Moe v. Butte-Silver Bow County

Moe v. Butte-Silver Bow County, 2016 MT 103 (May 10, 2016) (Baker, J.) (5-0, aff’d)

Issue: (1) Whether the district court properly granted partial summary judgment to the county on Moe’s claim that it violated Montana’s open meeting laws; (2) whether the district court properly granted partial summary judgment to the county on Moe’s claim that it violated Montana’s public participation laws; (3) whether the district court properly granted partial summary judgment to the county on Moe’s § 1983 claim; (4) whether the district court erred in holding as a matter of law that the county did not discharge Moe in violation of its own policies or for refusing to violate public policy; and (5) whether the district court erred in holding that Moe is entitled to a trial on her claim that the county terminated her employment without good cause.

Short Answer: (1) Yes; (2) yes; (3) yes; (4) no; and (5) no.

Affirmed and remanded for trial

Facts: Moe was appointed the county’s human resources director in 2009. In early 2013, employees complained to the county chief executive. Matt Vincent, about her performance and behavior. He and the county attorney met with Moe in February 2013 to informally counsel Moe regarding these issues.

In April 2013, Vincent learned that Moe had failed to disclose to him her knowledge of potential wage claims against the county. That same month, one of Moe’s subordinates filed a complaint against Moe. As a result, Vincent placed Moe on leave pending the outcome of an investigation. During the investigation, Moe was represented by counsel, participated in meetings with Vincent, and provided written responses to the issues being investigated.

The investigation revealed that the complaint was unsubstantiated, but revealed that other issues related to Moe’s inappropriate conduct and job performance were substantiated. Subsequently, Vincent determined that Moe should be terminated, and requested a special meeting of the council of commissioners to obtain its advice and consent. Moe was provided written documents and the reasons for her termination. She and her attorney met with Vincent to allow her an opportunity to provide additional information. The council was given the investigative report and Moe’s responsive documents in advance of the meeting.

Before the meeting, Vincent announced that he would close the portion of the meeting that would involve the termination of Moe. Moe was told the meeting would be closed and she would not be allowed to speak. In response, Moe waived her right of privacy and asked that the meeting remain open.

At the beginning of the meeting October 16, 2013, Vincent declared he was closing the meeting based on his determination that the privacy rights of county employees, including the employee who made the original complaint and the employees who provided information during the investigation, outweighed the merits of public disclosure. He did not identify those employees by name or give them an opportunity to waive their privacy interests. Moe and her attorney remained at the meeting but were not allowed to speak.

During the closed portion of the meeting, Vincent provided the council with the reasons for Moe’s termination. When the meeting re-opened, the council granted its consent to terminate Moe. Vincent sent a termination notice to Moe and included a copy of the county’s grievance policy.

Moe filed a grievance in November 2013, and two days later filed a complaint against the county alleging a violation of Moana’s open meeting laws and public participation laws as well as a § 1983 claim for damages. The county denied Moe’s grievance in January 2014 on the grounds that she failed to provide a detailed statement of the disputed issues and relevant facts, and failed to explain what policies and procedures were violated and what remedy she sought. In March 2014, she amended her complaint to add a wrongful discharge claim.

The parties filed cross-motions for partial summary judgment on all four counts. During the hearing on the motions, the county introduced a copy of the independent investigator’s report. The district court admitted the report provisionally, and after the hearing ordered that the report be filed under seal.

Procedural Posture & Holding: The district court granted summary judgment to the county on the first three counts. It also granted summary judgment for the county with respect to Moe’s claim that the county violated § 39-2-904(1)(a) and (c), but held there were disputed issues of fact regarding whether the county violated § 39-2-904(1)(b). Moe moved for 54(b) certification, which the county did not oppose, and the district court granted the motion. Moe appeals, and the Supreme Court affirms.

Reasoning: (1) Moe claims the county violated Montana’s open meeting laws by failing to determine whether the privacy interests of the other employees outweighed the merits of public disclosure. She alleges that Vincent assumed the other employees had privacy interests without analyzing those interests, weighing them against the merits of public disclosure, or give the employees an opportunity to waive their privacy rights as she had done. Additionally, Moe argues, the employees’ privacy interests were not implicated because their personnel records were not discussed. She contends the district court elevated the right to anonymously make workplace complaints above the constitutional right to know.

The employees had an actual expectation of privacy based on the county’s harassment prevention policy, which states that reports filed under the policy are confidential. These expectations are reasonable, as the district court determined that public disclosure of workplace harassment and retaliation complaints may discourage employees from filing complaints. The Court concludes that the employees’ privacy interests outweigh the merits of public disclosure, quoting Billings Gazette for the proposition that “[p]ublic knowledge of the names of the individuals disciplined will not provide the public with any greater opportunity to participate in the internal employment decisions of the City.” Billings Gazette, ¶ 56. Additionally, the Court notes that “the promotion of candid communication between an employer and its employees is good public policy,” citing Missoulian and Montana Human Rights Division.

(2) Before an agency takes final action on an issue that is of significant interest to the public, the agency must follow procedures to ensure adequate notice and assist public participation. § 2-3-103(1)(a). The special meeting was not of significant interest to the public because it did not have meaning to or affect a portion of the community. Vincent had the authority to terminated a non-elected department head at the end of the pre-termination process. The council met to confirm that Vincent followed the proper steps, and to consent to his decision to terminate. News media coverage is not sufficient to establish that the closed portion of the meeting was of significant interest to the public. The meeting involved a personnel decision affecting one employee who was given ample opportunity to participate.

(3) The district court determined that Moe fully participated in the pre-termination investigation before the council meeting. Die process does not require that Moe have been given an opportunity to respond during the council meeting.

(4) Having determined that the county did not violate Montana’s open meeting or public participation laws, or violate Moe’s due process rights, the Court affirms the district court’s holding that the county did not violate the express provisions of its own written personnel policy, § 39-2-904(1)(c), or of public policy, § 39-2-904(1)(a).

(5) The County argues that the undisputed facts establish it had good cause to terminate Moe’s employment and that the District Court’s denial of summary judgment should be reversed. Because Moe had a managerial position, Vincent had broad discretion to decide whether to terminate Moe’s employment. Here, Moe has raised sufficient factual disputes supporting her contention that she was not discharged for good cause, and that the reason given was a pretext. Concluding that reasonable persons could differ in the inferences to be drawn from the facts, the Court affirms the denial of summary judgment and remands for trial.