5/08/2007

Becky

It is interesting to me that in refusing me access to drafts of the Development Agreement, as well as refusing them to Dr. Christensen, the City has relied consistently on the Becky decision.

Since this decision has been held up as the ultimate authority providing the City with authorization to refuse to produce public information to its citizens, I went back to read it again. If you're interested in this issue, I recommend you do the same. (Go on! It's in English. Trust me, you'll understand it. We're lawyers, not witch doctors!)

The Court in Becky described a process whereby high school students in Butte were selected for inclusion in the National Honor Society. The selection is apparently completed by teachers voluntarily ranking students to determine whether they are appropriate candidates for the Society.

Young Robert Becky was not selected and, quite predictably, his parents just knew he should have been. The went to the school and demanded the names of the teachers who had inexplicably ranked their son anything less than Harvard-material. The school refused, and the Becky family, victims of this apparent injustice, sued to obtain the identities of those scurrilous educators who, at best, misunderstood their son or, at worst, knowingly downgraded him.

The Becky's claimed that the identity of these misinformed teachers and their erroneous rankings were public information under the Montana Constitution. In short, the issue presented in the Becky case was whether the Society's records were "documents...of...public bodies."

The Constitution does not define what are documents of public bodies. The Court held that, when the Constitution is silent, the Court can look beyond the face of the Constitution to interpret its terms, and "when an existing state statute is relevant to, and does not conflict with, the constitutional provision," the Court can look to the statute to help find a reasonable interpretation.

Based on that rule, the Court found that the Society's records should not be considered as "public writings" under MCA 2-6-101. "The National Honor Society documents are generated by an independent nongovernmental organization for the purpose of determining membership in that organization." In other words, records of a non-public entity are not considered public records. This does not conflict with the Constitution.

How about the legislature's interpretation of Article II, Section 9, contained in MCA 2-6-401. This is, recall, the section that says "preliminary drafts" are not public records. Does this section conflict with the Constitution?

Absolutely. The section at issue in Becky, 2-6-101, merely defined public records as those created or used by a public entity. Any other definition would potentially create public access to private records. That would conflict with the Constitution. The section relied on by the City, though, pulls out some documents that would otherwise be public under the Constitution, and arbitrarily defines them as non-public.

Watch for the City to lose this issue.

12 comments:

Anonymous said...

Great Falls always struck me as a
perfect place for a nuke plant instead of a dirty coal burner.

Anonymous said...

Dear Anonymous
Are you Bret Downey?

Hawkeye said...

Why would Great Falls need to build a nuke or coal plant when we have the hydroelectric dams? There is more than enough power here. The coal plant project is just a speculative investment made by a few citizens, some of them unelected, spending your tax dollars to create energy that may or may not be sold for a profit. We would be better off having them invest our money in precious gems.

Anonymous said...

Just try to get a permit for dams - not in this life. Amd I think it was Geeguy's party that fought the "Buy Back the Dams" initiative so hard.
Racicot sold this state down the river (pardon the pun) with deregulation, and left us to reap the whirlwind.
Where will you be when the lights go out?

Hawkeye said...

Why does Great Falls or Montana need more dams? There is excess energy in Montana. It is sold out of state.
The lights occasionally go out here, but mostly from the wind knocking down power lines.

WolfPack said...

Does anybody know what tax revenue would come to cascade county or GF if a 3/4 billion dollar industry located here? As an estimate, a 1% effective property tax rate would be $7.5 million per year. That alone is a 6% return on our money ($125M) before any power savings, water revenue, profit sharing or other revenue streams are considered. Not exactly a risky investment based on return.

GeeGuy said...

Anyone who would say "Geeguy's party" doesn't know me very well.

Hawkeye said...

'Not exactly a risky investment based on return.'

I think the correct phrase as per Mr. Lawton is: "There's no risk," he said. "It simply takes time to work it out. The city is covered."

What was the estimated value of our water rights? Doesn't matter now because that is a done deal. We have no guarantees in return for the water and no way out. What kind of negotiators or financial/energy experts do we have on our side? Allowing the city to invest taxpayer money in a speculative business they know nothing about is a bad idea. Warren Buffett would not approve.

Mary Jolley said...

May 7,2007
ECP Board Meeting
Question from Board Member G. Golie
"Are there anough customers to sell the 65 mega watts to in Great Falls." Answer Balzarini, "No."
So not only are we subsidizing Federal Express we the tax payers of GF will be subsidizing some, yet to be named, business deemed worthy by unelected, self directed future volunteers for Kucinich for President, somewhere. In Montana?
Oh I have to keep reminding myself that the plant has nothing to do with the residents of Great Falls.

WolfPack said...

Hawkeye- No risk and risky are the opposite ends of the spectrum. I was just trying to point out that reality is probably somewhere in between. Our cities unique position in this partnership as a taxing entity, local jobs recipient and water merchant mitigates significant amounts of the risk. I agree with you that this does not mean we should go into it with our eyes closed and not expect professional management from our city manager. Your environmental arguments should stand on their own and not need to be bolstered by thin arguments about the general economic viability of this power plant. Electricity usage is not going down any time soon and coal plants are the largest share of the US’s generation portfolio so the plant is very likely to be profitable if managed competently. Even if a carbon tax is enacted a newer plant will be at an advantage over older less efficient plants when evaluated by a CO2/MW metric.


I believe that CO2 reduction is a national issue and that should be addressed uniformly by national regulation. Why should we GF citizens “take one for the team” if the rest of the country isn’t playing along? As for the pollutants that effect health, I have little knowledge in that area so I defer to you on that other than I thought the HGS was well within the EPA requirements.

free thought said...

Getting property taxes on a 3/4 billion dollar industry sounds good. Of course, that presumes that the plant will have a real property value of that amount after it is built. And that it does not get tax break incentives. And that it pays its taxes, unlike our other energy producers.

Anonymous said...

As it stands now, any property taxes generated from HGS will go to the County not the City!