Gazette opinion: Council must rectify failure to give public notice

2014-06-30T00:00:00Z 2014-06-30T06:26:03Z Gazette opinion: Council must rectify failure to give public notice The Billings Gazette
June 30, 2014 12:00 am

The Billings City Council has violated the Montana Constitution and state statute by failing to give public notice of “council initiatives” and votes.

The council’s meeting agenda for June 23 – available to the public on June 20 – failed to give notice that:

- Councilman Denis Pitman would propose seeking an attorney general’s opinion on the nondiscrimination ordinance city staff is still drafting.

- Councilwoman Angela Cimmino would move to have the city buy U.S. flags to decorate downtown.

- Councilwoman Becky Bird would move to have city staff create a plan for cultural diversity training of council and department heads.

- Councilman Brent Cromley would move to give council members 24 hours’ notice of council initiatives.

All those matters were first announced after all public comment periods had ended at the meeting. The council initiatives were the last business of the night.

Montana has some of the strongest open government guarantees of any state in the Union. The right of participation, enshrined in the state constitution and spelled out in the Right of Participation in Government Act, requires public officials to encourage participation. But that right is meaningless if citizens don’t know what the City Council will act on. The right of participation comes down to public notice.

To effectively influence an official vote, citizens must already know what the council will be voting on.

It is not sufficient that the public was allowed to comment on “nonagenda items” before the “council initiatives” were disclosed and acted upon.

Those initiatives were not on the public agenda and, therefore, the public was deprived of the right of participation.

The Bill of Rights Committee, which wrote the right of participation language for the 1972 Montana Constitution made this comment: “The provision is in part a constitutional sermon designed to serve notice to agencies of government that the citizens of the state will expect to participate in agency decisions prior to the time the agency makes up its mind.”

“The purpose of public meetings is for information to go two ways,” said Martha Sheehy, a Billings attorney well-versed in open government law. “The public has the right to the information the council has. The public has the right to comment if there is going to be a vote.”

Mike Meloy, a Helena attorney who works with the Montana Freedom of Information Hotline said: ‘Since these ‘initiatives’ can be decisions of significant public interest, failure to give public notice violates both constitutional rights to know and participate.”

The legal remedy for violation of the open meeting law is nullification of the council action. Montana law provides that illegal votes can be voided by District Court if a challenge is filed within 30 days of the action.

The Billings Gazette has had to go to court many times over the years to force our city government to abide by open government laws. Neither the community newspaper nor any individual citizens should have to sue to get their elected representatives to abide by the law.

We call on 11 council members to avoid a potential lawsuit and simply follow the law: Put the two council initiatives approved on June 23 on the July 14 agenda, provide opportunity for public comment and vote again.

The June 23 meeting was unusual for the number of initiatives and for the ramifications of the AG opinion directive. But “council initiatives” routinely is listed as the last item on the agenda, and the subjects of initiatives are never disclosed on the agenda.

Going forward, the City Council must give all council initiatives the same public notice as any other agenda item. That’s the law.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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