Montana County Board Handbook: Overview of Boards, Districts, Committees, or Commissions

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INTRODUCTION

This 2016 edition of the Montana Local Government Board Handbook is the result of new faces and energy at the Montana State University (MSU) Local Government Center (LGC). With additional editorial assistance from LGC Director Dan Clark and Associate Director Blake Christensen, this newly-revised and expanded Handbook is the result of nearly 10 years of work teaching across Montana, addressing questions from board members and elected officials, and reviewing and evaluating curricula used in other states. For this new edition, we have again assembled a group of highly-qualified Montana State University Extension educators and other professionals with experience and motivation to write and teach on the subject of local government board governance.

This updated Handbook contains five sections. The first section contains a summary of the principal boards in Montana, explanation of general board statutes, use of resolutions guiding boards, and statutes pertaining to special districts. The second section presents information on how to serve on a board including short summaries of pertinent laws in Montana including open meetings, code of ethics, nepotism, discrimination, wrongful discharge, ex parte consultations, and board liability. Section three offers guidelines for conducting board meetings with an emphasis on parliamentary procedure, ground rules, facilitator competencies, and use of by-laws. The fourth section addresses leadership and team building techniques. Last, section five describes each board in terms of creation, purpose, membership, authority, and funding with citations for the appropriate title, chapter and part of the Montana Code Annotated (MCA). Links to web sites are provided throughout the handbook, with excerpts and links directly to the MCA presented by Title-Chapter-Part. For complete detailed information, users should carefully study the MCA or the specific resolution pertaining to the board and always consult with relevant, competent, and appropriate legal counsel.

There are many boards, districts, commissions and committees in Montana, each with varying responsibilities and powers.1 Some boards are made up of members appointed by the Governor or local government officials, others are elected by voters, while still others are made up ex officio by local government officials. Some boards can levy mills and issue bonds while others are purely advisory in nature with no decision making authority. Some boards are quasi-judicial and can exercise judgment and discretion by granting, denying or determining legal rights and privileges while others have no ability to adjudicate disputes. Some serve at the state level, some are termed “special districts” and considered distinct government units by the U.S. Census Bureau, while others are termed “subordinate agencies” and not counted as separate government entities even though referred to as “districts.” Some function only in municipalities, others at the county or state level and some are multi-jurisdictional. In short, there is little consistency and often misunderstanding regarding the authority, responsibility and jurisdiction of the myriad boards, districts, commissions and committees in Montana. While it is not possible to avoid all controversy, board members can minimize disagreement and ineffectiveness in procedure, process and outcome through familiarity with the Montana Code Annotated2 and by being knowledgeable of techniques to improve interactions on a board or with the public.

Boards, districts, committees, or commissions are a common means of interaction between citizens and elected officials on a host of topics and issues. As a board member, you represent the interests of many citizens who may be affected by your actions or those of your fellow board members. Serving on a board carries responsibility; you need to know how much decision making authority your board has, how to recruit new members, the financial resources of your board, how to most effectively run your board meetings, and how Montana’s statutes such as the code of ethics, discrimination, wrongful discharge and open meetings law apply.

The information presented here attempts to describe and clarify many of the complex issues confronting boards in Montana. This document applies to those boards and membership thereof that are:

1. appointed and/or with oversight by local governments and,
2. open to membership to citizens in addition to local government officials and,
3. authorized and described in the Montana Code Annotated (MCA).

Serving on or interacting with the myriad boards, districts, commissions and committees in Montana offers some of the best opportunities to practice and nurture the democratic ideals we all hold dear. Understanding how to more effectively serve on a board will allow board members, local government officials and citizens to better interact and cooperate and in so doing, sow the seeds of good governance.

1 All boards, districts, commissions and committees are referred to simply as ‘boards’ throughout this document. A board, district, committee, or commissions can all be interpreted to be an “agency” defined in MCA 2-3-102(1), as “any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts.” A “rule” means “any agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of any agency” (2-3-102(3)).

2 The entire text of the Montana Code Annotated in a searchable format is available on-line at: http://leg.mt.gov/bills/mca_toc/index.htm.

