Free speech or right to privacy?

The public comment portion of recent Fair-Mont-Egan school board meetings has raised questions on whether school boards are restricting free speech by erroneously invoking “the right to privacy” through the guidance of Montana School Boards Association and its model policies.

The specific school board policies in question can be found in most school districts as No. 1441 “Audience Participation” and No. 1420F “Notice Regarding Public Comment.”

Tony Koenig, director of legal and human resource services for the Montana School Boards Association said that the model policies are made available as a service to its membership of more than 300 Montana school boards. While school boards have the option to write their own policies, according to Koenig it is commonplace that school boards adopt the association’s policies either verbatim — as in the case of Fair-Mont-Egan — or modified as a school board sees fit.

At the beginning of a school board meeting held on April 16, Fair-Mont-Egan school board chairman Luke Vollertsen said that no comments would be allowed about people — “unless that person is present and the board chair gives permission,” specifying that those in attendance could talk about programs and activities, provide suggestions or express policy concerns. He also read from policy 1420F, which Montana School Boards Association recommends boards read at the start of a meeting or add to the meeting agenda in writing.

Policy 1420F specifies that: “The board would like to remind everyone in attendance that to avoid violations of individual rights to privacy, a member of the public wishing to address the board during this time will not be allowed to make comments about any student, staff member, or member of the general public during his/her designated time to speak. In addition the board will not hear comments on contested cases or other adjudicative proceedings.”

While the latter part of the provision has legal grounding in Montana’s public participation law, the former raises constitutional questions.

“This provision is likely unconstitutional under the First Amendment and Montana’s ‘right to know’ and ‘to participate’ constitutional guarantees. This is so, because if a member of the public has information to communicate, it can’t, as a matter of law, constitute a matter of individual privacy,” said Helena attorney Mike Meloy of the Montana Freedom of Information Hotline.

The Montana School Boards Association’s policy 1441 states that to ensure orderly progression of meetings, the board chairman may interrupt or stop a person from speaking in instances where statements are “out of order, too lengthy, personally directed, abusive, obscene or irrelevant comments.” This statement is commonly found on board agendas in many school districts in the same or similar wording. The policy notes that the entire board ultimately determines “the appropriateness of all such rulings.”

While Meloy said a board chairman has power to ensure an orderly and civil meeting, he noted, “The chair does not have the authority to control whether a member of the public may provide ‘input.’”

Policy 1441 continues to state: “It is important for all participants to remember that board meetings are held in public but are not public meetings. Members of the public shall be recognized and allowed input during the meeting, at the discretion of the Chairperson.”

Meloy questioned the logic and legality of that assertion: “The observation that board deliberations are not public meetings is a bit twisted and, of course, is legally and practically unsupportable. Sometimes our public officials lose sight of who they work for.”

During the April 16 Fair-Mont-Egan board meeting, two people were interrupted while speaking during public comment by Debra Silk, a Montana School Boards Association attorney, under the presumption of an individual’s “right to privacy” when the speakers mentioned former Fair-Mont-Egan Principal David Allen.

Silk said she had been asked to attend the meeting by the board to “ensure that it is complying with due process rights and all legal requirements in dealing with pending matters.” Following an April 11 meeting, Silk was retained by trustees to look into an alleged complaint regarding the school board and “district policies.” One of the April 16 agenda items was for the School Boards Association to provide an update on investigative costs and a plan of action. At the time, Silk said she hadn’t yet investigated the merits of the complaint.

In March, the board had voted not to renew Allen’s contract as principal, which garnered a lot of attention in the rural community. Many residents attended subsequent board meetings to voice support of Allen. Allen later submitted a resignation letter that went into effect April 13 and was formally approved at the April 16 meeting.

In a response to a query from the Daily Inter Lake in the days following the meeting, Silk wrote that “... given the fact that David had recently resigned his employment with the district (with the board’s acceptance of such resignation on the agenda), the board had both the right and obligation to ensure that any comments pertaining to Mr. Allen, particularly those brought up during unannounced ‘public comment’ would not invoke and/or violate the privacy rights of David Allen and would not pertain to items prohibited by 2-3-103, MCA.”

According to 2-3-103, people are allowed to speak during public comment periods at school board meetings on matters that are within the board’s jurisdiction but not listed on the agenda. Public matters do not include contested cases and other adjudicative proceedings, according to the law. Boards cannot take action on matters discussed during public comment, “unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter,” according to the law. Trustees are not required to respond to people during public comment.

