On March 19, 2009, the Idaho Senate voted 34-0-1 to pass S-1142 revising the Idaho Open Meeting Law. On April 1, 2009, the Idaho House voted 59-10-1 to pass it. This bill was written to cure a perceived defect inserted when that law was amended in 1992. The 1992 defect required proof of a certain mental state, that an offender violated the law “knowingly” before the relatively trivial civil penalty could be imposed. That defect was highlighted in the 2007 Idaho Supreme Court decision State of Idaho v. Rick Yzaguirre. Unfortunately, the bill passed this week failed to remove the requirement for proving a mental state; it only changed the mental state that must be proven. It also creates a cumbersome, even more confusing law with reduced enforceability. Rather than improving the law’s utility as an instrument to empower public participation, the revisions passed this week increase the opportunities for violations.
This bill’s revisions were written by the Idaho Attorney General’s office, lobbyists and lawyers representing the interests of the Association of Idaho Cities and Idaho Association of Counties, and the Boise reporter from The Spokesman-Review newspaper based in Spokane, Washington. The revisions passed this week may remove a requirement that one mental state (“knowing”) be proven, but it imposes a requirement that another mental state (the “good faith” of an alleged offender) must be disproven. The “knowing” defect was central in the Idaho Supreme Court’s 2007 decision State of Idaho v. Rick Yzaguirre.
The bill passed this week has serious defects of its own.
First, it formally allows the agenda for a public meeting to be amended during the meeting as long as the amendment is made in “good faith”. What is “good faith?” Black’s Law Dictionary, Eighth Edition, defines it this way:
A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.
So when a city council wants to sneak an item past the public but hiding it in the Consent Calendar won’t quite do the trick , all the council needs to do is leave the item off the agenda, hold it until a meeting where no public shows up, then agree in “good faith” to put the item on the agenda.
Another technique would be to leave the item off the agenda, then recess into executive session after all the identified agenda items have been completed. The public and any press would likely depart, assuming the council would adjourn after returning from executive session. After returning from executive session and noting the public has departed, the council could then add the new agenda item in “good faith.”
I would have expected the committee’s media representative, The Spokesman-Review‘s reporter Betsy Russell, to strenuously object to the agenda amendment-during-the-meeting provision. Vague or intentionally deceptive agendas can be used to manipulate whether some meetings receive news coverage. Assignment editors with few reporters are less likely to cover meetings having vanilla agendas. Then again, Russell wasn’t there to report the making of bad law, she was there to participate in it.
The second problem with the new bill is that it does little to cure the problems with executive sessions. The Open Meeting Law allows certain very narrowly-defined items to be discussed in executive session out of the public view. The problem is there is no requirement that the content of the executive session be recorded either electronically or in writing. With no minutes or recordings, there is no evidence of wrongdoing unless a participant develops a conscience or inadvertently spills the beans.
After learning of the revisionist committee’s existence and its rubber-stamping the potentials for abuse in executive sessions, a former state legislator proposed that executive sessions be recorded and that the recordings be sealed subject to in camera judicial review if the legality of the executive session was questioned. The committee’s response: No! Obviously the committee was not really interested in discouraging the abuses available to public officials in the hear-no-evidence, see-no-evidence, speak-no- evidence executive sessions. S-1142 ensures that what goes on behind closed doors stays behind closed doors if that’s the body’s desire.
The third problem is that the new revisions allow dishonest public officials to continue to offend until they’re caught. Once caught, they can “cure” their violation by simply nullifying and correcting their actions. At least that’s the raison d’crapola being shoveled as an acceptable solution by the committee. The committee’s theory is apparently that all illegal actions are unintentional and therefore acceptable unless caught, and that once caught, any illegal action can be undone. But what if an illegal decision results in an action that can’t be undone. Suppose someone is irrepairably harmed as a result of an illegally made decision. Prosecution might occur only after being caught the second time. The first offense is a freebie. Thereafter, penalties may be assessed based on a tiered system that seemingly rivals the Internal Revenue Code in its complexity and vagueness. But the irrepairable harm to an honest citizen wouldn’t count for much … as long as the ignorant or dishonest officials acted in “good faith”.
What I found quite puzzling is the Attorney General’s apparent theory that a public official’s mental state (that he acted “knowingly”) could not be proven to the satisfaction of a judge or jury. Of course it could have been.
Instead of extensively revising and indisputably muddying the Open Meeting Law this year, the legislature could have simply amended the existing law to require that all public officials who will be participating in public meetings must read and understand the Idaho Open Meeting Law. Require them to annually certify they have read and understood it. If an official says he is not a lawyer and can’t read and understand the Open Meeting Law, constituents might reasonably question his qualifications for any office requiring the writing or interpretation of law and public policy.
It does not require a lawyer to read and understand the Open Meeting Law at the level necessary to hold officials accountable. The Attorney General’s office has already done an outstanding job of providing materials to educate Idaho’s citizens (don’t our legislators like to call themselves “Citizen Legislators?”). The Attorney General has published the Idaho Open Meeting Law Manual. The Attorney General and his deputy presented Open Meeting Law and Public Records Law free seminars to citizens throughout the state. The Attorney General’s Office worked with Idaho Public Television to prepare skits that aired on Idaho Public Television. They can still be viewed on the IPTV website. The Attorney General’s Office sent approximately 500 DVD presentations on the Open Meeting Law to various public bodies and schools throughout the state. With the abundance of material available and with access to their agency’s attorneys, allowing public officials to avoid prosecution using the “willful ignorance” defense is absurd. Require public officials to annually review the Open Meeting Law and then certify they have read and understood it. Arguing that an official “knowingly” violated the law is not difficult for a prosecutor once the jury understands that a public official has an obligation to know and obey the law.