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1. OVERVIEW OF BOARDS, DISTRICTS, COMMITTEES,OR COMMISSIONS IN MONTANA

In contrast to county or municipal forms of local government (that are multi-purpose governing structures performing a wide range of direct service delivery and regulatory functions), most boards, districts, commissions and committees are single-purpose entities that perform a specific function or provide a particular service. Boards can also consolidate different government responsibilities to increase efficiency. In addition, two or more local governments may provide for joint boards to be established by interlocal agreements. Many boards are mandatory while others are created at the discretion of the governing body.

There are 1,265 distinct local governments in Montana as defined by the US Census^.3 These entities include county, municipal, school district, and special district governments.4 School districts and certain special districts can function with many of the same powers of local governments. Some districts are special taxing areas and may be governed by an appointed or elected board. 5 However, most boards, districts, committees, or commissions have more limited responsibility or authority and thus are considered subordinate agencies of the state or of local governments.

There are 763 special districts in Montana.6 Many special districts are counted as local governments by the U.S. Census Bureau with three attributes:

1. Organized entity (possession of some corporate powers such as the right to sue and be sued),
2. Governmental character (requirements for public reporting or for accessibility of records to publicinspection) and,
3. Substantial autonomy (considerable fiscal and administrative independence such as determining taxesto be levied and using debt without review by another local government).⁷

Some districts have autonomous governing boards, but their funding may depend on approval by the appropriate governing authority. If districts are not governed by an appointed or elected board, the local government officials ex officio administer board duties. he list below presents information on the principal boards, districts, commissions and committees in Montana.

Name (Montana Code Annotated, Title-Chapter-Part)

Airport
Airport Appeals Board (67-7-302)

Airport Board (67-10-201)

Municipal Airport Authority (67-11-102)

Regional Airport Authority (67-11-103)

Economic Development / Infrastructure

Business Improvement Districts (7-12-1111)

Rural Improvement Districts (7-12-2101)

Special Improvement Districts (7-12-4101)

Television District (7-13-2501 (Repealed))

Local Port Authority (7-14-1101)

Regional Port Authority (7-14-1102)

Local Improvement Districts (7-14-2710 (Repealed, see 7-11-1001))

Technology District (7-15-4295 (Repealed, see 7-15-4279))

Industrial Districts (7-15-4299 (Repealed, see 7-15-4279)

Museum and Facilities for the Arts Board (7-16-2201 (Repealed, see 7-11-1001))

Elections

Board of County Canvassers (13-15-401)

Fair

Fair Commission (7-21-3401 (Repealed, see 7-11-1001))

Multi-County Fair Districts (7-21-3421 (Repealed, see 7-11-1001))

Joint Fair and Civic Center Commission (7-21-3451 (Repealed, see 7-11-1001))

Fire

Fire Hydrant Maintenance Districts (7-12-4601)

Rural Fire Districts (7-33-2101)

Fire Service Area (7-33-2401)

Governance

Community Councils (7-3-223, 317, 417, and 516)

County Compensation Board (7-4-2503)

Health

Solid Waste Management District (7-13-201 (Repealed, see 7-11-1001))

Hospital Districts (7-34-2101)

Health Care Facilities Commission (7-34-2202)

County Boards of Health (50-2-104)

City Boards of Health (50-2-105)

City-County Boards of Health (50-2-106)

District Boards Of Health (50-2-107)

Housing and Building

County Building Commission (7-8-2103)

County Housing Authority (7-15-2101)

Municipal Housing Authority (7-15-4401)

Land Use and Planning

County Board of Park Commissioners (7-16-2301)

County Park District (7-16-2411 (Repealed, see 7-11-1001))

Municipal Board of Park Commissioners (7-16-4201)

Cemetery Districts (7-35-2101 (Repealed, see 7-11-1001))

County Tax Appeal Board (15-15-101)

County Planning Board (76-1-101)

City Planning Board (76-1-101)

City-County Planning Board (76-1-101)

Joint or Consolidated Planning Boards (76-1-112)

County Planning and Zoning Commission (76-2-101(

County Zoning Commission (76-2-201)

