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November 4, 2014

Wrong Answer, Commissioner Green

Filed under: Probable Cause — Tags: — Bill @ 7:06 am

IOML Manual CoverIn this morning’s Coeur d’Alene Press skewspaper article headlined Nelson plans to support Delavan, Kootenai County Commissioner Dan Green was quoted as saying, “I don’t think we have to come out to an open meeting after making a decision to terminate someone in an executive session.”

Wrong answer, Commissioner Green.

We call readers’ attention to the Idaho Open Meeting Law which is found in Idaho Code §§ 67-2340 through 67-2347.  Pay particular attention to I.C. § 67-2345 Executive Sessions – When Authorized.  Now compare Commissioner Green’s quote from today’s skewspaper with what the Idaho Open Meeting Law (hereafter Law) requires and forbids:

1.  The Law requires the motion to convene an Executive Session must be made during a properly noticed public meeting.

2.  The Law requires that the properly offered and seconded “motion to go into executive session shall identify the specific subsections of this section that authorize the executive session. There shall be a roll call vote on the motion and the vote shall be recorded in the minutes [of the public meeting]. An executive session shall be authorized by a two-thirds (2/3) vote of the governing body.”

3.  The Law explicitly and specifically forbids holding any executive session “for the purpose of taking any final action or making any final decision.”

In I.C. § 67-2347, the Law provides penalties for violating it:

(1)  If an action, or any deliberation or decision-making that leads to an action, occurs at any meeting which fails to comply with the provisions of sections 67-2340 through 67-2346, Idaho Code, such action shall be null and void.  [Emphasis ours.]

(2)  Any member of the governing body governed by the provisions of sections 67-2340 through 67-2346, Idaho Code, who conducts or participates in a meeting which violates the provisions of this act shall be subject to a civil penalty not to exceed fifty dollars ($50.00). [Emphasis ours.  Commissioners Green and Tondee participated, whereas Commissioner Nelson refused to participate in what was apparently an illegal executive session.]

(3) Any member of a governing body who knowingly violates the provisions of this act shall be subject to a civil penalty not to exceed five hundred dollars ($500). [Emphasis ours.  If the present matter is found to be a violation of the Law, this would be Commissioner Tondee’s second violation.  On April 1, 2010, in Noble v. Kootenai County, 231 P.3d 1034, Kootenai County Commissioners Elmer R. (Rick) Currie, W. Todd Tondee, and Richard A. Piazza were affirmed by the Idaho Supreme Court to have violated the Idaho Open Meeting Law.  It is unlikely that the decision of the Idaho Supreme Court in Noble escaped Commissioner Tondee’s notice, so we believe his previous violation is evidence that his present alleged violation was done “knowingly.”]

That same section of Law explains how the violation can be “cured.”  Essentially, the Board of County Commissioners can acknowledge the violation within the prescribed time and declare “all actions taken at or resulting from the meeting in violation of this act void.” 

If the Board of County Commissioners takes the necessary action to “cure” the violation, then the penalties for violation imposed in I.C. § 67-2347 (2) and (4) are barred.  However, the civil penalty that could be imposed on Commissioners Tondee and Green if it is shown they “knowingly” violated the provisions of the Law would not be barred.

We commend Commissioner Jai Nelson for declining to participate in what appears to us to have been a clearly illegal meeting.  We wish more public officials in Coeur d’Alene and Kootenai County would show that kind of character.

We do believe Commissioner Green’s quotation in today’s skewspaper included an accurate admission:  He doesn’t think.

3 Comments

  1. Right on Bill! This BOCC has been conducting executive sessions making backroom decisions like this for years rarely returning on the public record. It is also no excuse about somebody promptly learning something for the public record when only this board takes weeks or a month or so (by design) to approve and release its minutes, at least for the more controversial measures.

    This is a typical Dan Green and Todd Tondee deal. In so far as Dan Greens comments about customer service, stewardship and fiscal responsibility that he evaluates sadly he does not practice what he preaches – a true hypocrite.

    Comment by Appalled — November 4, 2014 @ 9:53 am

  2. Bill, your analysis on the application of the Idaho Open Meeting Law on this matter is absolutely correct. In this instance Commissioner Green’s words condemn him as blatantly and knowingly violating the law when he is quoted as saying that he can make a decision in executive session and does not have to “come out into an open meeting”. His invention of the phrase “administrative decision”, is not recognized in the Open Meeting Law in making a decision or deliberate towards a decision.

    Comment by Gary Ingram — November 4, 2014 @ 10:10 am

  3. Appalled and Gary Ingram,

    Thank you.

    I’m reasonably certain that Delavan’s firing should be declared void because of the illegal executive action taken to accomplish it. I believe, but am less certain, that if the action is void, then it is as if it had never occurred. That would mean Delavan need not seek to be reinstated, because it would be as if he had never been fired.

    Comment by Bill — November 4, 2014 @ 10:52 am

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