August 12, 2014
TO: Granite County Commissioners, Adler, Nelson, Bonney
County Attorney, Chris Miller
County Sheriff, Scott Dunderson
Philipsburg Mail, Tom Mullen
Subject: Open Meeting Laws
From: Dick Motta
Section 8. Right of participation. The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law.
Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
Open Meetings 2-3-201. Legislative intent — liberal construction. The legislature finds and declares that public boards, commissions, councils, and other public agencies in this state exist to aid in the conduct of the peoples’ business. It is the intent of this part that actions and deliberations of all public agencies shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Toward these ends, the provisions of the part shall be liberally construed. 2-3-202. Meeting defined. As used in this part, “meeting” means the convening of a quorum of the constituent membership of a public agency or association described in 2-3-203, whether corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over which the agency has supervision, control, jurisdiction, or advisory power. 2-3-203. Meetings of public agencies and certain associations of public agencies to be open to public –– exceptions. (1) All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds, including the supreme court, must be open to the public. (2) All meetings of associations that are composed of public or governmental bodies referred to in subsection (1) and that regulate the rights, duties, or privileges of any individual must be open to the public. (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. (4) (a) Except as provided in subsection (4)(b), a meeting may be closed to discuss a strategy to be followed with respect to litigation when an open meeting would have a detrimental effect on the litigating position of the public agency. (b) A meeting may not be closed to discuss strategy to be followed in litigation in which the only parties are public bodies or associations described in subsections (1) and (2). (5) The supreme court may close a meeting that involves judicial deliberations in an adversarial proceeding. (6) Any committee or subcommittee appointed by a public body or an association described in subsection (2) for the purpose of conducting business that is within the jurisdiction of that agency is subject to the requirements of this section.
7-1-2121. Publication and content of notice — proof of publication. Unless otherwise specifically provided, whenever a local government unit other than a municipality is required to give notice by publication, the following applies:
(1) Publication must be in a newspaper meeting the qualifications of subsections (2) and (3), except that in a county where a newspaper does not meet these qualifications, publication must be made in a qualified newspaper in an adjacent county. If there is no qualified newspaper in an adjacent county, publication must be made by posting the notice in three public places in the county, designated by resolution of the governing body.
(2) (a) The newspaper must:
(i) be of general circulation;
(ii) be published at least once a week;
(iii) be published in the county where the hearing or other action will take place; and
(iv) have, prior to July 1 of each year, submitted to the clerk and recorder a sworn statement that includes:
(A) circulation for the prior 12 months;
(B) a statement of net distribution;
(C) itemization of the circulation that is paid and that is free; and
(D) the method of distribution.
(b) A newspaper of general circulation does not include a newsletter or other document produced or published by the local government unit.
(3) In the case of a contract award, the newspaper must have been published continuously in the county for the 12 months preceding the awarding of the contract.
(4) If a person is required by law or ordinance to pay for publication, the payment must be received before the publication may be made.
(5) The notice must be published twice, with at least 6 days separating each publication.
(6) The published notice must contain:
(a) the date, time, and place of the hearing or other action;
(b) a brief statement of the action to be taken;
(c) the address and telephone number of the person who may be contacted for further information on the action to be taken; and
(d) any other information required by the specific section requiring notice by publication.
(7) A published notice required by law may be supplemented by a radio or television broadcast of the notice in the manner prescribed in 2-3-105 through 2-3-107.
(8) Proof of the publication or posting of any notice may be made by affidavit of the owner, publisher, printer, or clerk of the newspaper or of the person posting the notice. Dissemination of Incomplete Document Used to Make Decision — Right to Participate Entails Complying With Right to Know: A school district assembled a group of people to research and advise the district on the closure of schools, and a member of the group summarized the closure research information on a computer-generated spreadsheet and delivered various versions of the spreadsheet to various people and groups. The version given the school district contained a system rating the schools and explaining the rating system, but the group of parents that plaintiff belonged to was given a version not containing the rating system when a member of the group requested a copy. The school district told the group that a spreadsheet comparing the schools did not exist. The spreadsheet was a document of a public body subject to public inspection prior to the time that the school district’s board met and used the spreadsheet to help determine which schools to close. The school district violated plaintiff’s right to examine public documents. At a minimum, the “reasonable opportunity” standard articulated in Art. II, sec. 8, Mont. Const., and 2-3-111 for the right to participate demands compliance with the right to know contained in Art. II, sec. 9, Mont. Const. When the school district violated plaintiff’s right to know, it reduced what should have been a genuine interchange into a mere formality. Bryan could and did voice her opinion to the school district, but did so without the ratings information contained on the version of the spreadsheet used by the school district. Therefore, the school district also violated her Art. II, sec. 8, Mont. Const., right of participation. The Supreme Court stated that this violation tainted the entire process from start to finish and ruled that the school district’s closure decision was void. The court stated that on remand, the school district should allow plaintiff an opportunity to rebut the closure decision and should then reexamine the decision and affirm or modify it. Bryan v. Yellowstone County Elementary School District No. 2, 2002 MT 264, 312 M 257, 60 P3d 381 (2002).
7-4-2711. County attorney to be legal adviser of county and other subdivisions. (1) The county attorney is the legal adviser of the board of county commissioners. The county attorney shall attend their meetings when required and shall attend and oppose all claims and accounts against the county that are unjust or illegal. The county attorney shall defend all suits brought against the county. (2) The county attorney shall: (a) give, when required and without fee, an opinion in writing to the county, district, and township officers on matters relating to the duties of their respective offices; (b) act as counsel, without fee, for fire districts and fire service areas in unincorporated territories, towns, or villages within the county; (c) when requested by a conservation district pursuant to 76-15-319, act as counsel, without fee; (d) when requested by a weed district pursuant to 7-22-2103, act as counsel, without fee; and (e) when requested by a county hospital board pursuant to 7-34-2115, act as counsel, without fee, unless the legal action requested involves the county commissioners.
7-4-2113. Liability on official bond of commissioner. In addition to any other penalty provided in this code, a county commissioner who neglects or refuses to perform any duty imposed on the commissioner without just cause, who willfully violates any law provided for the commissioner’s government as an officer, who fraudulently or corruptly performs any duty imposed on the commissioner, or who willfully, fraudulently, or corruptly attempts to perform an act unauthorized by law as commissioner forfeits to the county $500 for every act, to be recovered on the commissioner’s official bond, and is further liable on the official bond to any person injured by the act for all damages sustained.