NO. 91-474
IN THE SUPREME COURT OF THE STATE OF MONTANA
GREAT FALLS TRIBUNE COMPANY, INC.,
a Montana corporation, i
Petitioner and Appellant
-vs-
NOV 1 2 1992
GREAT FALLS PUBLIC SCHOOLS, BOARD OF
TRUSTEES, CASCADE COUNTY, MONTANA,
Respondent and Respondent.
- c S>:.Z
A J!; J
CLERK QF SIJPFI;%IE COURT
STATE OF MOCJTANA
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Peter Michael Meloy argued, Meloy Law Firm, Helena,
Montana
For Respondent:
Leslie S. Waite, I11 argued, James, Gray &
McCafferty, Great Falls, Montana
For Amicus Curiae:
Kimberly A. Kradolfer, Assistant Attorney General,
Agency Legal Services Bureau, Helena, Montana
(Department of Labor & Industry)
Bruce W. Moerer, General Counsel, Montana School
Boards Association, Helena, Montana
Submitted: May 21, 1992
Decided:;, November 12, 1992
Filed:
Justice R. C. McDonough delivered the opinion of the Court.
This is an appeal from an order and declaratory judgment of
the Eighth Judicial District, Cascade County. The District Court
ruled that the collective bargaining strategy exception to the open
meeting law, 5 2-3-203(4), MCA, is constitutional. We reverse.
We address the following issue:
Is 5 2-3-203(4), MCA, the collective bargaining strategy
exception to the open meeting law, constitutional under Article 11,
Section 9, of the Montana Constitution?
Appellant raises an additional issue regarding the District
Court I s refusal to compel discovery of the subject matter of closed
meetings. Because we determine the collective bargaining strategy
exception to be unconstitutional, the motion to compel need not be
addressed.
This action stems from labor negotiations between the
respondent, Great Falls Public Schools, Board of Trustees (the
Board) and a bargaining unit of teacher's aides and library aides.
The Board engaged a fact-finder to conduct a hearing and make a
report and recommendation to the Board in regard to the
negotiations for a new bargaining agreement. After the fact-finder
entered a written report, dated July 17, 1990, the Board issued an
agenda in which it announced that on September 10, 1990, a closed
meeting would be held to discuss matters related to the fact-
finder's report. The appellant, Great Falls Tribune Company (the
Tribune) contacted the Board and, pursuant to the open meeting law,
requested the meeting be open. The Board agreed to conduct the
2
meeting in open session.
At the September 10, 1990 meeting, there were neither
discussions nor deliberations with respect to the report. Instead,
the Board moved that the report be rejected, a vote was taken and
nothing further in regard to the report took place. There is a
factual dispute regarding whether or not the Board conducted
discussions relating to the fact-finder's report outside of and
prior to the September 10, 1990 meeting. The Tribune alleges that
discussions between members of the Board were held privately,
specifically to avoid the requirements of the open meeting law.
The Board denies such meetings occurred, suggesting that any
discussions that may have taken place prior to the September 10,
1990 meeting were not "meetings" within the meaning of the
applicable law. Further, it argues that any meetings that may have
taken place were entitled to be secret because they pertained to
collective bargaining strategy.
The Tribune initially filed this action against the Board
alleging violation of the open meeting laws and the "right to know"
provision of § 2-3-203, MCA, and Article 11, Section 9 , of the
Montana Constitution. The Board filed a counterclaim requesting
declaratory judgment that meetings held by the Board were lawful
and proper and that the collective bargaining strategy exception to
the open meeting law, 5 2-3-203(4), MCA, is constitutional. The
court granted the Board's motion for summary judgment on its
counterclaim holding that the collective bargaining strategy
exception is constitutional and was properly invoked. This appeal
followed.
Section 2-3-203(4), MCA provides:
Meetings of public agencies and certain associations of
public agencies to be open to the public -
exceptions.
(4) However, a meeting may be closed to discuss a
strategy to be followed with respect to collective
bargaining or litigation when an open meeting would have
a detrimental effect on the bargaining or litigating
position of the public agency.
The constitutionality of a legislative enactment is prima facie
presumed, and every intendment in its favor will be presumed,
unless its unconstitutionality appears beyond a reasonable doubt.
Fallon County v. State (1988), 231 Mont. 443, 445, 753 P.2d 338,
The Tribune contends that the collective bargaining strategy
exception is constitutionally infirm because it expands on the
limited exception allowed under Article 11, Section 9, of the
Montana Constitution. Article 11, Section 9, of the Montana
Constitution provides:
Right to Know. 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.
