No. 89-268

IN 7'HF.: SUPRE:ME:COURT OF' THE STATE OF MONTANA

1990

ROBERT FLESH, Plaintjff and Appellant,-vsTHE BOARD OF TRUSTE;ES OF JOINT SCHOOL DISTF.ICT #2, MINERAL,AND MISSOTJ1,ACOUNTIES AND PAT' DAVIES,

Defendants and Respondents.

APPEAL FROM: District Court oftheFourthJudicialDistrict, Inand for theCounty ofMissoula, The Hon. James R. Wheel-is, Judge presiding.

COUNSEL OF RECORD: For Appellant:

Robert Flesh, Pro Se, Missoula, Montana

For Respondent:

Michael W. Sehestedt, Deputy County Attorney, is sou la, Montana

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### ---------- ------- Submitted onBriefs: Sept. 21, 1989

Decided: January 29, 1990

Filed:justice John C. Sheehy delivered the Opinion of the Court.

Theplaintiff,Robert Flesh brought this action alleging improper clos.ure of various School Board meetings by the defendant School District. The ~istrictCourt, Fourth Judicial District,Missoula County, entered summary judgment in favor of the School District for all meetings occurring more than 30 days prior to filing of the complaint and after

abench trial entered findingsof fact,conclusionsof law an order directing entry of judgment in favor of the defendant School District on closure of the School Board meeting of August 19, 1987. Flesh raises a number of issues in his brief which we summarizeas follows: 1. Whether the District Court properly granted summary judgment in favor of the School District for those meetings which occurred more than 30 days prior to the filing of the complaint. 2. Whether the District Court correctly held that the School Board properly closed the Board meeting ofAugust 19, 1987.

### 3. Whether the SchoolBoard's denial of Flesh's request for an openmeeting to discusspurely public questionswas a form of prior restraint forbidden by the united States and Montana Constitutions. As set out in his amended complaint,Flesh seeks relief for meetings the Board closed on November 18, 1986,December 8, 1986,July 6,1987,August 10, 1987,and August 19, 1987. The relief sought for all meetings except the meeting of A.ugust 19, 1987, is a declaration that the meetings were improperly closed. As to the meeting of August 19, 1987, 

### Flesh requests an order voiding any decision made during orresulting from the closed portion of the meeting. The minutes of the School Board meetings indicate that Flesh attended only the meetings ofAugust 10 and 19, 1987. On August 19, 1987, the Board of Trustees of Joint School DistrictNo. 2,Mineral and Misso-ulaCounties,held a meeting of the School Board. On the agenda for the meeting

was a grievance filed by Flesh, alleging that Assistant School Administrator Carl Dehne had maliciously made false statements for the purpose of injuring Flesh's reputation in the community. The grievance requested a written and public apology and a severe reprimand for Dehne's "irresponsible, malicio-us and political miscond.uct. 'I In addition, the grievance also requested an open hearing in front of the Board. Flesh's grievance stemmed from an article written by Dehne in the Alberton School Newsletter, in which Dehne was critical of Flesh's accusation about Alberton School'suse of the "ScholasticScope"magazine in certain classes. At the grievance hearing, on August 19, 1987, the presiding officer asked Dehne ifhe wanted to waive his right to privacy. Dehne refused to waive his right to individ.ua1 privacy and the presiding officer determined that the right of Dehne's individ.ua1 privacy outweighed themerits ofpublic disclosure. Fleshrequested to amend his grievance to delete all requests for disciplinary action at the time of the closure. The presiding officer denied Flesh's attempt to amend his grievance. Subsequently, the Board closed the meeting over the objections of Flesh. Flesh, Dehne,Dehne's attorney, and the superintendent remained in the closed meeting while Fleshpresented his grievance. After Flesh presented his grievance, the School Board closed the deliberations portion of the meeting. Flesh objected when the School Board excluded himself, Dehne, andDehne's attorney from the School Board's deliberation. The Board tookno action as a resultof the grievance. The District Court, on December 22, 1988, granted summary judgment in favor of the School ~istrict finding the complaint untimely under 5 2-3-213, MCA, for those meetings which occ.urredprior to August 15, 1987. Furthermore, the court found that Flesh lacked standing to bring an action regarding the SchoolBoardmeetingsprior toAugust 15, 1987, in that he had no personal interest in those meetings beyond the common interest of all citizens and taxpayers. Finally, the District Court contended that "sinceMr. Flesh sought no relief for themeetings prior toAugust 15, 1987, there isno justiciable controversyand any rulingby this Co-urt on those meetings would merely be advisory innature." Later, on January 20, 1989, after a bench trial, the DistrictCourtheld in favor of the School~istrict's closure of the meeting ofAugust 19, 1987. The District Court found Dehne's rightto privacy exceeded the public's right to know, and thus the SchoolBoard properly closed themeeting.

