Missoulian, a div. of Lee Enterprises, Inc. v. Board of Regents of Higher Educ.

• Decision Date: 23 January 1984
• Docket Number: No. 82-269,82-269
• Citation: 41 St.Rep. 110,675 P.2d 962,207 Mont. 513
• Parties: , 15 Ed. Law Rep. 1305 The MISSOULIAN, A DIVISION OF LEE ENTERPRISES, INC., Plaintiff and Appellant, v. BOARD OF REGENTS OF HIGHER EDUCATION and John Richardson, Commissioner of Higher Education, Defendants and Respondents.
• Court: Montana Supreme Court

Page 962

675 P.2d 962

207 Mont. 513, 15 Ed. Law Rep. 1305

The MISSOULIAN, A DIVISION OF LEE ENTERPRISES, INC., Plaintiff and Appellant, v. BOARD OF REGENTS OF HIGHER EDUCATION and John Richardson,

Commissioner of Higher Education, Defendants and

Respondents.

No. 82-269.

Supreme Court of Montana.

Submitted Oct. 31, 1983.

Decided Jan. 23, 1984.

Miloragovich, Dale & Dye; Harold V. Dye argued, Missoula, for appellant.

G. Steven Brown argued, LeRoy Schramm, Montana University System, Helena, for respondents.

Jayne Mitchell, Helena, for Dept. of Admin. amicus curiae.

WEBER, Justice.

Plaintiff Missoulian appeals from summary judgment granted by the First Judicial District Court, Lewis and Clark County. The action was brought by the Missoulian under the Montana Constitution and Open Meeting Act, challenging closure by the Board of Regents (Board) of a job performance evaluation meeting concerning presidents of the six university system units. The District Court granted summary judgment, upholding the legality of the meeting closure. The Missoulian appeals and the State Department of Administration appears as amicus curiae. We affirm the judgment of the District Court.

The issues are:

1. Whether job performance evaluations of university presidents, which elicit candid and subjective comments from Board members, anonymous interviewees, and the presidents themselves, are matters of individual privacy protected by the Montana Constitution or whether the privacy clause protects only matters of family or health not affecting job performance?

2. Whether the university presidents' privacy interests in job performance evaluations clearly exceed the public's constitutional and statutory right to know, particularly in light of the Board's contention that confidential evaluations are in the public interest?

3. Whether closure of job performance evaluation meetings is necessary to protect the presidents' privacy interests or whether alternative methods exist for protecting individual privacy in evaluation meetings?

On January 7, 1980, the Board adopted procedures for evaluation of university presidents. The Board and the Commissioner of Higher Education (Commissioner) are responsible for hiring, firing and supervising the presidents. The Performance Evaluation Policy provided for two levels of evaluation, an annual review and a more thorough periodic evaluation, which was to occur every three years. Annual review involved a president preparing a statement of goals and objectives for his institution and an informal and confidential discussion of performance between the president and the Board. In 1980, Presidents William Tietz (Montana State University), Fred DeMoney (Montana College of Mineral Science and Technology), James Erickson (Northern Montana College), and Robert Thomas (Western Montana College) were evaluated under annual review procedures.

Periodic evaluation was, by contrast, more formal and structured. A president undergoing periodic evaluation was to prepare a thorough evaluation of his own performance and of the performance of his administration in the areas of academic administration and planning, fiscal management, problem solving and decision making, personnel management and appointments and external relations. The Commissioner was to interview persons representative of faculty, staff, students, administration, alumni, community leaders and elected officials on various aspects of the president's performance. The Board would then discuss in confidence with the president the self-evaluation and results of the Commissioner's interviews. In 1980, Presidents Richard Bowers (University of Montana) and John Van de Wetering (Eastern Montana College) were evaluated under periodic review procedures.

Prior to the May 3, 1980 meeting, the Commissioner, John Richardson (Richardson) conducted 74 interviews concerning the job performance of Presidents Bowers and Van de Wetering. The Commissioner gave each interviewee an assurance of confidentiality at the beginning of the interview and in the letter requesting the interview. The interviews covered the issues listed in the Board's job performance evaluation policy. In conducting his interviews, Richardson used what he termed a "directed interview format." Richardson would ask each interviewee a series of open-ended questions concerning the president's performance. Interviewees were asked for their evaluations of the president's strengths and weaknesses. Using the topic areas of his interview sheet as an outline, Richardson then prepared a summary of the results of the interviews broken down by category of interviewee. In presenting his summary at the May 3 meeting, Richardson took care that particular interviewees could not be identified from his remarks.

