HomeMy WebLinkAbout13- Legal Memorandum re: Noticing Actions of Significant Interest to the PublicPage 2 of 5
government and its subdivisions, except in cases in which the demand of individual
privacy clearly exceeds the merits of public disclosure. (Emphasis added.)
Local governments are political subdivisions of state government. All municipal boards,
committees and commissions are a public body of local municipal government.
The Montana Legislature has provided instruction to municipalities on implementing these
provisions.
First, § 7-1-4142, MCA (2011), states,
7-1-4142. Public participation. Each municipal governing body, committee, board,
authority, or entity, in accordance with Article II, section 8, of the Montana con stitution
and Title 2, chapter 3, shall develop procedures for permitting and encouraging the public
to participate in decisions that are of significant interest to the public.
Emphasis added.
In addition, § 2-3-111, MCA, states:
2-3-111. Opportunity to submit views -- public hearings. (1) Procedures for assisting
public participation must include a method of affording interested persons reasonable
opportunity to submit data, views, or arguments, orally or in written form, prior to
making a final decision that is of significant interest to the public.
(2) When a state agency other than the board of regents proposes to take an action that
directly impacts a specific community or area and a public hearing is held, the hearing
must be held in an accessible facility in the impacted community or area or in the nearest
community or area with an accessible facility.
Emphasis added.
As for specifically noticing a matter on an agenda, §§ 2-3-103 and 2-3-201, MCA, provide
critical guidance:
2-3-103. Public participation -- governor to ensure guidelines adopted. (1) (a) 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. The agenda for a meeting, as defined in 2-3-
202, must include an item allowing public comment on any public matter that is not on
the agenda of the meeting and that is within the jurisdiction of the agency conducting the
meeting. However, the agency may not take action on any matter discussed unless
specific notice of that matter is included on an agenda and public comment has been
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allowed on that matter. Public comment received at a meeting must be incorporated into
the official minutes of the meeting, as provided in 2-3-212.
(b) For purposes of this section, "public matter" does not include contested case and other
adjudicative proceedings.
(2) The governor shall ensure that each board, bureau, commission, department,
authority, agency, or officer of the executive branch of the state adopts coordinated rules
for its programs. The guidelines must provide policies and procedures to facilitate public
participation in those programs, consistent with subsection (1). These guidelines must be
adopted as rules and published in a manner so that the rules may be provided to a
member of the public upon request. (Emphasis added.)
Emphasis added.
In analyzing the application of facts to the open meeting and public participation requirements of
the Montana Constitution, we must construe the right to know and participate liberally in favor
of the right:
2-3-201. Legislative intent -- liberal construction. The legislature finds and declares
that public boards, commissions, councils, and other public agencies in this state exist to
aid in the conduct of the peoples' business. It is the intent of this part that actions and
deliberations of all public agencies shall be conducted openly. The people of the state do
not wish to abdicate their sovereignty to the agencies which serve them. Toward these
ends, the provisions of the part shall be liberally construed. (Emphasis added.)
Emphasis added.
The Montana Supreme Court has weighed in on the importance of prior notice to an open
meeting:
Additionally, Montana law requires that public notice be given of meetings subject to the
requirements of the open meeting statutes. Board of Trustees, 606 P.2d at 1073. Without
public notice, an "open" meeting is open in theory only, not in practice. Board of
Trustees, 606 P.2d at 1073. In this case, the parties stipulated that no public notice was
given of the Committee's November 20, 1992, meeting. We conclude, therefore, that the
Committee violated § 2-3-203, MCA, of the open meeting statutes. (Emphasis added.)
