Since the editorial “Policing the police” was printed on June 7, the public records request made by the Sidney Herald has progressed down an interesting path. One may be able to argue that “progress” isn’t exactly the right word. As this ordeal has unfolded, it’s been roadblock after roadblock, thrown down by elected and hired officials alike. The time has come to update the public on the refusal to cooperate with a public records request to the Sidney Police Department, Sidney City Council, Sidney City Council Attorney Tom Kalil and now Richland County Attorney Janet Christoffersen.
After some wrestling around about obtaining the full and proper arrest records from the police department, the Sidney Herald requested internal investigation reports from the department at the beginning of June. Kalil told the Herald he would redact information that was not deemed public, a normal practice for such documents, and turn them over. Montana Code Annoted (MCA) states public records request must be fulfilled within a reasonable amount of time. The first week of July, the Sidney Herald began to feel that window of reasonable time was closing.
And then the criminal charges were filed against Sidney Police Department Sgt. Alex Roselles, stemming from an incident in February wherein, according to charging documents, Roselles drove drunk, rolled his pickup in the ditch and fled the scene. The charges were filed a full five months after the incident occurred. The sheriff’s deputy who arrived upon the accident couldn’t locate or get in touch with Roselles for a full week after the accident. The two men work in the same building. When contact was finally made, Roselles refused to answer questions about the accident and handed over his insurance information. This is all documented in the sworn statement from the investigating deputy.
The Sidney Herald, after waiting for over a month, decided it was time the city handed over the internal investigation reports on Roselles. Kalil assured us we would have the documents the second week in July. By Friday, July 12, Kalil was singing a different tune, as he emailed the Herald a letter that stated, “In this particular case, it is the position of the City of Sidney that the disclosure of any internal investigation documents related to Alex Roselles cannot be disclosed without violation of Montana law. As such, we cannot disclose them.”
A letter was returned to Kalil, penned by Peter Michael Meloy on behalf of the Sidney Herald. Meloy is the Montana Freedom of Information Act Hotline attorney — he’s the guy you go to for help obtaining public information. In the letter, Meloy stated, “While there may be a basis for withholding access to personnel records related to garden variety performance issues, you may not deny the Herald’s right to examine investigatory records involving city officers suspected of or charged with violating Montana law. This is so, because a police officer is vested with the public trust and has a diminished right of privacy over city records related to a violation of that trust. See, for example, Great Falls Tribune v. Cascade County Sheriff, 238 Mont. 103, 775 P.2d 1267, (1989), Citizens to Recall Whitlock v. Whitlock, 255 Mont. 517, 844 P.2d 74 (1992), Jefferson County v. Montana Standard, 2003 MT 384, 318 Mont. 173, 79 P.3d 805, Billings Gazette v. City of Billings, 2011 MT 293, 362 Mont. 522, 267 P.3d 11 and Bozeman Daily Chronicle v. City of Bozeman Police Dept. 260 Mont. 218, 225, 859 P.2d 435, 439 (1993).
“Although your letter does not articulate a basis for denying access to the records as required by §2-6-1009 MCA, please be aware that in the Chronicle case, the Court ordered disclosure of the investigatory records before any final determination was made on the sexual assault.”
In case anyone is keeping count, there are five cases quoted in the letter from Meloy to the City of Sidney which dictate the precedent set to allow the Sidney Herald access to the information. At the end of the letter, there is also a reminder to the city that Montana Code Annotated authorizes the recovery of attorney fees and costs associated with an action to enforce rights. The exchange of letters from city attorney to an attorney the Sidney Herald was consulting with is not considered litigation. However, to discuss the release of public records to the Herald, city council went into executive session at its Aug. 5 meeting. Kalil stated discussion of litigation strategy as the reason behind closing the meeting.
By Wednesday, Aug. 7, Kalil informed the Sidney Herald that council had agreed to turn over the personnel file of Alex Roselles. We were told we would have it by the end of the business day. By Thursday, Aug. 8, we still didn’t have the file. Instead, what the editor received was a voicemail from the county attorney Janet Christoffersen informing the Herald she was not allowing the release of the file.