Essentially, the Tribune argues that under Article 11, Section 9,
a public agency may close meetings for the sole purpose of
protecting individual privacy. The Tribune contends, and we agree,
that the instant case does not involve a matter of individual
privacy but instead involves a public agency desiring privacy.
To determine the meaning of a constitutional provision we
employ the same rules of construction employed to construe
statutes. Keller v. Smith (19761, 170 Mont. 399, 553 P.2d 1002.
The intent of the framers of a constitutional provision is
controlling. The intent should be determined from the plain
meaning of the words used. If that is possible, we apply no other
means of interpretation. State v. Cardwell (1980), 187 Mont. 370,
609 P.2d 1230.
The Board argues that Article 11, Section 9, of the Montana
Constitution is ambiguous because the word lldeliberationsv not
is
clearly defined. The plain meaning of lldeliberationsll
allegedly
fails to clearly provide the intended scope of Article 11, Section
9, and therefore, the Board argues, it is appropriate to resort to
extrinsic aids and rules of construction. The dispositive issue is
whether Article 11, Section 9, requires a balancing of the right to
know with other constitutional provisions and policy considerations
or whether individual privacy is the only matter against which the
right to know should be balanced.
We have clearly held that Article TI, Section 9, of the
Montana constitution is unambiguous and capable of interpretation
from the language of the provision alone. Great Falls Tribune v.
District Court (1980), 186 Mont. 433, 437, 608 P.2d 116.
Associated Press v. Board of Education (1991), 246 Mont. 386, 804
P.2d 376. In Associated Press, we noted Article 11, Section 9, to
be Itunique,clear and unequi~ocal'~ held that:
and
We are precluded, by general principles of constitutional
construction, from resorting to extrinsic methods of
interpretation.
Associated Press, 246 Mont. at 391, 804 P.2d at 379. We decline
the Board's invitation to revisit the already settled question of
whether we will use extrinsic aids or rules of construction to
interpret Article 11, Section 9, of the Montana Constitution. We
conclude that Article 11, Section 9, is clear and unambiguous and
does not require extrinsic aids or rules of construction to
ascertain its intent that all meetings shall be open except when
individual privacy matters are implicated.
Article 11, Section 9, clearly instructs that when the demand
for individual privacy exceeds the merits of public disclosure, the
public's right to know may be limited. The right to know provision
was designed to provide the public information to enable citizens
to determine the propriety of governmental actions. Mountain
States v. Department of Pub. Serv. Reg. (1981), 194 Mont. 277, 285,
634 P.2d 181, 186-187.
The Board argues that Article 11, Section 9, is subject to
balancing against other constitutional provisions. Specifically,
the Board argues Article X, Section 8, of the Montana Constitution,
among others, provides school boards supervision and control of
schools in their district. Supervision and control is argued to
include a duty to bargain effectively and to spend monies in an
effective and responsible manner. The Board urges this Court to
make a policy determination whereby the duty to supervise the
school district is balanced against the right to know provision of
the Constitution.
We are not persuaded by the Board's argument. First, Article
11, Section 9, is not necessarily in conflict with the other
constitutional provision as the Board asserts. The Board's duty to
supervise and control its district is not necessarily thwarted by
opening its collective bargaining strategy sessions. Second, the
Board fails to present a matter of individual privacy as mandated
by the Constitution to create an exception to the open meeting law.
Third, despite the mandate of power given the local boards to
control their schools, Article X, Section 8, does not confer on
school boards the power to act in violation of express guarantees
contained in the Constitution. For example, school boards must
comply with Article 11, Section 13, the right of suffrage, etc. of
the Constitution. The reasoning applied in Associated Press at
391, 804 P.2d at 379, applies here. We stated as follows:
First and foremost, is the realization that the
Constitution is the supreme law of this State. Its
mandate must be followed by each of the three branches of
government. Therefore, while this Court is authorized to
adopt rules governing the practice of law, it may not
enact any rule which violates express guarantees
contained in the Constitution.
Such reasoning would be applicable if we adopted a procedural rule
which violated the due process clause.
