Raap v. Bd. of Trs.

• Decision Date: 27 March 2018
• Docket Number: DA 17-0386
• Citation: 391 Mont. 12,414 P.3d 788,2018 MT 58
• Parties: Kristine RAAP, Petitioner and Appellant, v. BOARD OF TRUSTEES, WOLF POINT SCHOOL DISTRICT, Respondent and Appellee.
• Court: Montana Supreme Court

391 Mont. 12

414 P.3d 788

2018 MT 58

Kristine RAAP, Petitioner and Appellant,

v.BOARD OF TRUSTEES, WOLF POINT SCHOOL DISTRICT, Respondent and Appellee.

DA 17-0386

Supreme Court of Montana.

Submitted on Briefs: November 1, 2017

Decided: March 27, 2018

For Appellant: Peter Michael Meloy, Attorney at Law, Helena, Montana

For Appellee: Mary E. Duncan, Jeffrey A. Weldon, Felt, Martin, Frazier & Weldon, P.C., Billings, Montana

Justice Dirk Sandefur delivered the Opinion of the Court.

¶ 1 Kristine Raap (Raap) appeals from the judgment of the Montana Fifteenth Judicial District Court denying her motion for summary judgment and granting summary judgment to the Wolf Point School District Board of Trustees (Board) on her claim that the Board unlawfully terminated her employment in violation of § 2-3-203, MCA (open meeting law) and the Montana Constitution, Article II, Section 9 (right to know). We reverse and remand for further proceedings, restating the issues as:

1. Did the District Court erroneously grant summary judgment that the Board lawfully closed its meeting based on unspecified third-party privacy rights?

2. Did the District Court erroneously grant summary judgment that the Board lawfully excluded Raap and her union representative from its "executive session" under the litigation strategy exception of § 2-3-203(4), MCA ?

BACKGROUND

¶ 2 The Wolf Point School District Board of Trustees hired Raap to work as a new teacher under a one-year employment contract for the 2015-16 school year. Four months into the school year, the school district superintendent recommended that the Board prematurely terminate Raap's contract. The Board set a meeting for December 22, 2015, to consider the matter. Raap had previously filed an administrative complaint with the United States Equal Employment Opportunity Commission (EEOC) in November 2015 alleging that the school district had unlawfully discriminated against her in the administration of her employment. Upon EEOC referral of the complaint to the Montana Human Rights Bureau (HRB), HRB issued a written notice on December 11, 2015, advising the Board of the complaint and resulting commencement of an HRB investigation.¹

¶ 3 On December 22, 2015, Raap and her union president appeared before the Board for hearing on the school district superintendent's recommendation to terminate her employment. In addition to Board members, the only persons present were Raap, her union representative, the superintendent, Raap's supervising school principal, and the Board's lawyer via telephone. No one else appeared or otherwise sought admittance to the meeting at any time. At the outset, the Board chair informed Raap that the meeting would be closed to the public unless she waived her right to privacy. Raap then waived her right to privacy. Despite Raap's waiver, the Board's meeting minutes reflect that the chair closed the meeting to the public "to protect the rights of individual privacy of statements and information for those not in attendance." Raap expressed her intent to electronically record the meeting but the Board chair precluded her from doing so.

¶ 4 After four hours of testimony, the Board chair re-opened the meeting to the public at which time another trustee made a motion, seconded by yet another, for the Board to terminate Raap's employment. Without discussion or deliberation on the motion, and at the request of another trustee, the chair again closed the meeting to allow the Board to privately discuss unspecified litigation strategy at an "executive session" with the Board's lawyer. The Board excluded all from the executive session except for Board members, the school superintendent, and the Board's lawyer. After an 11-minute executive session, the Board allowed Raap and her union representative back into the room. Without deliberation or discussion on the termination motion, the Board promptly voted to terminate Raap's contract. In a subsequent District Court affidavit, the Board's lawyer asserted that the Board did not discuss or deliberate whether to terminate Raap's contract in the executive session, to wit:

The litigation strategy executive session was very short and focused solely on litigation strategy related to defense of the EEOC/HRB claim and my explanation of the claim and the process that would be followed. The bulk of the 11 minutes was taken up with my explanations.

The affidavit provided no explanation or indication of the Board's need to exclude Raap and her union representative from a discussion purportedly focused solely on an explanation of the substance of her previously received complaint and "the process that would follow."