Occasionally, trustees respond to audience members during public comment, but typically it is a school administrator who may decide to answer questions or provide clarifications.

People who wish to speak on specific agenda items are allowed to do so when the item is opened for discussion prior to a final board vote.

School boards invoking privacy rights to prevent comments about staff is inappropriate, according to Meloy. Trustees in their official capacity are obligated to weigh privacy issues in their own discussion, but not the public’s.

“Several school boards have recently taken the position that comments from members of the public about an employee constitute a matter of individual privacy and may not be expressed in a public meeting. This proposition has no basis in the law. A board may close a meeting when its members discuss a personnel matter if the chair determines the demands of individual privacy clearly exceed the merits off disclosure,” Meloy said.

“Since information from the public cannot, as a matter of law be ‘private,’ there is no basis for closing the meeting or otherwise interfering with the public’s right to comment on school matters, including the performance of employees,” Meloy said. “I suppose the board could stop discussion about any matter that was not on the agenda, and defer discussion of the matter until a later meeting in which proper notice was given. But ... the right to know laws apply to discussions of the board and not members of the public.”

During the public commenting period at the beginning of the April 16 meeting, resident Steven Knoll expressed his hope that all trustees were involved in discussions prior to recent board actions regarding Allen’s non-renewal, resignation and retaining legal counsel. When Knoll began to raise questions about board actions surrounding Allen’s resignation, Silk stopped him and told him the resignation letter was later on the agenda, but reiterated — “As the board chair said, we need to make sure we’re not discussing people that aren’t here. People have the right to privacy. So I would just caution you.”

Resident Stan Converse also addressed the board and began reading from prepared notes about Allen’s impact in the community and his professionalism.

“Sir, can I interrupt you for a minute,” Silk said. “Again we’re not going to be discussing any particular individual.”

“We’re not discussing him. I’m just reading a —” Converse said.

“Well, we are discussing [him] by having people sitting here listening to it. And I’m not discounting what you’re saying. Again, it looks like you have something you want to submit to the board,” Silk said.

“I do,” Converse said.

“In writing,” Silk said.

“I do,” Converse said.

“I would tell you to bring your letter up and the board can most certainly read that, but again, public comment, as the board chair said when we started, is not an opportunity to talk about anybody that we want to,” Silk said.

Converse asked why this was the case since people had been allowed to make comments about Allen in previous meetings. He also noted that his comment was positive.

“Well, the issue is if you allow positive comments about a particular individual in an open session then there’s nothing that prevents any of you from standing up and maligning somebody as well,” Silk said. “And I get that this is a polarizing issue with those in the community. I just want to make sure that we’re not violating someone’s rights of privacy and I understand that you have positive comments and again I would ask you if you want to submit those to the board you most certainly can submit the letter.”

Converse said he did want his comments to be part of the public record. Whether spoken or written, public comments become part of official minutes, which are open for public inspection.

Although Silk’s argument suggests that positive comments about individuals are not allowed, that does not reflect recent practice in Fair-Mont-Egan trustee meetings, nor general practice at any school board meetings, where people are rarely stopped when commending individual teachers, students or administrators for their performance.

Silk repeated her position on public commenting.

“The purpose of public comment is not to talk about people. It’s to talk about or to bring comments forward regarding programs or services or something else, and again, there’s a reason that I’m here and I would just ask that all of you, I don’t think any of you sitting in here would want to have a conversation about you or your family when you weren’t in the room. And so I think I would just tell you public comment under Montana law is not intended — and I get that you have positive comments — but I would suggest you provide your document to the board as opposed to reading it out loud,” Silk said.

Converse walked over to the trustees to submit his notes for the record.

“Why don’t you let me see that before,” Silk said, then scanned over the notes, before handing them back. “And I think it’s fine. I thought maybe you had a three or four-page letter to read.”

The audience had been made aware by the chairman at the beginning of the meeting there was a three-minute cap on comments.

“No, so may I read the rest?” Converse asked.

“You’re fine. OK, carry on,” Silk said.

Converse continued to speak about Allen in a positive manner despite the earlier ruling by Silk that it would be inappropriate.

Meloy said this is not the first time he’s received questions concerning board actions preventing the public from discussing school personnel and the role of the Montana School Boards Association in restricting speech.

“The MTSBA is turning Montana’s open meeting laws into a shield against public criticism of school administrator performance,” Meloy said.

Reporter Hilary Matheson may be reached at 758-4431 or hmatheson@dailyinterlake.com.