The Board relies on Mountain States for the proposition that
this Court has engaged in a balancing of competing rights and
interests when interpreting Article 11, Section 9. In Mountain
States, we determined that a corporation's trade secrets were a
matter of individual privacy and that because trade secrets are
constitutionally protected property rights, on balance, they
exceeded the merits of full public disclosure. Our ruling in
Mountain States recognized and fulfilled the mandate of the
public's right to know while simultaneously protecting Mountain
States property/privacy interest in trade secrets. We interpreted
the section relative to a specific matter as to whether it was
encompassed within the meaning of the demands of individual privacy
and to the extent the privacy would be protected. Here there is a
lack of any individual privacy being involved.
We conclude that pursuant to the clear language of Article 11,
Section 9, meetings may be closed only when the need for individual
privacy exceeds the merits of public disclosure. The collective
bargaining strategy exception is an impermissible attempt by the
Legislature to extend the grounds upon which a meeting may be
closed. We conclude that 9 2-3-203(4), MCA, is unconstitutional
and the District Court is reversed.
We have been presented with arguments as to the potential
hazards of creating an uneven playing field in the statutorily
provided collective bargaining arena. However, our decision is
governed by the facts and issues of the case before us. The
Legislature and the citizens of Montana have the plenary power to
take actions necessary to alleviate or eliminate any problems which
may be present, or level the playing field, all within the
constraints of the Constitution. Reversed.
We concur:
Justices
Justice Fred J. Weber dissents as follows:
Although it is carefully written, the majority opinion has
stopped short in its failure to consider the impact of its ruling.
The majority has concluded that all meetings of the Board of
Trustees of the Great Falls public schools (School Board), must be
open to the media, public and the unions with which the School
Board is negotiating--even though the meetings cover the
strategizing or planning for collective bargaining. The majority
simply states that school board meetings may be closed only when
the needs of individual privacy exceed the merits of public
disclosure--which means that the exception can never apply to the
School Board because it has no right of individual privacy. The
majority concludes that 5 2-3-203(4), MCA, is unconstitutional as
an impermissible attempt to extend the grounds upon which a school
board meeting may be closed.
I strongly dissent from the majority opinion. It has
effectively destroyed the use of collective bargaining between
school boards and unions. Instead of holding with the majority, I
suggest there is precedent for balancing the interests of the
parties and reaching a conclusion that the statute is
constitutional. The tragedy of the majority opinion is that it has
sent the following messages:
(1) To the School Board: You must do your bargaining
planning in public. If that destroys your ability to
bargain, seek relief by new laws from the legislature or
constitutional amendment from the people.
(2) To the unions and other in Great Falls: You may no
longer effectively use collective bargaining to settle
issues between your School Board and the various unions.
(3) To the taxpayers of Great Falls and all of Montana:
While the annual budgeted labor cost of the Great Falls
districts is approximately $24.8 million, this Court is
not required to consider the impact on your labor costs
which may result from the elimination of collective
bargaining between unions and the school districts.
I conclude that this Court should consider the impact of its
decision. I suggest that we should balance the two different
constitutional provisions which apply in this case:
Article 11, Section 9: Right to know. No person shall
be deprived of the right . . . to observe the
deliberation 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.
Article X, Section 8: School district trustees. The
supervision and control of schools in each school
district shall be vested in a board of trustees to be
elected as provided by law.
Considering the Article X requirement that a school board shall
have supervision and control of schools, the legislature has
enacted many laws with regard to the obligations of school district
trustees to properly manage and expend funds. In addition, Montana
has adopted a great number of statutes which establish the manner
in which collective bargaining shall be used by school districts as
well as other public employers. The controlling policy on such
public employer collective bargaining laws is stated as follows:
Policy. In order to promote public business by removing
certain recognized sources of strife and unrest, it is
the policy of the state of Montana to encourage the
practice and procedure of collective bargaining to arrive
at friendly adjustment of all disputes between public
employers and their employees.
Section 39-31-101, MCA. I conclude that the unplanned result of
the majority opinion is the elimination of friendly adjustment of
disputes by means of collective bargaining.
The collective bargaining statutes define public employers to
include school districts and also specifically protect public
employees in the right of self organization. Under 5 39-31-305,
MCA, school districts are required to bargain collectively upon the
following matters:
Duty to bargain collectively -- good faith. (1) The
public employer and the exclusive representative, through
appropriate officials or their representatives, shall
have the authority and the duty to bargain collectively.
This duty extends to the obligation to bargain
collectively in good faith as set forth in subsection (2)
of this section.
