Missoula County

Missoula County is considering taking legal action against the state Department of Corrections for allegedly underpaying for housing convicted inmates.

Commissioner Cola Rowley said the discrepancy from what should be paid and what is being paid is in the $1 million range. But the county decided Tuesday to wait to see what legislation, if any, is passed to at least partially address the issue.

“The timing isn’t quite right for us to move forward legally,” Rowley said after the meeting. “We want to see what the Legislature does. There is a potential certain things can be addressed before we move forward.”

Matt Jennings, the deputy county attorney, said they had a contract with the state since January 2015 under which DOC agreed to pay almost $88 per convicted inmate per day. But a few months after the contract was signed, the Legislature capped what DOC could pay at $69 per inmate per day.

“That may not sound like a lot, but that $20 per day per inmate adds up,” Jennings said.

The state also agreed to pay $83.22 for inmates housed in one of the 144 beds set aside in the Missoula Assessment and Sanction Center, or MASC. The center is meant to house male inmates for the state until the appropriate placement is decided upon.

While the contract typically is renegotiated on a regular basis, Jennings said the 2017 Legislature passed a statute that capped the rate at the December 2016 figure, even if inflation alone is pushing up the cost of housing inmates.

“The DOC will not negotiate under that law,” Jennings said. “The way it is written it was only for this biennium. But we’re waiting to see whether they renew that and go forward, or allow it to expire and get a new contract with DOC. So it depends on what the Legislature does.

“But if they keep the cap in place, that’s very detrimental, because costs continue to increase.”

Amy Barton, a spokesperson for the DOC, said the 2015 Legislature, through House Bill 2, capped the county jail reimbursement rate at $69 per person per day, and the 2017 Legislature continued that cap through the 2019 biennium.

House Bill 650, which was a companion bill in the 2017 session, stated "the department may pay to a regional correction facility no more than the rate it paid to that facility on Dec. 6, 2016."

"That frozen rate for MASC as of Dec. 6, 2016, was $83.22," Barton wrote in an email.

Both Jennings and Rowley said the situation is creating a hardship for county residents, who have to cover the difference in the actual cost of housing the DOC inmates in the Missoula County jail.

“It’s frustrating for Missoula County; we deal with overcrowding all the time, and our taxpayers are carrying the burden,” Jennings said. “The costs have to be fair and shared.”

The county initially closed the meeting to the public to discuss what was called only “litigation,” and declined to divulge the topic. Later county officials realized they had done so illegally at Jennings’ request and both he and Rowley apologized.

After an inquiry by the Missoulian about the closed door meeting, attorney Mike Meloy, an expert in open meeting laws, wrote that “Pursuant to the recent Supreme Court decision in Raap v Wolf Point School District … the Chair (Rowley) must articulate a rationale for closing the meeting that is sufficiently descriptive to afford reasonable notice to the public of the legal and factual basis for closure.

"Since the litigation strategy exception applies only 1) where there is actual litigation in place and 2) that opening the session would detrimentally affect the agency’s litigation position, the Chair needs to address both of these issues before closing the meeting.”

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