County Zoning Board of Adjustment (76-2-221)

Municipal Zoning Commission (76-2-301)

Municipal Zoning Board of Adjustment (76-2-321)

Open Space Commission (76-6-101)

Conservation District (76-15-101)

Library

Library Board (22-1-308)

Public Library District (22-1-701)

Livestock and other Animals

Rodent Control District (7-22-2210 (Repealed, see 7-11-1001))

Mosquito Control Board (7-22-2411 (Repealed, see 7-11-1001))

Grazing District (76-16-101)

Livestock Protective Committee (81-6-101)

Cattle Protective District (81-6-201)

Schools

Elementary School Districts (20-6-201)

High School Districts (20-6-301)

K-12 School Districts (20-6-701)

Taxation

Resort Area District (7-6-1532)

County Land Advisory Board (7-8-2701)

Transportation

Urban Transportation District (7-14-201)

Transportation Improvement Authority (7-14-1001)

Railway Authority (7-14-1601)

Parking Commission (7-14-4601)

Aerospace Transportation and Technology District (7-15-4296 (Repealed, see 7-15-4279))

County Transportation Committee (20-10-131)

Water

Regional Resource Authority (7-10-101)

Metropolitan Sanitary and/or Storm Sewer District (7-13-101)

County Water and/or Sewer District (7-13-2203)

Local Water Quality District (7-13-4504)

Regional Water and Wastewater Authority (75-6-302)

Irrigation District (85-7-101)

Drainage District (85-8-101)

Conservancy District (85-9-101)

Weed

Weed District (7-22-2102)

3 U.S. Census Bureau. 2012. Census of Governments http://www2.census.gov/govs/cog/2012isd.pdf

4 There are two consolidated city-county government structures that operate as one government; Anaconda-DeerLodge and Butte-Silver Bow are classified under Montana law both as counties and as municipalities. However, Anaconda Deer Lodge and Butte-Silver Bow are each counted only once for census purposes as municipal governments rather than as county governments.

5 A special district is defined in 2-2-102(9) as a unit of local government, authorized by law to perform a single function or a limited number of functions. The term also includes any district or other entity formed by interlocal agreement. For more detail of special districts, see 7-11-1001.

6 U.S. Census Bureau. 2012. Census of Governments http://www2.census.gov/govs/cog/2012isd.pdf

7 Ibid

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General Board Statutes

County boards and certain special districts (7-11-1002, 7-11-1021) are guided by the general board statutes (7-1-201).⁸  Municipalities and school boards are not specifically governed by the general board statutes, but instead are guided by specific statutes in the Montana Code Annotated (MCA), or by resolution passed by the authorizing governing body or both.

The general board statutes require a resolution be passed with a statement that details the purpose, authority and membership of the boards (7-1-201). The resolution creating the board must grant the board the powers necessary and proper to the establishment, operation, improvement, maintenance, and administration of the board. The powers can be quasi-judicial to exercise judgment and discretion by granting, denying or determining legal rights and privileges. Members can be appointed, elected or, if the minimum number of qualified persons is not available for membership, the county commissioners may, by resolution at a public meeting, serve as board members (7-1-203). However, county commissioners may not receive additional compensation. Most boards with elections hold them according to Montana’s general election laws (13-1-101). Unless specifically outlined in the statute describing the board, the following rules apply to county boards: terms of all members (except elected members) may not exceed 4 years; a board must consist of a minimum of 3 members and must have an odd number of members, and; a member must be a resident of the county to be eligible for appointment to a board (county commissioners may prescribe by resolution additional qualifications for membership). Members must be appointed by the county commissioners who must post prospective membership vacancies at least 1 month prior to filling the vacancy (7-1-201(5)). Under the general board statutes, no boards may pledge the credit of the county or impose a tax unless specifically authorized by state law (7-1-201).

The MCA does not contain a specific counterpart to the general board statutes that applies to municipal boards. The governance of boards in municipal setting depends on the form of government. In commission-executive form of government, the executive of a municipality shall “enforce laws, ordinances, and resolutions” and “appoint, with the consent of the commission, all members of boards, except the executive may appoint without the consent of the commission temporary advisory committees established by the executive” (7-3-203).