(2) For the purpose of this chapter, to bargain
collectively is the performance of the mutual obligation
of the public employer . .
. and the representatives of
the exclusive representative to meet at reasonable times
and negotiate in good faith with respect to wages, hours,
fringe benefits, and other conditions of employment . . .
Sections 39-31-305(1)(2), MCA.
Under both the Constitution and statutes of Montana the School
Board has supervision and control over the schools; and as a part
of that supervision and control, the School Board is required to
bargain collectively on wages, hours, fringe benefits, and other
conditions of employment.
I will now review two Montana Supreme Court cases which I
believe lead to a conclusion different than that of the majority
opinion. These cases establish that invasion of a right of privacy
is not the only exception which requires consideration under
Article 11, Section 9. In State ex rel. Smith v. District Court
(1982), 201 Mont. 376, 3 8 3 - 3 8 5 , 654 P.2d 9 8 2 , 986-987, the right to
know was balanced against a criminal defendant's right to a fair
trial. In pertinent part that opinion stated:
. . .
Whether the basis for the press and public's right
of access be the First and Fourteenth Amendments to the
United States Constitution or the "Riqht to Knowu
provision of the Montana Constitution, the quarantee is
not absolute. It can be properly circumscribed when the
riqht or interest aqainst which it competes is weiqhtv or
compellinq. Doubtlesslv, the risht of a criminal
defendant to a trial by an impartial jury is such a
riqht.
Based upon the Right to Know provision of the
Montana Constitution and the right of access recognized
under the First and Fourteenth Amendments to the United
States Constitution, we hold that the public and press
may be excluded from a pretrial suppression hearing only
if dissemination of information acquired at the hearing
would create a clear and present danger to the fairness
of defendant's trial and no reasonable alternative means
can be utilized . ..
(Emphasis supplied.)
The key point as underscored is that the Right to Know
constitutional provision is not absolute and it can be
circumscribed "when the right or interest against which it competes
is weighty or compelling." The Court then concluded that the right
to a trial by an impartial jury was such a right. That of course
has nothing to do with the right of privacy. While a criminal case
is not directly comparable to the present case, it demonstrates
that the narrow holding of the present case is not consistent with
State ex rel. Smith. The conclusion of that case is that the right
to a fair trial for a criminal defendant may properly be considered
even though it has no relationship to the right of privacy.
The Right to Know provision of our Constitution was further
considered in Mountain States Tel. & Tel. Co. v, Department of Pub.
Serv. Regulation (19811, 194 Mont. 277, 634 P.2d 181, where the
public was denied access to a telephone company's trade secrets in
a Public Service Commission hearing. The PSC and the district
court had required complete disclosure of a11 information to any
citizen. In pertinent part this Court stated:
.
. . The District Court and the PSC concluded that such
compelled disclosure was required under the right to know
and riqht to inspect constitutional and statutory
provisions of Montana.
Here, neither the District Court nor the PSC
balanced the competing public and private interests
presented in this case. Rather, they determined that if
the data was necessary for the determination by the PSC,
that fact alone made it necessary to disclose all of the
information to all of the parties, including persons not
necessarily interested in the rate making process. Such
a construction may lead in this case to the destruction
of a property riqht based on materiality rather than on
a consideration of whether full public disclosure is
based upon a reasonable and rational means to achieve the
purpose inherent in the risht to know provisions . . .
(Emphasis supplied.)
Mountain States Tel. & Tel. , 634 P. 2d at 186-87. The Court further
considered the potential destruction of a property right and
concluded that certain limitations on the right to know were
appropriate so far as the public was concerned. The Court stated:
.
. . We have thus balanced the riqhts that all citizens
acquired under the riqht to know provision of the state
constitution with the purpose and function for which our
laws compel disclosure by utilities of trade secrets.
The right to know provision was designed to prevent the
elevation of a state czar or oligarchy; it was not
designed for, nor will we substitute, the tyranny of a
proletariat. (Emphasis supplied.)
Mountain States Tel. & Tel., 634 P.2d at 189.
The conclusion reached in the foregoing case was that it was
proper to balance the property right of a party against the Right
to Know provision of the Constitution. This is the type of
balancing which the majority opinion has refused to apply in the
present case. Mountain States Tel. & Tel. Co. balanced the rights
of citizens under the Right to Know provision against the trade
secret property interest of the telephone company and placed
specific limits on the right to know. This is again an interest
significantly different than the right of privacy specifically
described in Article 11, Section 9. It is this type of balancing
which the majority has refused to use in the present case. I
conclude that such a balancing of opposing interests is essential
to a just determination of the issues before us.
