Union, news outlet argue MT Board of Education vote violated sunshine laws | Crime & Courts

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A union representing Montana’s public employees and a statewide news outlet last week filed a lawsuit alleging the Board of Education violated Montana’s open meeting laws with a vote it took in March.

The Montana Federation of Public Employees and the Daily Montanan filed the complaint in Lewis and Clark County District Court on April 8. It names the board and its members as defendants. The Daily Montanan is a nonprofit, online news outlet focusing on state policy and politics that is an affiliate of States Newsroom, a national nonprofit.

The complaint alleges that a hotly contested vote on March 10 to reject an advisory council’s modifications to the Professional Educators of Montana Code of Ethics wasn’t properly noticed to the public. The board had listed it as an informational item on its agenda and had not indicated it would take a vote on the matter.

Gov. Greg Gianforte has voiced concerns with the February decision by the Certification Standards and Practices Advisory Council to include the word “equity” in the code of ethics. Lt. Gov. Kristin Juras had submitted a memo arguing that the Board of Education was the correct body to make that decision, and urged the board to invalidate the advisory council’s updates and take up the matter itself.

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The board voted in a 4-3 decision to move the item to its action agenda, meaning it could take a vote on it.

At the time, the board’s legal counsel, Katherine Orr, warned that the vote hadn’t been publicly noticed and that moving ahead with it was “a very dangerous path to take.”

“I think it’s established in the law that a decision on these action items today would be invalidated, because there hasn’t been any public notice,” Orr said.

The board’s chair, Tammy Lacey, also argued strongly against taking action on the governor’s proposal, telling the board she knew that some people would have attended the meeting to provide public comments had it been on the action agenda.

“I think having action today without public participation, public comment and all of the information before us, I don’t think it clarifies it and I don’t think it allows for public participation,” Lacey said.

Juras, who was present as the governor’s office representative to the board, argued that because the item had been on the informational agenda, and her legal memo had been included in the board’s packet, the public had been given ample warning.

“We requested it be included in the packet so that the public would have the opportunity to read that and make public comments on it,” Juras told the board at the time. “So the public has been given notice of this matter and does have the opportunity to make public comment after reading the materials.”

The complaint notes that no one spoke about the agenda item when public comment was called for at the meeting.

The Daily Montanan and MFPE allege that the board’s actions violated Montana Constitution’s right-to-know provisions in Article II, Sections 8 and 9. The complaint also cites the state’s “Sunshine Laws” that set forth requirements for public participation and providing notice of official meetings.

The public was “deprived of their constitutional and statutory rights to receive notice of proposed action to be deliberated upon in a meeting of the state government agency, and to have a meaningful opportunity to participate as representatives of the news media, Montana’s largest labor union and the public,” the complaint states.

The plaintiffs are asking the court to find the board’s actions unlawful and to void its March votes to modify the agenda and to reject code of the ethics update. They’re also asking the court to issue a preliminary injunction prohibiting the board from “amending its action agenda or taking further action without proper public notice or without reasonable opportunity for public participation” until the lawsuit is resolved.

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