although difficult to hear, I support the public’s right to have their say and an individual’s right to privacy. I have never had to close a meeting because the public comment violated an individual’s right to privacy. This action should only be used as a last resort after a legal determination has been thoughtfully made by the chair of a public body.
I admit that during this moment in the school board meeting I felt humiliated, embarrassed and angry. As a public servant who by experience has developed a little thicker skin than some, I can only imagine how a parent without any experience of this sort might feel.
My concern and protest started over the hiring of a coach. Had I been allowed to speak and the board still voted to hire this coach, I would have disagreed but felt that the board faithfully made its decision. End of story. That is not what happened.
Asking a court to determine whether my rights were violated and whether the meeting was legally closed is estimated to cost $5,000+. That does not include the District’s expense. Short of making a decision on that commitment, I ask the board to carefully examine the law and consider if the proper procedure was followed. I await the board’s response.