Author ~ Murat Kalinyaprak, Polson
[Murat is running for Polson Commissioner Ward 2. Election is November 5, 2013].
Montana State Law states that “The legislature finds and declares that public boards, commissions, councils, and other public agencies in this state exist to aid in the conduct of the peoples’ business. It is the intent of this part that actions and deliberations of all public agencies shall be conducted openly. The people of the state do not wish to abdicate their sovereignty to the agencies which serve them. Toward these ends, the provisions of the part shall be liberally construed”. (2-3-201 M.C.A.)
Montana State Constitution further guaranties that “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 disclosure”. (Mont. Const. art. II, § 9)
However, for the past two years, Polson City Council has been holding “Executive Sessions” (meetings closed to the public) at an alarming rate and regularity.
If we look back ten years, about when I first started attending City Council meetings, there were no closed meetings in 2004 and 2005, nor any in 2007. There were three in each of the years 2006, 2009, 2010 and 2011. Only in 2008 there was a surge of 11 (in 34 meetings, 30%) for mostly unexpected and interrelated matters.
During the last two years, in 2012 there were 12 (in 27 meetings, 45%) and in the first three quarters of 2013 there were 12 thus far (in 20 meetings, 60%) with still three more months to go before the end of the year.
The increased frequency of the closed meetings is only half of the problem. During the same period of time, the details about the contents of these meetings gradually decreased in reverse proportion to their increased frequency.
In the past, the agenda items for closed sessions adequately described the subject matter and then the minutes of the meetings provided a reasonable amount of detail about what deliberations and decisions had taken place.
Over the years, both the agenda item descriptions and the minutes of the executive sessions became gradually shorter and finally totally secretive. Lately, they became routine agenda items that simply read “Closed Session – Litigation/Personnel”. Public is not even told which of the two is it? Heads Litigation, tails Personnel…
The undisclosed subject matters are also anyone’s guess. Apparently what deliberations and decisions take place in those closed meetings are none of public’s business.
The latest examples of these executive sessions took place during the process of hiring of a new City Manager. The two previous times, in 2008 and 2009, candidates were interviewed and the winners were selected in open meetings. This time, the City decided that the interviews and the deliberations would be closed to the public. When asked who made the request, Mayor Pat DeVries answered that it was the Prothman Company, (the employee recruiting agency that the City hired for $16,500 excluding advertising, travel and other expenses), who had no legal standing to request any protection of privacy.
At a recent City Council meeting, several citizens, including former City Council member Elsa Duford, tried to remind them that the previous two managers were hired in open meetings, actually reading from the minutes of those meetings, and to inform the City Council that they would be violating Montana’s open meeting laws by holding closed sessions. Mike Lies and Fred Funke who are now and who were then on the City Council, chose to remain silent and the City Attorney James Raymond gave his legal opinion that it would be okay to close the meetings to the public.
After the narrowing down of the candidates to five in closed sessions, some citizens sought recourse by calling their State Representative Greg Hertz, who in turn contacted the Attorney General’s office to inquire. After conferring with the City Attorneys of Great Falls, Kalispell and Missoula, the Attorney General’s office provided him with the legal opinion that such closed meetings would be a violation of Montana State Law. Greg Hertz then contacted Mayor Pat DeVries and acting City Manager Karen Sargeant to inform them of his findings.
Under pressure, the City announced that the candidates had waived their rights to privacy and that the interviews by the City Council would be open the to public but that the interviews by the selection committee and the employees panel, as well as the final deliberations of the three bodies together, to pick the winner, would still be done in executive sessions.
The “selection committee” and the “arbitrarily selected panel of employees” were only advisory and not final decision making bodies, and thus had no authority to hold “executive sessions” to interview the candidates behind the public, nor to participate in the executive session held by the City Council to deliberate and pick the winner.
After the City Council’s interviewing the candidates in public, the joint deliberations of the three bodies in order to pick the winner in an executive session was triple wrong.
• First, non-executive members were allowed to participate in an executive session.
• Second, the candidates had no right to privacy since they could not be asked any “private” questions anyway.
• Third, the candidates had subsequently waived their right to privacy. So, whose privacy the City Council and the other two advisory bodies were protecting by deliberating in a closed meeting?
It is not known whether that meeting was properly reopened to the public for the remaining last item on the agenda and adjourned properly. I was told that there is no audio recording of that section of the meeting, because the City Clerk did not return to the chambers after the executive session. Yet, I was told that there are minutes of that section, which makes me anxiously curious to know what discussions and decisions had taken place and who will step forward to claim to have kept minutes and who will collaborate to approve those minutes?
A citizen who waited outside in order to attend that remaining public session of the meeting, has witnessed and related that one of the candidates, Mark Shrives, and the City Attorney James Raymond came to the City Hall. When he was able to get in the chambers and expressed interest in participating in the last open item on the agenda, he was told that they had decided to not “do” the last item.
After that, he apparently informed several citizens like myself and some members of the media that Mark Shrives was obviously the chosen candidate, although the City declared that they would wait until the next Council meeting to announce the winner.
So, what did they discuss and decide during their informal gathering following the executive session, joined by Mark Shrives and City Attorney James Raymond?
Well, the first version of the agenda for the following regular Council Meeting had an item that read “Authorize acting city manager to execute approved contract with selected city manager candidate”, which was “revised” the next day to read “Authorize mayor to negotiate and conclude a final bargain with a city manager candidate”.
To me, this Freudian slip gives away that the City Council had already approved at least a preliminary contract with Mark Shrives to be ironed out by and to be “executed” at the September 16, 2013 meeting. The City’s calling it a simple mistake is hardly credible.
Already knowing that Mark Shrives was the selected candidate, I briefly researched him on the Internet. One of the interesting things I found was that, in his previous job, he had circumvented the Creswell City Council approval and spent $10,000 to hire an external investigator to determine if any alleged illegal council meetings had taken place involving a $2,000 matter.
I wonder if, as Polson’s freshly hired City Manager, his first task will be to open an investigation about whether he himself was hired legally, through a series of illegally held closed meetings that violated both the Montana State Code and the Montana State Constitution? And how much will that cost Polson tax payers?
A group of concerned citizens are considering taking legal action against the City, to reverse any decisions that were made in those illegally closed meetings. What if they proceed with it and prevail? How much more complicated and costly will things become?
I believe that these latest City Council actions that relied on his erroneous legal opinion, is the last straw for the City Attorney James Raymond. The mistakes he has been making in numerous ordinances and contracts have already cost the City considerable amounts of wasted time, effort and perhaps hundred thousands of tax dollars.
It should come as no surprise that he approved of those closed meetings, since a few months ago, his own contract was renewed illegally in an executive session and was not made public in meeting minutes or otherwise. Only after some citizens persistently inquired about it that the City callously disclosed that “it was taken care of”.
The City Attorney James Raymond needs to be terminated for cause immediately!
I may sympathize with plain citizens or even council member who may find the MCA as somewhat legalese and difficult to understand, but the Montana Constitution is written in plain English. Anyone who can not understand it without legal advice from the City Attorney should not be occupying a seat on the City Council and should also resign immediately!
If Polson is a town in America, this brazen and collaborative corruption must no longer be ignored or tolerated.