Legal Opinion:
Open Meeting Law
| TO: | Kim Thiel, Neighborhood Council Coordinator |
|---|---|
| FROM: | David V. Gliko, City Attorney |
| DATE: | May 8, 1998 |
| SUBJECT: | Open Meeting Law and Vacancy Procedure |
By your memorandum of May 6,1998, you have requested a legal opinion on behalf of Neighborhood Council 7 regarding the propriety of meeting closure to discuss the qualifications of candidates to fill a vacancy on their council and whether a secret ballot is acceptable.
The leading case in Montana on the issues is the Missoulian v. Board of Regents, 207 Mont. 513, where the Court considered procedures for evaluating policy for university presidents by the Board of Regents. The Court held:
The discussions concerned personal relationships and personalities, subjective evaluation of various staff and faculty, and the president's management style, methodology and personality. This information may make interesting or sensational news copy, but we conclude that public disclosure is not in the public interest... The flow of discussion and the interchange of questions at the meetings continuously raised matters of privacy inappropriate for public discussion. In short, closure appears the only practical and effective method of conducting job performance evaluations. We hold on these facts that closure of job performance evaluation was necessary to protect the individual privacy of the university presidents and other university personnel. Neither the constitutional nor statutory right to know provision was violated.
Based upon this precedent, it is my legal opinion that discussions concerning the qualifications, personality, and other private details necessary to a full and complete discussion of candidates to fill the vacancy on a neighborhood council require that such discussion be conducted under a closed meeting to protect the individual's right of privacy.
However, I would suggest that subsequent to the closed discussion of candidates qualifications, the meeting be opened for final voting. Voting by the process of secret ballot is appropriate with this qualification: 2-3-212(2), MCA, provides: "Such minutes (minutes must be kept of all meetings) shall include without limitation:...(d) at the request of any member, a record by individual members of any votes taken." In other words, if a council member demands that a record be made of individual votes, the only way this can be accomplished is by each member announcing his vote in open meeting. This request must be honored.
I would recommend that the chairman announce the closure of the meeting with words to the effect that:
"The demands of individual privacy clearly exceeds the merits of public disclosure in consideration of candidates nominated for filling the vacancy on the council, and I thereby close the meeting for that discussion."