The Board's Performance Evaluation Policy specifies that "[t]he principle of confidentiality will be observed throughout the review process" and that the principle will "apply to written documents and to discussions among all those who participate." The policy further specifies that the evaluations will be conducted in "executive session."

At the Board's April 21, 1980 meeting, the Missoulian formally requested to attend the performance evaluation of UM President Richard Bowers and to review the evaluation documents considered by the Board. The Missoulian's request was based on the contention that the meeting involved "the carrying out of the public's business in public education and therefore the public should be apprised." The request was denied on grounds that the demands of individual privacy clearly exceeded the merits of public disclosure. In its brief, the Missoulian states that it wished access to this information "simply because of its news value to its readership." Later, Missoulian changed its request to include access to all presidential evaluations. An attempt at a compromise solution failed.

At the May 3, 1980 meeting, the Missoulian requested access to each evaluation session. That request was denied. The Missoulian's reporter, Mea Andrews, asked each president and the Commissioner if they would waive their privacy rights; each refused. The evaluations were conducted with only the Board, the Commissioner and the individual president present. No handwritten or recorded minutes were kept.

After the meeting, a statement of goals prepared by each president was released to reporters. Also released was a list of the categories of interviewees and questions asked in the interviews by the Commissioner. Chairman Ted James stated after the meeting that most of the annual review sessions could have been open and some of the periodic review sessions could have been open.

The Board notes that during consideration of the evaluation procedures prior to their adoption, a copy of the proposed procedures was circulated to the members of the press, including the Missoulian. No objection to the procedures was made by the Missoulian. Further, an editorial written by publisher Tom Brown had appeared in the Missoulian supporting the evaluation procedure because it removed the evaluation from the political process and because every employee, whether he be "a typist at a local business or the president of the university, deserves a fair, honest and thorough evaluation of performance."

Four of the Presidents, Erickson, Tietz, Thomas, and DeMoney, were evaluated under the less extensive annual review procedure. These evaluations were generally short, lasting from 15 to 45 minutes. Each President subjected to annual review submitted a list of objectives and goals, but these were not discussed at the meeting. Each of these presidents had an expectation that the process would be confidential.

Presidents Bowers and Van de Wetering were evaluated under the three-year periodic review procedure. Their evaluations lasted approximately an hour to an hour and a half. Each prepared and submitted in advance a written self-evaluation.

Bowers' self-evaluation was an analysis of his performance as President and an evaluation of his administration, staff and faculty. Bowers prepared his self-evaluation with an expectation of confidentiality. He would have written the self-evaluation differently if it was to be a public document. Bower's self-evaluation contained statements and criticisms which if made public would have damaged his ability to function as UM president. These statements would not have been made if they were to be released to the public. If Bowers had deleted or modified these statements, he believes his self-evaluation would have been an incomplete statement and would not have been an accurate self-evaluation of his "total performance as president."

Van de Wetering marked his self-evaluation "CONFIDENTIAL" and prepared it believing it would be read only by the Commissioner and the Regents. In his preface, he stated he was attempting to "let it all hang out." He stated he would not have been so frank if it were meant to be made public. Van de Wetering's self-evaluation also contained potentially damaging comments which would be made only in confidence. He believes he could not have survived as EMC president and that his governing ability and his ability to work with various individuals would have been adversely affected had the self-evaluation been publicly released.

The Commissioner presented to the Board an oral summary of the comments gathered during his confidential campus and community interviews. These comments consisted of subjective evaluations of the presidents' strengths, weaknesses, and effectiveness in a number of subject areas.

Following this presentation by the Commissioner, the sessions consisted of discussions of various areas of performance or problem areas and discussion of rumors and accusations. During the meetings, no policy decisions or directives were made nor were the merits of any particular policies debated. The record shows that policy matters were involved in the evaluations only...