Cascade County Commissioner Rae Grulkowski has said in several recent county meetings that she has concerns about how those meetings are conducted.
During the County Commission work session on Oct. 2, Grulkowski asked to add a resolution pertaining to meeting protocols to their agenda for the following week’s regular meeting.
During that meeting, her proposed resolution was shared with the other two commissioners, but had not been publicly posted with the meeting agenda or on the county website.
At the time, Commissioner Joe Briggs said that since they had just received her proposed document that day, it would be better suited for a separate work session discussion and they already had a process approved by the county attorney’s office.
“I’m not ready to see this on the agenda,” Briggs said, and Commissioner Jim Larson agreed.
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Typically, two of three commissioners at least need to agree to move an item forward from a work session to a full agenda for action.
Grulkowski said she disagreed at that there were times they didn’t have documents or information until six days before making a decision.
“What’s fair is fair,” she said. “If we’re gonna ram it through for one commissioner, you should take time in next few days to read it.”
“This is something that the commissioner has been arguing about for many months,” Grulkowski said and referenced an October 2023 opinion from the county attorney’s office.
Briggs said he had no intention of debating the issue with Grulkowski during the Oct. 2 work session and said she was omitting several emails in which he explained the process that legal had approved.
Since Briggs and Larson weren’t prepared to move the item forward, Grulkowski’s proposed resolution wasn’t added to the next agenda. Briggs said they could put it on the next work session agenda for discussion to see if they were ready to move forward.
At their Oct. 16 work session, Grulkowski bought her resolution forward again, and Briggs proposed a separate resolution pertaining to meeting protocols.
County Attorney Josh Racki attended that work session to answer legal questions about the “similar, but competing” resolutions.
Racki told commissioners that he recommended putting the two resolutions on an agenda for a separate meeting for more discussion since “I suspect there will be more public comment,” on the item than a normal commission meeting.
Grulkowski and Briggs said they thought that was a good idea.
Grulkowski asked if she could publicly share the October 2023 legal opinion on open meetings from the county attorney’s office.
Briggs said he had no objection and Racki said there was no legal reason not to, he just couldn’t without commission consent.
The Electric requested copies of both Grulkowski and Briggs’ proposed resolutions around 4 p.m. Oct. 16, about an hour after the work session concluded.
Briggs provided his proposed resolution within 24 hours, including a 1998 Montana Attorney General’s opinion that was referenced during the work sessions on the matter.
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On Oct. 20, Grulkowski posted on her campaign Facebook page that her efforts to bring forth a resolution regarding open meeting laws has been “obstructructed” by the other two commissioners and that Brigg’s resolution as counter is “a form of politicking and wastes taxpayer-funded resources.”
In her post, she points to the October 2023 county attorney opinion on their meetings.
She tells followers to email her for a copy of her resolution.
“These are public documents. I will also provide the attorney general opinion reference,” she wrote.
Grulkowski has not yet provided her proposed resolution despite multiple requests to the county commission office.
A meeting on the proposed resolutions had not yet been set as of Oct. 25.
During the Oct. 22 commission meeting, Grulkowski said she wouldn’t approve the minutes from their Oct. 2 meeting because she believed they didn’t reflect a motion and vote during that meeting.
She said that historically, she’d been told work sessions weren’t for making motions or decisions, but that she couldn’t find other instances of items not being moved forward from the work session to the regular agenda other than her resolutions.
Biggs said that over the last two decades, there had been multiple items pulled from the agenda because commissioners decided they weren’t ready to move forward. Larson said over the last two years, while Grulkowski has been a commissioner, several items had been set aside because they weren’t ready for a regular meeting agenda.
Briggs said that work sessions don’t require a quorum so motions can’t be made.
Carey Ann Haight, deputy county attorney and chief of the civil division, said that the electronic recording of the meeting is the official record and the written accompaniment is a summary that refers back to the recording.
It’s a “mischaracterization to now try to insist that an item not being added was somehow a formal motion with a vote, it was not,” Haight said to Grulkowski.