Whether the District Court properly qranted judqment - in favor 

### - of 

### - the -- School District

## for those meetings which occ.urredmore than 30 days prior to the filing of the --- 

### -- - -- complaint. The ~istrict Court in its opinion accompanying its order granting summary judgment in favor of the School District found: Since thesemeetings occurredmore than thirtydays prior to the filing of this action, this action is untimely under Section 2-3-213,MCA. Furtherwith exception of the meeting ofAugust 10, 1987, it is clear that Plaintiff lacks standing to bring an action regarding the meetings prior to Aug.ust15, 1987, in that he has no personal interest in those meetings beyond the common interestof all citizensand taxpayers. Chovanak v. Matthews, 120 Mont. 

### - 520, 188 P.2d 582 (1948). ~inallv since no relief is sought for the meetings pridr to August 15, 1987, there is no justiciable controversy and any r-ulingby this Court on thosemeetingswouldmerely be advisory in nature. Hardy 1.Krutzfeldt, 206 Mont. 521, 672 P.2d 274 (1983). (Opinion and Order, December 22, 1980) while the District Court properly granted summary judgment to the School District, the court incorrectly relied

on $ 2-3-213,MCA, to find in favor of the School District. Section 2-3-213, MCA, establishes the remedy for improperly closed meetings and provides: Any decision made in violation of 2-3-203 may be declared void by a district court having jurisdiction. A suit to void any such decision must be commenced within 30 days of the decision.

In the present case, Flesh, however, did not seek to "void" these meetings, but instead sought a declaratory judgment and a writ of mandamus. Flesh asked the court to declare those meetings inviolation of~rticle 11,S 9of the Montana Constitution and $ 2-3-203, MCA. In addition, he requested that the District Court issue a writ ofmandamus, ordering the defendant to conduct all meetings of the Board of Trustees in accordancewithArticle 11,5 9of theMontana Constitution and 2-3-203, MCA. Therefore, the District Court incorrectly relied on S 2-3-313, MCA, because the plaintiff did not seek to "void" themeetings. Even though 2-3-213, MCA, does not apply to the meetings before August 15, this Court affirms the District Court's grant of summary judgment. The District Court was correct inholding that Flesh's claim must fail both for lack of justiciable controversyand for lack of standing. In Hardy v. Krutzfeldt (1983), 206 Mont. 521, 524, 672 P.2d 274, 275,this Court stated:It is true that the purpose of the uniform Declaratory Judgment Act is remedial, to 'settle and to afford relief from .uncertainty and insecurity with respect to rights, status, and to the legal relations'; section 27-8-102,MCA. It is also true that the powers vested by the statute in the courts to render declaratory judgments include

'power to declare rights, status and other legal relationswhether or not furtherrelief is or co.uld be claimed.' section 27-8-201,MCA. Nevertheless, this Courthas on occasionrefused to entertain a declarator judgment action on 

### the ground -- thac no controvErsy is pending whiyh udgment would affect, and this Court attempts to 

### --

# - ;void rendering advisory opinlon. [~m~hasz added.

## I In the present case, Flesh seeks no relief for the meetings prior to August 15, 1987. He is simply requestinu

an advisory opinion which will have no impact on the present and future rights and duties of the parties. There is no justiciable controversy, and therefore Flesh cannotmaintain

a declaratory judgment action based on meetings prior to August 15, 1987. Flesh also argues that affirming the ~istrictCourt's order would encourage flagrant violations of the openmeeting laws. He contends that closed meetings discourage public participation, and reward closed-door, backroom dealing. This Court disapproves of clandestine meetings of public bodies which violate the spirit and the letter of the open meeting laws,which isnot the casehere. Board of Trustees, Huntley Project School ~istrict No. 24, Worden v. Board of County Commissioners of Yellowstone County (1980),186 Mont.

