Goyen v. City of Troy

• Decision Date: 23 May 1996
• Docket Number: No. 95-491,95-491
• Citation: 915 P.2d 824,276 Mont. 213
• Parties: Will GOYEN and Bonnie Goyen, Plaintiffs and Appellants, v. CITY OF TROY, Montana, a body politic and corporate; the City Council thereof; and Rod Johnson, Mayor; Jim Hammons, Loretta Jones, Ron Pierce, and Laura Schrader, in the official capacity as City Council members, Defendants and Respondents.
• Court: Montana Supreme Court

Page 824

915 P.2d 824

276 Mont. 213

Will GOYEN and Bonnie Goyen, Plaintiffs and Appellants, v. CITY OF TROY, Montana, a body politic and corporate; the City Council thereof; and Rod Johnson, Mayor; Jim Hammons Loretta Jones, Ron Pierce, and Laura Schrader, in the official capacity as City Council members, Defendants and Respondents.

No. 95-491.

Supreme Court of Montana.

Submitted on Briefs March 14, 1996.

Decided April 22, 1996.

Rehearing Denied May 23, 1996.

Appeal from District Court of the Nineteenth Judicial District, In and for the County of Lincoln; The Honorable Robert S. Keller, Judge presiding.

Michael H. Keedy, Atherton & Keedy, Kalispell, for appellants.

Thomas R. Bostock, Warden, Christiansen, Johnson & Berg, Kalispell, for respondents.

ERDMANN, Justice.

This is an appeal from an order of the Nineteenth Judicial District Court, Lincoln County, denying Will and Bonnie Goyens' petition and quashing their application for alternative writs of mandamus and prohibition. We affirm.

The dispositive issues are as follows:

1. Did the District Court err in concluding there was no violation of the open meeting law in regard to the May 10, 1995, meeting?

2. Did the District Court err in concluding there was no violation of the open meeting law in regard to the August 16, 1995, hearing?

3. Did the District Court err in quashing the writs of mandamus and prohibition?

FACTS

Will Goyen was the Chief of Police in Troy. At the May 10, 1995, city council meeting, a number of citizens showed up to question the mayor concerning Goyen's involvement in an incident locally known as "gravel-gate." The gravel-gate incident involved the removal of a significant quantity of gravel from a city gravel pile by both Goyen and another individual. Apparently Goyen had permission from a council member to use a city vehicle and remove the gravel. However, while Goyen was removing the gravel, another private citizen was also at the gravel pile and removed approximately seventy yards of gravel without any authority to do so. Goyen took no action to stop or to report the violation.

The gravel-gate incident was not on the May 10 agenda and the mayor and city council were not aware that it would be raised prior to the meeting. Goyen was not present at the meeting. When the issue was raised at the meeting, the mayor stated that the matter was a personal problem and would not be handled at a public meeting. Following the meeting, the council went into executive session to discuss the allegations against Goyen. Goyen was not notified that the council would be closing the meeting to discuss matters that impacted on his individual privacy rights.

Before the council went into executive session, Crystal Denton, a local woman, asked the mayor that she be permitted to speak privately to the council. The mayor testified that he did not know what she wanted to talk about. Denton informed the council that she and Goyen had engaged in several voluntary acts of sexual intercourse in or near the city patrol car while Goyen was on duty and in uniform. The mayor and the council listened to these allegations and informed Denton that she needed to file a sworn statement before any action could be taken. Denton later filed a sworn statement and the mayor confronted Goyen with the allegations. Goyen denied the content of her allegations.

Members of the community raised a number of additional allegations in regard to Goyen and as a result the mayor suspended Goyen for five days. On August 1, 1995, a letter was prepared recommending discharge and a pre-termination discharge hearing was scheduled for August 16, 1995.

The August 16 hearing was held in open session and Goyen and his attorney were given the right to cross-examine all witnesses. At Denton's request, the meeting was closed during her testimony although Goyen and his attorney were allowed to remain. During Denton's testimony, the council was informed that another witness, Sharon Anderson, needed to testify at that time due to her work schedule. Since the council did not have subpoena power, they interrupted Denton's testimony and allowed Anderson to testify. The mayor was aware that Anderson's testimony concerned the relationship between Denton and Goyen and therefore kept the meeting closed. Goyen did not object to this closure. Anderson testified as to her observations of physical contact between Denton and Goyen while Goyen was on duty and in uniform. Following Anderson's testimony, Denton continued with her testimony in closed session.

