Posted on September 01, 2020
By: Lily Crespo Esq.
You have a school board meeting coming up where you know you are going to discuss the private employment data of an employee…what legal parameters do you need to take into account to comply with Montana public meeting laws while also protecting the privacy rights of the employee?
Refresher on framework: Montana’s open meeting and public participation laws stem from two fundamental rights contained in the Montana Constitution: The right to know and the right of participation.
- 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. (Article II, Section 9)
- 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. (Article II, Section 8).
In the case of meetings of school boards, these constitutional rights are primarily implemented through Montana’s open meeting laws, codified at Montana Code Annotated §§ 2-3-201 through 2-3-221. See SJL of Montana v. City of Billings, 263 Mont. 142, 147, 867 P.2d 1084 (1993). The general provision for open public meetings is contained in Montana Code Annotated § 2-3-203(1), which provides:
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. . . .
(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.
2016-Case Study 1: This case did not become part of Montana law BUT the school did settle for $95,000. The case basically presented the question of whether or not parents should get to weigh in on a non-tenured teacher losing their job. The lawsuit against a school district outside Billings (Canyon Creek School) stemmed out of the school deciding not to renew four non-tenured teachers at a school board meeting. The board chair told parents ahead of time that public comment on the teachers would be limited to stating only objective support or opposition for the recommendation to cut the teachers.
So, what was the real problem? On the agenda, trustees listed the item as “Approve Renewal/Non-Renewal of Certified Staff for 2019-20.” There has to be specific notice so the public can be adequately informed of issues coming before the board. In such circumstances, boards must publish carefully written public meeting notices. These notices must disclose the specific decision(s) to be discussed and a citation of the Montana privacy statute limiting public discussion about employee performance.
2018-Case Study 2: In 2018, school district board of trustees failed to overcome the presumption of openness under Montana’s right-to-know constitutional provision and open meeting law based on its stated intention of protecting third party privacy rights in a former teacher’s action against the board of trustees challenging the board of trustee’s decision to close to the public a meeting at which the board of trustees voted to terminate the teacher’s contract. In Raap v. Board of Trustees, Wolf Point School District, the court found the board of trustees made no showing that any third party testified at the meeting or that the recommendation for termination was based in whole or in part on third party complaints. The board of trustees failed to make any particularized showing as to the nature of the third-party privacy interests asserted.
So, what happened in English? They did not show their work to make clear the privacy interests they were trying to protect. Calling out the statute they were complying with was a key step they missed. (See case: Raap v. Bd. of Trustees, Wolf Point Sch. Dist., 414 P.3d 788 (Mont. 2018))
What is the takeaway?
Most complaints about violation of open meeting laws have to do with a failure to call out the right statute. The board chair cannot summarily close a meeting with no justification. Cite the specific circumstances, cite the correct statute, consult with your school attorney. Show your work.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily at 406-542-1300 to discuss these issues.