HomeMy WebLinkAbout03-27-20 Final Letter Of Advice on Public Meetings from AG Fox ATTORNEY GENERAL
STATE OF MONTANA
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Tim Fox Department of Justice
Attorney General z = �'`: Joseph P.Mazurek Building
215 North Sanders
Jon Bennion P.O.Box 201401
Chief Deputy Attorney General Helena,MT 59620-1401
March 27, 2020
Wyatt Glade Montana League of Cities and Towns
Custer County Attorney P.O. Box 7388
President of Montana County Attorney Assoc. Helena, MT 59604-7388
1010 Main Street kelly.lynch@mtleague.net
Miles City,MT 59301
attorney@co.custer.mt.us
Greg Sullivan
Bozeman City Attorney
P.O. Box 1230
Bozeman,MT 59771-1230
gsullivan@bozeman.net
Re: Request for Opinion
Open public meetings during an emergency
Gentlemen:
On behalf of Custer County,the City of Bozeman and the Montana County Attorneys Association
you have jointly requested an Opinion regarding an issue we have rephrased as follows:
During a declared state of emergency affecting the citizens and government of the State
of Montana,may a public agency or local government conduct public meetings in whole
or in part, after reasonable notice to the public, by means including electronic
communication, video conferencing or other forms of remote participation?
Your request is made because of emergencies declared by both the State of Montana and the
President of the United States to suppress the danger to the public posed by the novel coronavirus
and resulting COVID-19.
On March 24,2020,Governor Bullock issued a Directive authorizing local governments to modify
the means by which they conduct the people's business, including modification of work hours,
office access, building closures and work practices. That Directive specifically states:
Local governments are encouraged to find ways to provide for the right of public
participation consistent with social distancing practices, including virtual participation
where legal and practicable.
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Wyatt Glade
Greg Sullivan
March 27, 2020
Page 2
On March 26, 2020, Governor Bullock issued another Directive to "immediately implement
measures to ensure social distancing to prevent the spread of disease." The Governor declared:
I have determined that to protect public health and human safety, it is essential to the
health, safety,and welfare of the State of Montana during the ongoing state of emergency
that, to the maximum extent possible, individuals stay at home or at their place of
residence.
Section I. 1. of the Directive specifically limits activity outside the home or place of residence"to
the greatest extent possible, except as allowed in this Directive." Further, the Directive states:
All public and private gatherings of any number of people occurring outside a household
or living unit are prohibited,except for the limited purposes permitted by this Directive.
Governor's Directive, March 26, 2020, Section 3 (emphasis added). The Governor's Directive
thereafter does not allow residents to leave their residences to attend government-centered
meetings, conferences, workshops or any other type of public gathering related to the ongoing
business of local government.
The March 26, 2020 Directive is effective from March 28 through April 10, 2020. If the "shelter"
Directive is extended, your question regarding open meetings will present again. Based upon the
research that you provided and our own, we offer the following advice.
Article II, Section 8 of the Montana Constitution provides:
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. The Legislature has
codified guidelines to protect the Article II, Section 8, guarantees at § 2-3-101, et seq.,
MCA.
Article II, Section 9 of the Montana Constitution provides:
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.
As you referenced,these rights are also generally created statutorily pursuant to Mont. Code Ann.
§§2-3-103,2-3-111 and 2-3-201. The Legislature has also codified specific requirements for local
governments with respect to public participation in government operations. (See §§ 7-1-4142 and
7-1-4143.) Under the Montana Constitution, the "right of participation" requires a "reasonable
opportunity" and "right to know" carries the mandate of the opportunity to "observe." Neither
require actual physical presence.
Wyatt Glade
Greg Sullivan
March 27, 2020
Page 3
Each agency shall develop procedures for permitting and encouraging the public to
participate in agency decisions that are of significant interest to the public. The
procedures must ensure adequate notice and assist public participation before a final
agency action is taken that is of significant interest to the public.
Mont. Code Ann. § 2-3-103(1)(a) (emphasis added). An agenda,notice, and an opportunity for
public comment must be provided. Id.
In 47 Op. Att'y Gen. No. 13 (1998),Attorney General Mazurek recognized that under Montana's
open meeting and public participation laws,the public must be given"the opportunity to
participate"in any decision of a local government, other than ministerial acts, if there is any
question of whether the decision is of"significant public interest." The Opinion notes statutory
provisions regarding the public's "right to observe the deliberation of all public bodies . . ."
found in Title 2, Ch. 2, Part 2,Montana Code Annotated. 47 Op. Att'y Gen. No. 13 at 2. The
intent of the statutes is to ensure that public agencies conduct all actions and deliberations
openly. Id. Additionally, under Mont. Code Ann. § 7-5-2125, all meetings of a county
commission"must be public." Id. One may assume that this principle applies to town and city
council meetings as well.
While that Opinion was concerned with the subjects triggering the requirement of holding open
meetings, the intent of the statutory and constitutional requirements for open government are
applicable here. Our previous analysis of cases and statutes revealed the intent that the public be
provided the reasonable opportunity to participate and observe while the manner or mechanism
is not defined.
