That law-breaking City Council

Good discussion over at City Lights over the legality of the settlement with City Administrator Kristoff Bauer. My own story won't appear until tomorrow, but I don't think there is any serious question that the way the agreement was approved violates the 2002 Montana Supreme Court ruling in the Bryan case.

This case, actually, is a much easier call in my view. I thought the Bryan ruling was odd because it appeared to leave open the possibility that a governing body might have to provide the public with all sorts of odd bits of information to ensure citizens had a reasonable opportunity to provide input on a decision. For example, a board member's handwritten notes, public comments from an earlier meeting that weren't entered into the minutes, even casual conversations between board members and the public might conceivably fall within the scope of that ruling. Very strange.

But there's nothing quirky about this case. We're talking here about a formal and explicit agreement of clear interest and importance to the public with no opportunity at all for public input. That just strikes me as dead on point with the intent of the Bryan ruling. It seemed particularly troubling that when I asked the mayor whether the city had considered the Bryan ruling before proceeding as it did, he seemed uncertain what I was referring to. The city attorney didn't return my phone call.

And I don't even think that's the oddest thing about the agreement. More troubling to me is the provision that says no council member other than the mayor or deputy mayor can discuss Bauer's employment. This strikes me as an egregious attempt to curb the First Amendment rights of council members. Bauer and Tooley argue that privacy rights require this sort of provision, but previous court rulings have been pretty clear and consistent: As long as council members are discussing job performance, as opposed to personal matters of a highly private or embarrassing nature, then the public's right to know takes precedence over Bauer's interest in preserving his professional reputation.

True, there doesn't appear to be much satisfaction in exposing this sort of thing. As long as the city is acting in even plausibly good faith, it can simply vote again after removing offending language and allowing public comment. A measure backed by the Montana Newspaper Association (not the Montana News Association!) that would have imposed criminal penalties for willful violations of the public's right to know didn't get through the Legislature. Still, this sort of thing ought to be pointed out, and I'm glad the Gazette did it. I just wish I could have gotten my own story out first.