In commission-manager form of government with general government powers, “all members of boards, other than temporary advisory committees established by the manager, must be appointed by the commission” (7-3-312 and 7-3-114). The manager shall “enforce laws, ordinances, and direct, supervise, …and administer all departments, agencies, and offices of the local government unit except as otherwise provided by law or ordinance (7-3-304). In commission-manager forms of government with self-government powers, “all members of boards, other than temporary advisory committees established by the manager, must be appointed by the presiding officer with the consent of the commission or …the manager with the consent of the commission” (7-3-312 and 7-3-114).⁹

For commission-presiding officer form of government, the presiding officer “shall appoint, with the consent of the commission, all members of boards and committees. However, the presiding officer may appoint without the consent of the commission temporary advisory committees” (7-3-503). For town meeting form of government, the town presiding officer is the chief executive officer of the town and shall “appoint, with the consent of the town meeting, members of all boards and appoint and remove all employees of the town” (7-3-606).

For commission form or government, as is the case with most counties, “the commission shall appoint the heads of departments and other employees, except for those appointed by other elected officials (7-3-401) and “supervise the official conduct of all county officers and officers of all districts and other subdivisions of the county” (7-4-2110).

There may be some ambiguity regarding a general definition of a board member; some may be considered to be a ‘public officer’ (“any elected officer of a local government”) or ‘public employees’ (“a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority,” 2-2-102) serving with an ‘agency’ (“any board, bureau, commission, department, authority, or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts,” 2-3-102). Regardless of whether board members are serving in special districts, or part of a municipal or county board, and regardless of any salary or financial compensation, it is clear that members are subject to Montana’s Right to Know and Right to Participate statutes including the Code of Ethics (2-2-104) and open meetings laws (2-3-101).

8 While the text of the general board statutes (7-1-201) suggest that it may be directed generically towards local governments ( i.e. municipalities and counties), the intent likely pertains only to counties. In subsection 17, the statute states, “If a municipality creates a special district in accordance with Title 7, chapter 11, part 10, the governing body of the municipality shall comply with this section if the governing body chooses to have the special district governed by a separate board.”

9 For more information on general versus self-government powers, see Montana Constitution, Art. XI, Sec. 4-6. Governments with self-government powers may choose alternative methods of establishing and governing boards as outlined in their charters.

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Oath of Office

The issue of Oath of Office is often raised for new board members. The Montana Constitution contains the following provision: “Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: ‘I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).’ No other oath, declaration, or test shall be required as a qualification for any office or public trust” (Art III, Sec. 3).

There are also references to Oath of Office in the sections of the MCA pertaining to municipalities and counties that reference elected and appointed officials and officers. In 7-1-4137, “Every elected and appointed municipal officer shall take the oath of office prescribed in Article III, section 3, of the Montana constitution. Before the officer performs any official duties, the oath of office, certified by the official before whom the oath was taken, must be filed.” In this context, an “officer” is defined in 7-1-4121 as a “person holding a position with a municipality that is ordinarily filled by election.” In a county context, 7-4-2205 states, “Each person elected to an office …take the oath of office on or before the last business day of December following the officer’s election.” County officers are defined in 7-4-2203.

It is important to recognize the distinction between appointed board members and elected board members. Those holding an elected office should take the oath of office by virtue of holding the office. Those appointed to serve on boards, should not. They are not “officers.” As with many other aspects of board governance, it is best to check with legal counsel regarding how to meet this provision.
Resolutions Guiding Boards

Under the general board statutes (7-1-201), resolutions creating county boards must explicitly define the role and scope of the board and must specify,

1. the number of board members,
2. the terms of the members,
3. whether members are entitled to mileage, per diem, expenses, and salary, and,
4. any special qualifications for membership in addition to those established by law (7-1-201).

The general board statutes also specify that a majority of members constitutes a quorum for the purposes of conducting business and exercising powers and responsibilities. Action may be taken by a majority vote of members present and voting, unless the resolution creating the board specifies otherwise. The resolution creating a board may provide for voting or nonvoting ex officio members. The resolution must also contain, if applicable, budgeting and accounting requirements for which the board is accountable.

