I got word this week that the Legislative Audit Committee, which is scheduled to meet Dec. 1-2, plans to gather for a pre-meeting “briefing” on Sunday afternoon in Legislative Auditor Tori Hunthausen’s office on the first floor of the Capitol.
At least one lawmaker on the committee, Sen. Greg Jergeson, D-Havre, said he won’t attend because in his opinion such a meeting doesn’t fit within the law:
“My experience is that they are more than ministerial, but even that is no exception to the rule,” Jergeson said in an email to fellow lawmakers. “If there is any chance that there will be a quorum at this meeting, I believe it is necessarily subject to the open meetings provisions of the Montana Constitution.”
As most Montanans know, we have a constitutional right to attend and observe meetings where public officials gather to act on behalf of the public.
Article II, Sect. 9 of the Montana Constitution states:
RIGHT TO KNOW. 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.
Nowhere in there does it say: “Except for when lawmakers want to discuss things in private,” or “except when it is inconvenient for public officials,” or “except for when people want to be free to have frank discussions or be free to ask embarrassing questions.”
Of course the only way the public can observe deliberations of public bodies is if we know they are planning to gather, which is why the law requires the public be given sufficient notice of such meetings.
That’s one of the main reasons Montana news media returned to court last week to ask a judge to find the House Republican caucus in contempt of a 1998 court ruling that found legislative caucuses subject to our constitutional right-to-know laws.
It appears we have an epidemic of public officials wanting to gather behind closed door out of the view of the public.
Hunthausen and the attorneys for the Legislature say the meeting isn’t really a meeting, but a briefing. Here’s an excerpt from a Nov. 12 email Hunthausen sent to committee members:
“Legal counsel has determined that these briefings are not considered public/open meetings, Hunthausen wrote.
“The briefings held prior to the noticed official Legislative Audit Committee meeting are not deliberations, no official action is taken, or decisions made; the members discuss matters that are merely ministerial or administrative.”
– Legislative Counsel
If the “briefings” are “merely ministerial or administrative,” then what harm in notifying the public?
Hunthausen said the pre-meeting briefing “have been done forever” and they are “completely voluntary.”
Hunthausen said the purpose of the briefings are to give committee members and opportunity to ask questions about the Legislative Audit Divisions audit reports, get comfortable with each other after not seeing each other for several months, and to build camaraderie among committee members.
Committee members do not conduct any deliberations or make decisions or influence the outcome of Legislative Audit Committee reports, Hunthausen said of the briefing.
“The Audit Committee business is the audit reports. We have nothing to hide. The reports are already printed and out,” Hunthausen said.
Hunthausen said committee rules prevent lawmakers from discussing committee reports with the media prior to their meetings. So inviting the press and the public to the briefing sessions would ultimately turn the “briefings” into “mini-committee meetings.”
Hunthausen said now that the question about the closed-door briefings has been raised, she plans to talk to Legislative Audit Committee chairman Rep. Randy Broedehl, R-Kalispell, and decide whether to continue having the briefings.
“If there’s a gray area than we should probably just make them open meetings and notify the public,” Hunthausen said. “But at that point then I’m just calling for a mini-audit committee meeting, which we won’t do.”
Jergeson said calling off the pre-meeting briefings is the best course of action. Jergeson said one of the primary jobs of the Legislative Audit Division is to ensure public agencies are following the laws of the State of Montana.
“The constitutional guarantee of open public meetings is part of the law,” Jergeson said. “For the legislative auditor and audit committee, the better part of valor should be observing the open meetings provisions.”