Whether the District Court correctly found that the -- School Board properly closed the Board meetinq ofAugust 19,

--. - -- -- . -- -- - - -- 1987.Both the public right to know, from which the requirement that themeetings ofpublic bodiesbe open to the public flows, and the right of privacy, which justifies the closure of a public meeting, are firmly established in the Montana Constitution. The Montana ~onstit.ution in ~rticle 11,

### 5 9,defines the right of the public toknow: Right to know. No person shallbe 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 disclose. Furthermore, Article 11, 10 defines the right of privacy: ~ight of privacy. 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.

The constitutional provisions are implemented bl7 the Open Meeting Laws. section 2-3-203, MCA, provides in pertinentpart: 

### (1) All meetings ofpublic or governmental bodies, boards, bureaus, commissions, agencies of the state,or anypolitical subdivisionof the stateor organizations or agencies supported in whole or in part by public funds or expending public fundsmust be open to the public. (2) Provided, however, the presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individualprivacymay be waived by the individual about whom the discussion pertains and, if that event, the meeting shall be open.

### Flesh contends that Dehne had no reasonable expectation of privacy in the subject matter presented at the grievance meeting, and thus, the District Court erred in holding that the School District properly closed the meeting. Flesh strongly urges this Court to enforce the public's right to know. In contrast,the SchoolDistrictargues the presiding officer, properly closed the meeting when Dehne refused to waive his right ofprivacy. In The Missoulian v. Board of Regents of Higher Education (1984),207Mont. 513, 529, 

### 675P.2d 962, 971,this Court adopted a balancing test to resolve the competing and conflicting right-to-know and right-to-privacy provisions of theMontana Constitution: However, the right to know is not absolute. The more specific closure standard of the constitutional and statutory provisions requires this Court to balance the competing constitutional interests in the context of the factsof each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclos.ure. Under this standard, the right toknow may 

### outweigh the right of individual privacy, depending on the facts.

In The Missoulian, the Board of Regents was required to balance the public's right to know against the individual's right of privacy with respect to employment evaluations. There the right of individual privacy was held to be paramount. Similarly, the presiding officer of the School Board of Trustees, in closing the grievance meeting to the public, balanced the interest of public's right to 

### participate in the SchoolBoard meeting, and Dehne's right of privacy. The presiding officer determined the grievance meeting, d.ue to Flesh's request for disciplinary action, might involve a review of Dehne's employment record. This Court has previously held employment records are subject tothe state Constitutional right to privacy. Montana Human Rights ~ivision v. City of ~illings(1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287-1288. 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. Great Falls Tribune v. Judicial D. Court

(Mont. 1989), 777 P.2d 345, 350; The ~issoulian v. Board of Regents of ~igher 

### ducati ion (19841, 207 Mont. 513, 522, 675 P.2d 962, 967; Montana Human Rights ~ivisionv. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287. In this case the first part of the test-the subjective

or actual expectation of privacy, is clearly met. Flesh's grievance specifically requested "Carl Dehne to be severely reprimanded by the Board for his irresponsible, malicious, and politicalmisconduct." Dehne clearly had an expectation that when his employer, the School Board, considered the complaint against him it wo.ulddo so in a closed session. The second prong of the test is alsomet because society is willing to recognize a privacy interest in a public employer's consideration of allegations involving an employee's character, integrity, honesty, and personality. The Missoulian v. Board of Regents of Higher 

### ducati ion

(1984), 207 Mont. 513, 675 P.2d 962; Sonstelie v. Board of Trustee (1983), 202 Mont. 414, 658 P.2d 413; Montana Human Rights Division v. city of ~illings(1982), 199 Mont. 434, 649 P.2d 1283. 