While municipal, school district, and certain special districts are not subject to the general board statutes, the resolution or enabling legislation establishing or requiring the board should be required reading for all new members. The best boards assign a member as a watchdog to make sure these requirements are met.

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Special Districts

The creation and governance of certain special districts are now detailed in 7-11-1001. Since 2009, this part of the MCA now provides detailed and uniform information on special districts regarding their creation, administration, alteration, and dissolution. The statutes do contain a savings clause and thus do not affect current special districts, but do contain exceptions, for example, when boundaries are altered, or when the method of assessment is changed. The statute (7-11-1002) does not include the following special districts:

• business improvement districts
• cattle protective districts
• conservancy districts
• conservation districts
• water and sewer districts
• planning and zoning districts
• drainage districts
• grazing districts
• hospital districts
• irrigation districts
• library districts

The statutes (7-11-1002) do include but are not limited to the following special districts:

• cemetery districts
• museum districts
• park districts
• fair districts
• solid waste districts
• local improvement districts
• mosquito control districts
• multijurisdictional districts

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Creation of Special Districts

The authorization to create a special district can be initiated by resolution of governing body or initiated by petition (7-11-1003) which requires 25% of the registered voters or 25% of the owners of real property. The statute specifies the petition contents. Once the creation process is initiated, the processes are the same. The boundaries must be mapped, which requires that a surveyor prepare the legal description of the boundaries (7-11-1006). The boundaries must as far as practical follow existing boundaries.

At least one public hearing must be held prior to passage of a resolution of intent to create the district (7-11-1007). Notice of the hearing must be published in accordance with 7-1-2121. Notice of the hearing must be mailed to all owners of property subject to potential assessment, fees, or taxation. The contents of the resolution must designate the proposed name of the district, a statement of necessity, a general description and boundary of territory or lands to be included, the general character of the proposed service or improvements, the estimated cost and method of assessment, any requirements specific to the type of district being proposed, (i.e. solid waste), whether the district will be administered by governing body or board, and whether members will be appointed or elected (7-11-1007). An owner of property subject to assessment may protest (7-11-1008).

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Administration of Special Districts

The special district may be administered by the governing body or by an appointed or elected board (7-11-1021). Specific powers delegated and powers withheld must be stated. While the governing body may grant additional powers to the board, the governing body has ultimate authority (7-11-1021(2)c). If the special district will be administered by a board, the board must be established in accordance with the general board statutes (7-1-201).

The administrative entity of the special district may implement programs, administer budgets, employ personnel, purchase, rent, lease property and equipment, and cooperate with any corporation, association, individual, group, including governmental entities or agencies. In addition, any combination of units of local government may jointly create special districts which must be administered in accordance with an interlocal agreement (7-11-1022).

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Alteration of Special Districts

Special Districts may be altered but not more than once per year (7-11-1023). The alteration cannot affect indebtedness at the time of alteration. The governing body shall assess the percentage of the cost of the program or improvements (7-11-1024). The method of assessment can be by area, equally by lot or parcel, taxable value, lineal front footage, vehicle trips, family residential unit / business units, or any combination of methods. The governing body shall annually estimate cost of program and must allow for protests.

When an assessment is considered erroneous, a person may file an appeal to the administrative board of the district prior to the assessment becoming delinquent. If an appeal is filed and the board finds in favor of the taxpayer, the board shall order the assessment removed or refunded. If the board does not find in favor of the taxpayer and if a payment was made under protest or the taxpayer makes a payment under protest before the assessment becomes delinquent, the taxpayer may initiate an action in court. Subsection (2) details the process of initiating an action in court (7-11-1027).

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Dissolution of Special District

A special district may be dissolved upon a finding that its purpose has been fulfilled and that the district is no longer needed (7-11-1029). The dissolution may be initiated by the governing body or administrative board and may be protested. Dissolution does not relieve property owners of assessment and payment sufficient to liquidate all charges existing.

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