DA 14-0562

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 55

CITIZENS FOR OPEN GOVERNMENT, INC.,

 Petitioner and Appellant,

 v.

CITY OF POLSON,

 Respondent and Appellee.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and For the County of Lake, Cause No. DV 13-265

Honorable James A. Manley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William A. Schreiber, Attorney at Law; Polson, Montana

For Appellee:

Tracey Neighbor Johnson; William L. Crowley, Boone, Karlberg, P.C.;

Missoula, Montana

Submitted on Briefs: January 14, 2015

 Decided: February 24, 2015

Filed:

__________________________________________

Clerk

February 24 2015

Case Number: DA 14-0562
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Justice Beth Baker delivered the Opinion of the Court. 

¶1 Citizens for Open Government (Citizens) appeals the Twentieth Judicial District 

Court’s grant of summary judgment in favor of the City of Polson (City). We address the 

following issues on appeal: 

1. Whether Citizens was denied its right under Montana’s open meeting laws to 

participate in an executive session held by the City Commission.

2. Whether the District Court abused its discretion by declining to void the City’s 

decision to present an offer letter to a candidate for city manager.

3. Whether the District Court improperly determined facts in a summary 

judgment proceeding without an evidentiary hearing on the merits of the case.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In the spring of 2013, the City began the process of hiring a new city manager.

Between April and September 2013, the City Commission held several public meetings 

during which it discussed the search for a city manager and gave the public opportunities 

to comment. The Commission narrowed down the applicants for city manager to five 

finalists. 

¶4 In August 2013, the City announced that there would be a community “meet and 

greet” on September 11, during which the public would have the opportunity to speak to 

the five finalists and fill out comment cards. The comment cards would be given to the 

search committee, a body of non-commissioners selected by the Commission at a public 

meeting in April. The mayor encouraged the public to attend the event. The City also 

published a press release, providing information about the meet and greet and a link to 
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the city website containing biographical information for the five finalists. The press 

release was picked up by several local news sources. 

¶5 On September 12, the Commission held a public interview with the candidates. 

Commissioners asked each candidate several questions, after which the public had an 

opportunity to comment. On the same day, the search committee and an employee 

interview panel conducted two interviews that were not open to the public. 

¶6 The Commission’s September 12 public meeting agenda listed a closed executive 

session with the description, “PERSONNEL-MEET WITH INTERVIEW PANELS AND 

DELIBERATE ON SELECTION OF CITY MANAGER.” At least three persons 

associated with Citizens1 objected to the executive session because they felt it violated 

Montana open meeting laws. The Commission proceeded with the executive session 

over Citizens’ objections.

¶7 On September 13, the mayor and city manager candidate Mark Shrives signed an 

offer letter for the position of city manager. At a public meeting on September 16, the 

Commission voted to authorize the mayor to negotiate and conclude a final bargain with 

Shrives within the parameters of the offer letter, subject to the Commission’s final 

approval of an employment contract. The mayor stated that all three interview panels had 

come back with the same top candidates. During public comment, a member of Citizens 

asked whether the public would have the opportunity to review a contract or offer input 

on it before finalization. The mayor responded that the contract would be attached to the 

 

1 Citizens describes associated persons as either “members” or “associates,” but does not clearly 

distinguish the two terms. We refer to all persons associated with Citizens as “members.”
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meeting agenda when it was brought to the Commission for a vote. Another member of 

Citizens indicated displeasure that the September 12 executive session was closed to the 

public. 

¶8 At a public meeting on September 20, the Commission unanimously voted to 

approve the city manager employment contract negotiated by the mayor. At the 

beginning of the meeting, the commissioners provided copies of a contract signed by 

Shrives to attending members of the public. The mayor also explained changes to a draft 

that previously was distributed and posted on the city website. Members of Citizens 

inquired about the changes and asked for clarifications, after which the Commission 

voted to approve the contract.

¶9 Citizens brought suit on October 15, 2013, contending that the September 12 

executive session violated Citizens’ right to participate under the Montana Constitution 

and Montana statutory law. The parties filed cross-motions for summary judgment. By 

order entered July 31, 2014, the District Court rejected the City’s argument that Citizens 

lacked standing to file its complaint. The court denied Citizens’ cross-motion for 

summary judgment and ruled in favor of the City on the merits of Citizens’ claims,

declining to void the Commission’s decision to present Shrives with an offer letter. 

Citizens appeals. 
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STANDARDS OF REVIEW

¶10 We review a district court’s grant of summary judgment de novo. Bailey v. St. 

Farm Mut. Auto. Ins. Co., 2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149. Summary 

judgment is appropriate when there is no genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Smith v. 

Burlington N. & Santa Fe Ry. Co., 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639. 

The interpretation of a statute is a question of law that we review for correctness. City of 

Missoula v. Iosefo, 2014 MT 209, ¶ 8, 376 Mont. 161, 330 P.3d 1180.

¶11 We review for abuse of discretion a district court’s determination whether to void 

a decision made in violation of Montana’s open meeting laws. Motta v. Philipsburg Sch. 