Christoffersen claimed she was using her authority as the prosecuting attorney on the criminal case against Roselles to prevent the file from being handed over to the newspaper. In a letter sent to Meloy from Christoffersen, she stated, “Pursuant to Montana Code Annotated Section 44-5-303, all requests for confidential criminal justice information must be sent to my office in written request form. Also pursuant to that statute, as county attorney, I have the right to refuse release of said information as it may affect the prosecution of any current charges. At this time, I have advised the city civil attorney, city office, and Sidney Police Department not to release any records until our prosecution of any case pending against Sgt. Roselles is resolved.”
Let’s dive into this argument put forth by the county attorney, who has no authority to direct city council on whether to disclose its city records. City council voted in favor of handing over the file. The city attorney, Kalil, would be responsible for redacting the information. Nowhere in this process is the county involved. It’s an overreach and the Sidney Herald believes it to also be an abuse of power.
MCA defines criminal justice information as criminal investigative information, criminal intelligence, fingerprints and photographs, criminal justice information or records made confidential by law and other information not clearly defined as public criminal justice information.
With that definition in mind, there’s one more glaring issue with this argument. The Sidney Herald did not request the criminal investigation report on Roselles. We requested the personnel disciplinary file, which her argument does not address. Christoffersen stated the Herald will have to wait until prosecution of ANY case against Roselles is completed, not just the current one.
The Sidney Herald will be covering the current case to its completion — including any motions or paperwork filed waiving the defendant’s right to a speedy trial. As of the last hearing, Roselles doesn’t have a defense attorney.
Christoffersen is just plain wrong. Access to records in Montana is governed by statutes, as well as the Constitution. The Bozeman Chronicle case cited by Meloy in the letter to Kalil required access to a police investigatory report before any prosecution took place. The county attorney doesn’t get to decide which document will be kept secret simply because she may use it in court.
Meloy said the standard is whether there is a privacy interest in the document, not if it will be used in prosecution. He said, “Since a police officer is vested with the public in trust, he or she has a diminished right of privacy and it cannot serve as a basis for withholding a document.”
That means the county attorney absolutely does not have the right to override the Constitution, as well as a city council decision.
Roselles is a police officer and we hold officers to high standards and expectations. He now is potentially facing legal consequences and we should know as much as possible about his background. The taxpaying public of Sidney has a right to know if he has a history of issues within the department, what those were, what disciplinary action was taken and if there is a pattern of misconduct.
The Sidney Herald hopes Sidney City Council, under the legal guidance of their attorney, understands Janet Christoffersen is not an authority over its decision or records and is in fact in violation of MCA as well as the Constitution. We hope to obtain the proper file, with necessary redacted information omitted, regardless of the status of Roselles’ criminal case.
Sewer and water lines are expected to be completed this week at Central School, while the new gym roof is still currently open. Crews are racing against the clock as the first day of school looms just around the corner, Sidney School Board discussed at the regular meeting Monday, Aug. 12.
The track project is also progressing, with the concrete poured and the vulcanized rubber membrane expected to be finished after Labor Day, but before the Sidney Eagle Homecoming game Friday, Sept. 13. Before the start of the game, the Lowman-Walton Dedication Ceremony will be held for the new sports complex. The new concessions stand is expected to be ready by Aug. 30.
For the upcoming 2019-20 school year, Superintendent Monte Silk said the district is expecting 46 students for K1 and 92 K2 students. Enrollment numbers for the whole district continue to climb, although Silk said he was not prepared to offer an estimate to the board at the time.
Transportation routes also saw some improvement over the summer.
“We now have the bus number and the route number exactly the same,” Silk said. “Bus 10 is the in-town special education bus. It’s not a route per se, but it is in town bussing. That’s 47,000 miles a year. The only one longer is the 61-mile per day bus route three with 75,000 [miles per year].”
The bus routes have been balanced out for a more even number of children on each bus.
