Lawsuit Says County Commissioner Used Personal Phone To Arrange Bid
A pair of lawsuits filed by a Billings attorney asks a district court to cancel a newly signed management contract for the MetraPark, a Yellowstone County owned events facility, and alleges two of the three county commissioners colluded with the management company that ultimately received the bid.
The court documents also reveal that Yellowstone County Commissioner Don Jones may have conducted county business on his personal cell phone, but attorneys for the county argue that those communications, which could include phone logs or text messages, are private. Meanwhile, attorney Gene Jarussi, who brought the suits, said that conducting business on private equipment thwarts public information laws and cannot be used as an excuse to avoid public scrutiny.
At issue is a long-simmering battle that has ultimately cost one county commissioner his job, and threatens to continue to be an issue for the state‚Äôs largest county and the biggest venue in the city.
For years, some public leaders and groups like the Billings Area Chamber of Commerce have advocated for privatized management of the Metra-Park, arguing that better entertainment offerings and more profit could be made by letting a private entertainment management company handle the operations. That has rankled some in county government who want to keep daily management and oversight of the multi-purpose arena that seats around 10,000, and includes the fairgrounds and an exposition center.
All three Yellowstone County Commissioners are Republican in the county commission, which has consistently and historically leaned Republican. However, fissures in that solidly Republican front began when Jones was elected.
Jarussi‚Äôs lawsuit said that Jones and fellow commissioner Denis Pitman held meetings to discuss privatization of the Metra‚Äôs management. The suit argues those meetings and communications constitute a quorum and should have been done in public. The county, through its attorney, has denied those charges. However, discussions about the Metra have often gotten heated during county commissioners meetings with Commissioner John Ostlund often pushing back against the idea.
Jarussi‚Äôs lawsuit alleges that on Oct. 14, 2021, Jones told Billings businessman Martin Connell that the decision to take management of Metra private was also made in private, acknowledging that ‚ÄúOstlund was excluded and would have not agreed anyway.‚ÄĚ
Connell tried earlier this year to gather enough signatures to recall Jones, but that petition was not successful.
A study commissioned by the Chamber of Commerce revealed some management issues , which further fueled Jones and Pitman‚Äôs assertions that Metra would be better managed by an outside event venue management company rather than county employees.
The issue became a touchpoint during the primary election when Republican Mark Morse, relatively unknown in local politics, handily beat incumbent Pitman, who had also served several terms on the Billings City Council. The one defining issue of the race seemed to be the Metra, with many residents voicing concerns that Jones and Pitman were rushing privatization of a facility that had been operated by the county previously.
Pitman, having been beaten by Morse in the primary election in June, has announced that he‚Äôll run as a write-in candidate.
Private Phone and Public Records
Jarussi obtained the cell phone records from Pitman, according to the lawsuit filed the day the county accepted the private management bid from OVG 360, a subsidiary of the Oak View Group.
Jarussi‚Äôs case file includes a call log from Pitman‚Äôs cell phone records, which shows several calls made to numbers or individuals associated with Oak View during the bidding period. According to the lawsuit, county officials who will award the bid are barred from communicating with any company that may be bidding on the project so as to avoid collusion or even the appearance of a conflict.
Jarussi asked for the same phone records from Jones, but Jones has so far refused to turn over the same records, arguing that he does not take the phone reimbursement from the county nor does he have a county-issued phone, and that material on his cell phone is private.
However, Jarussi said in the suit that if a government official conducts public business on personal equipment, that equipment or records could be subject to a public records search.
The issue isn‚Äôt isolated to Yellowstone County or a commissioner: Legislators in Montana frequently use their cellphones and non-government email addresses to conduct business, but use a standard disclaimer like this: ‚ÄúLegislators are publicly elected officials. Legislator emails sent or received involving legislative business may be subject to the Right to Know provisions of the Montana Constitution and may be considered a ‚Äėpublic record‚Äô pursuant to Montana law. As such, email, sent or received, its sender and receiver, and the email contents, may be subject to public disclosure, except as otherwise provided by Montana law.‚ÄĚ
For example, an examination by the Daily Montanan reveals that of the 150 Montana lawmakers, 55 have email addresses that are not ones provided by the state. While nine lawmakers have no public emails, 55 ‚Äď more than one-third ‚Äď have non-government email. Both parties have members that have private email addresses, including 21 Democrats and 34 Republicans.
Chief In-House Yellowstone County Deputy Attorney Jeana Lervick has argued that Jones‚Äô right to privacy and the contents of the phone should keep any communications from being turned over. However, Lervick has also suggested that, a judge could appoint a special master to review call logs and texts, to ferret out the ones that are not personal.
‚ÄúCommissioner Jones‚Äô cellular phone is in no way funded by taxpayer dollars. It is his personal phone and is utilized at times by members of his family including his wife. It would not be expected that every call or text made by him, or his family would be subject to scrutiny by the public. In this regard, in theory disclosure of the full range of calls and messages could give rise to any number of potential privacy issues including but not limited to HIPAA violations,‚ÄĚ Lervick wrote. Jarussi countered that Jones made the decision to use his private phone for public business, pointing to email in which Jones gave his private cell phone numbers to people associated with OVG. One of the emails said, ‚ÄúI am interested in talking to you about our facility.‚ÄĚ
Jarussi‚Äôs lawsuit asks Yellowstone District Court Judge Michael G. Moses to void the contract because it violated Montana‚Äôs public participation laws ‚Äúand was in violation of the Commissioner‚Äôs fiduciary duties owed to the taxpayers and citizens of Yellowstone County.‚ÄĚ
‚ÄúOVG and the Board also violated the ‚Äėno contact‚Äô provisions ‚Ä¶ by their continuous and collusive communication during relevant time periods,‚ÄĚ the lawsuit states. ‚ÄúThis court can and should declare the pending RFP invalid ‚Ä¶ and should declare OVG‚Äôs response to the RFP disqualified from consideration or acceptance by the county.‚ÄĚ