The Teleoptometry Rule and the Closed Session
The Montana Board of Optometrists notices a regular meeting for 9:00 a.m. to 3:00 p.m. The agenda lists "Public Comment" at 2:45 p.m. after "New Business." A proposed rule on teleoptometry is scheduled for discussion at 10:00 a.m. Dr. Susan Cho, an optometrist who opposes the rule, arrives at 2:50 p.m. after clinic; the chair says public comment closed at 2:45 and the Board must finish. During the meeting the Board votes to go into closed session to "discuss a pending complaint" against a named licensee; it does not cite a specific statutory basis or take a recorded vote by name. Dr. Cho wants to submit a three-page written comment and asks how the rule can be challenged.
1. Did the Board violate the Open Meetings Act by going into closed session? Explain.
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Possibly. Montana's Open Meetings Act allows closed sessions only for specific purposes, such as individual privacy, litigation, or personnel matters, and the board must follow the statutory procedure: a motion, a recorded vote, and a statement of the basis. A generic "pending complaint" against a named licensee may fit the individual-privacy or contested-case exception, but the Board cannot close simply because it prefers privacy. Deliberations in a contested case may be closed, but final action must be public. The failure to cite a specific basis and to take a named roll-call vote is a procedural defect that can void the action or support a complaint.
2. What are Dr. Cho's rights regarding public comment and her written submission?
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The Open Meetings Act guarantees the public the right to attend and observe; it does not guarantee unlimited speaking time at every meeting. The Board may set reasonable procedures, sign-up rules, and time limits, and may place public comment at a set point on the agenda, provided it does not discriminate based on viewpoint. If the comment period closed, Dr. Cho can still submit her three-page written comment to the Board office and ask that it be included in the meeting record. She should also request the rulemaking record and any notice of proposed rule adoption, because the rulemaking process has its own comment period.
3. How can the proposed teleoptometry rule be challenged?
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She should participate in the rulemaking: submit written comments during the Administrative Procedure Act comment period, request a public hearing if one is not scheduled, and ask the Board to explain its statutory authority. After adoption, she can petition the Board for a declaratory ruling, or challenge the rule under the Montana Administrative Procedure Act on grounds of lack of authority, arbitrary action, or procedural defect. She can also ask the Board to include her comments in the rulemaking record and pursue legislative review. A court challenge generally requires exhaustion and a concrete injury, so her standing is strongest as a regulated optometrist subject to the rule.