“We’re down to 55-60 kids on the bus,” Silk said. “Last year we had 75 on a couple routes. It’s a better situation without having to add a route.”
Silk credited Martin Morales Sr. for his diligent work on the bus maps over the summer.
In other news:
First day of school for Sidney students pre-K to fifth is Wednesday, Aug. 21, which is also the day for orientation for sixth and ninth grades and new students.
The board approved the hiring of Shane Monsen as the new high school special education teacher. All 16 new teachers met Friday, Aug. 16, for an orientation.
Petty cash accounts were set up in the amounts of $2,500 for the high school, $200 for the middle school and $200 for the district.
Sidney School Board approved the first reading of policies for resignation, vacancies, abstentions from voting, conflict of interest, relationship defined and chart, annual goals and objectives, uniform complaint procedure, education of homeless children, sexual harassment/intimidation/misconduct, personal misconduct, reduction in force and tobacco free policy.
A transfer of $750,000 to the InterLocal Fund was approved.
The school board will hold a special meeting Thursday, Aug. 22 at 7 p.m. to adopt the 2019-20 fiscal year budget.
Residents of the Pominville Subdivision will have until Oct. 1 to rededicate streets back to the city or lose garbage and snow removal as well as other city services to that area.
Council members discussed the area during Monday night’s regular session.
The area was closed in 1953 for agriculture, then subsequently redeveloped without proper street dedications. The lack wasn’t discovered until 2016, and the city has been wrestling with the problem ever since.
Right now, half the street legally belongs to the property owner on the adjacent side. That technically makes the city a trespasser when it conducts services such as garbage pickup, snow removal, street maintenance and water and sewer line maintenance.
City officials have asked the property owners to rededicate the streets back to the city so services may legally continue to be provided there. But rumors that the city will take front yards or lots away has hampered the effort.
A meeting was held to try and explain the situation to the property owners, but most did not attend, council members said during Monday night’s meeting.
Council members discussed options with legal counsel Kaitlynn DeCrescente and decided they would send a final letter to the property owners explaining the situation and give them a deadline of Oct. 1 to either rededicate their street or lose city services.
On other matters, Fairview’s water main project has come in so far under budget that the city will be able to complete an additional five and one-half blocks this year.
City Engineer Ryan Kopp, with Interstate Engineering, was present at the Fairview City Council to provide an update on the project, which is replacing 6,000 feet of water mains on Sixth, Seventh and Western Avenue. The lines are going from 4-inch cast iron to 8-inch PVC.
“We are working on the design (of the additional blocks) now,” Kopp said. “We are just lowering our construction budget and raising our design budget to account for the extra design. It is a no-cost change.”
The change will ultimately lower the Phase 2 project size.
“We are playing with numbers to see what makes the most sense and sets us up best for the future, too,” Kopp said.
Everything is on schedule, and the additional blocks can be completed on time, Kopp added.
The amendment was unanimously approved.
Commissioners also approved directing about $20,000 in funding from the Bridge and Road Safety and Accountability fund toward the city’s share of costs to repair Western Avenue near the school, where the road has given out. The total cost to repair the crumbled road is close to $700,000.
Fairview has asked Richland County to help with the project. A memorandum of understanding is being developed to cover the interlocal efforts.
The road’s failure was caused by drainage issues, Kopp indicated. Part of the project will examine what can be done to prevent that from happening again.
“We will bring back a memorandum of understanding in December, work on it this winter, and construct it next year,” Kopp said.
Council members approved an agreement with Kevin Kowatch to split the costs of a survey as well as associated fees to record and transfer a deed for a 9- or 10-foot strip of property Kowatch bought from the city to correct a compliance error.
The strip of land was recorded as 10 feet on a sales receipt issued to Kowatch, and 9 feet in city minutes. Kowatch said he has already put a fence on the 10-foot line based on the sales receipt.
The purchase was deemed necessary several years ago to correct a compliance issue, after a building permit was approved on a nearby property over a property line.
The city moved the property line to fix that issue, but that made a subsequent permit that was issued to Kowatch for improvements out of compliance.