Bd. of Trs., 2004 MT 256, ¶ 21, 323 Mont. 72, 98 P.3d 673; Common Cause v. Statutory 

Comm’n to Nominate Candidates for Comm’r of Political Practices, 263 Mont. 324, 334, 

868 P.2d 604, 610 (1994). A court abuses its discretion if it acts arbitrarily without 

employment of conscientious judgment or exceeds the bounds of reason, resulting in 

substantial injustice. Chase v. Bearpaw Ranch Ass’n, 2006 MT 67, ¶ 15, 331 Mont. 421, 

133 P.3d 190.

DISCUSSION

¶12 Citizens challenges the Commission’s closure of its September 12 executive 

session, during which the Commission discussed the five finalists for city manager. The

District Court determined, without deciding, that, even if the executive session violated 

open meeting laws, any violation did not justify voiding the contract. The court 
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emphasized that the decision to hire Shrives was subject to final approval by the 

Commission, and that the Commission held two subsequent public meetings during 

which it voted to authorize the mayor to negotiate with Shrives and voted to approve the 

final contract. The court noted that public comments were taken during both of those 

meetings, and that the public had “ample opportunity” to participate leading up to the 

final hiring decision. Ultimately, the court concluded that “[v]oiding the decision to offer 

a contract to Shrives would, at this point, serve no substantial public purpose” and 

declined to exercise its discretion to void the hiring decision.

¶13 Citizens argues that the District Court abused its discretion by not voiding the 

Commission’s decision to hire a new city manager after the public was denied the right to 

observe and participate in the Commission’s deliberations and decision. Citizens also

argues that the District Court erred in determining facts without an evidentiary hearing 

and in basing its decision in favor of the City on those facts. 

¶14 1. Whether the public had the right to participate in the Commission’s September 

12 executive session under Montana’s open meeting laws. 

¶15 A government agency must afford citizens a “reasonable opportunity” to 

participate before the agency makes a final decision. Mont. Const. art. II, § 8. The 

public has the right to observe deliberations of public bodies “except in cases in which 

the demands of individual privacy clearly exceed the merits of public disclosure.” Mont. 

Const. art. II, § 9. Montana’s open meeting statutes, codified at §§ 2-3-201 through -221, 

MCA, implement these rights. Common Cause, 263 Mont. at 329, 868 P.2d at 607.
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¶16 The law requires all meetings of public or governmental bodies to be open to the 

public. Section 2-3-203(1), MCA. A meeting is “the convening of a quorum of the 

constituent membership of a public agency or association . . . , to hear, discuss, or act 

upon a matter over which the agency has supervision, control, jurisdiction, or advisory 

power.” Section 2-3-202, MCA. The statute provides exceptions for discussions relating 

to a matter of individual privacy, discussions of litigation strategy, and judicial 

deliberations. Sections 2-3-203(3) through (5), MCA. Unless the individual about whom 

the discussion pertains waives his or her privacy right, the meeting may be closed “if and 

only if the presiding officer determines that the demands of individual privacy clearly 

exceed the merits of public disclosure.” Section 2-3-203(3), MCA. 

¶17 There is no question that the above statutes apply to the Commission and to its

September 12 executive session. See Bd. of Trs. v. Bd. of Cnty. Commr’s, 186 Mont. 148, 

155, 606 P.2d 1069, 1072 (1980) (applying Montana’s open meeting laws to a closed

meeting of county commissioners). Although the city manager candidates acknowledged 

that they would be interviewed in an open public session, they did not waive their privacy 

interest for any other purpose. Neither party submitted evidence that the presiding officer 

determined “that the demands of individual privacy clearly exceed the merits of public 

disclosure.” The Commission should have made that determination before closing the 

executive session to the public. 
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¶18 2. Whether the District Court abused its discretion by declining to void the 

Commission’s decision to present an offer letter to Shrives.

¶19 A district court has discretion to void a decision made in violation of Montana 

open meeting laws. Section 2-3-213, MCA (“Any decision made in violation of 2-3-203 

may be declared void by a district court having jurisdiction.”) (emphasis added); Motta, 

¶ 21.

¶20 Although “voiding a decision by a public entity for failure to comply with open 

meeting laws may sometimes be an appropriate remedy,” Allen v. Lakeside 

Neighborhood Planning Comm., 2013 MT 237, ¶ 24, 371 Mont. 310, 308 P.3d 956

(distinguishing Bryan v. Yellowstone Cnty. Elementary Sch. Dist. No. 2, 2002 MT 264, 

312 Mont. 257, 60 P.3d 381), we have held that a district court did not abuse its 

discretion by declining to void action taken at a closed meeting when the governing body 

allowed subsequent opportunities for public comment on the decision, Allen, ¶ 30; Zunski 

v. Frenchtown Rural Fire Dep’t Bd. of Trs., 2013 MT 258, ¶ 17, 371 Mont. 552, 309 P.3d 

21, or when the decision made during the executive session was subject to further review 

before becoming final, Allen, ¶ 30; Common Cause, 263 Mont. at 333, 868 P.2d at 610. 

The District Court, citing these authorities, concluded that both circumstances were 

present here. 