The hearing took a total of nine and one-half hours and the council conducted their deliberations in open session. The council voted unanimously to fire Goyen, finding that he had not been truthful in his response to the gravel issue and that a preponderance of the evidence indicated that he had sexual intercourse with Denton on at least two occasions while he was on duty, in uniform, and using the patrol car. The council also found that Goyen had wrongfully removed beer from the city police evidence locker and that he had improperly handled a traffic arrest by permitting an obviously intoxicated minor to drive an uninsured vehicle which resulted in damage to the vehicle.

Following his discharge, Goyen and his wife filed a petition to void the city council's decision pursuant to the open meeting law and also filed writs of mandamus and prohibition. These claims were combined in a single action. The court initially issued the alternative writs but following a hearing on a motion to quash, subsequently quashed the writs and dismissed the petition. From the court's denial of the Goyens' petition and writs, they appeal.

ISSUE 1

Did the District Court err in concluding there was no violation of the open meeting law in regard to the May 10, 1995, meeting?

Section 2-3-203, MCA, provides that all meetings of governmental bodies be open with the following exception:

[T]he presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open.

Section 2-3-203(3), MCA.

In its conclusions of law, the District Court determined that

The closure of the May 10 meeting to the public by the Mayor was made for the individual privacy of Will Goyen, and the Mayor had made a determination that the demands of individual privacy clearly exceeded the merits of public disclosure; the continued closure while Crystal Denton addressed the council still involved the individual privacy of Will Goyen, and it also included Denton's right to privacy, apart from the fact that there was no one else there anyhow; and, nothing was done by the council, so there is nothing to void.

While the District Court's conclusion upheld a discretionary decision to close the meeting on May 10, our review is based upon the District Court's interpretation of § 2-3-203, MCA, and so we will review the court's conclusion for correctness of law. See Day v. Child Support Enforcement Div. (1995), 272 Mont. 170, 175, 900 P.2d 296, 299.

Goyen asserts he did not attend the May 10 meeting because he had no notice that he was going to be discussed. Without notice, Goyen argues he was in no position to either assert or waive his right of individual privacy. Therefore, he claims any discussion pertaining to him should have transpired in open session pursuant to § 2-3-203, MCA, so that the public could adequately evaluate whether the resulting action by the council--Goyen's discharge--was fair and appropriate. Goyen contends his discharge should be void as a result of the council's violation in closing the May 10 meeting.

As noted, § 2-3-203, MCA, allows an individual about whom the discussion pertains to waive his or her right of individual privacy. That right is ineffectual where the individual had no notice of the closure. A right granted is presumed to include whatever rights are essential to its use. Section 1-3-213, MCA. Therefore, the statutory right to waive individual privacy implies that notice must be given to the individual discussed so that he or she has the opportunity to waive this right.

In the present case, the council discussed the allegations against Goyen concerning gravel-gate in executive session because the mayor, as the presiding officer, determined the demands of Goyen's privacy interests clearly exceeded the merits of public disclosure. Once the demands of individual privacy were found to predominate, the council was obligated to notify Goyen so that he could exercise his right to waive that interest. Goyen was not notified. As a result, the council's discussion of Goyen's privacy interest in executive session violated § 2-3-203, MCA, of the open meeting statutes.

It must be noted, however, that once the mayor determined that Goyen's privacy interest outweighed the public's right to know, the council could not discuss the matter in open session without subjecting themselves to a potential action for invasion of Goyen's privacy. In these situations, public bodies subject to the open meeting law should simply defer any discussion of the issue until the individual whose privacy interest is involved is notified and is given the opportunity to attend the meeting and/or waive his or her right of privacy and have the meeting conducted in open session. Thus, without notice to Goyen the discussion of the gravel-gate incident during an open meeting on that date would have been inappropriate as well.

As for the May 10 Denton allegations, Goyen's privacy interest was again the topic of discussion. Consequently, Goyen had a right to be notified of that discussion, regardless of whether Denton's assertion of her own privacy interest was...