Here the majority opinion found 5 2-3-203(4), MCA,
unconstitutional. Section 2-3-203(4), MCA, provides:
Meetings of public agencies and certain associations of
public agencies to be open to public -- exceptions. (1)
All meetings of public or governmental bodies, boards .
. . must be open to the public.
. . .
(4) However, a meeting may be closed to discuss a
strategy to be followed with respect to collective
bargaining or litigation when an open meeting would have
a detrimental effect on the bargaining or litigating
position of the public agency.
In arriving at its conclusion that § 2-3-203(4), MCA, is
unconstitutional, the majority referred to the arguments by the
parties as follows:
The Board argues that Article 11, Section 9, is
subject to balancing against other constitutional
provisions. Specifically, the Board argues Article X,
section 8, of the Montana Constitution, among others,
provides school boards supervision and control of schools
in their district. Supervision and control is argued to
include a duty to bargain effectively and to spend monies
in an effective and responsible manner. The Board urges
this Court to make a policy determination whereby the
duty to supervise the school district is balanced against
the right to know provision of the Constitution.
Considering that argument, the majority then concluded:
We are not persuaded by the Board's argument. First,
Article 11, Section 9, is not necessarily in conflict
with the other constitutional provision as the Board
asserts. The Board's duty to su~erviseand control its
district is not necessarilv thwarted bv openinq its
collective barqainins strateqv sessions. second, the
Board fails to present a matter of individual privacy as
mandated by the Constitution to create an exception to
the open meeting law. Third, despite the mandate of
power given the local boards to control their schools,
Article X, Section 8 does not confer on school boards the
power to act in violation of express guarantees contained
in the Constitution. (Emphasis supplied.)
I will discuss conclusions First, Second and Third from the above
paragraph in that order.
I disagree with conclusion "First" which states that Article
11, Section 9, is not necessarily in conflict with other
constitutional provisions--I do not believe that is an appropriate
test. The analysis should have considered whether or not there are
other constitutional provisions and other rights which must be
balanced against the Right to Know provision as was done in the
above cited cases of State ex rel. Smith and Mountain States Tel.
&. Tel. Co. I strongly disagree with the conclusion that the
Board's duty to supervise and control is "not necessarily thwarted
by opening its collective bargaining strategy sessions." As I will
discuss further, I believe collective bargaining has been
eliminated by the majority opinion and that does "thwart" the
Board's duty to supervise and control the district.
In conclusion "Second," the majority stated that the Board
failed to present a matter of individual privacy in order to create
an exception to the Open Meeting Law. Because the Board has no
individual privacy rights, there is no basis for closure of a
school board meeting. In contrast, I conclude that under State ex
rel. Smith and Mountain States Tel. & Tel. Co., we are required to
balance the opposing constitutional rights of the parties and to
consider the impact of the decision. This the majority has failed
to do.
Conclusion "Third" emphasizes that Article X, Section 8, does
not give school boards the power to violate express guarantees in
the Constitution. Again, I do not believe that is a correct
statement of the applicable standard. I believe we are required to
balance the applicable claims and rights of the parties. Such a
balancing does not suggest that school boards must have the power
to violate the Constitution.
There is no factual debate in this case as to the impact of
the majority opinion. The uncontradicted affidavit of the
Superintendent of the defendant School District stated:
The Board of Trustees must have the ability to close
publicneetingsto discuss collective bargaining strategy
when an open meeting would be detrimental to the Board's
collective bargaining position.
During the 1989 29-day teachers strike, the Board
met in closed session to discuss whether to operate the
schools in the face of the teachers strike. This
discussion could not have been held in public without
revealing our strengths and weaknesses.
There are serious problems in public strategizing.
If the Board cannot privately strategize as a group about
bargaining parameters, assessment of the parties'
positions, bargaining tactics, and similar related
matters, it would lose the only effective way it has to
have full and frank discussions and to formulate and
decide its strategy together. The resulting loss would
interfere with and harm the Board's ability to
effectively decide collective bargaining matters . ..
