County responds to FVCC election complaints

Flathead County commissioners on Wednesday essentially dismissed three complaints filed by a losing candidate in the May 3 election for positions on the Flathead Valley Community College board.

Ed Berry had filed four complaints against incumbent college trustees on April 27. Commissioners referred the complaints to the county attorney’s office for a legal opinion.

In presenting his complaints to commissioners, Berry cited a state law that he said gives county commissioners the authority to suspend community college board members if a complaint is deemed to have merit.

Deputy Flathead County Attorney Tara Fugina told commissioners there is no basis for legal action on three of the complaints and said the commissioners need additional information before doing anything about the fourth complaint.

Fugina discounted Berry’s allegation that incumbent trustees improperly used photos owned by the college in their personal election campaigns. Berry said state law requires trustees to “hold in trust all real and personal property of the district for the benefit of the college and students.”

Fugina said the photos used in advertisements are posted in the public domain on the college’s website. The photos are not copyrighted, she said. “It is my opinion they can be used by anyone,” Fugina said. “There is no ethical or legal violation.”

Fugina said public money routinely is used to generate public documents for use by the public.

Another of Berry’s claims was that the college board’s financial audit was inadequate. He said there are conflicts of interest on the part of trustee Bob Nystuen, president of Glacier Bank, and Shannon Lund, whose husband, Tom, is branch president of Rocky Mountain Bank.

Fugina suggested Berry work with FVCC personnel for an answer to his query about “how much money is flowing between the FVCC and Glacier Bank and Rocky Mountain Bank.” There is no legal requirement that the college report such specifics, Fugina said.

 Berry referred to the wrong state statute in his allegation that the college trustees didn’t properly announce openings for trustee nominations, Fugina said. Berry cited the law that outlines requirements for proposed community college districts, she said, not the rules for established college districts.

FVCC officials exceeded the requirements for publishing notice of the election, she said, by publishing legal notices three times in The Daily Inter Lake. Two public notices are required. And, she said, trustees published notice of their resolution to conduct an election in The Daily Inter Lake on March 13 and issued a press release on the election on March 15, meeting the requirements of the law.

Berry’s fourth claim is that college trustee Tom McElwain missed four consecutive board meetings and Berry implies that because board meeting minutes don’t specify that McElwain was in the college district from December through March, “we must assume McElwain violated” the state law and “must be removed from the board.” 

Berry also said because other trustees failed to police their members, all should be removed from office.

Fugina said she has no knowledge of where McElwain was during that time and pointed out that he has due process rights. She suggested commissioners ask McElwain to explain his absences.

Commissioner Dale Lauman said it’s important for the commissioners to hear “all sides of the story,” so any action they take is based on facts.

Lauman’s motion to take no action on the three complaints included language that the commissioners ask McElwain to write them a letter in response to Berry’s complaint or attend a commissioners’ meeting to discuss it.

Reporter Shelley Ridenour may be reached at 758-4439 or sridenour@dailyinterlake.com.