NO. 82-229 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

DORIS SONSTELIE, Plaintiff and Appellant,

TBE BOARD OF TRUSTEES FOR SCHOOL DISti'RICTNO. LO, Flathead County, Montana, Defendant and Respondent.

Appeal from: DistrictCourt of theEleventhJudicial District, In and forthe County of Flathead, The Honorable Robert M. Holter, Judge presiding.

Counsel of Record: For Appellant: Billey & Loring, Great Falls, Montana Richard DeJana, I<alispell,

E'or Respondent: Ted 0. Lympus, County Attorney, KalispeZl, Montana

- - Submitted on Briefs: November 24, 1982 Decided: February 10, 1983 

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--- Clerk.4r. Chlet Justice FranK I. Hasweil delivered the Oprnion 

### or the Court. Doris Sonstelie petitioned the Flathead County District Court to invalidate a decision to terminate her employment. A nonjury trialwas held on March 25, 1982. On hay 13, 1982, the District Court entered judgment in favor of the Board of Trustees. Sonstelie now appeals. Appellant was a nontenured teacher who had taught at the Cayuse Prairie School tor the three school years, 1978- 1981. Cayuse Prairie, School District No. 10, Flathead County, is a third classdistrictwith fewer than a thousand people living in the district. There are three members on the Board of Trustees. The board meetings thatareheld can bestbe characeerized asinformal. On Tuesday, March 10, 1981, theBoard of Trusteesheld 

### ~ts regular monthly meeting. Appellant was present during themeetlng for a lengthy discussion of her teaching that 

### 1s detailed In theminutes of thatmeeting. She made a statement inregard toher retention asa teacher and a number of other members of the public voiced their opinions on the situation. The possibility that appellant might be fired

was clearly discussed. The chairman of the School Board, Stan Pine, informed the assembly that the Board would have until April 1 to issue tenure contracts and until April 15 to issue nontenure contracts; that it had not yet made a decisionon rehiring teachers for the 1981-1982 school year; and that itwould consider thehirlng and make a decision in executive session asrequired by law. The meeting moved on toconsider otner business and was adjourned at11:16 p.m. At the close of the meeting, as Board members and members of thepublicwere gettingready toleave, theBoardmembers discussed the calllng oi a special lneetlny on Saturday, March 14, 1981, for the purpose of discussing teacher contracts for the coming school year. No 

### time for themeeting was 

### set. On March 12, 1981, Pine contacted the clerk of the scnool district, Bonnie Gagnon, in the early morning hours toinformher thatthe speclalmeetingwould be held at9:00

a.m. He instructed her togiveappropriate publicnoticeof the meetlng. From past experience, Gagnon knew that tnere

was insufficient 

### tlme for the notice tobe published inthe local newspaper. The paper would not accept such notices unless they 

### were delivered at

### least two daysprior topublication. She thereforecontacted two local radio stationsin Kalispell, KOFI and 

### KGBZ, between 8:00 a.m. and 9:00 

### a.m. on March 12, and requested that they broadcast notice of the meeting. No copy or transcript of the notice was kept by elther radio station. Gagnon then contacted the County Superin tendent of Schools, Wallace C. Vinnedge, to ask the correct method of jlving notlceof a speciaiboardmeeting and whether posting 

### of notice 

### at the school would be sufficient. Vinnedge advised her thatposting noticeattheschoolwas not sufficlent. He told her that if there was not enough 

### time to publlsh the notlce, she should request the local radio stationstobroadcast notice. The Board met on Saturday. Only the three trustees, the school clerk, and thehead teacher attended themeeting. The minutes of themeeting retlect that "theboard went into executive session to discuss and review teacher contracts for the 1961-1982 schoolyear." Another speclalmeeting washela 011 Frlday, April 10, 1981, to discipline six teachers who had refused todistributea letter from the School Board totheparents. The letterdiscussed teachers' salariesand benefits. The minutes of this meeting reflect that the Board did not specifically discuss the decision on renewal of appellant's contract. On April 13, 1981, chairman Pine notified appellant of the decision to terminate her employment. The next regular schoolboard meeting was held on the followingday. Atthat 

