By Tim Leeds/Havre Daily News/tleeds@havredailynews.com
Sheppard said today he believes that only one of the items - the hiring of McLain - legally required City Council approval. He said the hiring was necessary because the department is short-staffed since firefighter Bob Bergren, a House member from Havre, has gone to Helena for the legislative session.
Hendricks said allowing a body like a city council to add items during a meeting defeats the purpose of having a published agenda.
Montana Code Annotated states: " the agency may not take action on any matter discussed unless specific notice of that matter is included on an agenda and public comment has been allowed on that matter."
Hendricks added that if someone challenged the council's decisions in court, those decisions would probably be overturned, requiring the city to place the appointments on an agenda and vote on them again.
Rice said today he has now talked to City Attorney Jim Kaze and the Local Government Center in Bozeman and they confirmed that he and the City Council acted within the law.
Rice said Kaze told him the public safety factor in appointing the firefighter overrode the issue of having the item on the agenda before the meeting, although that should not become a common practice.
Rice added that this was the first time he asked to have an item added to the agenda, and it was not something he would normally do.
The Local Government Center told him that the item was not of enough public interest to have to be on the published agenda, Rice said, and that having the press at the meeting also covered the requirement of public notice.
Hendricks said that interpretation of the law is wrong.
"They are incorrect to say that the statutory requirement is limited by a significant public interest requirement," she said.
As for the public safety issue, Hendricks said whether safety overrode the public notice requirement would have to be decided on a case-by-case basis in the courts.
"I don't know of any precedent," she added.
A decision by Mayor Bob Rice and the Havre City Council to add several items to the Havre City Council agenda during Monday night's council meeting has been questioned by a Havre resident and a lawyer with the Montana Freedom of Information Hotline.
They said the council's votes on the items were not legal because the public had not been given advance notice about them.
The lack of public notice and public discussion meant that "these actions are null and void," Havre resident Charlie Grant said during Monday's council meeting.
Jennifer Hendricks, a Montana Freedom of Information lawyer in Helena who was contacted by the Havre Daily News, said Grant is correct.
"They can't take action on anything that's not on the agenda," Hendricks said.
During Monday's meeting, Rice added items to hire a probationary firefighter and promote two firefighters. He said he had forgotten to place the items on the agenda, which had been requested by Fire Chief Dave Sheppard.
The council unanimously agreed to the additions. It then approved promoting Dave Krezelak to captain to replace Mike Anderson, who was elected to the Hill County Commission, promoting probationary firefighter Nathan Courtnage to permanent firefighter, and hiring Cody McLain as a probationary firefighter.
Rice told Grant during the council meeting that the items did not have to be on agenda in advance of the meeting before the council could take action on them.
Neither Havre City Attorney Jim Kaze nor other members of his law firm were at Monday's meeting.
Rice said in an interview that the actions were legal because they were not matters of significant public interest, such as applying for a loan or a grant.
The appointments also had to be made quickly, he said.
"It was for the safety of the public. We were shorthanded," Rice said.
Havre Daily News Publisher Harvey Brock said the council should not have voted on the items. He said there should have been some way to conditionally put firefighters to work while placing the items on the agenda of the next council meeting.
"The law is the law. Everything that is going to be voted on has to be on the agenda," Brock said. "We all make mistakes. Obviously the mayor just made a mistake."
