Published December 20, 2022
Reviewing certain county duties and requirements is good practice, and the first Commission meeting in January is a good time to adopt policies and set guidelines for the year. You know what that means? It’s time once again for MACo’s annual “New Year’s Resolutions & Reminders!” Click the link button below to access our laundry list of important notices that will help you tee up 2023 in a nice, smooth, organized, and completely uneventful manner (or so we hope, given all the adventures–i.e., challenges–the last few years have provided!).
This annual notice may look familiar, but please review it carefully as items have been added and/or updated!
NOTE: Not have all actions listed below need to be done annually, but it is important to review/update as necessary and remind the public, the media, elected officials, and employees accordingly.
First Things First...
Adopt a resolution setting commissioner meeting dates (7-5-2122, MCA)
- The governing body of the county shall establish by resolution a regular meeting date and notify the public of that date.
- The governing body of the county, except as may be otherwise required of them, may meet at the county seat of their respective counties at any time for the purpose of attending to county business. Commissioners may, by resolution and prior two days’ posted public notice, designate another meeting time and place.
Adopt a Resolution Regarding Public Postings (7-1-2123, MCA)
- The governing body shall specify by resolution a public location for posting information and shall order erected a suitable posting board.
- When posting is required, a copy of the document must be placed on the posting board, and a copy must be available at the office of the county clerk and recorder.
Elect a Presiding Officer of the Board (7-4-2109, MCA)
The board of county commissioners must elect one of its members presiding officer. The presiding officer shall preside at all meetings of the board, and in case of the presiding officer’s absence or inability to act, the members present shall select one of their number to act temporarily as presiding officer.
Establish Office Hours (7-4-102, MCA)
- Unless otherwise provided by law, each officer shall keep the officer’s office open for the transaction of business during the office hours determined by the governing body by resolution after a public hearing and only if consented to by any affected elected county officer each day except Saturdays and legal holidays.
- County and city treasurers may, in the interest of the safekeeping of funds, securities, and records under their control, close their offices during the period from noon to 1 p.m. every day.
Reminder
Courthouse Closures on Non-Legal Holidays (7-4-2211, MCA)
Unfortunately, the day after Thanksgiving and Christmas Eve are still not holidays, so Courthouses must remain open. Maybe someday someone will successfully pass that very important legislation to change MCA 2-1-116 (legal holidays and business days)…But in the meantime, read more about this law by clicking the link below.
Travel and Meetings and Conventions, Oh My!
Set and/or Modify Per Diem/Travel Rates
It is recommended that counties adopt a resolution establishing mileage, lodging and per diem rates for business travel. For information on these rates, please refer to MCA 2-18-501. Meals, lodging, and transportation of persons in state service; 2-18-502. Computation of meal allowance; and 2-18-503 Mileage – allowance.
Standard Mileage Rate & Lodging Rate
- The standard mileage rate was increased to 62.5 cents on July 1st and is active through December 31st. The upcoming 2023 reimbursement rates will be released prior to January 1st. We will send the notice when we receive it. For more information regarding the standard mileage rate, visit the Internal Revenue Service website at www.irs.gov/tax-professionals/standard-mileage-rates.
- The state lodging rate is $98; high-cost areas include Big Sky/West Yellowstone/Gardiner (Gallatin & Park Counties); Helena (Lewis & Clark County); Kalispell/Whitefish (Flathead County); Missoula (Missoula County). For more information, visit the General Administration Services website at www.gsa.gov/travel-resources. The new lodging rates are announced in September and are active from October 1st until September 30th the following year.
MACo updates the standard mileage and lodging rates as we receive them.
Attendance at Meetings & Conventions by County Officers & Employees
7-5-2142. Membership in associations of clerk and recorders.
- The county clerk and recorders of the counties of Montana may take out county membership in and cooperate with associations and organizations of county clerk and recorders of this state and of other states for the furtherance of good government and the protection of county interests.
- All county clerk and recorders of the state are allowed actual transportation expenses and per diem for attendance at any general meeting of the Montana association of county clerk and recorders held within the state, and the proportionate expenses and charges against each county as a member of the association must be paid by the county.
7-5-2143. Membership in associations of clerks of district courts.
- The county clerks of the district courts of the counties of Montana may take out county membership in and cooperate with associations and organizations of county clerks of the district courts of this state and of other states for the furtherance of good government and the protection of county interests.
- All county clerks of the district courts of the state are allowed actual transportation expenses and per diem for attendance at any general meeting of the Montana association of clerks of court held within the state, and the proportionate expenses and charges against each county as a member of the association must be paid by the county.
7-5-2144. Membership in associations of county treasurers.
- County treasurers may take out county membership in and cooperate with associations and organizations of county treasurers of this state for the furtherance of good government and the protection of county interests.
- All county treasurers of the state are allowed actual transportation expenses and per diem for attendance at any general meeting of the Montana association of county treasurers held within the state, and the proportionate expenses and charges against each county as a member of the association must be paid by the county.
7-5-2145. Attendance at meetings and conventions by county officers and employees.
- Unless otherwise provided by law, a county officer or employee may not receive payment from any public funds for traveling expenses or other expenses of any sort for attendance at any convention, meeting, or other gathering of public officers except for attendance at a convention, meeting, or other gathering as the officer or employee may by virtue of the office find it necessary to attend.
- Any member of the board of county commissioners is allowed actual transportation expenses and per diem for attendance at any general meeting of county commissioners or assessors held within the state, and the proportionate expenses and charges against each county as a member of the association must also be paid.
- County attorneys, sheriffs, assessors, and justices of the peace may attend their respective meetings or conventions held within the state and are allowed actual traveling expenses for attending the meeting or convention of their peers.
- Any county officer paid on a per-day basis for performance of official duties is allowed the per-day rate of pay for attendance at any convention, meeting, or other gathering of public officers that the officer may by virtue of the office find it necessary to attend.
Term of Office & Oaths
Term of Office/Oath of Office (7-4-2105, MCA)
- The term of office of county commissioners is 6 years unless otherwise provided for under a plan of government provided for in a county adopting an optional or alternative form of government. A county commissioner takes office at 12:01 a.m. on January 1 succeeding the date of the election at which the county commissioner was elected.
- A county commissioner elected to take office shall take the oath of office on or before the last business day of December following the commissioner’s election, except as provided for in 7-4-2106.
Term of Office — Oath (7-4-2205, MCA)
- Each person elected to an office named in 7-4-2203 holds the office for the term of 4 years and until a successor is elected and qualified.
- A person appointed to any of the different offices serves at the pleasure of the commissioners.
- Each officer who is mentioned in this part and who is elected to office shall:
a) take the oath of office on or before the last business day of December following the officer’s election; and
b) take office at 12:01 a.m. on January 1 following the officer’s election.
Authority to Administer Oaths (7-4-2209, MCA)
Every officer mentioned in 7-4-2203(1) may administer and certify oaths.
County Officers: (7-4-2203, MCA)
- There may be elected or appointed the following county officers, who shall possess the qualifications for suffrage prescribed by the Montana constitution and other qualifications as may be prescribed by law:
a) one county attorney;
b) one clerk of the district court;
c) one county clerk;
d) one sheriff;
e) one treasurer;
f) one auditor if authorized by 7-6-2401;
g) one county superintendent of schools;
h) one county surveyor;
i) one assessor;
j) one coroner;
k) one public administrator; and
l) at least one justice of the peace
Filing of Oath of Office (7-4-101, MCA)
Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when otherwise specially provided, as follows:
- in the office of the secretary of state for all officers whose authority is not limited to any particular county;
- in the office of the clerk of the respective county for all elected or appointed officers for any county, all officers whose duties are local or whose residence in any particular county is prescribed by law, and the clerks of the district courts.
Guess What?
It’s a Good Time to Appoint Commissioner Liaisons to County Boards
The New Year is the perfect opportunity for you to appoint your representatives to County boards and commissions.
Meetings & Minutes
Public Meetings
2-3-203. Meetings of public agencies and certain associations of public agencies to be open to public — exceptions.
- All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds, including the supreme court, must be open to the public.
- All meetings of associations that are composed of public or governmental bodies referred to in subsection (1) and that regulate the rights, duties, or privileges of any individual must be open to the public.
- The presiding officer of any meeting may close the meeting during the time the discussion relates to a matter of individual privacy and then if and only if the presiding officer determines that the demands of individual privacy clearly exceed the merits of public disclosure. The right of individual privacy may be waived by the individual about whom the discussion pertains and, in that event, the meeting must be open.
- (a) Except as provided in subsection (4)(b), a meeting may be closed to discuss a strategy to be followed with respect to litigation when an open meeting would have a detrimental effect on the litigating position of the public agency.
(b) A meeting may not be closed to discuss strategy to be followed in litigation in which the only parties are public bodies or associations described in subsections (1) and (2). - The supreme court may close a meeting that involves judicial deliberations in an adversarial proceeding.
- Any committee or subcommittee appointed by a public body or an association described in subsection (2) for the purpose of conducting business that is within the jurisdiction of that agency is subject to the requirements of this section.
The Handling of Closed Meeting Minutes
The entire scope of public records was rewritten as a result of HB 123 in 2015. In particular, Section 2-3-212 was amended to provide specific direction on minutes of closed meetings…
2-3-212. Minutes of meetings — public inspection.
- Appropriate minutes of all meetings required by 2-3-203 to be open must be kept and must be available for inspection by the public. If an audio recording of a meeting is made and designated as official, the recording constitutes the official record of the meeting. If an official recording is made, a written record of the meeting must also be made and must include the information specified in subsection (2).
- Minutes must include without limitation:
(a) the date, time, and place of the meeting;
(b) a list of the individual members of the public body, agency, or organization who were in attendance;
(c) the substance of all matters proposed, discussed, or decided; and
(d) at the request of any member, a record of votes by individual members for any votes taken. - If the minutes are recorded and designated as the official record, a log or time stamp for each main agenda item is required for the purpose of providing assistance to the public in accessing that portion of the meeting.
- Any time a presiding officer closes a public meeting pursuant to 2-3-203, the presiding officer shall ensure that minutes taken in compliance with subsection (2) are kept of the closed portion of the meeting. The minutes from the closed portion of the meeting may not be made available for inspection except pursuant to a court order.
Reminder
Publication of Board Meeting Minutes Must Be Available Within 21 Days (7-5-2123, MCA)
- a) The board of county commissioners has jurisdiction and power, under the limitations and restrictions prescribed by law, to publish in a newspaper at the adjournment of each session of the board, in full and complete detail or in summary form or by reference, with the full and complete text made available on request, a complete list of all claims ordered paid for all purposes, showing the name, purpose, and amount, and a fair summary of the minutes and records of all of its proceedings.
(b) The board may publish the county clerk’s annual statement of the financial condition of the county, in full and complete detail or in summary form. If the board does not publish the annual statement in complete detail or in summary form, it shall publish a notice that the annual statement is available and will be provided upon request from the county clerk. - Publication in full, in summary, or by reference of the minutes and records of proceedings must be made within 21 days after the adjournment of the session. Publication of the financial statement or notice of the availability of the financial statement must be made within 30 days after the presentation of the financial statement to the board. The board may not allow or order paid any claim for any publication of minutes and records of proceedings or annual financial statement unless the publication is made within the time prescribed in this subsection.
Financial Reports & Penalties
Submission of Financial Reports to DOA & Penalties for Failure to Comply…
Financial Reports & Audits of Local Government Entities
2-7-503. Financial reports and audits of local government entities.
- (a) The governing body or managing or executive officer of a local government entity, other than a school district or associated cooperative, shall ensure that a financial report is made every year. A school district or associated cooperative shall comply with the provisions of 20-9-213. The financial report must cover the preceding fiscal year, be in a form prescribed by the department, and be completed and submitted to the department for review within 6 months of the end of the reporting period.
(b) The financial report of a local government that has authorized the use of tax increment financing pursuant to 7-15-4282 must include a report of the financial activities related to the tax increment financing provision. - The department shall prescribe a uniform reporting system for all local government entities subject to financial reporting requirements, other than school districts. The superintendent of public instruction shall prescribe the reporting requirements for school districts.
