Billings Gazette

District Court Judge Michael G. Moses has ruled that Billings city officials must turn over to The Billings Gazette most of the documents detailing alleged mishandling, misappropriation or misuse of public funds by landfill workers.

After Gazette Editor Darrell Ehrlick requested the documents last June, the city sued The Gazette, arguing that the employees’ right to privacy exceeded the public’s right to know in the case.

City officials released a set of documents, more than 40 pages, on Tuesday night. Originally, they turned over to Moses more than 1,500 documents detailing an investigation into three landfill employees whom Moses refers to in his 24-page order as “Employee One,” “Employee Two” and “Employee Three.”

“The records released show that the City of Billings Human Resources and Public Works departments performed a thorough investigation,” said City Administrator Tina Volek in a news release.

City attorneys had asked Moses to determine which documents to make public and how much information should be redacted — or hidden from public scrutiny — from the documents.

Moses ruled that documents related to Employee One and Two must be made available to The Gazette, but not those pertaining to Employee Three, whom Moses identifies as “not a supervisory employee and … not in a position of public trust.”

Employee Three was suspended from work for a day. Employee One resigned after being investigated and returned some of the money. Employee Two “knowingly misused a city-issued credit card” and when caught and forced to repay the funds, used funds from an unauthorized “coffee fund” for reimbursement, Moses wrote. Employee Two was disciplined with four weeks of unpaid leave “with severe conditions,” Moses noted.

“…(E)mployees entrusted with public trust and who abuse that trust by misconduct that relates to their public duties do not have an expectation of privacy in an investigation of that abuse of trust,” Moses wrote.

According to Moses, the investigations zeroed in on the behavior of three employees of the city’s Solid Waste Division from April 2010 to January 2014. Numerous witnesses were interviewed as part of the investigation, Moses wrote, including all three employees involved.

Moses wrote that city officials’ strategy of turning over no documents during the lawsuit’s discovery phase “sends a message to individuals seeking information from public entities that they need to have enough money to participate in a lawsuit in order to even get an answer to their letter of request.” Further, “the Court would note what a chilling effect the City’s procedure in this case could cause.”

In the decision dated Jan. 21, Moses wrote that he believes attorney fees should also be awarded to The Gazette. Those fees will be decided during an upcoming hearing.

In arriving at his decision that two of the employees’ right to privacy exceeded the public’s right to know, Moses cited two previous cases involving the city and The Gazette as litigants. Both cases were eventually decided by the Montana Supreme Court.

In 2011, city officials denied The Gazette access to a document detailing personal purchases made by a Police Department employee using a department credit card. Because the employee was determined to be in a position of public trust, the document was eventually ordered turned over to The Gazette.

This was not so for the names contained in documents concerning the investigation and discipline handed down regarding five city employees who viewed pornography on city-owned computers during work hours.

“We hold that society would be willing to accept as reasonable,” the Montana Supreme Court held in 2013, “a public employee’s expectation of privacy in his or her identity with respect to internal disciplinary matters when that employee is not in a position of public trust, and the misconduct resulting in the discipline was not a violation of a duty requiring a high level of public trust.”

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