State v. ZwartState v. Zwart
Clerk
¶1 The Jefferson High School District No. 1 (the District) appeals from the District Court‘s Order filed March 27, 2013, granting summary judgment to the Boulder Monitor (Monitor). We reverse.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 The Jefferson County High School Board established a budget subcommittee, composed of three members of the full Board. The subcommittee‘s task was to consider budget issues and to report recommendations to the full Board. The Board met in a regular meeting on July 10, 2012, and discussed a number of issues, including several personnel positions. The Board reviewed four applicants for a principal position, and asked the budget subcommittee to meet on July 13, 2012 “to see if there is any significant savings that could be identified” regarding the salary for the position.
¶3 In addition to the discussion at the July 10 Board meeting as noted in the minutes of that meeting, the Board gave public notice of the July 13, 2012 meeting of the subcommittee. The notice indicated that the subcommittee would discuss the 2012-2013 school district budget, and noted that: “No decisions are made by a subcommittee of the Jefferson High School Board of Trustees unless authorized by action of a majority of the membership of the board in a regular meeting.”
¶4 The Boulder Monitor is a weekly newspaper covering Jefferson County and its county seat, Boulder. The Monitor, and more specifically its publisher Jan Anderson, claims that its policy is to attend each meeting of the full School Board and that it has
¶5 Pursuant to the discussion and directive at the regular Board meeting July 10, the three designated members of the subcommittee met on July 13. A fourth member of the School Board who was not a designated member of the budget subcommittee checked to insure that three Board members were present to participate. Her affidavit indicated that she was concerned that onе of the subcommittee members had recent surgery and might not be able to attend. All three subcommittee members attended, so the fourth School Board member sat in the audience to observe the discussions about the 2012-2013 budget. The subcommittee discussed the salary level to allocate to a principal position and to a part-time athletic director position. The fourth Board member asked some questions during the discussion. The budget subcommittee, by consensus of its three members, decided to recommend to the School Board a salary of $55,000 for the principal position and a salary of $10,000 for the part-time athletic director position. After the subcommittee set the salary levels, there was a discussion of whether or not full benefits would also need to be paid. The school superintendent was present, and he opined that two of the four applicants for the open principal position would likely not be interested at the salary level recommended by the subcommittee.
¶7 Jan Anderson attended the next scheduled meeting of the full School Board. She determined, based upon what she heard there and upon the notes of the budget subcommittee meeting, that the subcommittee meeting had actually been a meeting of the full School Board. Anderson concluded that the presence of the fourth board member meant that a quorum of the School Board had met. Anderson further determined that the subcommittee had done more than discuss the 2012-2013 budget, and had acted in some way to eliminate two of the candidates for the principal position. Anderson determined that the notice of the subcommittee meeting had not disclosed that it would be a meeting of the full School Board and that the notice had not disclosed that the subcommittee would take action to reduce the number of candidates from four to two.
¶8 The Monitor sued the District contending that the meeting of the budget subcommittee violated the open meeting and public participation requirements of Montana law,
¶9 The parties conducted limited discovery and both sides filed motions for summary judgment. The District Court entered an Order filed March 27, 2013, granting summary judgment to the Monitor and awarding it attorney fees as the prevailing party. The District Court granted summary judgment to the Monitor based upon its determination that the “critical facts are undisputed.” The critical facts noted in the District Court‘s Order were that a quorum of the School Board convened at the budget subcommittee meeting on July 13, 2012; that the members present at that meeting heard and discussed school business; that the members present “discussed at least four applications for an administrative position“; that the members present acted to reduce the “roster of several candidates” for the principal position; that the fourth School Board member was “clearly involved in the conduct of the school business“; and that the School Board failed to give notice that these actions would be taken.
¶10 The District Court, based upon its conclusion that these were undisputed facts, granted summary judgment to the Monitor. The only relief the District Court granted was a declaration that the School Board had violated the open meeting and public
STANDARD OF REVIEW
¶11 Summary judgment is governed by
¶12 On appeal this Court reviews decisions on summary judgment de novo, applying the same evaluation as the district court under
DISCUSSION
¶13 In Montana the public‘s constitutional “right to know” guarantees that “[n]o person shall be deprived of the right . . . to observe the deliberations of all public bodies or agencies of state government and its subdivisions. . . . .”
¶15 The District Court‘s decision to grant summary judgment to the Monitor was expressly premised upon the conclusion that the “critical facts are undisputed.” The absence of a genuine dispute as to “critical facts” or “material facts” in the language of
¶16 The District contended that the fourth Board member attended the subcommittee meeting in her capacity as an interested citizen. The District disputed that the fourth Board member was involved in the meeting as a member of the Board and contended that she did not participate in reaching the subcommittee consensus that was reported to the full School Board. The District asserted that only the designated members of the
¶17 The District Court resolved the factual disputes and contentions between the parties in favor of the scenario posited by the Monitor. While the Monitor‘s factual contentions may ultimately prove out, the District Court should not have resolved factual disputes between the parties when granting summary judgment. It is settled law that it is improper for a district court to resolve factual disputes in a summary judgment proceeding. Cole v. Flathead County, 236 Mont. 412, 416, 771 P.2d 97, 99 (1989); Walker v. St. Paul Fire & Marine, 241 Mont. 256, 258-59, 786 P.2d 1157, 1159 (1990); Mount. West Bank v. Mine & Mill Hydraulics, 2003 MT 35, ¶ 28, 314 Mont. 248, 64 P.3d 1048; Corporate Air v. Edwards Jet Center, 2008 MT 283, ¶ 28, 345 Mont. 336, 190 P.3d 1111.
¶18 The District Court erred by granting summary judgment when there were genuine issues of material fact.
¶20 Nothing in the letter or spirit of the open meeting statutes prohibits a person in the position of the fourth member in this case from attending and observing a meeting of a subcommittee along with any other members of the public. In fact, it can be argued that the better public policy would be to encourage members of public bodies to observe such events so they can be better educаted and informed about matters that they will later vote on in their official capacities. Penalizing those members and the public bodies they serve by an unwarranted application of the statute creates a difficult labyrinth for public
¶21 We caution that this Opinion should not be taken as an invitation for subterfuge by public bodies or their members to avoid public scrutiny and to conduct business in violation of the requirements of the open meeting statutes. We determine only that the statutes do not prohibit a member of a public body from observing a meeting of a sub-quorum subcommittee, or even asking questions during the meeting, and that doing so does not constitute the convening of a quorum. As
¶22 The Monitor does not contend, and the District Court did not determine, that it was improper for the School Board to appoint a budget subcommittee and to аsk it to consider and recommend a salary level for the principal position. It seems clear that it would be virtually impossible for the subcommittee to discuss the money to be allocated in a vacuum without mentioning the position that the money would be used to fill and without discussing such issues as whether or not the salary allocation would include benefits. The District contends that it was the Superintendent, at the July 13 meeting, and not the subcommittee members, who offered his opinion that the salary level selected by the subcommittee would probably not attract some of the then-current applicants for the
¶23 The District Court improperly granted summary judgment to the Monitor and therefore also improperly granted attorney fees to the Monitor. The Order granting summary judgment is reversed and this case is remanded for further proceedings consistent with this Opinion.
/S/ MIKE McGRATH
We Concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
Justice Laurie McKinnon, dissenting.
¶24 I dissent from the Court‘s decision because the undisputed material facts establish that the fourth School Board member‘s attendance and participation in the July 13, 2012 meeting rendered it a meeting of the full School Board, regardless of whether the fourth Schoоl Board member (Patricia Lewis) believed she was attending the meeting as a “private citizen.”1
¶25
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.
This provision, commonly referred to as the “right to know,” has been implemented and protected by the Legislature through the open-meeting laws, codified at
¶26 The Legislature‘s expressed intent is that public boards and agencies in this State “exist to aid in the conduct of the peoples’ business,” that the people “do not wish to abdicate their sovereignty to the agencies which serve them,” and, therefore, that “actions and deliberations of all public agencies shall be conducted openly.”
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.
¶28 To permit and encourage the public to participate in agency decisions, eaсh agency is required to develop procedures that “ensure adequate notice and assist public participation before a final agency action is taken that is of significant interest to the public.”
¶29 In this case, while the Court identifies several disputed facts as a reason to reverse the District Court‘s order granting summary judgment, Opinion, ¶ 16, it is my view that the material facts are undisputed and that the District Court correctly focused on those undisputed material facts in analyzing the alleged open-meeting violation. The undisputed facts material to
¶31 These undisputed facts, in light of the “clear and unequivocal” language of our Constitution, Associated Press, 246 Mont. at 391, 804 P.2d at 379, establish that the meeting of July 13, 2012, did not comply with Montana‘s open-meeting laws. A straightforward application of the statutory provisions necessarily leads to the conclusion that a quorum of the School Board heard, discussed, and otherwise conducted school business without properly noticing the meeting as a School Board meeting. The disputed facts as to what occurred at the meeting are irrelevant, as long as business of the School Board was heard, discussed, or acted upon—as it was here.
¶32 The Court‘s decision today will lead government agencies down a slippery slope by raising the question of whether presence at a public meeting of the body upon which a member serves constitutes a quorum. We have previously recognized that a “quorum” of a given body consists of members who “assemble” or are “in attendance” at “any particular meeting” of the body. Crofts, ¶ 31. The Court muddles this rule by holding
¶33 Our Constitution mandates that the deliberations of all public bodies or agencies be open. Our open-meeting laws exist to implement this constitutional guarantee. A gathering of School Board members at the county rodeo or at the local coffee shop, as the Court posits, is not necessarily impermissible under the open-meeting laws. However, a gathering of four School Board members at the rodeo or coffee shop is impermissible—as it is similarly impermissible when four members assemble at a Budget Subcommittee meeting—if they “hear, discuss, or act upon,”
¶34 The Court opines that “the better policy” would be to encourage members of public bodies to attend and observe subcommittee meetings along with members of the public “so they can be bеtter educated and informed about matters that they will later vote on in their official capacities.” Opinion, ¶ 20. While such “policy” considerations
¶35 The constitutional and statutory framework is reasonable and functions well, when it is properly applied. Again, the scenario described above—a gathering of board members at the county rodeo or coffee shop—is not impermissible if “a matter over which the agency has supervision, control, jurisdiction, or advisory power” is not being considered.
our constitution mandates that the deliberations of public bodies be open, which is more than a simple requirement that only the final voting be done in public. Devices such as not fixing а specific membership of a body, not
adopting formal rules, not keeping minutes in violation of
§ 2-3-212, MCA , and not requiring formal votes, must not be allowed to defeat the constitutional and statutory provisions which require that the public‘s business be openly conducted.
Crofts, ¶ 31. I would add to this list that purporting not to “convene” a quorum of the public agency, Opinion, ¶¶ 19-21, but otherwise satisfying the definition of “meeting” in
¶36 The Court states that “[p]enalizing those members and the public bodies they serve by an unwarranted application of the statute creates a difficult labyrinth for public servants and threatens to turn any Saturday night at the county rodeo into a board meeting that must be noticed.” Opinion, ¶ 20. I question, however, whether a “рenalty” is being imposed when the person is not being prohibited from attending the meeting but, rather, is simply being held to the obligations and responsibilities of his or her position as a member of the public body. Significantly, the only exception provided for by the plain language of
¶37 We have previously held, and it is my view, that the Constitutional Convention Delegates “made a clear and unequivocal decision that government operates most effectively, most reliably, and is most accountable when it is subject to public scrutiny.” Day, ¶ 34. Our open-meeting laws exist to implement accountability of government to the public. This fundamental principle of our State‘s constitutional law, and the existence of a clear statutory framework to protect this principle, serves as the basis for this Dissent. Although we may be urged and encouraged at times to manipulate an exception into the “clear and unequivocal” languagе of our open-meeting laws—such as to find that a quorum was not “convened“—I fear that such exceptions will dilute the strength of our commitment to open government. “While on any given occasion there may be legitimate arguments for handling government operations privately, the delegates to our Constitutional Convention concluded that in the long-term those fleeting considerations are outweighed by the dangers of a government beyond public scrutiny.” Day, ¶ 35. In my view, our decision today blurs these constructs and ignores a “clear and unequivocal” constitutional and statutory framework for applying our open-meeting laws. “All that is required is that a quorum of the membership convene[s] to conduct its public business.” Crofts, ¶ 30. Our fundamental constitutional right to open meetings of our public bodies
¶38 Based on the undisputed material facts, I would hold that Lewis‘s attendance and participation at the July 13, 2012 Budget Subcommittee meeting rendered it a meeting of the full School Board, regardless of whether Lewis claims she was attеnding the meeting as a private citizen, and that the meeting did not comply with Montana‘s open-meeting laws. To the extent the Court holds otherwise, I strongly disagree.
¶39 I dissent.
/S/ LAURIE McKINNON