- (a) The governing body or managing or executive officer of each local government entity receiving revenue or financial assistance in the period covered by the financial report that is in excess of $500,000 and that is also in excess of the threshold dollar amount established by the director of the office of management and budget pursuant to 31 U.S.C. 7502(a)(3), regardless of the source of revenue or financial assistance, shall cause an audit to be made at least every 2 years. The audit must cover the entity’s preceding 2 fiscal years. The audit must commence within 9 months from the close of the last fiscal year of the audit period. The audit must be completed and submitted to the department for review within 1 year from the close of the last fiscal year covered by the audit
(b) The governing body or managing or executive officer of a local government entity that does not meet the criteria established in subsection (3)(a) shall at least once every 4 years, if directed by the department, or, in the case of a school district, if directed by the department at the request of the superintendent of public instruction, cause a financial review, as defined by department rule, to be conducted of the financial statements of the entity for the preceding fiscal year. - An audit conducted in accordance with this part is in lieu of any financial or financial and compliance audit of an individual financial assistance program that a local government is required to conduct under any other state or federal law or regulation. If an audit conducted pursuant to this part provides a state agency with the information that it requires to carry out its responsibilities under state or federal law or regulation, the state agency shall rely upon and use that information to plan and conduct its own audits or reviews in order to avoid a duplication of effort.
- In addition to the audits required by this section, the department may at any time conduct or contract for a special audit or review of the affairs of any local government entity referred to in this part. The special audit or review must, to the extent practicable, build upon audits performed pursuant to this part.
- The fee for the special audit or review must be a charge based upon the costs incurred by the department in relation to the special audit or review. The audit fee must be paid by the local government entity to the state treasurer and must be deposited in the enterprise fund to the credit of the department.
- Failure to comply with the provisions of this section subjects the local government entity to the penalties provided in 2-7-517.
Penalties
2-7-517. Penalties — rules to establish fine.
- Except as provided in 15-1-121(12)(b), when a local government entity has failed to file a report as required by 2-7-503(1) or to make the payment required by 2-7-514(2) within 60 days, the department may issue an order stopping payment of any state financial assistance to the local government entity or may charge a late payment penalty as adopted by rule. Upon receipt of the report or payment of the filing fee, all financial assistance that was withheld under this section must be released and paid to the local government entity.
- In addition to the penalty provided in subsection (1), if a local government entity has not filed the audits or reports pursuant to 2-7-503 within 180 days of the dates required by 2-7-503, the department shall notify the entity of the fine due to the department and shall provide public notice of the delinquent audits or reports.
- When a local government entity has failed to make payment as required by 2-7-516 within 60 days of receiving a bill for an audit, the department may issue an order stopping payment of any state financial aid to the local government entity. Upon payment for the audit, all financial aid that was withheld because of failure to make payment must be released and paid to the local government entity.
- The department may grant an extension to a local government entity for filing the audits and reports required under 2-7-503 or may waive the fines, fees, and other penalties imposed in this section if the local government entity shows good cause for the delinquency or demonstrates that the failure to comply with 2-7-503 was the result of circumstances beyond the entity’s control.
- The department shall adopt rules establishing a fine, not to exceed $100, based on the cost of providing public notice under subsection (2), for failure to file audits or reports required by 2-7-503 in the timeframes required under that section.
Cause of Action — Failure to FILE Reports & Audits or RESOLVE Findings
2-7-523. Cause of action — failure to file reports and audits or resolve findings.
- If a local government entity fails to file an annual financial report with the department as required by 2-7-503(1), to complete and submit an audit or financial review to the department as required by 2-7-503(3), or to resolve significant audit findings or implement corrective measures as required by 2-7-515(3) within 2 years of the applicable deadlines, a person identified in subsection (2) of this section who has received a written determination from the department under 2-7-524(3)(c) or (4)(b) may bring a cause of action against the local government entity for failure to comply with the local government entity’s fiduciary requirements.
- The following parties may bring a cause of action under the provisions of subsection (1):
(a) any person who pays property taxes to the local government entity;
(b) any elected officer of any local taxing jurisdiction that collects revenue from or distributes revenue to the local government entity;
(c) any person residing within the jurisdictional boundaries of the local government entity who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and has been or is likely to be specially and injuriously affected by the local government entity’s failure to meet the requirements as set forth in subsection (1). - The cause of action must be filed in the district court in the county where the local government entity is located.
- In addition to any other penalty provided by law, the court may grant relief that it considers appropriate, including but not limited to providing declaratory relief, appointing a financial receiver for the local government entity, or compelling a mandatory duty required under this part that is imposed on a state or local government officer or local government entity. If a party identified in subsection (2) prevails in an action brought under this section, that party must be awarded costs and reasonable attorney fees.
Title 2: Filing of Claims Against Local Government Entity — Disposition by Department as Prerequisite
2-7-524. Filing of claims against local government entity — disposition by department as prerequisite.
- All claims against a local government entity for failure to file an annual financial report with the department as required by 2-7-503(1), failure to complete and submit an audit or financial review to the department as required by 2-7-503(3), or failure to resolve significant audit findings or implement corrective measures as required by 2-7-515(3) within 2 years of the applicable deadlines must be presented in writing to the department.
- A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department and submitted a copy of the claim to the local government entity. Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled until a written determination is issued under subsection (3).
- The department must review the claim and issue one of the following determinations in writing within 60 days after the claim is presented to the department:
(a) the local government entity has not violated the requirements of this part for a period of 2 years from the applicable deadlines;
(b) there is sufficient evidence of the violations of the requirements of this part for a period of 2 years from the applicable deadlines, and the department will initiate further technical assistance to help the local government entity come into compliance with this part within 6 months; or
(c) there is sufficient evidence of the violations of the requirements of this part for a period of 2 years from the applicable deadlines. - If the department issues a written determination under subsection (3)(b), within 6 months the department must provide the complainant with a final determination that either:
(a) the local government entity has come into compliance with the provisions of this part; or
(b) there is sufficient evidence of the violations of the requirements of this part. - A complainant must receive a written determination from the department under subsection (3)(c) or (4)(b) before proceeding to district court in accordance with 2-7-523.
- The failure of the department to issue a written determination of a claim within 60 days after the claim is presented to the department must be considered a written determination under subsection (3)(c) for purposes of this section.
Cause of action — Failure to ADOPT or SUBMIT an Annual Operating Budget
7-6-4037. Cause of action — failure to adopt or submit an annual operating budget.
- If a local government entity fails to adopt or submit an annual operating budget as required by Title 7, chapter 6, part 40, within 2 years of the applicable deadline, a person identified in subsection (2) of this section who has received a written determination from the department under 7-6-4038(3)(c) or (4)(b) may bring a cause of action against the local government entity for failure to comply with the local government entity’s fiduciary requirements.
- The following parties may bring a cause of action under the provisions of subsection (1):
(a) any person who pays property taxes to the local government entity;
(b) any elected officer of any local taxing jurisdiction that collects revenue from or distributes revenue to the local government entity;
(c) any person residing within the jurisdictional boundaries of the local government entity who can demonstrate a specific personal and legal interest, as distinguished from a general interest, and has been or is likely to be specially and injuriously affected by the local government entity’s failure to meet the requirements as set forth in subsection (1). - The cause of action must be filed in the district court in the county where the local government entity is located.
- In addition to any other penalty provided by law, the court may grant relief that it considers appropriate, including but not limited to providing declaratory relief, appointing a financial receiver for the local government entity, or compelling a mandatory duty required under this part that is imposed on a state or local government officer or local government entity. If a party identified in subsection (2) prevails in an action brought under this section, that party must be awarded costs and reasonable attorney fees.
Title 7: Filing of Claims Against Local Government Entity — Disposition by Department as Prerequisite
7-6-4038. Filing of claims against local government entity — disposition by department as prerequisite.
- All claims against a local government entity for failure to adopt or submit an annual operating budget as required by Title 7, chapter 6, part 40, within 2 years of the applicable deadline must be presented in writing to the department.
- A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department and submitted a copy of the claim to the local government entity. Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled until a written determination is issued under subsection (3).
- The department must review the claim and issue one of the following determinations in writing within 60 days after the claim is presented to the department:
(a) the local government entity has not violated the requirements of this part for a period of 2 years from the applicable deadlines;
(b) there is sufficient evidence of the violations of the requirements of this part for a period of 2 years from the applicable deadlines, and the department will initiate further technical assistance to help the local government entity come into compliance with this part within 6 months; or
(c) there is sufficient evidence of the violations of the requirements of this part for a period of 2 years from the applicable deadlines. - If the department issues a written determination under subsection (3)(b), within 6 months the department must provide the complainant with a final determination that either:
(a) the local government entity has come into compliance with the provisions of this part; or
(b) there is sufficient evidence of the violations of the requirements of this part. - A complainant must receive a written determination from the department under subsection (3)(c) or (4)(b) before proceeding to district court under 7-6-4037.
- The failure of the department to issue a written determination of a claim within 60 days after the claim is presented to the department must be considered a written determination under subsection (3)(c) for purposes of this section.
Just a Few Miscellaneous (But Still VERY IMPORTANT) Reminders…
Publication Notice — Failure of the Newspaper to Publish the 2nd Notice
Publication Notice — Failure of the Newspaper to Publish the 2nd Notice (7-1-2121 MCA)
If the newspaper fails to publish a second notice, the local government unit must be considered to have met the requirements of this section as long as the local government unit submitted the required information prior to the submission deadline and the notice was posted in three public places in the county that were designated by resolution and, if the county has an active website, was posted on the county’s website at least 6 days prior to the hearing or other action for which notice was required.
As always, if you have any questions on these or any other matters, please don’t hesitate to contact us.
Establish the Rate of Credit for Incarceration
Establish the Rate of Credit for Incarceration (46-18-403, MCA)
- A person incarcerated on a bailable offense against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction, except that the time allowed as a credit may not exceed the term of the prison sentence rendered.
- A person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of the offense may be allowed a credit for each day of incarceration prior to conviction, except that the amount allowed or credited may not exceed the amount of the fine. The daily rate of credit for incarceration must be established annually by the board of county commissioners by resolution. The daily rate must be equal to the actual cost incurred by the detention facility for which the rate is established.
Use of Montana-made Wooden Materials in County Road Projects
Use of Montana-made Wooden Materials in County Road Projects (7-14-2142, MCA)
When the board of county commissioners authorizes a construction or reconstruction project on a county road, it shall require the use of Montana-made wooden guardrail posts, fence posts, and signposts when appropriate and when the cost of wooden materials is less than or equal to the cost of other materials.
MACo recommends that bid specifications state that Montana-made wooden products must be used on road and bridge projects unless the cost is higher than other materials.
Bond Inspection
Bond Inspection (7-4-2213, MCA)
- At a regular meeting of the board of county commissioners in March and September of each year, the board of county commissioners shall carefully examine all official bonds of all county and township officials then in force and effect and investigate the qualifications and financial condition and liability of all sureties on the bonds and their sufficiency.
- If it appears to the satisfaction of the board or a majority of the members of the board that any surety upon any bond has, since the approval and acceptance of the bond, died or withdrawn, left the state, disposed of all of the surety’s property in this state, or become mentally ill, insolvent, financially embarrassed, or not good and responsible for the amount of the liability on the bond, the board shall immediately cause the clerk of the board to notify in writing the judge of the district court of that district of its action and conclusion and all facts in connection with and the reasons for the action for the action.
- The judge shall take notice of and investigate the matter and take steps, by order to show cause or other order, citation, step, or action, as may be necessary to make the bond good and sufficient according to the requirements of law and ample security for the amount of the bond.
It is recommended that you note in your minutes that you’ve reviewed your bonds, and if applicable, found them to be covered within your insurance policies.
And Last (But Not Least)...
Establishment of County Classification no Longer Required
HB 212 in the 2011 Legislative Session eliminated county classifications and replaces references to county classifications with a taxable valuation amount or population.