Judge grants restraining order; Hardin City Council meeting canceled

2013-08-23T23:15:00Z 2013-08-26T07:25:07Z Judge grants restraining order; Hardin City Council meeting canceledBy ED KEMMICK ekemmick@billingsgazette.com The Billings Gazette

The city of Hardin has canceled a special meeting set for Monday in response to a District Court judge's granting of a temporary restraining order Friday.

Judge Blair Jones issued the order in response to a petition from the president of a Hardin radio station, who argued that the council met in an illegal closed session last week to discuss a proposed two-year contract with City Attorney Robert Snively.

Jones said the restraining order was warranted because "it appears likely that the petitioner will prevail on the merits" and that "allowing the City of Hardin to take action on certain matters discussed at a closed meeting" and to take action on documents that were withheld from the public "would cause great or irreparable injury to the petitioner."

That petitioner is radio station president Al Sargent. The request for a preliminary injunction was formally filed by attorney Natasha Morton on behalf of the Greater Hardin Association, which owns KRWS-FM.

The radio station's petition said the City Council, during a regular meeting Aug. 20, went into executive session. Based on what was said after the closed meeting, the petition continues, it appeared that what was discussed in private was Snively's contract, the hiring of a secretary and consideration of making Michelle Dyckman, the city's chief financial officer, the city clerk.

"There is no conceivable individual privacy at issue in these matters," the petition says.

The day after the closed meeting, Sargent went to City Hall and asked to see the proposed contract with Snively, copies of any changes or additions to or notes about the contract and a copy of the minutes of the closed meeting.

He was denied access to the documents and was told no minutes of the meeting were kept.

Sargent says in the petition that state law says public records are to be made available except when "the demand of individual privacy clearly exceeds the merits of public disclosure."

Sargent said he was unaware of whether Snively, Dyckman or anyone else asserted privacy rights. Even if someone had, he said, "society is not willing to recognize as reasonable the privacy interest of individuals who hold positions of public trust when the information sought bears on that individual's performance of public duties."

Judge Blair's order did not specifically mention the meeting scheduled for Monday night, but it did order the city to take no action "on the matters discussed at the closed City Council session ... until further ordered by this court."

Sargent said in an interview Friday that he decided to file for an injunction because city officials regularly close meetings for no good reason.

"Somebody needs to get their attention," he said. "They close meetings for fun around here."

Sargent said another "irregularity" in the case is that Snively was the one who advised the council to go into executive session, over Sargent's objections, even though Snively's own contract was to be discussed there.

Likewise, he said, when Blair held a telephone conference Friday morning to discuss the petition for an injunction, Snively argued the city's case, though he told the judge he was not representing the city in the matter.

Although Sargent still has not seen a copy of Snively's proposed contract, The Billings Gazette obtained a copy Friday.

The "agreement for legal services" says Snively would be hired as an independent contractor at the rate of $10,000 a month, or $120,000 a year. That is more than the salary of Montana Attorney General Tim Fox, who got a $16,000 raise to $115,817 as of July 1.

The contract also says Snively is free to work out of his office and to represent clients besides the city of Hardin, though he is asked to avoid cases that would lead to conflicts of interest that would prevent him from representing the city.

The city decided to offer Snively a two-year contract in response to a report on city government prepared for the city by Carson Taylor, a private mediator from Bozeman. The report was dated June 28.

In his report, which looked into relations among city employees and their interactions with the City Council, Taylor pointed out that state law and an applicable local ordinance required that the city attorney be hired under contract for no more than two years at a time.

Snively had been working for the city since 2009 with no such limit. In his report, Taylor said Snively told him that he was unaware of the two-year limitation when he was hired, and that he "did not see any purpose in divulging the ordinance after he discovered it, since he was already hired."

Taylor recommended that the city hire an outside attorney to negotiate a two-year contract with Snively. The city did hire a Billings attorney to draft a proposed contract, Sargent said, but not to negotiate it.

Taylor further suggested that the City Council have a discussion about what it would like in a city attorney. He said they could talk about all sorts of issues, ranging from the scope of his duties and time commitment to the question of whether an additional attorney was needed.

"The above discussion should, indeed must, be done in an open meeting," Taylor said in his report.

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