MSU campus

Montana Hall stands out against a bright blue sky on the Montana State campus in this June photo.

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Montana State University is proposing changes to its open meetings policy that appear to make it easier to close some otherwise open meetings to the public.

The proposed changes would bar the public and reporters from meetings of temporary task forces, and make it easier to close meetings if an individual’s right to privacy would be infringed.

They would also allow closing an otherwise open meeting if the presiding officer decided there was any risk that someone might say anything that would defame or injure anyone’s reputation.

The proposed revisions are only intended as a periodic update of university policies, Tracy Ellig, MSU spokesman, wrote Monday in an email. He rejected the idea the changes would make it easier to close meetings, saying they would actually make clearer the balancing test needed between open meetings and individual privacy.

“The changes being proposed are all based upon the Montana Constitution and existing Montana case law,” Ellig said.

“In fact, these revisions enhance the public’s right to know because they add detail, including references to Montana’s Constitution as well as explicitly using the seven-point test from the Montana Supreme Court decision in Associated Press v. Crofts…. (I)t actually removes the very arbitrariness that you raise as a concern.”

The open meetings policy is one of four policy changes that the MSU University Council plans to consider at its online meeting Wednesday, to be held 8:30 a.m. to 10 a.m. via Webex. It will be the council’s first meeting since March, when the coronavirus pandemic forced sending students home, moving classes online and canceling events.

The University Council, led by President Waded Cruzado, is made up of three-dozen campus leaders, from college deans to vice presidents, directors, and faculty, staff and student leaders.

Typically new or revised policies are discussed at one University Council meeting and approved the following month by unanimous voice vote.

Also on Wednesday’s agenda is a revision to the public participation policy. It says MSU meetings open to the public include the University Council, Deans Council, Planning Council, Budget Council, Faculty Senate, All Staff Council and Associated Students of MSU Senate. It says the public can comment at those meetings and minutes must be kept.

Another policy revision would affect undergraduates on academic probation or suspension. All the policies and the agenda can be found on the University Council webpage.

The revised open meeting policy notes that Montana law gives the public the right to observe the deliberations of public bodies and state agencies — except when individual privacy clearly outweighs the public’s right to know. That applies to all MSU councils, committees and boards. The policy makes clear it applies whether meetings are in person or held by electronic means.

The proposed revision says, “Not all meetings held on campus are subject to the Open Meeting laws.” It says that includes meetings that aren’t official councils, committees or boards, “such as routine staff meetings, temporary task forces or ad hoc working groups.”

The Chronicle covered one online meeting of the coronavirus task force this spring. Ellig said the revised policy wouldn’t have closed that meeting, “because arguably the task force was of significant public interest.”

The proposed revision says a meeting may be closed if the presiding officer consults with the university’s attorney and decides that the discussion concerns individual privacy and that protecting privacy clearly exceeds the merits of public discussion.

It says an individual may waive their right to privacy, but if another individual’s privacy may be infringed, the presiding officer should consider each separately or may postpone and reschedule a meeting to figure it out.

The presiding officer can consider: “Is there a risk of statements being made in the meeting which would injure the reputation, or otherwise defame, any individual?”

Something like that happened in December 2016 when Ryan Jones, a former assistant professor of microbiology, was fighting his firing and requested a grievance hearing. Jones had waived his right to privacy, and the meeting was moved to a larger room to accommodate those who wanted to attend.

When a Chronicle reporter showed up, Ellig halted the hearing before it could begin and asserted it was canceled to protect the privacy of witnesses. After that, the hearing was never rescheduled.

Jones sued MSU for wrongful firing. Gallatin District Court Judge John Brown dismissed his lawsuit in December 2019. Jones’ attorney, Brian Gallik, said the ruling is being appealed to the Montana Supreme Court.

“Montana case law,” Ellig wrote, has found that “a single person waiving their privacy interests does not then get to waive the privacy interests of everyone else. This was the situation with Ryan Jones’ grievance hearing.”

“MSU is not seeking to bar anyone from meetings but is instead attempting to establish clear guidelines for the campus on the meetings that are subject to the Open Meeting statute,” wrote Leslie Taylor, MSU’s associate legal counsel. The guidelines will let university employees know when advance notice of meetings and minutes are required.

The need to consider other people’s privacy was upheld by the Montana Supreme Court in the 1984 Missoulian case, which ruled that meetings could be closed to discuss the University of Montana president’s performance. The court ruled “that it is not only the presidents who had privacy interests at stake. ... Numerous administrative staff, faculty members and other university employees were discussed. … We must consider closure of the sessions in light of the privacy of these employees as well as that of the presidents.”

The 2004 Associated Press decision sets out seven criteria to decide whether a meeting must be open: (1) whether committee members are public employees acting in their official capacity; (2) whether the meetings are paid for with public funds; (3) the frequency of meetings; (4) whether the committee deliberates rather than simply gathers facts and reports; (5) whether the deliberations concern matters of policy rather than merely administrative functions; (6) whether committee members have executive authority and experience; and (7) the result of the meetings.

Those seven criteria are more important than a committee’s title, Taylor wrote.

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