Citizens for Open Government, Inc. v. City of Polson

February 24 2015
DA 14-0562
Case Number: DA 14-0562
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 55
CITIZENS FOR OPEN GOVERNMENT, INC.,
Petitioner and Appellant,
v.
CITY OF POLSON,
Respondent and Appellee.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV 13-265
Honorable James A. Manley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William A. Schreiber, Attorney at Law; Polson, Montana
For Appellee:
Tracey Neighbor Johnson; William L. Crowley, Boone, Karlberg, P.C.;
Missoula, Montana
Submitted on Briefs: January 14, 2015
Decided: February 24, 2015
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Citizens for Open Government (Citizens) appeals the Twentieth Judicial District
Court’s grant of summary judgment in favor of the City of Polson (City). We address the
following issues on appeal:
1. Whether Citizens was denied its right under Montana’s open meeting laws to
participate in an executive session held by the City Commission.
2. Whether the District Court abused its discretion by declining to void the City’s
decision to present an offer letter to a candidate for city manager.
3. Whether the District Court improperly determined facts in a summary
judgment proceeding without an evidentiary hearing on the merits of the case.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In the spring of 2013, the City began the process of hiring a new city manager.
Between April and September 2013, the City Commission held several public meetings
during which it discussed the search for a city manager and gave the public opportunities
to comment. The Commission narrowed down the applicants for city manager to five
finalists.
¶4 In August 2013, the City announced that there would be a community “meet and
greet” on September 11, during which the public would have the opportunity to speak to
the five finalists and fill out comment cards. The comment cards would be given to the
search committee, a body of non-commissioners selected by the Commission at a public
meeting in April. The mayor encouraged the public to attend the event. The City also
published a press release, providing information about the meet and greet and a link to
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the city website containing biographical information for the five finalists. The press
release was picked up by several local news sources.
¶5 On September 12, the Commission held a public interview with the candidates.
Commissioners asked each candidate several questions, after which the public had an
opportunity to comment. On the same day, the search committee and an employee
interview panel conducted two interviews that were not open to the public.
¶6 The Commission’s September 12 public meeting agenda listed a closed executive
session with the description, “PERSONNEL-MEET WITH INTERVIEW PANELS AND
DELIBERATE ON SELECTION OF CITY MANAGER.” At least three persons
associated with Citizens1 objected to the executive session because they felt it violated
Montana open meeting laws. The Commission proceeded with the executive session
over Citizens’ objections.
¶7 On September 13, the mayor and city manager candidate Mark Shrives signed an
offer letter for the position of city manager. At a public meeting on September 16, the
Commission voted to authorize the mayor to negotiate and conclude a final bargain with
Shrives within the parameters of the offer letter, subject to the Commission’s final
approval of an employment contract. The mayor stated that all three interview panels had
come back with the same top candidates. During public comment, a member of Citizens
asked whether the public would have the opportunity to review a contract or offer input
on it before finalization. The mayor responded that the contract would be attached to the
1
Citizens describes associated persons as either “members” or “associates,” but does not clearly
distinguish the two terms. We refer to all persons associated with Citizens as “members.”
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meeting agenda when it was brought to the Commission for a vote. Another member of
Citizens indicated displeasure that the September 12 executive session was closed to the
public.
¶8 At a public meeting on September 20, the Commission unanimously voted to
approve the city manager employment contract negotiated by the mayor. At the
beginning of the meeting, the commissioners provided copies of a contract signed by
Shrives to attending members of the public. The mayor also explained changes to a draft
that previously was distributed and posted on the city website. Members of Citizens
inquired about the changes and asked for clarifications, after which the Commission
voted to approve the contract.
¶9 Citizens brought suit on October 15, 2013, contending that the September 12
executive session violated Citizens’ right to participate under the Montana Constitution
and Montana statutory law. The parties filed cross-motions for summary judgment. By
order entered July 31, 2014, the District Court rejected the City’s argument that Citizens
lacked standing to file its complaint. The court denied Citizens’ cross-motion for
summary judgment and ruled in favor of the City on the merits of Citizens’ claims,
declining to void the Commission’s decision to present Shrives with an offer letter.
Citizens appeals.
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STANDARDS OF REVIEW
¶10 We review a district court’s grant of summary judgment de novo. Bailey v. St.
Farm Mut. Auto. Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary
judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Smith v.
Burlington N. & Santa Fe Ry. Co., 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639.
The interpretation of a statute is a question of law that we review for correctness. City of
Missoula v. Iosefo, 2014 MT 209, ¶ 8, 376 Mont. 161, 330 P.3d 1180.
¶11 We review for abuse of discretion a district court’s determination whether to void
a decision made in violation of Montana’s open meeting laws. Motta v. Philipsburg Sch.
Bd. of Trs., 2004 MT 256, ¶ 21, 323 Mont. 72, 98 P.3d 673; Common Cause v. Statutory
Comm’n to Nominate Candidates for Comm’r of Political Practices, 263 Mont. 324, 334,
868 P.2d 604, 610 (1994). A court abuses its discretion if it acts arbitrarily without
employment of conscientious judgment or exceeds the bounds of reason, resulting in
substantial injustice. Chase v. Bearpaw Ranch Ass’n, 2006 MT 67, ¶ 15, 331 Mont. 421,
133 P.3d 190.
DISCUSSION
¶12 Citizens challenges the Commission’s closure of its September 12 executive
session, during which the Commission discussed the five finalists for city manager. The
District Court determined, without deciding, that, even if the executive session violated
open meeting laws, any violation did not justify voiding the contract. The court
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emphasized that the decision to hire Shrives was subject to final approval by the
Commission, and that the Commission held two subsequent public meetings during
which it voted to authorize the mayor to negotiate with Shrives and voted to approve the
final contract. The court noted that public comments were taken during both of those
meetings, and that the public had “ample opportunity” to participate leading up to the
final hiring decision. Ultimately, the court concluded that “[v]oiding the decision to offer
a contract to Shrives would, at this point, serve no substantial public purpose” and
declined to exercise its discretion to void the hiring decision.
¶13 Citizens argues that the District Court abused its discretion by not voiding the
Commission’s decision to hire a new city manager after the public was denied the right to
observe and participate in the Commission’s deliberations and decision. Citizens also
argues that the District Court erred in determining facts without an evidentiary hearing
and in basing its decision in favor of the City on those facts.
¶14 1. Whether the public had the right to participate in the Commission’s September
12 executive session under Montana’s open meeting laws.
¶15 A government agency must afford citizens a “reasonable opportunity” to
participate before the agency makes a final decision. Mont. Const. art. II, § 8. The
public has the right to observe deliberations of public bodies “except in cases in which
the demands of individual privacy clearly exceed the merits of public disclosure.” Mont.
Const. art. II, § 9. Montana’s open meeting statutes, codified at §§ 2-3-201 through -221,
MCA, implement these rights. Common Cause, 263 Mont. at 329, 868 P.2d at 607.
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¶16 The law requires all meetings of public or governmental bodies to be open to the
public. Section 2-3-203(1), MCA. A meeting is “the convening of a quorum of the
constituent membership of a public agency or association . . . , to hear, discuss, or act
upon a matter over which the agency has supervision, control, jurisdiction, or advisory
power.” Section 2-3-202, MCA. The statute provides exceptions for discussions relating
to a matter of individual privacy, discussions of litigation strategy, and judicial
deliberations. Sections 2-3-203(3) through (5), MCA. Unless the individual about whom
the discussion pertains waives his or her privacy right, the meeting may be closed “if and
only if the presiding officer determines that the demands of individual privacy clearly
exceed the merits of public disclosure.” Section 2-3-203(3), MCA.
¶17 There is no question that the above statutes apply to the Commission and to its
September 12 executive session. See Bd. of Trs. v. Bd. of Cnty. Commr’s, 186 Mont. 148,
155, 606 P.2d 1069, 1072 (1980) (applying Montana’s open meeting laws to a closed
meeting of county commissioners). Although the city manager candidates acknowledged
that they would be interviewed in an open public session, they did not waive their privacy
interest for any other purpose. Neither party submitted evidence that the presiding officer
determined “that the demands of individual privacy clearly exceed the merits of public
disclosure.” The Commission should have made that determination before closing the
executive session to the public.
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¶18 2. Whether the District Court abused its discretion by declining to void the
Commission’s decision to present an offer letter to Shrives.
¶19 A district court has discretion to void a decision made in violation of Montana
open meeting laws. Section 2-3-213, MCA (“Any decision made in violation of 2-3-203
may be declared void by a district court having jurisdiction.”) (emphasis added); Motta,
¶ 21.
¶20 Although “voiding a decision by a public entity for failure to comply with open
meeting laws may sometimes be an appropriate remedy,” Allen v. Lakeside
Neighborhood Planning Comm., 2013 MT 237, ¶ 24, 371 Mont. 310, 308 P.3d 956
(distinguishing Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2, 2002 MT 264,
312 Mont. 257, 60 P.3d 381), we have held that a district court did not abuse its
discretion by declining to void action taken at a closed meeting when the governing body
allowed subsequent opportunities for public comment on the decision, Allen, ¶ 30; Zunski
v. Frenchtown Rural Fire Dep’t Bd. of Trs., 2013 MT 258, ¶ 17, 371 Mont. 552, 309 P.3d
21, or when the decision made during the executive session was subject to further review
before becoming final, Allen, ¶ 30; Common Cause, 263 Mont. at 333, 868 P.2d at 610.
The District Court, citing these authorities, concluded that both circumstances were
present here.
