No. 92-177
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
CITIZENS TO RECALL MAYOR JAMES WHITLOCK,
Plaintiffs and Respondents,
MAYOR JAMES WHITLOCK, ' .. ~~
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Defendant and Appellant, i ' , :J
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and , .:!.:,:,,
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HAMILTON CITY COUNCIL, EDNA MAE LEONARD,
VIVIAN YANG, JACK EDMONDS, JOHN ROBINSON, ,
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CLAUDIA WILLIAMSON, CRAIG STIRLING,
Third Party Plaintiffs and Respondents,
and
JOHN AND JANE DOES 1 THROUGH 10,
Third Party Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Edward McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry W. Jones, Attorney at Law, Missoula, Montana
For Respondent:
Joan Jonkel, Attorney at Law, (Jane Doe) Missoula,
Montana
Richard A. Weber, Jr., Hamilton City Attorney,
Hamilton, Montana
David A. Trihey, Pro Se, Hamilton, Montana
Submitted on Briefs: July 23, 1992
- 0
Decided: December 17, 1992
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Hamilton City Mayor James Whitlock appeals from a March 24,
1992, order and declaratory judgment of the Fourth Judicial
District Court, Ravalli County, authorizing public disclosure of
the "Toole Report" by the Hamilton City Council. On March 27,
1992, District Court Judge Ed McLean stayed enforcement of the
order pending appeal. We affirm.
The issues on appeal are:
1. Was the request made by the Citizens to Recall Mayor
James Whitlock to order disclosure of the Toole Report barred by
the statute of limitations?
2. Was the District Court's order authorizing the Hamilton
City Council to disclose the Toole Report a violation of Mayor
Whitlock's individual right of privacy?
3. Was the District Court's order an improper judgment on
the pleadings?
Hamilton City Judge Martha A. Bethel filed a complaint with
the Montana Human Rights Commission against the City of Hamilton
and Mayor Whitlock in June 1990. She claimed she had been sexually
harassed and discriminated against by Whitlock. The City Council
hired Ken Toole, an independent investigator, to look into Bethel's
allegations and prepare a report for the City Council. Following
Toole's investigation and lengthy negotiations, the City entered
into a mediated settlement agreement with Bethel in September 1991.
The settlement included a waiver of Bethel's individual right of
privacy in regard to Toole's findings, payment of her attorney's
fees, and other monetary and nonmonetary considerations. The
contents of Toole's investigatory report ("Toole ReportM) were
never made public, and Bethel's complaint against Whitlock is still
pending before the Human Rights Commission.
On December 3, 1991, the Citizens to Recall Mayor James
Whitlock (Citizens Group) filed a complaint in District Court
requesting the court to order the City Council to release copies of
the Toole Report. The City Council stated in its answer and
counterclaim that the report had been kept confidential because
Whitlock had invoked his constitutional right of privacyto prevent
disclosure of the report's contents and to keep council meetings
regarding the matter confidential and closed. Even though the
settlement agreement specifically provided for disclosure of the
investigation report, the City feared it would subject itself to a
claim for damages for violating an individual's privacy right if
the Council publicly discussed or released information related to
Bethel's allegations. However, the Council, acknowledging
constitutional and statutory provisions requiring open meetings and
the public's right to know, stated its belief that the public's
right to know in this instance clearly exceeded Whitlock's
individual privacy right. Therefore, in its counterclaim, the
Council requested a declaratory judgment directing public
disclosure of the report and public participation in Council
meetings which discussed the investigation.
At the conclusion of a hearing on March 2 4 , 1992, the District
Court agreed with the City and held that an elected official had no
3
reasonable expectation of privacy when accused of misconduct in
office. The court, therefore, concluded Whitlock s right of
privacy did not outweigh the public's right to know, and authorized
release of the Toole Report. On March 27, 1992, enforcement of
this bench order was stayed pending Whitlock's appeal.
I
Was the request made by the Citizens to recall Mayor James
Whitlock to order disclosure of the Toole Report barred by the
statute of limitations?
Appellant Whitlock initially raises a statute of limitations
argument, claiming the Citizens Group is challenging a City Council
decision, made at a closed meeting, to keep the Toole Report
confidential. Whitlock notes that Montana's Open Meeting Law
requires a suit seeking voidance of such a decision to be made
within 30 days of the time the decision was made, Section 2-3-213,
MCA. Because the Citizens Group failed to plead that it filed suit
within 30 days, Whitlock claims the matter should be remanded to
the lower court with an order directing dismissal of the suit, or
in the alternative, ordering discovery to determine if the Citizens
Group had complied with proper time frames for an Open Meeting Law
challenge.
We find this argument without merit. Whitlock concedes, and
we agree, that the Open Meeting L a w argument is directed only at
the Citizens Group, and has no application to the City Councilfs
request for declaratory judgment on the question of whether the
publicbsright to know outweighs Whitlocklsprivacy interest, Yet
Whitlock maintains that because the Citizens Group remains a party
in this suit, the statute of limitations argument may still be at
least partially controlling.