### his Court in ~onstelie, upheld the closure of ameeting when the meeting involvedmatters of a "personal nature": Appellant finally argues that the special meeting was illegally closed in violation of the OpenMeeting Act. This contention is without merit. The minutes of the meeting reflect that the trustees went into executive session 'to discuss and review teacher contracts for the 1981-82 school year.

### ' When asked on direct examination why the Board went into executive session, chairman Pine replied that 'there was a lot of things that could come up of a personal nature and privacy of the matters could get really touchy and would really outweigh the public need to hear what was said.' The Open ~eeting Act allows a presiding officer to close the meeting 'during the time the discussion relates to a matter of individual privacy' where the officer has determined that 'the demands of individual privacy clearly exceed the merits of public disclosure.' That right of individual privacymay be waived 'bythe individual aboutwhom the discussion pertains' and the meeting must then remain open. Section 2-3-203(2),MCA. ~onstelie, 658P.2d at 417. Flesh argues society would not recognize a privacy interest in a public agency's published, and widely distributed newsletter article,or in questions pertaining to its truth or falsity. Furthermore, he contends the author, Dehne, could not have reasonably expected to acquire any specialprivacy rightsby writing andpublishing the article. Flesh is correct in his assertions that Dehne has no privacy interest in the newsletter. However, Flesh's grievance complaint not only called for a reviewof the newsletter,but also a req.uestfor disciplinary action against Dehne. This request for disciplinaryaction would necessitatea review of Dehne's personnel record. Clearly Dehne has the right to keep his employment file private and away from public scrutiny. The public's right to know is not absolute but must be balanced against the competing right to individual privacy. In this case there isno showing of anypublic interest to be served by a public meeting but a substantial showing of alegitimate employee privacy interest to be protected by closing themeeting. Flesh contends the presiding officer failed to follow the proper procedure in closing the meeting to the public. We find little merit in plaintiff's contentions. section 2-3-203(3),MCA, provides that the meetingmay be closedwhen 

### "



# ... the presiding officer determines that the demands of individual privacy outweighs the merits of public disclosure." The minutes of the August 19, 1987 meeting reflect the presiding officer properly followed the statute: At the beginning of the personnel hearing the chairwoman asked Mr. Dehne if he waived his right to privacy. He did not waive it. Mr. Flesh objected to the hearing being held in executive session. The chairwoman after determining that in this personnel matter, the individual's right to privacy exceeded the public's right to know called for executive session. After the executive session, the chairwoman responded to Mr. Flesh's grievance items. No board action was taken. Clearly the presiding officer properly followed the procedure set forth in $ 2-3-203, MCA, and the meeting was properly closed toprotect Dehne's individualprivacy. Finally, Flesh argues that the School Board improperly closed the deliberations portion of the meeting. Furthermore, Flesh contends the presiding officer failed to give any reason for the closing of the deliberations to the public. While the presiding officer failed to state the

reason for the closure of the deliberation portion of the meeting, the record implicitly shows the deliberations, like the grievance portion of the meeting, was closed to protect Dehne'sprivacy interest.

Whether the School Board's denial 

### -- of the plaintiff'swas a form ofprior restraint forbidden

### & the united States 

### ---- andMontana Constitution. Flesh argues that the closure of the grievance hearing constituted aprior restrainton his ~irst Amendment rightof Free Speech. We find no merit in this arg.ument. The Record reveals the School Board did not prevent Flesh from saying anything he wanted to say aboutDehne or the School. Rather what the record reflects is thatFleshrequested and obtained

a hearing before the Board onhis allegations that Dehne had acted maliciously and dishonestly and on his request that Dehnebe reprimandedand apublic apology made. The ~irst Amendment prohibition on prior restraint does not require the School Board to conduct an open hearing on allegations seeking disciplinary action against a school administrator. Flesh's own testimony reveals that this closuredid not restrain him from speaking to the newspapers, television stations,or other segments of thepublic. Affirmed. 

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