¶21 In Allen, we upheld a district court’s discretionary determination that voiding a
neighborhood plan, adopted by a planning committee, was not an appropriate remedy for
the committee’s failure to hold public meetings for several months at the beginning of its
planning process. Allen, ¶ 32. In reaching our decision, we reasoned that the public had
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ample opportunity to participate in subsequent meetings, after the committee realized it
was subject to Montana’s open meeting laws and before the final plan was adopted.
Allen, ¶ 25.
¶22 Similarly, in Zunski, we held that the Frenchtown Rural Fire Department Board of
Trustees’ decision to create an interim fire chief position and hire a specific person for
that position, made during a closed meeting, was cured when the Board readopted the
challenged action in a meeting that “complied with the open meeting and right to
participate laws.” Zunski, ¶ 17. We therefore concluded that the district court did not
abuse its discretion by refusing to void the Board’s decision. Zunski, ¶ 31.
¶23 The District Court in this case found that, during the September 12 executive
session, the Commission decided to present an offer letter to Shrives. Before any
contract was finalized, however, the public had the opportunity to comment on the
Commission’s decision on two separate occasions—the September 16 meeting during
which the Commission authorized the mayor to negotiate and conclude a final bargain
with Shrives, and the September 20 meeting during which the public was invited to read
and comment on the contract signed by Shrives.
¶24 Furthermore, the offer letter presented to Shrives explicitly stated that any contract
he signed would be subject to final approval by the Commission. That approval came at
the September 20 open meeting, following an opportunity for public comment. We
adhere to our reasoning in Allen and Common Cause—in both cases, a district court did
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not abuse its discretion by declining to void a decision that violated Montana’s open
meeting laws but was subject to final review and consideration.
¶25 We emphasized in Allen that the public had opportunities to comment after the
committee had met privately to discuss initial drafts of a neighborhood plan. Allen, ¶ 25.
We also noted that the neighborhood planning board’s recommendation to adopt the plan
was subject to review by the county commissioners, who were not bound to accept the
recommendation. Allen, ¶ 28. Because the commissioners could have rejected the
board’s recommendation, we agreed with the district court that voiding the
commissioners’ adoption of the neighborhood plan was not an appropriate remedy.
Allen, ¶ 30. We cited Common Cause, in which we held that a district court did not abuse
its discretion by declining to void a legislative committee’s decision to compile a list of
candidates for the position of Commissioner of Political Practices, despite the
committee’s violation of Montana’s open meeting laws. Allen, ¶¶ 28-29 (citing Common
Cause, 263 Mont. at 330-33, 868 P.2d at 607-09). We reached our conclusion in
Common Cause based on the fact that the committee’s list of candidates was subject to
review by the governor, who was not bound by the list in making his final decision.
Common Cause, 263 Mont. at 332, 868 P.2d at 609.
¶26 The Commission did not hire Shrives as the new city manager until it adopted his
employment contract following two additional open, public meetings after the September
12 executive session. At the time of the District Court’s ruling, Shrives had been the city
manager for nearly a year. The offer letter indicates that the contract is for a two-year
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term, which expires in September 2015. Presumably, there will be a new opportunity for
public input at that time. We conclude that the District Court did not abuse its discretion
by declining to void the Commission’s decision to present an offer letter for the position
of city manager to Shrives, even though the Commission did not make a privacy
determination before closing its executive session.
¶27 3. Whether the District Court improperly determined facts in a summary
judgment proceeding without an evidentiary hearing on the merits of the case.
¶28 In Montana, “[t]he right to a hearing is waived unless a party requests a hearing
within 14 days after the time for filing a reply brief has expired.” M. R. Civ. P. 56(c)(2).
Citizens contends that the District Court impermissibly relied on facts without holding an
evidentiary hearing and based its finding that the public had ample opportunities to
participate on incorrect facts. However, Citizens waived any right to an evidentiary
hearing by not requesting one under Rule 56(c)(2). Moreover, the record reveals no
genuine dispute of material fact on this point. Minutes from public Commission
meetings indicate that the public did in fact have two opportunities to comment on the
decision to hire Shrives as city manager before the Commission voted unanimously to
approve the employment contract: at the end of the September 16 public meeting and
before the Commission’s vote on September 20. Whether members of the public actually
used those opportunities to discuss the candidates does not call into question the District
Court’s ruling.
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CONCLUSION
¶29 The City of Polson took considerable steps to conduct its hiring process in an open
and transparent manner. The Commission did not comply with the open meeting laws,
however, when it closed its executive session without first determining that the demands
of individual privacy clearly exceeded the merits of public disclosure. Because the
Commission did not finalize its hiring decision until it held two additional open, public
meetings, we conclude that the District Court did not abuse its discretion by declining to
void the Commission’s decision to present an offer letter for the position of city manager
to Shrives.
¶30 We affirm the District Court’s decision and order.
/S/ BETH BAKER
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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