We disagree. The City Council, as third-party plaintiffs,
requested a declaratory judgment which was clearly not barred by a
statute of limitations. The District Court's ruling responded to
the constitutional issue raised by the City, and did not address
whether a statutory violation of the Open Meeting Law had occurred.
Whether the claims raised by the Citizens Group, as the original
plaintiffs, were barred by statutory time limitations is not
relevant to the decision on appeal.
Was the District Court's order authorizing the Hamilton City
Council to release the Toole Report a violation of Mayor Whitlock's
individual right of privacy?
Both the public right to know, from which the right to examine
public documents flows, and the right of privacy, which justifies
confidentiality of certain documents, are firmly established in the
Montana Constitution. Article 11, f, 9, ofthe Constitution defines
the right of the public to know as follows:
No person shall be deprived of the right to examine
documents or 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.
Balanced against the public right to know is the right of
individual privacy, provided for in Article 11, 5 10, of the
Montana Constitution: "The right of individual privacy is essential
to the well-being of a free society and shall not be infringed
without the showing of a compelling state interest."
We have held that the public's right to observe the workings
of public bodies is not absolute. In The Mirsoulian v. Board of Regents of
Higher Education (1984), 207 Mont. 513, 675 P.2d 962, we stated that
the constitutional language providing exceptions to examining
documents or observing deliberations requires this Court to:
[Blalance the competing constitutional interests in the
context of the facts of each case, to determine whether
the demands of individual privacy clearly exceed the
merits of public disclosure. Under this standard, the
right to know may outweigh the right of individual
privacy, depending on the facts. [Emphasis in original.]
This Court has addressed on several occasions the balancing of
these competing interests, and admittedly has more than once
carefully guarded against public scrutiny of very private and
personal matters. See Flesh v. Mineral and Mirsoula Counties (1990), 241
Mont. 158, 786 P.2d 4; TheMirsoulian, 675 P.2d 962; MontanaHumanRights
Division v. City of Billings (1982), 199 Mont. 434, 649 P 2d 1283. In light
.
of these decisions, Whitlock contends the District Court
incorrectly concluded the public's right to examine the Toole
Report clearly outweighed Whitlock's individual privacy right.
However, in the narrow circumstances presented in this case, we
disagree, and distinguish this situation from others we have
considered.
Whenever the Court must determine whether a privacy interest
is protected under the State Constitution, we apply a two-part
test: (1) whether the person involved had a subjective or actual
expectation of privacy; and (2) whether society is willing to
recognize that expectation as reasonable. Flesh, 786 P.2d at 8; me
Missoulian, 675 P .2d at 9 67; Montana Human Rights D v s o
iiin , 649 P, 2d at
1287. We will not engage in a lengthy discussion of the first
prong of the two-part test because, in this case, we hold that
whether or not Whitlock had an expectation of privacy, that
expectation was unreasonable as a matter of law.
There are two important reasons for this conclusion. First,
Whitlock is an elected official and as such is properly subject to
public scrutiny in the performance of h i s duties. Our previous
decisions have shielded certain personnel matters from public
review, and have opened those discussions only to the entity
responsible for such things as hiring, disciplinary action, and
supervision. When a person is elected to public office, the
general public has t h a t responsibility, and it is then their right
to be informed of the actions and conduct of their elected
officials. In this case, the sexual harassment allegations against
Whitlock go directly to the mayor's, and another government
official's, abilities to properly carry out their duties.
Information related to the ability to perform public duties should
not be withheld from public scrutiny.
This is not the first time we have suggested that public
officials may occupy unique positions in regard to expectations of
privacy. In Great Falls 'lLibune v. Cascade County Sheriff (1989) , 238 Mont .
103, 775 P.2d 1267, for example, we held that while police officers
have a subjective or actual expectation of privacy relating to
disciplinary proceedings against them, that expectation was not one
which society recognized as a strong right because "law enforcement
officers occupy positions of great public trust." GreatFalls 7kibune,
775 P.2d at 1269.
Other statesq courts have similarly recognized that public
officials cannot reasonably have as great an expectation of privacy
as individuals who are not public servants. In Cowles Publishing
Company v. State Patrol (Wash. 1988), 748 P.2d 597, 605, the Washington
Supreme Court described a diminished privacy interest when the
information sought relates to fitness to perform a public duty.
The Alaska Supreme Court has taken the same approach, recognizing
that the nature and responsibility of public office opens office
holders up to more exacting public scrutiny regarding the
performance of their duties. City of Kenai v. Kenai Peninsula Newspapers
(Alaska 1982), 642 P.2d 1316; Municipality ofAnchorage v Daily News (Alaska
.
1990), 794 P.2d 584.
