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After judge orders sewer project redone, officials look to restructure public comment periods

"The Court concludes as a matter of law that the City violated the public right to participate when it would not allow meaningful public comment during the Public Works Committee meetings on Feb. 5 and 12, 2003."

Long after we settle the Rattlesnake sewer debate, Missoulians will be feeling the ripples of District Judge Douglas Harkin's order last week to redo the project.

City officials are still working to finalize new rules for allowing public comment in more times and places than long-standing tradition has permitted. Harkin's ruling in Folsom vs. City of Missoula didn't say whether it was good or bad to build public sewer in the Rattlesnake. But it did say the people involved must have a chance to participate at every level where a decision is made.

"My personal philosophy is you provide as much notice and you do allow the public to comment any time you have a quorum," said Jack Holstrom, the Montana Association of Counties insurance pool attorney. "It's the people's government and it's, 'We the people.' If it slows down government somewhat, so be it. That's what the framers of our 1972 Constitution envisioned."

In the Rattlesnake case, the City Council was considering extending public sewer to more than 500 homes last winter. Neighborhood opposition was high, with all four subdistricts having a majority of the residents officially protesting it. However, state rules require a minimum 75 percent protest, and only one subdistrict cleared that hurdle.

During the debate, Loreen Folsom and others claimed city officials were overstating the threat of private septic systems to the city's underground aquifer, and were also failing to consider alternative private wastewater treatment systems. After they raised those complaints at a public hearing before the full City Council, the matter went back to the Public Works Committee for more research.

In two sessions Feb. 5 and 19, City Engineer Steve King and Public Works Director Bruce Bender answered council members' questions and reported their findings on alternative wastewater treatment systems. But the committee members didn't allow any public comment at the first meeting, and recognized only one person to rebut the official presentation at the second meeting.

"(T)he public was denied the right to participate at the Public Works Committee meetings and, therefore, denied the right to counter-argue at the meeting in support of alternatives which differed from the presentation the engineer was making to the committee," Harkin wrote. "(T)he city denies that the public has a right to even make public comments at committee meetings."

"The court concludes that although the Public Works Committee meetings complied with part of the open meeting laws by allowing the public to attend and observe those meetings, the public was not allowed to meaningfully participate by providing oral comment during two of those meetings. This omission violates the public's right to reasonable opportunity to participate."

Missoula City Attorney Jim Nugent said the City Council has long considered its committee meetings as "work sessions" for council members to deliberate among themselves. Committee leaders have always had the power to recognize a private citizen from the audience, but the practice has been to channel public discussion to the public hearings or comment periods before the full council on Monday nights.

"For more than a decade we've had ex-legislators as mayor, and the Legislature doesn't allow public participation especially in their executive sessions," Nugent said. "We thought concerns could be settled at public comment at the final decision meeting. That's how we were looking at it, because a committee doesn't make final decisions. What the judge feels is you have to allow that participation before the committee makes an advisory decision."

But there are some issues pushing the other direction. The city faces deadlines in some matters, such as a 60-day limit to pass judgment on subdivision requests. There are also construction seasons that encourage decisions sooner rather than later.

"We have a responsibility to people making application for a decision to give them an answer," Missoula Mayor Mike Kadas said. A former legislator himself, Kadas recalled the state government being strict on keeping committee time for committee members.

"I think I can recall times when chairs said, 'This is an executive session, and we're not taking any outside comments,' " Kadas said. "It was just understood you don't get to comment during this part of the discussion. And with the whole legislative body, no public comment is allowed at all."

Kadas said the administration is still debating whether to ask Harkin to clarify his ruling, or appeal it to the state Supreme Court.

"There's the concern that what we're going to hear is the same thing we heard at the public hearing - we're being boxed into having two public hearings," Kadas said. "That can fit into someone's strategic view of how to do things."

Last week, Ward 1 Councilman John Engen sent a controversial planned neighborhood cluster proposal back to the Plat, Annexation and Zoning Committee after its public hearing. Council rules allow any member to do so without a vote. Last Wednesday, the committee jury-rigged some rules to handle additional public comment, and three neighbors, the developer's representative and an Office of Planning and Grants staff member all joined the discussion.

A possible outcome, according to Nugent, might be fewer issues getting sent back to committee after a public hearing. Instead, council members might opt to settle the matter during the Monday night meeting while everyone interested is still present.

Much of Harkin's ruling was based on a Supreme Court 2002 decision called Bryan vs. Yellowstone County Elementary School District. In it, the justices ruled that governing bodies need to work extra hard to ensure citizens have a chance to see documents and participate at all levels of government decision-making

"The Supreme Court got extremely impatient with school districts trying to skirt around the right-to-know law," said John Shontz, Montana Freedom of Information attorney. "They said to stop trying to use hyper-technicalities to get around Montana's open meeting law. Democracy is not simple and it is not efficient."

Reporter Rob Chaney can be reached at 523-5382 or by e-mail at

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