No. 89-268 

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

1990 

ROBERT FLESH, 

Plaintj ff and Appel lant, 

-vsTHE BOARD OF TRUSTE;ES OF JOINT SCHOOL 

DISTF.ICT #2, MINERAL, AND MISSOTJ1,A COUNTIES 

AND PAT' DAVIES, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

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 

-* ---------- ------- 

Submitted on Briefs: Sept. 21, 1989 

Decided: January 29, 1990 

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

The plaintiff, Robert Flesh brought this action alleging 

improper clos.ure of various School Board meetings by the 

defendant School District. The ~istrict Court, 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 

a bench trial entered findings of fact, conclusions of 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 

summarize as 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 of August 19, 

1987. 

3. Whether the School Board's denial of Flesh's request 

for an open meeting to discuss purely public questions was 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 or 
resulting from the closed portion of the meeting. The 

minutes of the School Board meetings indicate that Flesh 

attended only the meetings of August 10 and 19, 1987. 

On August 19, 1987, the Board of Trustees of Joint 

School District No. 2, Mineral and Misso-ula Counties, 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's use of 

the "Scholastic Scope" magazine in certain classes. 

At the grievance hearing, on August 19, 1987, the 

presiding officer asked Dehne if he 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 the merits of public 

disclosure. Flesh requested 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 Flesh presented 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, and 
Dehne's attorney from the School Board's deliberation. The 

Board took no action as a result of 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.urred prior to August 15, 1987. Furthermore, the 

court found that Flesh lacked standing to bring an action 

regarding the School Board meetings prior to August 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 "since Mr. Flesh sought no 

relief for the meetings prior to August 15, 1987, there is no 

justiciable controversy and any ruling by this Co-urt on those 

meetings would merely be advisory in nature." 

Later, on January 20, 1989, after a bench trial, the 

District Court held in favor of the School ~istrict's closure 

of the meeting of August 19, 1987. The District Court found 

Dehne's right to privacy exceeded the public's right to know, 

and thus the School Board properly closed the meeting. 

Whether the District Court properly qranted 

judqment - in favor - of - the -- School District for those meetings 

which occ.urred more 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 these meetings occurred more than thirty days 

prior to the filing of this action, this action is 

untimely under Section 2-3-213, MCA. Further with 

exception of the meeting of August 10, 1987, it is 

clear that Plaintiff lacks standing to bring an 

action regarding the meetings prior to Aug.ust 15, 

1987, in that he has no personal interest in those 

meetings beyond the common interest of all citizens 
and 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-uling by this Court on those meetings would merely 

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 in violation of ~rticle 11, S 9 of the 

Montana Constitution and $ 2-3-203, MCA. In addition, he 

requested that the District Court issue a writ of mandamus, 

ordering the defendant to conduct all meetings of the Board 

of Trustees in accordance with Article 11, 5 9 of the Montana 

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" the meetings. 

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 in holding that Flesh's claim must fail both for lack 

of justiciable controversy and 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 

relations whether or not further relief is or co.uld 

be claimed.' section 27-8-201, MCA. 

Nevertheless, this Court has on occasion refused 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 cannot maintain 

a declaratory judgment action based on meetings prior to 

August 15, 1987. 

Flesh also argues that affirming the ~istrict Court's 

order would encourage flagrant violations of the open meeting 

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 is not the case here. 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 -- of - August - -- 19, 

1987. 
Both the public right to know, from which the 

requirement that the meetings of public bodies be 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 to know: 

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 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 

pertinent part: 

(1) 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. 

(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 individual privacy may 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 School District argues the presiding 

officer, properly closed the meeting when Dehne refused to 

waive his right of privacy. 

In The Missoulian v. Board of Regents of Higher 

Education (1984), 207 Mont. 513, 529, 675 P.2d 962, 971, this 

Court adopted a balancing test to resolve the competing and 

conflicting right-to-know and right-to-privacy provisions of 

the Montana 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 facts of each case, 

to determine whether the demands of individual 

privacy clearly exceed the merits of public 

disclos.ure. Under this standard, the right to know 

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 School Board 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 to 
the 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 ~ivision v. 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 political misconduct." Dehne clearly had an expectation 

that when his employer, the School Board, considered the 

complaint against him it wo.uld do so in a closed session. 

The second prong of the test is also met 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 a meeting when the meeting involved matters of a "personal 

nature" : 

Appellant finally argues that the special meeting 

was illegally closed in violation of the Open 
Meeting 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 

privacy may be waived 'by the individual about whom 

the discussion pertains' and the meeting must then 

remain open. Section 2-3-203 (2), MCA. 

~onstelie, 658 P.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 

special privacy rights by writing and publishing 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 review of the newsletter, but 

also a req.uest for disciplinary action against Dehne. This 

request for disciplinary action would necessitate a 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 is no showing of any public interest to be 

served by a public meeting but a substantial showing of a 
legitimate employee privacy interest to be protected by 

closing the meeting. 

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 meeting may be closed when 

" . . . 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 to protect Dehne's individual privacy. 

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's privacy interest. 

Whether the School Board's denial -- of the plaintiff's 
---- was a form of prior restraint forbidden & the united States 

and Montana Constitution. 

Flesh argues that the closure of the grievance hearing 

constituted a prior restraint on his ~irst Amendment right of 

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 about Dehne or the School. Rather 

what the record reflects is that Flesh requested and obtained 

a hearing before the Board on his allegations that Dehne had 

acted maliciously and dishonestly and on his request that 

Dehne be reprimanded and a public 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 

closure did not restrain him from speaking to the newspapers, 

television stations, or other segments of the public. 

Affirmed. 

n 

/ Chief Justice A' 1