The second reason for our decision relates to the kind of
information in question. In our previous decisions, we have
protected information such as personnel records or job performance
evaluations from public review. Statev.Bumr (Mont. 1992), 830 P.2d
8
TheMksoulian, 675 P.2d at 968-70. However, in this case, the Toole
Report was the result of an investigation commissioned to explore
allegations of misconduct. The Citizens Group is not seeking
disclosure of information related to private sexual activity,
general performance evaluations, or proceedings where Whitlock's
character, integrity, honesty, or personality were discussed.
While Whitlock might reasonably expect privacy in regard to those
kinds of matters, society will not permit complete privacy and
unaccountability when an elected official is accused of sexually
harassing public employees or of other misconduct related to the
performance of his official duties.
Once the determination is made as to whether a
constitutionally protected privacy interest is at stake, the
question is then whether the demands of individual privacy clearly
exceed the merits of public disclosure. Since we have found the
privacy expectation in this particular situation unreasonable, the
answer is clearly no.
The merits of publicly disclosing the Toole Report are
substantial. Not only is the public entitled to be informed of the
actions and conduct of their elected officials, but in this
instance the information sought involves a matter in which the City
has already settled with the complainant. Though the settlement
was reached without a finding of fault or liability on the part of
any party, the City admits it perceived a substantial risk of loss
and concluded it was in the best interests of the City to settle
the claim. Since public funds were used to settle the dispute and
may be used to indemnify Whitlock for his attorney fees, the public
is entitled to know the precise reason for such an expenditure.
Given the strong considerations in favor of public disclosure, and
the fact that the demand of individual privacy is absent in this
instance, there is no justification for denying the public the
right to review the contents of the Toole Report.
After weighing the competing interests involved, we agree with
the Court's determinationthatWhitlocklsexpectation of privacy is
unreasonable. Therefore, we hold that the right of the public to
know must be accorded greater weight than Whitlock's claim of
privacy.
I11
Was the District Court's order an improper judgment on the
pleadings?
Whitlock's final argument characterizes the District Court's
decision as a judgment on the pleadings because no extrinsic
evidence was introduced to treat the decision as a summary judgment
ruling. Rule 12 (c), M.R.Civ.P. He contends, therefore, that if
the Court ruled only on the information contained in the pleadings,
on review the complaint "is to be construed in the light most
favorable to the plaintiffs and its allegations are taken as true."
Kinionv.DesignJLstems,Znc. (1982), 197 Mont. 177, 180, 641 P.2d 472, 474
(citing liraunhoferv.Price (1979), 182 Mont. 7, 594 P.2d 324). Viewed
in this manner, Whitlock argues the District Court's conclusion was
improper and cannot be affirmed.
The City Council maintains the Court did consider matters
outside the pleadings and the proper characterization of the
Courtqs action is one of summary judgment. Since there were no
issues of fact to be determined by the Court, the City council
asserts that it was entitled to judgment as a matter of law
pursuant to Rule 56(c), M.R.Civ.P., and the court's ruling should
only be set aside if the opposing party can demonstrate that a
genuine factual controversy exists. O'Bagy v First Interstate Bank of
.
Mksoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191.
After reviewing the record, it is apparent that the court did
have before it information in addition to the pleadings. This
included Bethells affidavit of sexual harassment; an affidavit from
the City Attorney verifying that Whitlock received, and therefore
was aware of, the contents of the Toole Report; and affidavits from
witnesses who were interviewed by Toole, waiving any privacy rights
in the information contained in the report. Because the court had
before it this information which was not part of the pleadings, we
will consider the court's order as one for summary judgment
pursuant to Rule 12 (c), M.R. Civ.P.
We note that at one point during the proceedings, Whitlock
moved for summary judgment in his favor, and urged consideration of
some of the above-mentioned documents, admitting they supplemented
the pleadings. It would be inconsistent to disregard that same
information simply because another party prevailed.
Applying the standard of review for a summary judgment
proceeding, we must determine whether there is any genuine issue of
material fact in controversy. The material f a c t s in t h i s case a r e
all undisputed. Whitlock is an elected official. He was accused
by another elected official of sexual harassment. The City Council
investigated the allegation and settled the other official's claim
based on its investigation. The results of its investigation are
included in the Toole Report.
Based on these undisputed facts, the public has a right to
know, as a matter of law, what is in the Toole Report. There are
no disputed issues of material fact which would preclude the entry
of summary judgment.
The District Court's order and declaratory judgment directing
release of the Toole Report as recommended by the Hamilton City
Council is affirmed.
We concur:
Chief Justice
December 17, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States naif, prepaid, to the
following named:
LARRY W. JONES
Attorney at Law
P.O. Box 8108
Missoula, MT 59807
DAVID TRIEIEY
214 North Fifth Street
Hamilton, MT 59840
JOAN JONKEL
Attorney at Law
250 Station Drive
Missoula, MT 59801
James A. Haynes
Attorney at Law
P.O. Box 544
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA A