Our OpenCdA post dated April 25, 2014, and titled Deception by Omission?, was based on our assumption that both the Coeur d’Alene Press editorial writers and the Trustees of School District 271 understood the Idaho Open Meeting Law codified at Idaho Code §§ 67-2340 through 67-2347 and summarized conveniently in Q&A format by the Idaho Attorney General in the Idaho Open Meeting Law Manual, November 2011.  We made our assumption based on the content of the Coeur d’Alene Press’s editorial on Friday, April 25, 2014, headlined Open eyes – and meetings.

To OpenCdA, it appeared the Press editorial was a thinly-veiled directive to Kootenai County Prosecuting Attorney Barry McHugh to dismiss school district patron/watchdog Mary Jo Finney’s allegation that a quorum of three School District 271 Trustees (Hearn, Hazel, Eubanks) violated the Idaho Open Meeting Law when they, along with the District’s Superintendent Matthew Handelman and Communications Director Laura Rumpler, attended the Idaho School Board Association Day on the Hill in Boise on February 24 and 25, 2014.

The Press editorial included this very direct statement:  “The fact that the district legally posted notice of a meeting in Boise that was central to Finney’s complaint weakened her argument, if it didn’t kill it altogether.” [emphasis ours] The editorial suggested that apparent compliance with the “notice” requirement of Idaho Code § 67-2343 automatically made the meeting entirely legal even if there were other factors making it illegal.

Our curiosity piqued, we submitted a public records request to the School District for a copy of the meeting notice and a copy of the written minutes which Idaho Code § 67-2344 requires be kept at such a meeting.  The two-page response we received from Clerk of the Board Lynn Towne was confusing. 

Look first at the second page of her response, the page entitled NOTICE is hereby given.  It was the School District’s response to our specific request for the legally posted notice of a meeting in Boise.  The format and wording sure looks and sounds like an official notice of a public meeting, doesn’t it?

Reading the NOTICE is hereby given  document in conjunction with the Press’s editorial, one might conclude, “Okay.  School District 271 posted a notice that met the Open Meeting Law’s requirement for notice of a public meeting.  The public was properly given notice of a public meeting.  No Open Meeting Law violation.  End of story.”

No, it’s not even close to the end of the story.

Our public record request also asked for a copy of the minutes of the public meeting in Boise on February 24 & 25, 2014, attended by a quorum of School District 271 Trustees.  The School District’s NOTICE is hereby given document was sent attached to this cover letter dated April 28, 2014, from Clerk of the Board/Records Custodian Lynn Towne.  Of course, the line which jumped off the page of Towne’s cover letter was the one which reads “No meeting was held therefore no minutes exist.”

Wait?  What?  If “no meeting was held,” as Towne stated, then why was the NOTICE is hereby given document even posted and apparently sent to local news media?   Public bodies subject to the Idaho Open Meeting Law are not required to post notices of non-meetings.  As we noted earlier in commenting on the format and wording of the District’s NOTICE is hereby given document , it sure sounded official.  To us it sounded deceptively official.

Here’s our interpretation of the NOTICE is hereby given  format and wording.

• NOTICE is hereby given is the document’s major heading, essentially the title of the document.  It has an official, legal sound to it, doesn’t it?  But again, keep in mind the Idaho Open Meeting Law does not require public notice be given unless the meeting is required to be a public meeting.
  
• “As”.  To paraphrase former President Clinton, it depends upon what the meaning of the word “as” is.  As it was used in the District’s “NOTICE is hereby given” notice, “As” is synonymous with “Because” or “Since.”
• “As [Because] there will be a quorum of Trustees in attendance…”  Except as the Idaho Open Meeting Law and the AG’s Idaho Open Meeting Law Manual clearly explain, the mere presence of a quorum of elected officials present at the same time and place does not automatically constitute a “meeting” as that term is explicitly defined in the Idaho Open Meeting Law at Idaho Code § 67-2341(6).   Ms. Towne’s own letter indicates the School District understands that.
• So if no legal notice of a public meeting was required because the quorum of Trustees present were not going to be participating in a public meeting, then why even give public notice that is worded in a way that supposedly “… fulfills Idaho State Code requirements for public meeting notices?”  If there is going to be no public meeting requiring notice, then why use wording that deceptively suggests otherwise?
• Contrary to what the School District would like to have the public believe, the  NOTICE is hereby given document does not fulfill all Idaho State Code requirements for public meeting notices.  On page 12 of the Idaho Open Meeting Law Manual, November 2011, answering Question No. 13:  What are the notice requirements of the Open Meeting Law?, the Attorney General states:  “The Open Meeting Law requires two types of notice:  (1) meeting notice and (2) agenda notice.”  [emphasis ours]  The School District did not provide agenda notice.  So if there was, in fact, a meeting requiring public notice, the NOTICE is hereby given document did not comply with all the requirements for such a notice.
• Our conclusion, our opinion, is that the School District 271 Board of Trustees used the NOTICE is hereby given document’s format and wording as essentially a CYA effort.  A much less official-sounding and much more informative document might well have avoided the appearance that a legally noticeable meeting was scheduled.

But Ms. Towne’s cover letter said, “No meeting was held therefore no minutes exist.”  While we might agree that the quorum of Trustees attending the general agenda sessions of the ISBA Day on the Hill would likely not constitute a meeting as defined in the Idaho Open Meeting Law, we are decidedly less certain that private meetings with a school district consultant who lives in Boise and possibly with individual legislators did not.  We reviewed a copy of a video made at the March 3, 2014, regularly scheduled meeting of the Board of Trustees of School District 271.  The audio quality of the copy we were given was poor, however we were able to transcribe the Day on the Hill comments from Superintendent Handelman and comments from Trustee Eubanks.  The highlighted portion of their respective comments, though by no means conclusive, suggest that SD 271 Trustees may have engaged in serial meetings with a consultant (Sally Anderson) with whom the District has done business and with specific individual legislators from their area.

As noted in this Guideline from the Attorney General, the term “serial meeting” does not appear in the Idaho Open Meeting Law.  It’s definition must be derived from the pattern of conduct of participants in an activity.  Since Kootenai County Prosecuting Attorney Barry McHugh has directed the Coeur d’Alene Police Department to investigate Ms. Finney’s complaint, we now expect that investigation will include contacting Handelman, Rumpler, Hearn, Hazel, and Eubanks as well as Senators Goedde and Nonini and Representative Morse and the consultant (Sally Anderson) to enable McHugh to determine if one or more serial meetings occurred and who participated in them.  We would expect the investigator to seek signed sworn statements from all involved.

We conclude by returning to the Press editorial on Friday, April 25, 2014, headlined Open eyes – and meetings.  Its opening sentence read, “In our view, Coeur d’Alene School District patron Mary Jo Finney will lose her battle to show that the school board violated state open meeting laws.”   Maybe, but in gathering more than sufficient information to completely justify her complaint to Kootenai County Prosecutor Barry McHugh, she has demonstrated considerable skill and courage in serving her community and the students, faculty, and staff in School District 271.  If only the Coeur d’Alene Press would be so diligent in examining and questioning the actions of public officials…