¶ 5 Following the termination of her employment and an unsuccessful union grievance, Raap filed a complaint in the Montana Fifteenth Judicial District Court alleging that the Board terminated her contract in violation of § 2-3-203, MCA, and Article II, Section 9, of the Montana Constitution. Raap requested that the District Court vacate the Board's decision to terminate her employment and to award her attorney fees and costs incurred in prosecuting the action.

¶ 6 Upon the parties' cross-motions for summary judgment, and without legal citation or analysis, the District Court summarily granted the Board summary judgment pursuant to M. R. Civ. P. 56 on the stated grounds that: (1) an asserted violation of the § 2-3-203, MCA (open meeting law), was the sole legal basis of Raap's claim; (2) the Board allowed Raap to observe and participate in the portion of the meeting pertinent to its the decision to terminate her contract; (3) the Board did not actually exclude anyone from the portion of the meeting pertaining to the termination of Raap's employment; and (4) the Board properly excluded Raap from the portion of the meeting pertinent to "another litigation" matter. Raap timely appeals.

STANDARD OF REVIEW

¶ 7 Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Citizens for Open Gov't, Inc. v. City of Polson , 2015 MT 55, ¶ 10, 378 Mont. 293, 343 P.3d 584 ; M. R. Civ. P. 56(c)(3). We review summary judgment rulings de novo for correctness under the standards of M. R. Civ. P. 56. Ternes v. St. Farm Fire & Cas. Co. , 2011 MT 156, ¶ 18, 361 Mont. 129, 257 P.3d 352 ; Roe v. City of Missoula , 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200 ; Svaldi v. Anaconda-Deer Lodge Cnty. , 2005 MT 17, ¶ 12, 325 Mont. 365, 106 P.3d 548.

DISCUSSION

¶ 8 As pertinent here, the Montana Constitution, Article II, Section 9, clearly and unambiguously mandates that:

No person shall be deprived of the right to ... observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

In conformance with Article II, Section 9, the Montana open meeting law similarly provides that "[a]ll meetings of public or governmental bodies [or] boards ... of ... any political subdivision of the state ... must be open to the public" except to the extent that "the demands of individual privacy clearly exceed the merits of public disclosure." Section 2-3-203(1) and (3), MCA.² As defined by statute, a "meeting" is a "convening of a quorum of the constituent membership of" the public or governmental body or board, "whether corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over which the [body or board] has supervision, control, jurisdiction, or advisory power." Section 2-3-202, MCA. As referenced in Article II, Section 9, the term "deliberations of ... public bodies or agencies" includes a "meeting," as defined by § 2-3-202, MCA. Upon timely petition, a district court may void "[a]ny decision made in violation" of § 2-3-203, MCA. Section 2-3-213, MCA. The sole purpose of public bodies and agencies is "to aid in the conduct of the peoples' business." Section 2-3-201, MCA. Courts must liberally construe Article II, Section 9, and § 2-3-201, MCA, to the end that all deliberations of public bodies and agencies remain open to the public except as otherwise clearly provided under recognized exceptions to the constitutional right to know and § 2-3-203, MCA.

¶ 9 In analyzing a claimed right to observe deliberations under Article II, Section 9, the pertinent issues are: (1) whether the subject entity is a public body or agency of state government or a state government subdivision; (2) whether the proceeding or decision at issue was a deliberation of that body or agency; and (3) whether the disputed deliberation was nonetheless privileged from disclosure on the grounds of individual privacy or other recognized exception to the right to know. See Mont. Const. art. II, § 9 ; Great FallsTribune v. Mont. Pub. Serv. Comm'n , 2003 MT 359, ¶¶ 38-39, 319 Mont. 38, 82 P.3d 876 (equal protection and due process rights exception); State ex rel. Smith v. Dist. Ct. , 201 Mont. 376, 383-87, 654 P.2d 982, 986-88 (1982) (speedy and fair trial rights exception); Great Falls Tribune v. Dist. Ct. , 186 Mont. 433, 438-39, 608 P.2d 116, 119-20 (1980) (speedy and fair trial rights exception). In this case, it is undisputed that the Board is a public body or agency of a political subdivision of the State of Montana. It is further undisputed that the subject proceedings of the Board constituted a "meeting," as defined by § 2-3-202, MCA, and thus a deliberation of a public body or agency as referenced in Article II, Section 9. The dispositive issue is whether the Board lawfully closed the disputed portions of the meeting.

¶ 10 Issue 1: Did the District Court erroneously grant summary judgment that the Board lawfully closed its meeting based on unspecified third-party privacy rights?

¶ 11 "The presiding officer of [a] meeting may close the meeting during the time the discussion relates to a matter of individual privacy ... if and only" upon "determin[ing] that the demands of individual...