The Trustees of the School Board also submitted extensive
testimony--again uncontradicted. The Trustees1 testimony
established that the holding of meetings open to the public would
eliminate the Board's opportunity to strategize and set parameters
or authority limits for negotiations. One trustee testified that
bargaining would be very difficult if one side must strategize
publicly while the other does not, and pointed out there is no room
for compromise and negotiation if the school board's maximum
position has already been expressed publicly. In considering the
manner in which the trustees must meet, it is essential to keep in
mind the following statutory constraints which apply to the School
Board. Section 20-3-301, MCA, requires the trustees to act at
meetings and provides in pertinent part:
Election and term of office. . . .
(2) The trustees shall be composed of the number of
trustee positions prescribed for a district. .. .
When
exercisina the power and performina the duties of
trustees, the members shall act collectively and only at
a resular or properly called special meetins. . ..
(Emphasis supplied.)
In a similar manner, with regard to meetings, 5 20-3-322, MCA,
provides in pertinent part:
Meetings and quorum. . ..
(4) Business may not be transacted by the trustees
of a district unless it is transacted at a reqular
meetinq or a properly called special meeting. A quorum
for any meeting is a majority of the trustees'
membership. All trustee meetinss must be public
meetinqs, as prescribed by 2 - 3 - 2 0 1 , except that the
trustees may recess to an executive session under the
provisions of 2 - 3 - 2 0 3 . (Emphasis supplied.)
The foregoing statutes clearly eliminate the possibility of School
Board members meeting separately or privately in connection with
labor negotiations. They are required to act at either regular or
special meetings and are specifically prohibited from transacting
business at any place other than a regular meeting.
The School Board also emphasizes its responsibilities as the
representatives of the voter taxpayers in order to see that their
tax dollars are expended wisely. Again, there are many statutory
requirements for the proper discharge of these duties.
The majority opinion forces us to the following conclusions:
First, all collective bargaining sessions including strategy
sessions by the School Board must take place at regular meetings
open to the public and to the negotiating unions. Second,
effective collective bargaining as contemplated by our extensive
public bargaining code sections will be eliminated between school
boards and unions. Where a union has total access to the thinking,
strategy and plans of the school board, there is no possibility for
collective bargaining as we have known it. Negotiations are
eliminated when one party has total knowledge of the thinking on
the part of the other.
I suggest the majority opinion will have a devastating impact
on labor negotiations between the more than five hundred school
districts of Montana and the various unions with whom they deal.
Collective bargaining as presently required under our statutes will
be eliminated.
While such a result was not the plan of the majority opinion,
its result is to eliminate the use of collective bargaining to
arrive at friendly adjustments of disputes between school boards
(and other public employers) and the unions representing their
employees. The impact will be great upon the taxpayers, voters,
students, employees and labor unions.
Clearly the majority opinion requires the school boards of
Montana to carefully analyze their available means to settle issues
and disputes with the unions. It requires a similar analysis on
the part of all unions who have learned to function effectively for
the benefit of their members and the public through the collective
bargaining statutes in Montana. Last, it requires the legislature
to commence a prompt review of its statutory requirements of
collective bargaining to determine if there is some way in which
some aspects of collective bargaining can be maintained.
I will not write a detailed analysis of the holding which I
believe should be adopted by the majority opinion. Under Article
X, Section 8, of the Montana Constitution and the various statutory
provisions which apply to school districts, the trustees of a
school district are required to supervise and control the
expenditure of funds in their respective districts. It is common
knowledge that labor costs constitute a majority of the
expenditures by the trustees of school districts. I suggest that
a proper balancing here would result in the conclusion that the
interests of the school district trustees and the public whom they
20
represent in effective collective bargaining, when balanced against
the Right to Know provision of our constitution, justifies the
limitation set forth in 5 39-31-305, MCA. Such a balancing
requires a conclusion that it is proper to close a school board
meeting where there is collective bargaining or litigation when an
open meeting would have a detrimental affect on that bargaining.
Such a balancing makes good common sense. Such a balancing would
allow collective bargaining to continue in the future.
November 12, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United Statc:s mail, prepaid, to th.e following
named:
Peter Michael Meloy
Meloy Law Firm
P.O. Box 1241
Helena, MT 59624
Leslie S. Waite, I11
James, Gray & McCafferty
P.O. Box 2885
Great Falls, MT 59403
Bruce W. Moerer
Montana School Boards Association
One South Montana Avenue
Helena, MT 59601
Kimberly A. Kradolfer
Assistant Attorney General
Agency Legal Services
215 N. Sanders
Helena, MT 59620-1402
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA