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Published November 2, 2020

Preface: Closing County Courthouses & Offices

Closing County Courthouses & OfficesThe day after Thanksgiving and Christmas Eve are still not holidays, even in 2020. Every year, MACo writes either a newsletter article and/or an email blast with this information. A lot of things have changed this year, including the Governor issuing a directive waiving the regular office hours required of County offices headed by elected officials for COVID-19 reasons. But unless the County office needs to be closed for that reason, the office should be open, and Thanksgiving and Christmas Eve are still not holidays. Dang.

We Now Return to Our Regularly Scheduled Content . . .

MACo has been asked whether or not County Courthouses and County offices may be closed on the Friday after Thanksgiving, Good Friday, or any other day not specified as a holiday.  For all County offices headed by elected officials, with the notable exception of the County Commissioners’ office, the answer is No.  However, County offices and operations not enumerated in MCA Section MCA 7-4-2211 (i.e.; the Commissioners’ office and various departments) may be closed.  Further explanation follows.

Offices That Must Remain Open

With regard to the County offices headed by elected officials, MCA 7-4-2211(2) provides:

(2)(a) The sheriff, the county clerk, the clerk of the district court, the treasurer, the county attorney, the county auditor in counties in which that officer is maintained, and the county assessor shall keep their offices 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, every day in the year except legal holidays and Saturdays.

Legal holidays are established by MCA Section 1-1-216.  It specifies the ten legal holidays (11 in general election years).  Apart from legal holidays and Saturdays, the above statute clearly states that the enumerated offices must be open every day.

While Justices of the Peace are not enumerated in 7-4-2211 (2), their office hours are fixed at the time their salaries are set under 3-10-208, which provides, in part, that “… the county commis­sioners shall designate the office hours for each justice’s court.”

Because neither County Commissioners nor District Court Judges have the authority to declare a day a “legal holiday,” and neither the day after Thanksgiving nor Good Friday is a “legal holiday” by statute, the above-enumerated offices and the Justice Court must remain open for business on those days.

The failure to have the enumerated County offices and the office of the Justice of the Peace open during normal business hours on Christmas Eve may result in consequences in terms of liability. This is particularly true of offices involving the Clerk and Recorder’s Office and the Courts, where a failure to timely file or record documents can have serious legal conse­quences.  For example, if someone in the middle of a domestic dispute wants to file a restraining order on the Friday after Thanksgiving, he or she should not be deprived of that option because the Court was illegally closed.

This is not to say that the elected officials need to be personally present, or that leave cannot be granted generously to persons working in the office on Christmas Eve; but even if the District Judges give their staff the day off and indicate they won’t be in on the day before Christmas, the County cannot close the Courthouse, the enumerated offices, or the Justice Court.  The District Judges are State officers and their staffs are State employees subject to the rules of the judicial branch.  Their actions will not protect you or relieve you of your duties under the law.

Offices & Operations That May Close

Other County offices and operations are not subject to the requirement of 7-4-2211 that the office be open for the conduct of business every day in the year except legal holidays and Saturdays.  Offices and operations outside this requirement include the County Commissioners’ office, and departments such as the County Road and Health Departments.  While these offices may be closed without violation of the law, the question of whether closure is appropriate is a question of policy to be determined on considerations that are unique to each operation and each County.

If every employee in a Department wishes to take leave and the operation is not critical to the County, the Department may be closed for one day.  The difficulty arises if one or a few employees do not wish to take leave, but their presence is insufficient to make the workplace productive or safe.  In that case, the County has two choices.  The first is to require a sufficient work force to report for work so that the office or operation can work productively and safely.  This may mean denying leave to some number of employees who want to take leave that day.  In the alternative, the County can close the office or operation and give the employees in that operation the choice of taking some form of available paid leave or leave without pay.  If you require employees to take leave or unpaid leave when it is not their choice, this may have a negative impact on morale.

In short, even though you legally can close County offices and operations outside of those enumerated in 7-4-2211, you should consider whether it is a prudent decision and carefully consider the impact of requiring employees to use leave when it is not their wish to do so.

McKenzie McCarthy  |  MACo General Counsel  |  |  (406) 441-5485