The "right of participation"requires each public body to adopt policies which permit and
encourage public participation in agency decisions. 47 Op. Att'y Gen. No. 13 at 3. The required
procedures "must include a method of affording interested persons reasonable opportunity to
submit data,views, or arguments, orally or in written form,prior to a final decision that is of
significant interest to the public." Id., citing Mont. Code Ann. § 2-3-111(1). The Opinion notes
that public participation may be waived when the agency decision concerns an emergency
situation affecting the public health, welfare or safety(Mont. Code Ann. § 2-3-112(1)), but that
involves the subject of the decision itself.
The authorities cited in 47 Op. Att'y Gen.No. 13 indicate that a reasonable opportunity for
public observation and participation is required. The manner by which notice,participation and
observation are provided to the public must be reasonable. Id. at 5.
Based on the above and the prior analysis by General Mazurek,the proposed"Guidelines for
Conducting Local Public Meetings During COVID-19 Emergency" (revised March 27, 2020
through 1:00 p.m.; see Attachment) are reasonable and consistent with the intent of both the
Montana Constitution and implementing statutes and the Governor's Directives during this
emergency.
Wyatt Glade
Greg Sullivan
March 27, 2020
Page 4
This letter is provided as a letter of advice to assist your resolution of the question presented as
quickly as possible under these unprecedented events. It is not a formal Attorney General
Opinion and should not be presented or cited as such.
Sincerely_.
TIM FO
Attorney General
Enc.
Attachment to Letter of Advice, March 27,2020
Proposed March 25, 2020 (revised by Montana League of Cities and Towns, through 1:00
p.m. March 27,2020):
Guidelines for Conducting Local Public Meetings During COVID-19 Emergency
Montana local governments have a responsibility, duty, and power to secure and promote the
public health and safety of those persons present in their respective jurisdictions as well as their
public employee staffs and public officials from the COVID-19 pandemic disease. I recognize that
different types and forms of Montana local government exist pursuant to Montana state law, and
these different local governments have different statutory and local laws governing notice and
conduct of public meetings. Therefore, each public agency should discuss the best protocol to
follow with their respective local government attorney and executive staff before making any
decision about when and how to proceed with a public meeting during the COVID-19 emergency
pursuant to these guidelines.
1. Cancel Non-Essential Meetings. During this national and state COVID-19 emergency,
and in light of Executive Directive Implementing Executive Orders 2-2020 and 3-2020
providing measures for the operation of local government issued March 24, 2020, local
governments should take all steps possible to indefinitely suspend all non-essential public
meetings of any board, agency, or committee of the local government other than the
governing body.
2. Limit Public Meetings to Critical Items Only. If a local government determines that a
public meeting must be held, local governments should strive to limit the meeting to only
those items necessitating immediate or timely action by the governing body. The local
government may consider using a"consent agenda" or other methods for allowing for the
quickest and most efficient meeting possible.
3. Determine Type of Meeting.In accordance with current public health and safety protocols
and national or state directives,the local government should determine the best method for
holding a public meeting while protecting public health and safety. During the COVID-19
emergency, a public meeting may be held through remote means.
4. Noticing the Public Meeting. The notice of any public meeting held during the COVID-
19 emergency should also include information on the method by which the meeting will
be held, including information about how the public may participate remotely and how
documents to be discussed during the meeting can be accessed by the public.
5. Meetings by Remote Communication. If a meeting will be held in whole or in part
through remote attendance and participation, the local government should strive, if
possible,to provide a remote communication system that provides the members of the local
governing body and the public the ability to see, hear, and reasonably participate in the
meeting. If a local government does not have the technology or resources to provide video
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conferencing, either temporarily or permanently, the local government must ensure, at a
minimum:
a. Each member of the governing body and the public in attendance must be able to
adequately hear each other;
b. Members of the public must be provided a reasonable opportunity to comment on both
items on the agenda and on any matters not on the agenda, either through participation
via the remote communication system or by other reasonable means;
c. All members of the governing body and the public must be able to reasonably observe
all materials reviewed and discussed by the governing body during the meeting. The
local government may determine the best procedure for submitting materials to the
governing body prior to or during the meeting, so long as the public can access the
agenda and all related materials through one of the following methods:
i. On the local government's website;
ii. Through the video conferencing platform to be used for the meeting; or
Ili. On an individual basis by email, mail, in-person, or other method described
in the notice of the meeting.
d. The local government must provide a method to take minutes of or record the meeting
pursuant to the governing body's established rules for taking minutes.
These guidelines are recommendations as to how Montana local governments might implement
temporary emergency measures for public meetings that provide reasonable opportunity for public
participation prior to public body final decision making in light of the current emergency
circumstances. The current COVID-19 pandemic necessitates a balancing of public participatory
rights and more limited local government operations, including limited public meetings, that take
into account current public health and safety protocols and national or state directives and
recommended measures including social distancing and shelter in place orders. Acting in
accordance with these guidelines will allow a reasonable opportunity for public participation and
critical local government operations to continue while protecting the public health and safety of
the public, local government employees, and local elected officials.
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