### time, the Board was asked toreconsider 

### itsdecision not to

renew appellant's contract. The matter was discussed publicly and the Board accepted input from members of the public. Following that discussion, the Board again voted not torenew appellant's teaching contract for the 1981-1982 school year. On April 13, 1981, appellant petitioned the District Court todeclare theMarch 14decision toterminate employment void because the meeting was held without adequate notice and was closed. We note 

### at the outset that appellant has failed to delineate issues and allthe factsrelevant tothe issues in her brief pursuant to Rule 23, M.R.App.Civ.P. See, School Dist. No. 1v. Driscoll (1977), 176Mont. 555, 568 P.2d 149. We summarize the thrust of appellant's argument in two issues: (1)Whether the School District complied with the notice provisions of the Public Meeting and dpen Meeting Acts; and (2) Whether the March 14 special meeting was improperly closed. Appellant contends that the School District failed tocomply with the notice provisions established in the Public Meeting Act and that the inadequate notice violated Montana's Open Meeting Law. We disagree. The 1972 Montana Constitution, Article 11, Sections 8 and 9 respectively, guarantees citizens the right of participation in the operation of government agencies prior to the making of a final decision and protects the right to observe deliberations of public bodies "except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." The Montana Public Meeting Act, section 2-3-101 et seq., MCA, and the Montana Open Meeting Act, section 2-3-201 

### et seq., MCA, provide the statutory guidelines to protect those constitutional guarantees. Appellant contends that the School District failed tocomply with the notice requirements of these Acts. The Board 

### is an agency pursuant to the Montana Public Meeting Act and the Montana Open Meeting Act, section 2-3- 102(1), PICA. The Public Meeting Act requires agencies to developguidelines topermit and encourage publicparticipation in agency decisions of public interest. Section 2-3- 103, MCA. The notice provisions of thisAct are considered tohave been complied with where: 

### "(4) a newspaper of general circulation within the area to be affected by a decision of significant interest to the public has carried a news storyor advertisement concerning the decision sufficiently prior to a final decision to permit public comment on the matter." Section 2-3-104(4), MCA. This Act also allows supplemental notice to be given by radio or television broadcast where an official of the state or any of 

### its political subdivisions "is required by law to publish any notice." Section 2-3-105(1), MCA. In

### thatevent, the radioor television stationbroadcasting the notice 

### is required tokeep a copy of the notice and toprovide a proof of publication by broadcast. These provisions do not mandate, as appellant contends, that notice must be published for allpublicmeetings and thatproof of publication by broadcast and a copy of the broadcast be retained. Rather, these 

### statutesestablish apresumption thatadequate noticewas givenwhere those events occur. The only specific notice requirements established for callinga specialschoolboard meeting 

### is thattrusteesmust be given 48-hour writtennoticeof themeeting. Section 20- 

### 3-322(3), MCA. A 

### school district is 

### not specifically required by law topublish noticeof themeeting. That does not release the school districtof the obligation toensure that the public has ample opportunity to participate in board decisions before final board action is 

### taken. Here, the District 

### Court found that thepublic was presented with such opportunity. During both regular meetings, held March 10 and April 14, 

### tneBoard formallyopened themeetings fordiscussionby members of the public. The minutes of those meetings reflect that extensive comments were made by appellant and otners regarding ner retention asa Cayuse Prairie teacher. Ample evidence supports the District Court's finding that theBoard complied with theprovisionsof theMontana Public Meeting Act. 