Nothing else addressed on the Oct. 2 agenda was being treated similarly as motions with votes, she said.
Commissioners voted 2-1 to approve the minutes with Grulkowski opposed.
County Attorney Josh Racki provided his office’s October 2023 legal opinion as requested by a public information request from The Electric within 15 minutes on Oct. 25.
In the October 2023 opinion, Haight, deputy county attorney and chief of the civil division, wrote that their office had been asked for an opinion regarding state open meeting laws to bi-weekly commission meetings with department heads; commission meetings with individual department heads and email communications with and between commissioners.
Haight wrote that the Montana Constitution and state law require that “actions and deliberations of all public agencies shall be conducted openly” and the public shall be permitted to “participate in agency decisions that are of significant interest to the public” and there be “public participation before a final agency action is taken that is of significant interest to the public,” but code also exempts commission decisions “involving no more than a ministerial act” from public participation and comment requirements.
“As there is no question that the commission and their department heads are public officials and employees acting in their official capacity and paid for with public funds, the remaining factors to evaluate in determining whether and to what extent the Monday morning meetings with department heads, commission meetings with individual department heads, and email communications with and between commissioners constitute a “meeting” under the open meetings laws, necessitates an examination of the specific activity taking place, including but not limited to whether the commissioners are deliberating and not just simply gathering facts and receiving reports. If the commissioners are deliberating, do the deliberations concern matters of policy rather than merely ministerial or administrative functions. Importantly, what constitutes a discussion and information gathering dialogue is a very slippery slope and subject to interpretation wherein Cascade County and the commission will have the burden of proof in establishing that no deliberations and/or decision making occurred and therefore legal strongly advises that the prudent course of action is to err on the side of treating the meetings as public meetings,” Haight wrote.
Briggs wrote in his agenda report for his proposed resolution that “historically and presently, Cascade County holds public meetings for items of discussion that have a significant public interest, such as the passing of ordinances, adoption of contracts, appropriation of funds, appointments to boards, zoning actions or subdivision proceedings were done at a formal commission meeting as these actions are viewed by the commission as having a substantial public interest, in compliance with Montana law. However, quite a bit of county business is mundane, ministerial, managerial, and/or for informational purposes. Such meetings are still open to the public but are more informal.”
He wrote that historically, the county has used an operational definition of public meetings that recognized many commission actions are ministerial or managerial and don’t have significant public interest, allowing the commission to be “efficient and expedient.” That means the commission and staff can deal with day to day issues without needing to publicly notice a meeting 48 hours in advance and recording the meetings.
Regular commission meetings and their work sessions are traditionally treated as formal public meetings, as are any special meetings of the commission. Those meetings require 48 hour public notice and public comment during the meeting. Department meetings have typically been noticed on the county calendar and remain open to the public but are not recorded and minutes aren’t taken if no formal action is being taken.
Briggs wrote that has been the county practice for at least the last 20 years.
The county conducts its regular meetings and work sessions with a Zoom option and records those meetings that are then posted on the county website, an improvement since COVID, Briggs wrote.
Including all commission activities under the recording and posting requirement instituted by the 2023 Legislature, would be costly and inefficient, Briggs wrote.
“Any items of business that are deemed to be of sufficient public interest will be conducted at a formal commission meeting which will allow both scheduled operational discussions with department Heads, including but not exclusively, the staff meeting, one on one meetings with department heads, and multi department discussion meetings will be calendared, and the public allowed to attend in person, but no minutes will be taken, no recordings made of the discussion and no public comment will be heard. The commissioners may make an exception if a vendor is in attendance whose input is deemed necessary to the discussion by the majority of the commission,” Briggs wrote in his agenda report.
Minute entries would be made noting the meeting time, date, attendees and topic.
“Information gathering via email to facilitate purely operational decisions will not constitute a formal meeting of the commission, but a minute entry can be made to reference the email string discussion,” Briggs wrote in the agenda report for his proposal to codify commission meeting protocols.
