Associated Press v. Crofts

No. 03-239

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 120

THE ASSOCIATED PRESS, BOZEMAN DAILY CHRONICLE,
THE MONTANA STANDARD, MISSOULIAN, GREAT FALLS
TRIBUNE, MONTANA NEWSPAPER ASSOCIATION, MONTANA
BROADCASTERS ASSOCIATION, THE BILLINGS GAZETTE, THE
DAILY INTER LAKE, MONTANA TELEVISION NETWORK, EAGLE
TELEVISION NETWORK, HAVRE DAILY NEWS, HELENA
INDEPENDENT RECORD, and YELLOWSTONE NEWSPAPERS,

Plaintiffs and Respondents,

v.

RICHARD A. CROFTS, in his official capacity as Montana
Commissioner of Higher Education,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. CDV-2002-114,
The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Leroy H. Schramm (argued), Montana University System, Helena, Montana

For Respondents:

Ronald F. Waterman, Laura D. Vachowski (argued), Gough, Shanahan,
Johnson & Waterman, Helena, Montana

For Amicus Montana School Boards Association:

Elizabeth A. Kaleva, Montana School Boards Association, Helena, Montana

For Amicus State of Montana:

Hon. Mike McGrath, Montana Attorney General; Chris D. Tweeten, Chief
Civil Counsel; Brian M. Morris, Solicitor, Helena, Montana

Argued and Submitted: September 25, 2003
Decided: May 4, 2004
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.

¶1 The Respondents, members of the print and television media, filed a complaint against

Appellant Richard A. Crofts in the First Judicial District Court, Lewis and Clark County.

The complaint alleged that meetings between Crofts and other employees of Montana’s

University System were subject to Montana’s open meeting laws. Crofts and the

Respondents filed cross-motions for summary judgment. The District Court granted the

Respondents’ summary judgment motion, and awarded the Respondents their attorneys’ fees

and costs. Crofts appeals. We affirm in part and reverse in part the judgment of the District

Court.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err when it concluded that meetings between senior

employees of the University System were subject to Article II, Section 9, of the Montana

Constitution and Montana’s open meeting laws?

¶4 2. Did the District Court correctly award the Respondents their attorneys’ fees?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Montana’s University System is a public education system supervised and controlled

by the Board of Regents of Higher Education (the Board of Regents). Art. X, Sec. 9, Mont.

Const.; § 20-25-301, MCA (2001); Kottel v. State, 2002 MT 278, ¶ 5, 312 Mont. 387, ¶ 5,

60 P.3d 403, ¶ 5. One of the responsibilities of the Board of Regents is to hire the

Commissioner of Higher Education, who serves as the chief executive officer of the

University System. The Board of Regents also prescribes the Commissioner’s official duties.

2
Art. X, Sec. 9(c), Mont. Const. One of the Commissioner’s official duties is to act as the

person through whom all matters are presented to the Board of Regents, including reports,

recommendations and suggestions from the different units of the University System.

¶6 At all times relevant to the instant case, Crofts was Montana’s Commissioner of

Higher Education. During the period between June 30, 1999, and December 7, 2001, Crofts

held fourteen meetings with a group of upper-level employees of the University System, such

as University presidents and chancellors. For its first twelve meetings, this group referred

to itself in its agendas as the Policy Committee. Then, the Committee’s name was changed

to the Senior Management Group. The meetings were called by Crofts to discuss issues

directly related to the operation of the University System. Crofts also used the meetings to

seek input from Committee members on proposed actions within the realm of his authority.

The various members of the Policy Committee attended the meetings in their official capacity

as upper-level University employees and were compensated for their attendance with public

funds.

¶7 The fifteenth meeting between Crofts and the Policy Committee was scheduled for

February 1, 2002. However, before such meeting could commence, a reporter for the

Associated Press entered the meeting room and requested to observe, and report on, the

meeting. Crofts declined this request. The reporter refused to leave. Crofts then canceled

the meeting.

¶8 On February 8, 2002, the Respondents filed a complaint against Crofts, in his official

capacity as Montana’s Commissioner of Higher Education. The complaint sought a

3
declaration that the meetings between Crofts and the Policy Committee were subject to

Montana’s open meeting laws. The complaint also sought an order enjoining Crofts from

excluding the public from such meetings.

¶9 Crofts moved for summary judgment on the Respondents’ complaint on August 9,

2002. The Respondents filed a cross-motion for summary judgment that same day. The

District Court conducted a hearing on the motions on November 13, 2002. On January 3,

2003, the District Court issued its order, granting the Respondents’ summary judgment

motion, and denying Crofts’ summary judgment motion.

¶10 On January 9, 2003, the Respondents filed a motion requesting that they be awarded

attorneys’ fees. The District Court conducted a hearing on the motion for attorneys’ fees on

February 25, 2003. Crofts filed a notice of appeal on March 11, 2003. On April 3, 2003,

the District Court granted the Respondents their attorneys’ fees and costs. Crofts then filed

an amended notice of appeal on April 7, 2003.

STANDARD OF REVIEW

¶11 Our review of a district court’s grant or denial of a motion for summary judgment is

de novo. Hickey v. Baker School Dist. No. 12, 2002 MT 322, ¶ 12, 313 Mont. 162, ¶ 12, 60

P.3d 966, ¶ 12. Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by

the district court. Hickey, ¶ 12. Pursuant to Rule 56, M.R.Civ.P.:

The movant must demonstrate that no genuine issues of material fact exist.
Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine issue
does exist. Having determined that genuine issues of fact do not exist, the
court must then determine whether the moving party is entitled to judgment
as a matter of law. We review the legal determinations made by a district
court as to whether the court erred.

4
Hickey, ¶ 12.

¶12 On appeal, Crofts contests neither the fact that the Respondents incurred attorneys’

fees nor that the amount fixed by the District Court was reasonable. This Court generally

reviews a district court’s award of attorneys’ fees for an abuse of discretion. In re Marriage

of Steinbeisser, 2002 MT 309, ¶ 18, 313 Mont. 74, ¶ 18, 60 P.3d 441, ¶ 18. However, in this

case, Crofts’ challenge of the District Court’s award of attorneys’ fees is purely legal. That

is, Crofts alleges that because the District Court failed to make a ruling on the Respondents’

motion for attorneys’ fees within 60 days, the motion was deemed to be denied. Thus,

because there are no factual issues concerning the award of attorneys’ fees, the question of

whether the award of attorneys fees’ was proper is one of law. We review a district court’s

conclusions of law to determine whether the court’s interpretation of the law is correct.

Brumit v. Lewis, 2002 MT 346, ¶ 12, 313 Mont. 332, ¶ 12, 61 P.3d 138, ¶ 12.

DISCUSSION

ISSUE 1

¶13 Did the District Court err when it concluded that meetings between senior employees

of the University System were subject to Article II, Section 9, of the Montana Constitution

and Montana’s open meeting laws?

¶14 Crofts maintains that the District Court erred when it concluded that the Policy

Committee’s meetings were subject to Montana’s open meeting laws. The Respondents

counter that the District Court’s decision was proper, as Article II, Section 9, of the Montana

Constitution and the open meeting laws apply to the type of meetings at issue in this case.

¶15 Article II, Section 9, of the Montana Constitution provides:

5
 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.

The above provision, commonly referred to as the “Right to Know” provision of the Montana

Constitution, has been implemented primarily through Montana’s open meeting laws, located

at §§ 2-3-201 through -221, MCA (2001). Common Cause v. Statutory Committee (1994),

263 Mont. 324, 329, 868 P.2d 604, 607. The legislature created the open meeting laws with

the intent that the deliberations of the public agencies of this State be conducted openly.

Section 2-3-201, MCA (2001). To that end, the provisions of the open meeting laws are to

be liberally construed. Section 2-3-201, MCA (2001).

¶16 Section 2-3-203(1), MCA (2001), which addresses the types of meetings subject to

the open meeting laws, provides:

All meetings of public or governmental bodies, boards, bureaus, commissions,
agencies of the state, or any political subdivision of the state or organizations
or agencies supported in whole or in part by public funds or expending public
funds must be open to the public[.]

¶17 We have previously determined that, in the context of § 2-3-203(1), MCA (2001), the

phrase “public or governmental bodies” means a group of individuals organized for a

governmental or public purpose. Common Cause, 263 Mont. at 330, 868 P.2d at 608; Bryan

v. District, 2002 MT 264, ¶ 25, 312 Mont. 257, ¶ 25, 60 P.3d 381, ¶ 25. Therefore, pursuant

to § 2-3-203(1), MCA (2001), any group of individuals organized for a governmental or

public purpose must allow their meetings to be open to the public.

¶18 In past cases, this Court has concluded that various types of committees created by

6
government entities to perform some type of function were public or governmental bodies

required to open their meetings to the public. See Common Cause, 263 Mont. at 330, 868

P.2d at 608 (in which we held that a committee created by statute to assist in the governor’s

selection of a Commissioner was a public or governmental body subject to the open meeting

laws); Bryan, ¶ 26 (in which we held that a committee created by a school district to research

a proposition and submit a recommendation to the school board was a public or

governmental body subject to the “Right to Know” provision of the Montana Constitution);

and Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, ¶ 18, 289 Mont. 155, ¶ 18, 959 P.2d

508, ¶ 18 (in which we held that a committee created by the Department of Corrections to

screen proposals for the construction of a private prison was a public body subject to the

“Right to Know” provision of the Montana Constitution).

¶19 In this case, while the Policy Committee was not formally created by a government

entity to accomplish a specific function, we agree with the District Court that the committee

in question, whether it was called the Policy Committee or the Senior Management Group,

was organized to serve a public purpose. The Policy Committee met fourteen times over two

and a half years to discuss matters directly related to the governance of the University

System. The Committee deliberated on issues relating to, inter alia: (1) policy changes; (2)

tuition and fee changes; (3) budgeting issues; (4) contractual issues; (5) employee salaries;

and (6) legislative initiatives. The Policy Committee also advised Crofts on matters related

to his duties as the Commissioner of Higher Education. How the University System

conducts its business, both academically and administratively, and the job-related actions of

7
the Commissioner of Higher Education, are public matters. Thus, the Policy Committee’s

meetings brought together public officials for an undeniably public purpose.

¶20 Crofts admits that the meetings in question are occasions where public officials gather

for a public purpose. However, he argues that because the Policy Committee has no definite

membership, no specific charter or goal to accomplish, is not created by a specific order of

either the Board of Regents or Crofts, and neither votes on propositions nor takes any direct

action, it is not a public body as contemplated by Article II, Section 9, of the Montana

Constitution and the open meeting laws.

¶21 The determination of whether advisory committees are public bodies subject to the

open meeting laws has been recognized as presenting special problems for courts. Bradbury

v. Shaw (N. H. 1976), 360 A.2d 123, 125 (superceded by statute). Moreover, the legislation

enacted by the different states on this issue is so varied that decisions from other jurisdictions

are of little help in resolving the instant question. Tribune Pub. Co. v. Curators of University

of Missouri (Mo. 1983), 661 S.W.2d 575, 583. Many factors have been considered in

deciding if a particular committee’s meetings were required to be open to the public.

Additionally, each situation must be examined in the context of the applicable constitutional

and statutory provisions. ANN TAYLOR SCHWING, OPEN MEETING LAWS 2D § 4.42, at 89, §

4.44, at 94 (2000).

¶22 Consideration of Montana’s particular constitutional and statutory schemes leads us

to the conclusion that Crofts’ interpretation of what constitutes a public body is too narrow.

We conclude that under Montana’s constitution and statutes, which must be liberally

8
interpreted in favor of openness, factors to consider when determining if a particular

committee’s meetings are required to be open to the public include: (1) whether the

committee’s members are public employees acting in their official capacity; (2) whether the

meetings are paid for with public funds; (3) the frequency of the meetings; (4) whether the

committee deliberates rather than simply gathers facts and reports; (5) whether the

deliberations concern matters of policy rather than merely ministerial or administrative

functions; (6) whether the committee’s members have executive authority and experience;

and (7) the result of the meetings. This list of factors is not exhaustive, and each factor will

not necessarily be present in every instance of a meeting that must be open to the public. A

proper consideration of these factors does not mandate that every internal department

meeting meet the requirements of the open meeting laws. Meetings where staff report the

result of fact gathering efforts would not necessarily be public. Deliberation upon those facts

that have been gathered and reported, and the process of reaching decisions would be open

to public scrutiny. The guiding principles are those contained in the constitution; that is “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,” and “all meetings

of public or governmental bodies . . . supported in whole or in part by public funds . . . must

be open to the public.” Art. II, Sec. 9, Mont. Const.; § 2-3-203(1), MCA (2001).

¶23 The Policy Committee is not merely a fact finding body, nor is it an ad hoc group

which came together to consider a specific matter or to gather facts concerning a particular

issue. It is a committee that was created and continued by Crofts, and it is not unlike the

9
committee that the Director of the Department of Corrections appointed to advise him in

Day, which was found to be a public body. Day, ¶¶ 5, 18. As was the case in Day, the

Policy Committee was not appointed pursuant to a statute or regulation, but by the head of

a department of the State of Montana to tender advice and make recommendations. See Day,

¶ 5.

¶24 The Policy Committee came together at times that were noticed, and agendas were

prepared. Moreover, while the record does not contain minutes of the Policy Committee’s

meetings, the agendas make it clear that the matters deliberated were somehow

memorialized, as such matters were remembered, and re-discussed at successive meetings.

The Policy Committee’s meetings required substantial time, inconvenience and travel by the

attendees, all of whom were expected to attend. Further, the various costs of conducting the

meetings were paid with public funds.

¶25 A review of the record reveals that the District Court was correct that the meetings of

the Policy Committee were more than simply staff meetings. The meetings in question were

held for much more than mere fact gathering and reporting. Crofts used these meetings to

seek input, opinions, and guidance from the Committee regarding the policy decisions he was

required to make as Montana’s Commissioner of Higher Education.

¶26 As we noted above, the Policy Committee was made up of upper-level employees of

Montana’s University System. These upper-level employees did not convene for the purpose

of delivering the results of factual investigations to Crofts. Rather, the agendas indicate that

the Policy Committee deliberated, discussed, and debated a wide variety of issues. The

10
Committee then applied their considerable knowledge to the issues, and advised Crofts on

how he should proceed. The District Court found that these meetings: “included tuition and

fees, student financial planning, course fees, distance education fees, athletic funding,

salaries, Indian education planning, diversity, writing proficiency, credit cap, students called

to active duty, and reciprocal campus services.” It then went on to conclude: “All of these

matters are important to the public and in particular to prospective students and employees

of the University System.”

¶27 In addition, the record reveals that the Committee deliberated on legislative strategy;

the extent to which the Board of Regents should be involved in campus planning; guidelines

for determining what percentage of the cost of a college education should be covered by

tuition; budget planning, including consideration of salary increases; tuition and fees;

development of information technology policies; the fiscal and political implications of a

retired school district administrator teaching at a unit of the University while drawing

retirement pay; whether to use interest income arising out of non-resident tuition for

scholarships for non-resident students; dental hygiene pre-admission course requirements and

how to attract students to the program; the implementation of writing proficiency standards;

the policy concerning continuous enrollment of transfer students; and policies concerning

the transfer of class credits. The facts had been gathered when the members arrived at the

meeting and once there they deliberated positions and solutions. The function performed by

the committee, as revealed by the record, was to make decisions on how to proceed.

¶28 Clearly, the Policy Committee met to deliberate on matters of substance.

11
Accordingly, we hold that the Policy Committee is a public body within the meaning of

Article II, Section 9, of the Montana Constitution and Montana’s open meeting laws.

¶29 Crofts argues that even if the Policy Committee is deemed to be a public body, it does

not hold “meetings,” as contemplated in the open meeting laws, because the Committee’s

membership is not fixed, no number of members were required to attend to constitute a

quorum, and neither direct action nor votes were taken at its meetings.

¶30 Section 2-3-202, MCA (2001), defines the term “meeting” as:

[T]he convening of a quorum of the constituent membership of a public
agency or association described in 2-3-203, whether corporal or by means of
electronic equipment, to hear, discuss, or act upon a matter over which the
agency has supervision, control, jurisdiction, or advisory power.

Nothing in the plain language of § 2-3-202, MCA (2001), requires that a meeting produce

some particular result or action, or that a vote on something be taken. All that is required is

that a quorum of the membership convene to conduct its public business.

¶31 In this case, the parties stipulated that each person who attended a meeting of the

Policy Committee was invited because he or she was an employee of the University System

that held a responsible position. It was also agreed that there were no established rules of

procedure and no quorum requirements. Thus, a quorum of the Policy Committee consisted

of the members who were in attendance at any particular meeting. The common law rule is

that a quorum of any body of an indefinite number consists of those who assemble at any

meeting thereof. Application of Havender (N.Y. 1943), 181 Misc. 989, 992. There being

no statute, rule, or precedent to the contrary, this rule of common law applies in this instance

to our interpretation of § 2-3-202, MCA (2001). Section 1-1-108, MCA (2001). Moreover,

12
our constitution mandates that the deliberations of public bodies be open, which is more than

a simple requirement that only the final voting be done in public. Devices such as not fixing

a specific membership of a body, not adopting formal rules, not keeping minutes in violation

of § 2-3-212, MCA, and not requiring formal votes, must not be allowed to defeat the

constitutional and statutory provisions which require that the public’s business be openly

conducted. Therefore, we hold that the meetings of the Policy Committee were meetings

within the meaning of § 2-3-202, MCA (2001).

¶32 Article II, Section 9, of the Montana Constitution provides that no person shall be

deprived of the right to observe the deliberations of public bodies. Government operates

most effectively, most reliably, and is most accountable when it is subject to public scrutiny.

Day, ¶ 34. The Policy Committee is a public body which deliberates on substantive issues

that are the public’s business. Accordingly, we hold that the meetings of the Policy

Committee are subject to the requirements of Montana’s open meeting laws and Article II,

Section 9, of the Montana Constitution.

ISSUE 2

¶33 Did the District Court correctly award the Respondents their attorneys’ fees?

¶34 The District Court granted the Respondents’ motion for summary judgment on

January 3, 2003. On January 8, 2003, the Respondents filed a notice of entry of judgment,

and on January 9, 2003, they filed a motion requesting that the District Court award them

attorneys’ fees. Crofts objected to the Respondents’ motion for attorneys’ fees. The District

Court conducted a hearing on this matter on February 25, 2003. The District Court then

13
issued an order granting the Respondents their attorneys’ fees and costs on April 3, 2003.

¶35 On appeal, Crofts contends that because the District Court failed to make a ruling on

the Respondents’ motion for attorneys’ fees within 60 days, the motion was deemed denied.

Therefore, Crofts alleges the District Court did not have jurisdiction to award the

Respondents their attorneys’ fees on April 3, 2003. We agree.

¶36 The District Court’s order granting the Respondents’ motion for summary judgment

was a final determination of the rights of the parties to this action, and is the subject of the

instant appeal. See Rule 54(a), M.R.Civ.P. The Respondents treated it as such when they

filed their notice of entry of judgment on January 8, 2003. A motion for attorneys’ fees filed

after entry of a judgment is treated as a motion to alter or amend a judgment. In re Marriage

of McDonald (1979), 183 Mont. 312, 314, 599 P.2d 356, 358. A motion to alter or amend

a judgment must be ruled on within 60 days or it is deemed denied. Rule 59(g), M.R.Civ.P.

¶37 In this case, the Respondents filed their motion for attorneys’ fees on January 9, 2003.

Pursuant to Rule 59(g), M.R.Civ.P., the District Court then had until March 10, 2003, to

render a decision regarding such motion. The District Court failed to do so. Rule 59,

M.R.Civ.P., contains a mandatory jurisdictional time limitation, to which this Court strictly

adheres. Johnson v. Eagles Lodge Aerie (1997), 284 Mont. 474, 480, 945 P.2d 62, 65.

Thus, the motion was deemed denied on March 11, 2003, and the District Court had no

jurisdiction to enter its April 3, 2003, order awarding the Respondents their attorneys’ fees.

Accordingly, the District Court’s order of April 3, 2003, must be reversed.

¶38 For the foregoing reasons, the judgment of the District Court requiring the meetings

of the Policy Committee to be open to the public is affirmed, and its award of attorneys’ fees

14
to the Respondents is reversed.

/S/ JOHN WARNER

We Concur:

/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER
/S/ JIM RICE

15
Justice W. William Leaphart dissenting.

¶39 I dissent.

¶40 I would apply the “functional analysis” that has been urged by amicus curiae State of

Montana. Under that analysis, the Court should distinguish between “fact-finding” efforts

of state agencies and the “deliberative” process whereby state agencies with governmental

authority reach substantive decisions. Although the Court, in conclusory fashion, states that

the Senior Management Group was doing more than “fact-finding”–that it was

“deliberating”–the Court does not develop a workable definition of “deliberative.” In my

view, if the functional analysis is properly applied, we would conclude that the group is not

a “deliberative” body as that term is used in the Montana Constitution, Article II, Section 9.

¶41 Commentators have divided the agency decision-making process into three stages:

collective inquiry, deliberations, and decision. R. Berg & S. Klitzman, An Interpretive Guide

to the Government in the Sunshine Act 9 (1978). Collective inquiry is triggered when an

issue comes to the attention of the agency. Agency personnel and their staff gather

information to define the issue, gather expertise and identify possible solutions without

comparing them. See, e.g., Arkansas Gazette Company v. Pickens (Ark. 1975), 522 S.W.2d

350, 357 (Fogleman, J. concurring) (“[t]here is an appropriate investigative and exploratory

stage preceding many actions by governmental bodies and agencies”). The so-called “fact-

finding” stage includes seeking expert advice, creating study commissions, exploring issues

or simply brainstorming. Berg & Klitzman, 9.

16
¶42 In contrast to the fact-finding stage, deliberation is “to think about deliberately and

often with formal discussion before a final decision.” Webster’s Ninth Collegiate Dictionary

(1991). The distinction between deliberative and fact-finding functions is best illustrated by

contrasting our decisions in SJL of Mont. Assoc. v. City of Billings (1993), 263 Mont. 142,

867 P.2d 1084, and Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, 289 Mont. 155, 959

P.2d 508. In SJL, the Billings Public Works Director, the Billings City Engineer and

individuals representing a private contractor and a private engineering company met “to

discuss the problems and concerns surrounding the delays in construction” on a street project

in Billings. SJL, 263 Mont. at 144, 867 P.2d at 1085. Noting that Article II, Section 9, is

designed to encompass government entities which are authorized “to make rules, determine

contested cases or enter into contracts,” SJL, 263 Mont. at 147, 867 P.2d at 1087, we

concluded that the meeting between the Billings officials and the private engineering

company was not subject to the open meeting law requirements.

¶43 This is in contrast to the decision in Day, where the Director of the Department of

Corrections appointed a Private Prison Screening and Evaluation Committee and mandated

that the Committee “deliberate” in order to make recommendations as to which specific

contractor the Director should select. Day, ¶ 5. We concluded that the Committee was a

public body and that the proposals which were submitted to it were public writings subject

to public inspection. Day, ¶¶ 18-19. The State points out that the same public access

requirements might not have held true for some sub-group of the Private Prison Screening

and Evaluation Committee or staff assigned to gather information about private prison

17
facilities in other jurisdictions or to accumulate and analyze information about the financial

histories of various bidders. Such activities, falling short of a recommendation or a decision,

would properly be categorized as “collective inquiry” or fact-finding.

¶44 The decision of the Maryland Court in Abell Publishing Co. v. Bd. of Regents (Md.

Ct. App.1986), 514 A.2d 25, is instructive in the context of the present dispute. Dr. John

Slaughter, Chancellor of the University of Maryland at College Park, appointed a task force

charged with looking into “Academic Achievement of Student-Athletics.” The

subcommittees of the task force refused to open their meetings to the public. Relying on the

First Amendment and Article 40 of the Maryland Declaration of Rights, the Baltimore Sun

sought a prohibitory injunction to prevent the subcommittees from holding closed meetings.

The Sun contended that the task force was created by a rule, resolution or bylaw of the board

of regents and that, since the board is a public body, the task force, as an arm of the board,

was subject to the open-meeting requirements. In upholding the denial of the injunction, the

court of appeals noted that Chancellor Slaughter had wide discretion in making policy

decisions with respect to the campus and he was empowered to appoint task forces which

report to him. The court found significant the fact that the task force was created by the

chancellor, not the board of regents. The court held that meetings held by the subcommittees

of the task force were not subject to the open meeting act.

¶45 In Bennett v. Warden (Fla. App. 1976), 333 So.2d 97, 100, the Court of Appeals of

Florida held that the open meeting law did not apply to meetings between a college president

and a group of junior college employees, called the Career Employees Council (CEC). The

18
CEC members were designated by the president as representatives of the career employees

for the purpose of discussing with him various problems and suggestions relating to

employees’ working conditions in general and wages and hours in particular. The court held

that the president of the college is merely an executive officer of the board of trustees and

is no different than any other executive officer of any other board, agency or commission of

government. He was thus neither a “board” nor a “commission” within the ambit of the

Sunshine Law. The court concluded that “frequent and unpublicized meetings between an

executive officer and advisors, consultants, staff or personnel under his direction, for the

purpose of ‘fact-finding’ to assist him in the execution of those duties, are not meetings

within the contemplation of the Sunshine Law.” Bennett, 333 So.2d at 99. The court also

observed that the president’s recommendations resulting from meetings with the CEC were

made to an administrative council whose meetings are open to the public and that the

recommendations of the council are submitted to the board of trustees for decision. Having

noted that context, the court concluded that CEC is far too remote in the decision-making

process to be capable of making or formulating policy or crystalizing decisions.

¶46 Although the Court here pays lip service to a distinction between deliberative

decision-making and fact-finding, its conclusion that the Senior Management Group is a

“deliberative” body does not withstand scrutiny. The Senior Management Group was not

created by law, rule or regulation and thus has no legally imposed charge or mandate to

decide anything. It has no definite membership and does not vote on propositions or take any

direct action. Rather it is a group of upper-level university employees formed at the behest

19
of the Commissioner of Higher Education with no specific charge to perform any function

other than confer with the Commissioner. The Commissioner in turn makes

recommendations to the Board of Regents, which, in open meetings, deliberates and makes

final decisions. The management group is too far removed from the decision-making process

to trigger the need for public access. Given that the Commissioner is free to disband the

management group and dispense with any further meetings, it seems anomalous to hold that

a group which has no collective authority, no constituent membership, and no legal

obligation to meet in the first instance, must, if it does meet, give notice of its meeting, vote

and maintain minutes pursuant to § 2-3-201et seq., MCA.

¶47 The Court purports to set guidelines as to when meetings are required to be open to

the public. These guidelines, however, are so broad that they provide no real guidance. First

of all, the seven guidelines are addressed to when, where, and why “committees” meet.

Although the Court does not define “committee,” it is apparent that anytime any two public

employees meet during office hours and discuss public matters, they constitute a

“committee” engaged in a “meeting.” Thus an administrator of a state departmental division

who voluntarily decides to hold periodic meetings of the division’s employees for the

purpose of formulating recommendations to the department director would be bound to

comply with open meeting laws. Likewise, when the Governor decides to meet regularly with

a department head to discuss, for example, proposed legislation, such meetings would clearly

fall within the guidelines and require public access. As the State points out, interagency

gatherings, or “meetings,” occur literally hundreds of times each month across the State of

20
Montana. By way of example, the State cites to ad hoc meetings among employees of the

Environmental Management Bureau of the Permitting and Compliance Division of the

Department of Environmental Quality and employees of the Minerals Management Bureau

of the Trust Land Management Division of the Department of Natural Resources and

Conservation meeting to discuss ongoing agency responsibilities and specific projects such

as the progress of the preparation of an environmental impact statement for a proposed

mining operation on school trust land.

¶48 The Florida Court noted in concluding that meetings between an executive officer and

employees or advisors under his direction are not subject to open meeting requirements:

Any other conclusion, carried to its logical extension, would in our view
unduly hamper the efficient operation of modern government the administra-
tion of which is more and more being placed in the hands of professional
administrators. It would be unrealistic, indeed intolerable, to require of such
professionals that every meeting, every contact, and every discussion with
anyone from whom they would seek counsel or consultation to assist in
acquiring the necessary information, data or intelligence needed to advise or
guide the authority by whom they are employed, be a public meeting within
the disciplines of the Sunshine Law. Neither the letter nor the spirit of the law
require it.

Bennett, 333 So.2d at 99-100.

¶49 Article II, Section 9, provides that 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. I interpret “deliberations” to mean the process by which

a public body, legally charged with the duty or discretion to make a decision or

recommendation, reaches a decision. I do not interpret “deliberative” “public body” as

encompassing a management group with no enabling law, rule or order, with no defined

21
membership, with no charter or mandate, and which does not vote on propositions and has

not taken any direct action such as adopting a formal policy.

¶50 Clearly, the Constitution guarantees the public access to the “deliberative” process

whereby public agencies with governmental authority make decisions. See Great Falls

Tribune (Director of the Department of Corrections delegated authority to Screening

Committee) and Common Cause v. Statutory Committee (1994), 263 Mont. 324, 868 P.2d

604 (duties, size and membership of nominating Committee dictated by statute). The Court,

however, needs to meaningfully define “deliberative” in such a manner that the open meeting

requirements (quorums, minutes, voting and advance notice, §§ 2-3-202 and -212, MCA) are

not counterproductively imposed on administrative or fact-finding meetings of public

agencies. In deeming this ill-defined, amorphous Senior Management Group a “deliberative”

decision-making body subject to open meeting requirements, the Court is creating more, not

less, confusion.

¶51 I would reverse the decision of the District Court.

/S/ W. WILLIAM LEAPHART

Chief Justice Karla M. Gray joins in the dissent of Justice Leaphart.

/S/ KARLA M. GRAY

22