Proceedings of the Board of Trustees
District No. 2, Yellowstone County
High School District No. 2, Yellowstone County
Billings, Montana
September 30, 2003
Call to Order
The Special Meeting of the Board of Trustees of School District No. 2, Yellowstone County, Montana, and High School District, Yellowstone County, Montana, was duly held at The Lincoln Center, 415 North 30th Street, Billings, Montana, September 30, 2003, at 5:30 p.m.
Chair Katharin Kelker presided.
Roll Call
The following officers and trustees were present: Katharin Kelker, Nilo Cabrera, Judith Herzog, Mike Dimich, Superintendent Rod Svee, Conrad Stroebe, Clerk Deborah Long, Gene Jarussi, and Karen Moses. Peter Gesuale and Debbie Richert were absent.
Communication from the Public
Monty Wallis stated he had hoped this Board would have a different view on the open meeting laws. He again requested the opportunity to review the cost of legal services to the District. He felt the most important choice is how the Board will respond to the public’s need for a school system that is open and has nothing to hide. Bruce Cummings stated, in order for KULR television to do its job effectively, we need access to public meetings. He asked the Board to consider this a collaborative effort to settle.
KTVQ and KULR v. Billings Public Schools – Settlement Offer
Larry Martin reported the meetings were closed for three reasons: 1) pursuant to the statute that gives the District the right pursuant to law to close the meeting to discuss litigation strategy when the open meeting would have an adverse effect on the litigating position of the District; 2) to discuss the pending mediation subject to the statute that requires mediation to remain confidential; and 3) both parties, at the request of the mediator, signed a confidentiality agreement, agreeing to maintain the confidentiality of the mediation.
Jeff Weldon reviewed the settlement offer made by the television stations. The three options are:
1) Pass a resolution acknowledging that the April 2003 Board meetings in question were improperly closed;
2) Enact a District policy stating all future meetings, other than those involving a matter where the demand of individual privacy clearly exceeds the merits of public disclosure, would be open to the public; and
3) Pay the plaintiffs’ attorney’s fees incurred as part of this suit.
Trustee Dimich asked if the first option assured that future Boards could not go back and change policy. Mr. Weldon stated, if the Board agreed to the options, it would have a settlement agreement and would be required to change the Board’s policy. Future Boards could change the policy but might be in the same situation as now. Larry Martin stated, if the Board agreed to the settlement, you enter a settlement in court which says you will change your policy and you will never close another meeting to discuss strategy or you will be in violation of that settlement agreement and be on contempt of court, even future Boards. He felt it would be a significant danger. The current policy aligns with current law, which is statutory law. The lawsuit claims the statute is unlawful. The precedent would be set for this Board, not other entities. It would put the District in an awkward situation if it were not able to close another meeting, which could affect a future lawsuit that would name the District and another entity. The Chair stated the three possibilities are to settle, negotiate, or not settle.
Larry Martin reported there are issues regarding insurance. The insurance company could decide not to provide coverage if the District is discussing litigation strategy in an open meeting, or premiums could be significantly increased. The Chair requested the opportunity to speak and passed the gavel to Trustee Dimich.
Trustee Moses asked, as the Chair makes the decision to close a meeting, can the Board members object and request those meetings be opened. Larry Martin stated he understood her concerns, but felt it would be best to keep within the framework and allow the Chair to close a meeting. Trustee Kelker stated, when it is the right of privacy, it is an easy call. Litigation is not always as clear. The oath of office includes upholding Montana statutes. The Board has statutory language that allows for judgment on the part of the Board to close for litigation. She felt the Board should not try to have a policy that is in violation with statutes. It is important, when a meeting is to be closed, the Chair is very clear as to why the meeting is being closed which is a matter of procedure and style. Trustee Kelker did not feel the Board could develop a policy that would bind future Boards, and that this Board was not in a position to settle in this case when it runs against Montana statutes. The Board is in a position of discussing our commitment as a Board to open meeting law, and show our intent for future meetings. She returned to the Chair position.
Trustee Jarussi stated the statutes on the books are presumed to be valid and constitutional and the only entity, which can declare a statute unconstitutional, is the Montana Supreme Court. There is no reason why the District should be the only public entity in the state to waive its right that is given to us by statute, which is valid until the Montana Supreme Court decides otherwise. The Chair stated the settlement must be accepted in its entirety. Trustee Moses asked, if the settlement were voted down, would it be possible to negotiate. Trustee Stroebe asked if this could be fast tracked through the Supreme Court. Larry Martin reported the process is fairly rapid. The hearing is in December and on to the Supreme Court. He anticipated a decision in the summer of 2005. Attorney fees will be fairly minimized now, as there is little attorney time involved. Trustee Stroebe asked what the Board’s involvement would be and if it would discuss the presentation. Superintendent Svee felt it would best to give copies of the briefs to the Board members, but to leave it up to the attorneys. It would not be impractical for the Board to contribute to the strategy.
Trustee Jarussi made the following motion with a second by Trustee Cabrera:
Motion that we reject the settlement offer contained in Mr. O’Connor’s of September 12, 2003.
Trustee Moses felt the Board has abused the privilege given by the statutes and did not feel this District was the best one to pursue this issue due to our track record with the court. Trustee Stroebe stated he could not agree to the settlement and felt it was time to get a ruling from the District Court or the Supreme Court. Trustee Dimich agreed. Trustee Herzog stated she had trouble with developing a policy that would be in conflict with statutes or a policy that would tell future Boards what they can and can’t do. She recommended a work session to review the policy on the closure of meetings and the statutes. Those voting in favor were Nilo Cabrera, Mike Dimich, Judith Herzog, Gene Jarussi, Katharin Kelker, and Conrad Stroebe. Karen Moses opposed the motion. The motion carried.
Trustee Moses would like to see if there is some ability to go to the parties and negotiate. Larry Martin reported there were three parts to the settlement offer. It would be difficult to negotiate and felt it was a test case. Trustee Stroebe did not want to spend too much time negotiating as it would not mean as much as the District Court’s or Supreme’s Court decision. Superintendent Svee asked if the Attorney General could be asked for an opinion. Mr. Martin reported that would not be possible at this time.
Trustee Moses made the following motion:
Motion that this Board direct our counsel to negotiate with KTVQ and KULR8 to see if there is a way to settle.
The motion died due to a lack of a second. Trustee Cabrera felt the Board needed to know the answer to the question. The Chair reported she would schedule a study session in the near future.
As there was no further business, the meeting adjourned at 7:05 p.m.
Katharin Kelker, Chair
Diane Blevins, Recorder