To fix it, Kowatch bought a strip of land from the city, so that he wouldn’t lose the improvements he had made and the property would comply with required setbacks.
In the meantime, county ordinances changed so that it was no longer possible to simply convey the property to Kowatch. It had to be surveyed for a legal description, so that a deed could be recorded, to complete the transaction.
The estimated cost of the survey is $1,800 to $2,200 with Interstate Engineering. Other fees will range from $50 to a few hundred dollars.
On other matters the city:
• Updated its flood plain regulations to comply with new laws. The updates were required to retain eligibility for flood plain insurance through the National Flood Insurance Program.
• Discussed repair of a sewer line under a street the city doesn’t own. The property owners will be sent a letter explaining the repairs can’t begin until the street has been dedicated back to the city.
• Discussed a change to the interlocal agreement that covers the senior center, which clarifies that Richland County will only pay up to $10,000 in costs on projects that have not first been reviewed and approved by the county commission.
• Reported an opening on the planning board starting Jan. 1. Bruce Benson is retiring. Candidates are being sought for the volunteer position. To qualify, an individual must live in town and be a resident of Fairview.
• Heard a report from the police department on a once every three years audit by the Criminal Justice Information Network. The audit found no discrepancies, Police Chief Cal Seadeek said.
• Discussed the upcoming schedule for budget sessions starting on the next two Thursdays, with the final hearing Sept. 5.
1Lone Tree Archers Club of Sidney will be hosting their annual 3-D archery shoot Sunday, Aug. 18, from 8 a.m. — 2 p.m. The event will feature 24 3-D animal targets set up on the archery range, which is located about 8 miles southeast of Sidney. You do not have to be a member of the club to participate in this 3-D shoot. Shooting fees are $15 for adults or $30 for a family. Lots of fun for all ages. Weather permitting. For more information, visit lonetreearchers.com or call Nancy at 406-488-5128.
2On Monday, Aug. 19, flag football signups, 5-7 p.m. Open to all area youth in grades three and four, West Side Elementary School. Signups continue on Wednesday, Aug. 21, and Thursday, Aug. 22, 5:30-7:30 p.m., open to all area youth in grades three and four, West Side Elementary School.
3Sidney City Council will hold their regular meeting Monday, Aug. 19, at 6:30 p.m., at city hall.
4Red Cross Blood Drive will be held Tuesday, Aug. 20, St. Matthew’s Parish Center, Sidney, 12 — 6 p.m.
5Wednesday, Aug. 21, is the first day of school for sixth graders at Sidney Middle School. All others will being Aug. 22.
Austin Bryce Egbert appeared in Richland County District Court Monday, Aug. 12, in front of Judge Katherine Bidegaray for an initial appearance on a petition for revocation due to violations of conditions of his sentence in 2017. In 2017, Egbert was sentenced for two felony counts of assault on a minor, which were amended from the original charges of sexual assault.
In total, the state alleged seven violations of the conditions set in 2017. The first count stated Egbert failed to complete a sex offender program and was terminated from the program before completion.
The second count stated Egbert failed to refrain from the use of pornography and having pornography in his possession and in fact had pornography in his possession via a smartphone.
Count three stated Egbert violated the condition preventing him from owning or possessing technology that offers internet access unless approved by his probation officer.
Egbert was accused by the state in count four of owning, possessing or utilizing a cell phone with digital photographic capability without approval of his probation officer.
The fifth count stated Egbert violated the condition on accessing or having in his possession materials that describe or depict human nudity, the exploitation of children, consensual sexual acts, nonconsensual sexual acts or sexual acts involving force or violence. The state alleged Egbert had nude photos on his phone of himself and a female and was a member of several pornographic websites.
In count six, Egbert was accused of using or possessing a computer or other device with access to online services.
Count seven stated Egbert consumed alcohol on several occasions.
The defendant denied all the allegations presented against him, with his attorney joining the hearing via phone. A judicatory hearing is scheduled for Monday, Sept. 23, at 9:30 a.m. Egbert is currently in the custody of the Richland County Sheriff’s Office.