### Appellant argues that inadequake notice of the March 14 special meeting violated the Montana Open Meeting Act. She contends that the notice given by 

### the school clerk was inadequatenotice tothegeneral public.This Court's function 

### is to construe the 

### law as it finds it. In theMatter of the Estate of Baier (1977), 173 Mont. 396, 401, 567 P.2d 943, 946. We may not insert what has been omitted. Section 1-2-101, MCA; Chennault v. Sager (1980)I Mont

# . , 610 P.2d 173, 176, 37 St.Rep. 857, 861. The Montana Open Meeting Act does not specifically mandate notice by publication. This Court will not formulatesuch a requirement. We have noted that 

### "[w]ithout public notice, an open meeting 

### is open in theory only, not inpractice," and that a clandestine meeting "violates the spirit and the letter of the Montana Open Meeting Law." Board of Trustees, Huntley Project School Dist. No. 24, Worden v. Board of County Comissioners of Yellowstone County (1980), Mont. I 6U6 P.2d 1069, 1073, 37 St.Rep. 175, 179, 180. In Board of Trustees, the county commissioners argued that 

### a newspaper articleconcerning 

### a preliminary platof a proposed subdivision that 

### was printed in 

### a county newspaper constituted adequate public notice. The articledid not provide sufficient factson the 

### time and place of themeeting "to inform the public sufficiently prior to the final decision to permit further public comment on the matter.'I 606 P.2d at 1073, 37 St.Rep. 

### at 180. Nor did the public have an opportunity toattend themeeting inwhich thedecisionwas made. It 

### was conducted by telephone and one of the county commissioners 

### was alsoexcluded from the vote. That 

### is not the instant case. Here, theDistrict Court heard testimony from the school clerk, the news directors of both radio stations, the three trustees, a parent, and the city editor for the local newspaper, the Daily InterLake.

### The stipulated facts establish that the 

### school clerk contacted the radio stations torequest notice be given. Both radio stations' news directors testified to their routine practices in running public service announcements. Such testimony is 

### admissible pursuant to Rule 406, Iviont.R.Evid. The city editor of the DailyInter Lake testified that public servicenotices areoftennot run even when delivered with 

### more than forty-eight hours noticebecause paid advertisements and notices aregiven a higher priority for space. A 

### search of issues of the Daily InterLake failed to locate notices of other special meetings that had been delivered to the paper more than two days prior topublication. The parent who testified indicated thathe had taken part in the

### general discussion after theMarch 10meeting on the time and substance of the specialmeeting tobe held on March 14. Finally, the chairman of the School Board told the members of the public present at the March 10 meeting that decisions for contracts for tenured teachers and nontenured teachers had to be made by April 1

### and April 15 respectively and that the decisions had not yet been made. The next regular meeting was scheduled forApril 14. Ample evidence supports the District Court's conclusion that adequate noticewas given and that theMarch 14meeting was open. Appellant finally argues that the special meeting was illegallyclosed in violationof theOpen 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 wentinto executive session, chairman Pine replied that "there

was 

### a lotof things that could come up of a personal nature and privacy of thematters could get reallytouchy and would reallyoutweigh the public need tohear what was said." The Open Meeting 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 clearlyexceed the merits of public disclosure." That right of individual privacymay be waived "by the individual about whom the discussion pertains" and the meeting must then remain open. Section 2-3- 203(2),MCA. Appellant asserts that the chairman of the Board did not first make such a determination because 

### it 

### is not reflected in the minutes (whichmust reflect "the substance of allmatters proposed, discussed, or decided" pursuant to section 2-3-212, MCA). She objects to testimony by Pine on the Board's reasons for closing the meeting and contends that it amounts to parol evidence that contradicts the written record the Board 

### is required by law tokeep. These arguments fail. Appellant presented no evidence that such a determination was not made. Wor 

### is the parol evidence inadmissible here. It does not contradict the official minutes of the meeting as itdid inthe case of Eastman v. School Dist. No. 1 (1947), 120 Mont. 63, 180 P.2d 472 (overruled on other grounds, 128 Mont. 368, 275 P.2d 217), on which appellant relies. Rather, the parol evidence merely clarifies what occurred at the meeting. Appellant has failed toprove her assertions. She has also failed to demonstrate prejudice.It 

### 1s clear from the record that ample public participation took place 

### in regard to renewal of her contract. Adequate notice was given of the specialmeeting. Affirmed. 

# 'p.44, ~&& Chief Justice

We concur:

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' Justices