Even though it would be impossible for every citizen to attend every meeting of every local, county and state government body, believe it or not, it is every citizen's right to access and participate in these meetings, under almost every circumstance.
Each Montana citizen is guaranteed the right to attend all meetings of public bodies or agencies of the local, county and state government by sections eight and nine of Article II of the Montana Constitution.
Under this law, all meetings must be open to the public unless the protection of a person's privacy outweighs the interest of the public. This means that anyone who wants a meeting to be private must make the case against the public's right to be in attendance at a government meeting. No meeting can be closed without a discussion or debate which must occur while the meeting is still open.
Lee Banville, an associate professor at the University of Montana School of Journalism, broke down some misconceptions about meeting closure.
"Typically, a committee will just say 'Well, this is a private matter so we're gonna close the meeting.' That's not enough," he said. "The default position is, especially if you're dealing with misconduct of public officials, that material should be out in the public."
Though the line of what constitutes a public official is often blurry, the conduct of any person whose job is monitored by a governing body, such as a superintendent or teacher monitored by the school board or a police chief monitored by a city council is always subject to public accountability for their behavior on the job, because their behavior at work is of the public interest.
Meetings cannot be closed to discuss conduct violations committed by employees except in the case that it would violate the privacy of the person under scrutiny or the privacy of a witness or accuser. In those cases, only the parts of the testimony or discussion that included private matters can be closed. The rest of the discussion surrounding the violations must be public.
Part of the issue, Banville said, is that many people don't understand what the law means by private matters. Private matters are limited to family problems, drug and alcohol problems or medical information of any kind. Contract negotiations and hiring interviews that might cause a person to divulge private information, and boards receiving legal counsel about an ongoing lawsuit can also fall under this umbrella, but these situations are less common.
"The Montana Supreme court recently just said that it's not legal to just say the words in the statute and close a meeting," Banville said. "You have to have the meeting open unless you do this very specific outlining of what the rationale is, and they're very limited rationales, for why you have to close a meeting."
In March, the Montana Supreme Court ruled 5-0 that the explanation the Wolf Point School District Board of Trustees' gave for closing a four-hour meeting to the public before firing school teacher Kristine Raap in 2015 was insufficient.
Rapp waived her own right to privacy. This is an action that any person, whose private matters are being discussed, may do to keep a meeting open if board's insistence on closing it stems from protecting that person's privacy. The board cited the privacy rights of unnamed individuals and closed the meeting anyway.
The justification of a meeting closure must be descriptive enough to provide a legal and factual basis for the closure, without disclosing private information, Justice Dirk Sandefur wrote.
The court's decision reinforces that discussion about why a meeting will be closed must happen in public. Any board that wants to close a meeting must announce it in the meeting and defend the reason by identifying who or what the meeting is being closed for to discuss and a brief explanation of why that would violate a person's privacy.
Simply citing that the meeting is being closed to protect a witness or because an issue involves the discussion of a person's medical history is concise, discreet for the person involved and gives the public a fair knowledge of the board's reasoning and meets the requirements set by the court in Raap v. Board of Trustees Wolf Point School District.
Banville said that boards may want to consider that keeping meetings open is also in their best interest. In some cases, when a meeting was found to be closed illegally, judges have ordered those boards to reverse the decisions that were made in closed session and redo them publicly.
Discussions involving private matters may take place behind closed doors, but if the board makes a decision or takes a vote, those discussions must be held in public. Otherwise they could be reversed by a court for being made in an unconstitutional manner.
Open meetings can also protect other communities who could, for example, hire someone that was fired for misconduct in a different town.
"If somebody's doing something that's so bad that they're going to get fired, the core question is shouldn't we know that so that another county commission or school board doesn't hire them elsewhere?" Banville said.
Writing closed session on the agenda of a meeting indicates that a decision to close the meeting has been reached without any input or approval of the public, which is in violation of the law and prohibits the participation of the public in reaching that decision.
Public discussion of the reasons for meeting closure gives meeting attendees the opportunity to reach a compromise with the committee. Banville said privacy matters are not always all-or-nothing, and that engaging with a committee to talk about how the public participate and witness the discussion while also protecting privacy can lead to a more transparent solution.
"You as a taxpayer, you not only get to know what's going on, you get to go and participate and talk about it," Banville said. "It's a constitutional right in this state that you get to do that."
For more information on open meeting law, visit the Montana Freedom of Information Act Hotline's website at montanafoi.org. If you need immediate legal assistance regarding Montana's Right to Know, call the hotline's legal counsel, Peter Michael Meloy at 406-442-8670.
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