High court sides with man challenging officials


Thursday morning the Montana Supreme Court “reversed and remanded” a district court dismissal of a challenge that county officials illegally received cash in lieu of health insurance premiums. The decision sends the case back to 16th Judicial District Court.

The challenge was filed by Miles Citian Brian Schoof.

According to Supreme Court records, in 2007 then-Custer County Commissioners Jack Nesbit, Milo Huber and Gary Matthews passed a policy that county officials could receive cash in lieu of health insurance premiums.

Schoof alleged that the policy was adopted during an unannounced meeting on July 26, 2007.

He said neither the meeting notice nor meeting minutes provide sufficient notice of the change in policy that the public would have understood the substance of the policy, thereby violating his rights to know and participate in local government. 

Schoof said he and the public didn’t know of the decision until Aug. 17, 2011 when then-Deputy County Attorney Joni Oja mentioned it at a meeting.

The next month Schoof filed a challenge to invalidate the decision and compel the county attorney to recover the cash payments made.

Schoof said that Nesbit, Huber, Superintendent of Schools Doug Ellingson, Clerk of District Court Hazel Parker, current commissioner Keith Holmlund and Sheriff Tony Harbaugh did receive the payment in lieu of insurance premiums. Therefore, he also named those as defendants.

County Attorney Wyatt Glade also was named, but he did not receive any payment in lieu of insurance premiums. When the policy was adopted, Glade also gave the opinion that the practice could be discriminatory because it excluded other employees.

There were four counts made by Schoof: the commissioners violated Montana’s open meetings statute, violated the Montana Constitution’s right of participation rules; he requested a declaration that the policy is unlawful; and requested an order that the county attorney recover any illegal payments.

The district court dismissed the right to know and right of participation claims under the 30-day statute of limitations, which the Supreme Court disagreed with, considering the situation.

The district court also dismissed Schoof’s request for declaration and order to recover funds, not addressing those issues.

The cash in lieu of insurance policy was discontinued when objections were raised.

The Supreme Court findings include:

— Schoof was entitled to the “reasonable opportunity to observe and participate in the Commissioners’ decision-making process, including submission of information or opinion.”

— On the 30-day limitation, Montanans need to be given reasonable opportunity to participate in the operation of the government before final decisions are made.

— The commissioners’ decision has not been set aside by order, therefore Schoof’s argument to recover the funds is “hypothetical, and we decline to reach its merits today.”

Supreme Court justices Jim Rice, Mike McGrath, Michael Wheat and Beth Baker agreed with the opinion drafted by Rice. Justices Laurie McKinnon and Patricia Cotter agreed with the overall decision but disagreed on some points.