¶21 In Allen, we upheld a district court’s discretionary determination that voiding a 

neighborhood plan, adopted by a planning committee, was not an appropriate remedy for 

the committee’s failure to hold public meetings for several months at the beginning of its 

planning process. Allen, ¶ 32. In reaching our decision, we reasoned that the public had 
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ample opportunity to participate in subsequent meetings, after the committee realized it 

was subject to Montana’s open meeting laws and before the final plan was adopted. 

Allen, ¶ 25. 

¶22 Similarly, in Zunski, we held that the Frenchtown Rural Fire Department Board of 

Trustees’ decision to create an interim fire chief position and hire a specific person for 

that position, made during a closed meeting, was cured when the Board readopted the 

challenged action in a meeting that “complied with the open meeting and right to 

participate laws.” Zunski, ¶ 17. We therefore concluded that the district court did not 

abuse its discretion by refusing to void the Board’s decision. Zunski, ¶ 31.

¶23 The District Court in this case found that, during the September 12 executive 

session, the Commission decided to present an offer letter to Shrives. Before any 

contract was finalized, however, the public had the opportunity to comment on the 

Commission’s decision on two separate occasions—the September 16 meeting during 

which the Commission authorized the mayor to negotiate and conclude a final bargain 

with Shrives, and the September 20 meeting during which the public was invited to read 

and comment on the contract signed by Shrives. 

¶24 Furthermore, the offer letter presented to Shrives explicitly stated that any contract 

he signed would be subject to final approval by the Commission. That approval came at 

the September 20 open meeting, following an opportunity for public comment. We 

adhere to our reasoning in Allen and Common Cause—in both cases, a district court did
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not abuse its discretion by declining to void a decision that violated Montana’s open 

meeting laws but was subject to final review and consideration.

¶25 We emphasized in Allen that the public had opportunities to comment after the 

committee had met privately to discuss initial drafts of a neighborhood plan. Allen, ¶ 25. 

We also noted that the neighborhood planning board’s recommendation to adopt the plan 

was subject to review by the county commissioners, who were not bound to accept the 

recommendation. Allen, ¶ 28. Because the commissioners could have rejected the 

board’s recommendation, we agreed with the district court that voiding the 

commissioners’ adoption of the neighborhood plan was not an appropriate remedy. 

Allen, ¶ 30. We cited Common Cause, in which we held that a district court did not abuse 

its discretion by declining to void a legislative committee’s decision to compile a list of 

candidates for the position of Commissioner of Political Practices, despite the 

committee’s violation of Montana’s open meeting laws. Allen, ¶¶ 28-29 (citing Common 

Cause, 263 Mont. at 330-33, 868 P.2d at 607-09). We reached our conclusion in 

Common Cause based on the fact that the committee’s list of candidates was subject to 

review by the governor, who was not bound by the list in making his final decision. 

Common Cause, 263 Mont. at 332, 868 P.2d at 609.

¶26 The Commission did not hire Shrives as the new city manager until it adopted his 

employment contract following two additional open, public meetings after the September 

12 executive session. At the time of the District Court’s ruling, Shrives had been the city 

manager for nearly a year. The offer letter indicates that the contract is for a two-year 
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term, which expires in September 2015. Presumably, there will be a new opportunity for 

public input at that time. We conclude that the District Court did not abuse its discretion 

by declining to void the Commission’s decision to present an offer letter for the position 

of city manager to Shrives, even though the Commission did not make a privacy 

determination before closing its executive session. 

¶27 3. Whether the District Court improperly determined facts in a summary 

judgment proceeding without an evidentiary hearing on the merits of the case. 

¶28 In Montana, “[t]he right to a hearing is waived unless a party requests a hearing 

within 14 days after the time for filing a reply brief has expired.” M. R. Civ. P. 56(c)(2). 

Citizens contends that the District Court impermissibly relied on facts without holding an 

evidentiary hearing and based its finding that the public had ample opportunities to 

participate on incorrect facts. However, Citizens waived any right to an evidentiary 

hearing by not requesting one under Rule 56(c)(2). Moreover, the record reveals no 

genuine dispute of material fact on this point. Minutes from public Commission 

meetings indicate that the public did in fact have two opportunities to comment on the 

decision to hire Shrives as city manager before the Commission voted unanimously to 

approve the employment contract: at the end of the September 16 public meeting and 

before the Commission’s vote on September 20. Whether members of the public actually 

used those opportunities to discuss the candidates does not call into question the District 

Court’s ruling.
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CONCLUSION

¶29 The City of Polson took considerable steps to conduct its hiring process in an open 

and transparent manner. The Commission did not comply with the open meeting laws, 

however, when it closed its executive session without first determining that the demands 

of individual privacy clearly exceeded the merits of public disclosure. Because the 

Commission did not finalize its hiring decision until it held two additional open, public 

meetings, we conclude that the District Court did not abuse its discretion by declining to 

void the Commission’s decision to present an offer letter for the position of city manager

to Shrives. 

¶30 We affirm the District Court’s decision and order.

/S/ BETH BAKER

We concur: 

/S/ JAMES JEREMIAH SHEA

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT

/S/ JIM RICE