Closed city meeting raises questions

A public meeting of the Libby City Council was improperly closed Tuesday according to a pair of attorneys who focus on media law.

Citing no law and providing an insufficient reason, Libby Mayor Doug Roll brought the meeting into closed session to discuss litigation strategy between the City of Libby and City Councilman Allen Olsen.

The Montana Code Annotated allows very few reasons for closed meetings. MCA 2-3-203 (4)(b) states: “A meeting may not be closed to discuss strategy to be followed in litigation in which the only parties are public bodies or associations described in subsections (1) and (2).”

Subsections one and two list several names for public bodies and agencies. Subsection two refers to groups that regulate rights, duties, or privileges of any individual. The law states a meeting may only be closed when making it public “would have a detrimental effect on the litigating position of the public agency.”

According to Mike Meloy, an attorney with the Montana Freedom of Information Hotline, the meeting should have “absolutely” been open.

“If the litigation involves the councilman in his official capacity or concerns any governmental business, then the litigation strategy exception does not apply and the meeting must be open,” Meloy said.

A posting at City Hall stated: “There will be a Closed Special Meeting regarding the continuous litigation concerning the City of Libby.”

When the meeting — which included every councilperson except councilman Brent Teske — began, Roll immediately announced the meeting closed “to talk about ongoing litigation.”

Olsen and resident D.C. Orr met that statement with resistance.

“You can’t close it just for litigation,” Orr said.

Roll responded, “Yes, I can.”

“No, you can’t,” Orr said.

“I just did,” Roll said. “So, please, I ask everyone to leave, please, please.”

City Councilman Bill Bischoff responded by asking City Attorney Jim Reinstma if the city had the legal right to close the meeting.

“We do,” Reintsma said. “We also have the right to escort Mr. Olsen.”

A reporter asked Roll if he may be granted time to reference MCA 2-3-203 (4)(b).

“No,” Roll said. “No. I’m not interested. I’m not interested. We already closed it. Legal advice said we can.”

Olsen and the City of Libby have been involved in a pair of related lawsuits. Olsen challenged the incumbent Roll during the November mayoral election. Less than two weeks before the election, Reintsma filed a lawsuit challenging Olsen’s residency in the City of Libby. The suit was dropped six days after it was filed, less than one week before ballots were cast.

District Judge James Wheelis dismissed the city’s complaint regarding Olsen’s residency in September. Olsen requested the city pay his legal fees, but Wheelis said he would resolve that matter after hearing Olsen’s counter suit contesting the city’s intentions in challenging his residency.

Adam Marshall, a representative with the Reporters Committee for Freedom of the Press, said Montana Open Meetings Law should be read in the spirit of the two cases that changed state law in 1991.

“Those cases involved public bodies closing public meetings to discuss litigation strategy,” Marshall said. “The state Supreme Court said that was unconstitutional and violated Montana citizens’ right to know. Open meetings are especially important in cases of heightened public interest.”

Asked to explain his legal reasoning, Reintsma said, “Allen Olsen is not a public body, Allen Olsen is an individual and he is suing the city.”

The Tuesday meeting was the second meeting closed under the auspices of litigation strategy. Orr said police escorted him out of the building during the last meeting.

After five minutes, the Tuesday meeting closed. On his way out, Olsen exchanged barbs with Roll.

“It wont be long before you’re on the recall list, buddy,” Olsen said. “Because I think the whole public is sick of your mouth.”

Roll shook his head. “Yeah, I’m sure,” he said.