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The Balancing Act: Open meeting laws versus a right to privacy

September 01, 2020

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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.

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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