MFPE, Daily Montanan Sues State Education Board

Montana Free Press The Montana Federation of Public Employees and nonprofit news publication the Daily Montanan announced Wednesday they’ve filed a lawsuit against the Board of Public Education challenging action taken during a meeting March 10.

In a complaint filed in Lewis and Clark County District Court on April 8, the plaintiffs allege that the seven-member board violated the Montana Constitution and state open meetings laws by voting to reverse recent changes to the state’s teacher code of ethics without public notice. They requested that Judge Michael McMahon declare the board’s vote unlawful, void its action and bar the board from similar activity while the litigation proceeds.

“The public has a constitutionally guaranteed right to participate in discussions pertaining to the future of our public schools,” MFPE President Amanda Curtis, whose union represents public school teachers and staff, said in a statement Wednesday. “It’s unacceptable that the current Board and Lt. Gov. [Kristen] Juras are ignoring the rights of Montanans in [an] attempt to sideline stakeholders who disagree with their political agenda.”

Contacted via email, Mc-Call Flynn, executive director of the Board of Public Education, told Montana Free Press that the board has no comment at this time as the office has not yet been formally served with the complaint. When asked for a response to the lawsuit, Gov. Greg Gianforte’s office replied that it generally does not comment on potential or ongoing litigation.

The litigation ties back to a February debate over revisions to the Professional Educators of Montana Code of Ethics by the Certification Standards and Practices Advisory Council (CSPAC), a seven-member group of professional educators appointed by the board and charged with revising the code every five years. That debate boiled down to a disagreement over the addition of the word “equity,” which critics including Gianforte and Superintendent Elsie Arntzen, both Republicans, claimed would erode student performance and promote a political agenda. CSPAC members and other educators balked at that characterization, attempting to explain that “equity” has a distinct historical definition in educational vernacular.

Gianforte and other opponents challenged CSPAC’s authority to even enact the revisions, characterizing the code as akin to state policy. CSPAC members and public education association leaders disputed that framing, asserting that the code is strictly an aspirational document with no weight of enforcement or disciplinary action behind it. The council approved the revisions Feb. 9. While presenting a report to the Board of Public Education on Gianforte’s behalf March 10, Juras demanded that the board immediately rescind CSPAC’s revisions and publicly denounce the council’s ability to make such changes. As the “chief executive officer of the state,” she said, Gianforte had determined that CSPAC “is acting outside of its authorities.” She added that the educator ethics code “is policy.”

“Even if past boards have deflected their responsibility in this area and asked CSPAC to do it, that does not make it right, and we are asking this board to take action and address this issue and bring clarification,” Juras said.

The ensuing discussion, while civil, put board members and an increasingly forceful Juras in a delicate position. Juras’ report and an update by board chair Tammy Lacey were both listed on the meeting’s agenda as informational items, and both had submitted materials pertinent to the code of ethics revisions — including a four-page memo from Juras outlining the governor’s requests. The agenda listed no action items related to the code.

After Juras’ initial statements, Lacey asked the board’s legal counsel, Katherine Orr, to weigh in. Orr advised Lacey that state law would “prohibit the board from taking any action today since it hasn’t been noticed to the public.” Juras pushed back, saying she was familiar with the law in question and felt there had been adequate public notice.

“It’s on the agenda in two different places, both in your report as well as the governor’s report,” Juras said. “My memorandum, we requested that it be included in the packet so that the public would have the opportunity to read that and make public comments on it. So the public has been given notice of this matter and does have the opportunity to make public comment after reading the materials.”

Juras and several other board members insisted that the board has a responsibility to take swift action to clear up public confusion about the code revisions and CSPAC’s authority. In one of only two public comments delivered during the discussion, MFPE’s Curtis refuted those claims and urged the board to resist adding an action item to the agenda.

“Any purported or alleged confusion among other members of the public has been manufactured and is not caused by any actions of CSPAC or the Board of Public Ed,” Curtis said.

Board member Madalyn Quinlan made a bid for compromise, suggesting that the governor’s requested actions be added to the agenda for the board’s July meeting. She was unsuccessful. Orr again stated her opinion that an immediate vote would be “a very dangerous path to take,” and Lacey, Quinlan and board member Anne Keith concurred that they were concerned about the potential illegality of voting on the matter.

In the end, Renee Rasmussen, who was appointed to the board by Gianforte in January, offered a motion to amend the agenda and vote on rescinding the code changes, limiting CSPAC’s authority and directing the council to present its ethics code changes for board approval. The motion was seconded by Jane Lee Hamman and passed with supporting votes from Susie Hedalen and Mary Heller, all three of whom are Gianforte appointees. Lacey, Quinlan and Keith opposed the motion.

The lawsuit filed by MFPE and the Daily Montanan now seeks to invalidate that vote, claiming that “the public and petitioners were deprived of their constitutional and statutory rights to receive notice of proposed action to be deliberated upon in a meeting of a state government agency, and to have a meaningful opportunity to participate as representatives of the news media, Montana’s largest labor union and the public.”