Judge considers motion to dismiss suit against Custer County officials

2012-10-05T17:30:00Z 2012-10-05T20:22:08Z Judge considers motion to dismiss suit against Custer County officialsBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

COLUMBUS — After hearing legal arguments Friday afternoon, a District Court judge said he would rule as quickly as possible on a motion to dismiss a lawsuit filed against a group of Custer County elected officials.

Stillwater County Judge Blair Jones said he hoped to have a decision within a month on the motion in a case involving cash paid out to the officials in lieu of health insurance benefits.

The suit was filed in September 2011 by Miles City resident Brian F. Schoof, who asked the court to void the 2007 meeting at which the Custer County Commission authorized the payments.

Schoof argued that the meeting was illegal because it was not open to the public, and that he did not even learn of the meeting until a month before he filed the lawsuit.

Schoof originally represented himself in the case, but an amended complaint was later filed by Helena attorney Mike Meloy, who appeared on Schoof's behalf on Friday. Representing Custer County was Mike Sehestedt, an attorney for the Montana Association of Counties.

The complaint says the three commissioners then serving — Jack Nesbitt, Gary Matthews and the late Milo Huber — all took cash payments in lieu of the health insurance premium, as did county School Superintendent Doug Ellingson, Clerk of Court Hazel Parker and Sheriff Tony Harbaugh. All of those officials are also named as defendants, as is current County Commissioner Keith Holmlund.

Also named was County Attorney Wyatt Glade. Schoof had asked the court to direct Glade to recover money illegally paid to county officials.

The lawsuit grew out of a Custer County Commission meeting on July 26, 2007, at which commissioners adopted a policy permitting elected county officials to take cash in lieu of the money that the county would have contributed as premiums to their health insurance plans.

Besides objecting to the closed meeting, Schoof claimed that the action was discriminatory because the policy was offered only to elected officials, not to all county employees. The lawsuit says Glade advised the commissioners that the policy would be discriminatory, but they approved it anyway.

In his motion to dismiss the suit, Sehestedt said the claim regarding a violation of the state open-meetings law should be barred because the law in effect at the time specified that a suit had to be filed within 30 days of the decision made at the meeting in question.

Meloy, however, told the judge that another state law, which governed all statutes of limitations in Montana, said the limitation did not apply "if the facts constituting the claim are by their nature concealed."

Sehestedt countered that no attempt was made to conceal the County Commission's decision, citing minutes of the meeting that were prepared and made available to the public soon after the meeting.

But Meloy read from those minutes in court Friday, telling the judge that the only mention of the cash-in-lieu-of-insurance issue was brief and virtually opaque to anyone who hadn't attended the meeting.

Also at issue was whether Schoof had legal standing to file the suit and whether the court could compel the county attorney to recover funds paid out as a result of a decision made in a meeting that could end up being voided.

The case is being heard in Stillwater County after a Miles City judge recused himself.

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