Common Cause v. Statutory Comm. to Nominate Candidates for Comm’ of Political Practices,
263 Mont. 324; 868 P.2d 604; 1994 Mont. LEXIS 24 ¶ 609 (1994).
In discussing the question of whether a municipal entity, such as the Board, can bring a matter up
for the first time at a meeting and act upon it at the same meeting, the Montana Attorney
General, stated:
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[T]he right to participate under article II, section 8, is not self-executing but exists only as
provided by law. Mont. Code Ann. § 7-1-4142 is quite clear in extending the right to
participate to “each municipal governing body, committee, board, authority or entity, in
accordance with Article II, section 8 of the Montana constitution and Title 2, chapter 3.”
Thus it is my opinion that any “municipal entity” is subject to the right of the public to
participate in any action that is of significant interest to the public. Under the analysis in
Part I, that would extend to such entities the obligation to comply with Mont. Code Ann.
tit. 2, ch. 3 to the extent of any public comments directed at matters of significant public
interest.
51 Op. Att’y Gen. No. 12 (2005) (emphasis added).
The Montana Attorney General has indicated a matter is of “significant interest to the public” if
the matter “has meaning to or affects a portion of the community.” Clearly, the opening, or not,
of the city’s skating rinks affects more than a few individuals and therefore it is my opinion such
matter is of significant interest to the public. It matters not that the board’s action is only a
recommendation as the several city boards are clearly subject to the rights to know and
participate. A recommendation to the Commission to take action on a matter of significant
interest to the public is itself a matter of significant interest to the public.
In addition, the Montana Administrative Procedures Act, although not applicable to the City of
Bozeman and therefore only considered guidance, contains a definition of “significant interest to
the public:”
(12)(a) “Significant interest to the public” means agency actions under this chapter
regarding matters that the agency knows to be of widespread citizen interest. These
matters include issues involving a substantial fiscal impact to or controversy involving a
particular class or group of individuals.
§2-4-102(12)(a), MCA.
Therefore, considering the above, it is my opinion that every City board or committee must, prior
to taking any action on a matter of significant interest to the public, even if that action is a
recommendation to the City Commission on the matter, place the matter on an agenda and accept
and consider public comment.
I understand the immediacy of the need to take action to get the rinks up and running and
therefore the importance to the Board of discussing the item and acting expeditiously on a
recommendation to the City Commission. While Montana law provides an emergency exception
to the public participation requirements there must be a discussion and finding by a board that
such an issue amounts to an “emergency situation affecting the public health, safety, or welfare.”
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§ 2-3-112(1), MCA. I do not consider funding for ice rink construction to fit within such an
exception.
I recognize the Board’s motion does not contain any specific funding request nor does the
motion request the Commission take any specific action. It merely provides the Commission
notice that the Board is concerned about the funding to construct the ice rinks. The issue that is
raised here and discussed above addresses a board’s ability to take action as a body. Certainly, in
situations such as this where time may be of the essence and a regular or special meeting of the
board is not possible, individual board members may contact the Commission and make their
perspective known without the board as a whole taking formal action on the matter. This of
course, should not be the normal pattern for general board business but only used in
circumstances where formal board action is not possible. And this type of input should not be
construed as board action – it merely represents the individual opinions of board members.
In addition, and perhaps most critically, the Commission and staff liaisons to a board may
expeditiously bring such an issue to the attention of the appropriate Department Director, the
City Manager, and City Commission without requiring formal board action.
I also recognize many issues of significant interest to the public are raised for the first time
during an “FYI” session of a board or during a staff or committee report. I recommend a board
refrain from extended discussion on such an issue brought up for the first time at a meeting.
Instead, I suggest a board limit its discussion on such a matter to only the general nature of the
issue and whether the board should place the matter on a future agenda and if so the timing of
such agenda item.
Finally, it is important to reiterate that if a matter is of significant interest to the public, the Board
must provide an opportunity for the public to comment on that matter prior to a decision being
made.
Let me know if you have any questions. I’m also available to meet with you and the Board to
discuss procedures for open meetings and public participation.
BOZEMAN CITY ATTORNEY’S OFFICE
/s/
_____________________
Greg Sullivan, City Attorney