In the 2011 Coeur d’Alene city election,  3,490 voters  elected City Councilman Steve Adams.

On March 5, 2013, Coeur d’Alene Mayor Sandi Bloem allowed a motion to be made and seconded that would effectively exclude Councilman Adams from deliberating with the City’s legal counsel on a matter lawfully under consideration by the Council.  City Attorney Mike Gridley (pictured) informed Council that such a motion was lawful.  Councilmen Kennedy, Goodlander, McEvers, and Edinger voted to approve that motion.    Their motion and vote to exclude Councilman Adams were conducted under color of law, but I believe without statutory authority.   I believe if their action exceeded their legal authority, it interfered with Councilman Adams’ ability to perform the duties of his office, and thereby deprived at least 3,490 citizens of Coeur d’Alene, Idaho, of their right to Councilman Adams’ effective representation.   

I believe the Mayor and Councilmembers voting for exclusion had no authority under Idaho statutes to vote to exclude Councilman Adams from deliberative meetings.  By unlawfully voting to exclude Councilman Adams from privileged deliberations with the City Attorney while still expecting him to vote on any matter deliberated upon in such meetings, they were agreeing to deprive Councilman Adams of information needed to make an informed vote as an elected representative.   I believe their motion and their vote on it were made without statutory authority and that Councilman Adams’ exclusion would thereby deprive all the citizens of Coeur d’Alene and in particular the 3,490 citizens who voted for Councilman Adams in 2011 of their right to Councilman Adams’ effective representation.

As explained in earlier OpenCdA posts, the Idaho Constitution, Article VIII, Section 3, defines how a municipality may lawfully incur long-term indebtedness or liabilities with a vote of the people.  Idaho Code, Title 7, Chapter 13, defines the processes and procedures of “Judicial Confirmation.”  The Idaho Legislature has authorized the use of judicial confirmation in certain circumstances as a substitute for the otherwise constitutionally-required vote of the people.

At the January 2, 2013, Coeur d’Alene City Council meeting, the six Councilmembers voted unanimously to approve the City’s judicial confirmation petition.  Later, Councilman Adams reconsidered.   Although he could not change the vote he had cast in favor of the judicial confirmation petition,  Councilman Adams wanted to inform the hearing judge of his reconsideration.  Councilman Adams then appeared at the public judicial confirmation hearing held on February 27, 2013, asked First District Judge John Luster’s permission to explain his reconsideration on the matter, and was allowed to comment to the Court.

City Attorney Gridley concluded that by addressing the District Court and speaking in opposition to the petition for judicial confirmation, Councilman Adams had made himself an adverse party in the action.   City Attorney Gridley then advised the Mayor and City Council that he (Gridley) could not engage in privileged communication and deliberations with Councilman Adams on this matter.

A hearing on a judicial confirmation petition is not an inherently adversarial proceeding.  However, to whatever extent there is a party who could be considered adversarial to the petition, it would be the District Court judge.   Even in the absence of any objections, the District Court judge is required by Idaho’s judicial confirmation law to independently examine the petition and the petitioner’s (City’s) claims to determine if the constitutional and statutory requirements have been met.  If they have not, the Judge is obligated to deny the petition.

It was within the Court’s discretion to hear public comments (which would include Councilman Adams’ comments) and then give them whatever weight the Court might choose in order to help the Court reach a decision consistent with the Idaho Constitution and statutes.

Councilman Adams’ comments at the District Court hearing had no intrinsically greater weight there than if they had been made at a City Council meeting.   If Councilman Adams had made the same comments and had voted in opposition to the petition at the January 2, 2013, City Council meeting, the Court could properly still have considered his comments and vote there as part of its petition hearing.

I believe the vote of the Council was to exclude Councilman Adams  from only privileged attorney-client communications relative to the judicial confirmation petition.  Exclusion would deprive Councilman Adams from receiving relevant legal counsel needed to deliberate diligently and effectively as an elected representative, but it would still permit him to cast his vote.    Again, I can find no authority in Idaho statutes specifically empowering a mayor and city council to exclude a fellow councilman from some but not all deliberations on an issue while still permitting him to cast a vote on the issue being deliberated.

I can find nothing in Idaho statutes that prohibits a city councilman from speaking at a judicial confirmation petition hearing.   Neither can I find anything in Idaho statutes that authorizes a mayor and council to pass a motion imposing punitive or restrictive sanctions on a fellow councilmember for speaking at a judicial confirmation petition hearing.

Being unlawfully excluded from some deliberations and from receiving advice of counsel puts Councilman Adams in the untenable position of either choosing to cast a less than fully informed vote or choosing to cast no vote at all.  Either action would result in the citizens of Coeur d’Alene  being deprived of the effective representation Councilman Adams was elected to provide.

It is my opinion that on March 5, 2013, Coeur d’Alene City Attorney Mike Gridley, Mayor Sandi Bloem, Councilman/Council President Mike Kennedy, Councilman Deanna Goodlander, Councilman Woody McEvers, and Councilman Loren Edinger, acting  under color of law but without statutory authority, agreed to take specific actions to exclude Councilman Steve Adams from certain privileged deliberations on a matter before Council.   I further believe their action deprived 3,490 citizens of Coeur d’Alene of the effective representation Councilman Adams was elected to provide.