Daily Montanan, Montana Federation of Public Employees, sue Board of Public Ed

The Daily Montanan and Montana Federation of Public Employees are asking the Lewis and Clark County District Court to void a decision by the Board of Public Education, arguing it was made without proper public notice or the opportunity for public participation.

In a lawsuit submitted Friday, the plaintiffs allege the Board of Public Education violated the Montana Constitution’s guarantee of the right of participation and right to know at its March 10 meeting when it added an action item to the agenda on the spot, without adequate notice.

At the meeting, Lt. Gov. Kristen Juras called on the Board to clarify that an advisory council, the Certification Standards and Practices Advisory Council, does not have authority to adopt an educator code of ethics and to direct the Council to present its recommendations to the Board instead.

“The code of ethics was not mentioned in any of the items on the Board’s publicly noticed March 10, 2022, action agenda,” the lawsuit said.

The Board of Public Education oversees schools and is made up of seven members appointed by the governor and confirmed by the Senate. The Certification Standards and Practices Advisory Council studies and makes recommendations to the Board on items including the Professional Educators of Montana Code of Ethics.

In an email Tuesday, Board of Public Education Executive Director McCall Flynn declined to comment on the lawsuit: “I have spoken with both the Board Chair, Tammy Lacey, and our legal counsel, Katherine Orr. The Board of Public Education has not received the formal complaint and will not provide comment.”

At the meeting, Board Chair Lacey noted precedent is not to take action on an item the first time it comes to the Board, and she “warned that such action would ‘perhaps remove the public from the discussion,’” the lawsuit said. It said legal counsel also advised against taking action given lack of public notice.

In February, the Council had unanimously voted to update the Code of Ethics. The same day, the Governor’s Office released a statement opposing the addition of the word “equity” in the update as part of an “extreme political agenda,” and he called for “equality” instead.

At the March meeting, the Code of Ethics update had appeared on the agenda as one of the “information items” in the chair’s report. The Republican governor is an ex-officio member of the Board, and Lt. Gov. Juras attended the meeting in person and urged the Board to take action.

“The Board passed the Action by a 4-3 vote, striking the Council’s revision to the Code of Ethics without public notice of the Amendment or a reasonable opportunity for the public or petitioners to observe or participate in deliberations of a state agency on a matter of significant interest to the public, and contrary to the advice of the Board’s legal counsel and its Chair,” the lawsuit said.

The lawsuit notes the state Constitution’s guarantees to the right to participate and right to know are enacted into statute via Sunshine Laws, “which are to be ‘liberally construed’ by the judiciary.” It said the Board is subject to those laws so it “must allow … meetings to be open to the public.”

“The Montana Supreme Court has determined that a meeting is not ‘open,’ as required by 2-3-203, if the public body has failed to give adequate notice of the meeting,” the lawsuit said. “The court holds, ‘[i]t is difficult to envision an open meeting held without public notice that still accomplishes the legislative purpose of the Montana ‘open meeting’ statutes.

“Without public notice, an open meeting is open in theory only, not in practice. This type of clandestine meeting violates the spirit and letter of the Montana Open Meeting Law.”

As relief, the plaintiffs request a judge declare the Board violated the Montana Constitution; void Board action; and issue a preliminary injunction barring further action without adequate public notice and reasonable opportunity for public participation “during the pendency of this action.”

The plaintiffs also request all attorneys’ costs and fees.

The Daily Montanan is an affiliate of States Newsroom, which has a mission to produce journalism focused on state government. The Montana Federation of Public Employees is the state’s largest union, with members who attend and comment at Board of Public Education meetings.

The petitioners are represented by the La Seur Law Firm of Billings, Montana.