I think the ten Representatives who voted against this unnecessary, time-consuming, and more confusing revision of the Idaho Open Meeting Law did a far greater service to the citizens of Idaho than those legislators in the Senate and House who voted for it. I’ve linked to their House email addresses, and if you’re so inclined, please send a brief but sincere thank-you to those who stood for good law rather than going along with the crowd. Here are the representatives who voted against S-1142:
Representative Lenore Hardy Barrett
Representative Frank N. Henderson
The big question is WHY did they pass such a bill?
I believe it to be shocking.
Our Attorney General needs to be replaced and I now ask HOW?
Conservatives and Republicans need to do some house cleaning of their own members in the primaries.
Comment by citizen — April 5, 2009 @ 6:44 am
Citizen,
I don’t fault the legislators who voted for this, but I certainly disagree with their willingness to accept the bad law that oozed out of the committee. Reluctantly, I have to agree that the AG’s office dropped the ball badly on this. The “knowing” or “knowingly” mental state is provable at trial. My gut feeling is that the Association of Idaho Cities and possibly the Idaho Association of Counties saw the Yzaguirre decision as an opening to once again step in and try to eviscerate the Idaho Open Meeting Law. The AIC seems to consider the open meeting law to be an annoyance that interferes with the timely and expeditious conduct of municipal business. The Coeur d’Alene Mayor and City Council would certainly like to be unrestrained by the open meeting law. But as the author of the original open meeting law, former representative Gary Ingram, has often said, “The Open Meeting Law is all about public access to formation of public policy, not convenience for the governing body.”
Comment by Bill — April 5, 2009 @ 7:21 am
Bill, your analysis and comments on this so called improvement of the Idaho Open Meeting law is spot on. As you point out, I offered proposals that were “looked at” in the words of the drafters in the AG’s office, but were not considered as they had set their course based upon negotiations with the media, the cities and to a lesser extent the counties. At one point in the drafting process I became so exasperated that I asked, “Since when do we negotiate the public’s right to know?”
It is important to understand that the Attorney General thought he was fixing the problem with the 1992 amendments concerning the “knowing” standard and that changes to the agenda issue and establishing a curing process would improve the OML. But the attitude within the AG’s office is, in their own words, “we want compliance not enforcement”. And so a dumbing down mentality was employed in the drafting that makes excuses for non compliance as being innocent, non intentional mistakes. How terribly naive.
As far as the legislature approving this misguided policy, they were set upon with high profile government officials and their lobbyists, fascination with some media support, and fast committee action which precluded any participation by the public to offer testimony, with only one day notice in both the Senate and House for committee hearings.
Comment by Gary Ingram — April 6, 2009 @ 9:29 am
Gary,
Thank you for weighing in on this.
Comment by Bill — April 6, 2009 @ 9:39 am
I do hold the legislators who voted for this legislation responsible.
I hold our attorney general responsible for being the vehicle for this legislation.
Bill, why would you not hold people accountable for their votes?
Comment by citizen — April 6, 2009 @ 6:46 pm
citizen,
Without knowing why those legislators who voted in favor of this bad legislation voted the way they did, I can’t fault them. I won’t vote for or against any legislator based on that legislator’s vote on one issue.
When S-1142 was referred to the Senate State Affairs Committee, I emailed my objections to each of the committee members. None of them responded. As you know, not one Senator voted against the revisions.
After the vote in the House, I emailed each of the Representatives who voted against it to express my appreciation and explain why I felt it was bad legislation. Those who responded expressed the general opinion that the revisions did nothing to improve the law. You have every right to contact those who voted for it and ask them to explain their vote, and I’d encourage you to do that.
What still puzzles me is why the supposed “watchdogs” of the press turned into lapdogs and played dead on this. This legislation did nothing to enhance the public’s access to meetings, it made it more difficult to impose penalties against intentional violations, and it totally ignored the need to be able to hold official accountable for abuses of executive sessions. If proving mental state (the “knowing” portion of the statute) was the predicate for change, the passed legislation did nothing but shift the required proof from “knowing” to “good faith.”
Comment by Bill — April 6, 2009 @ 7:19 pm
citizen,
AG Wasden is lining himself up to run for Congress, most likely against Representative Minnick. The Association of Idaho Cities and probably the Idaho Association of Counties may have seen this as an opportunity to “negotiate” the weakening of the Idaho Open Meeting Law. One of its client cities, Coeur d’Alene, has openly acknowledged violating the Open Meeting Law. Wasden’s candidacy will need the endorsement and support of groups like the Association of Idaho Cities.
I am certainly disappointed that the legislators who voted for S-1142 may have accepted without question the assertion that the revisions improved the law. I suspect some of the legislators may have too quickly accepted the representation that the “knowingly” requirement and interpretation was a fatal flaw that needed correcting. They may have not paid close enough attention to the actual wording of the revisions to recognize that a vote to approve the revisions actually weakens the law and makes enforcement more difficult.
The failure of the press to carefully analyze the revisions and their consequences is inexcusable. If anyone was counting on The Spokesman-Review and its Boise reporter, Betsy Russell, to “Tell the public what we know, when we know it…,” and “…empower citizens so they can exercise their citizenship,” as The Spokesman-Review Newsroom Values proclaim, they were sadly mistaken. Because The Spokesman-Review and its reporter Russell actively inserted Russell into the story (the revision of the law by the committee), Russell could not objectively report it as news. The Spokesman-Review, the Idaho Press Club (Russell is its president), and the Idahoans for Openness in Government (Russell is on its board) could have selected someone other than Russell to sit on the committee, but instead picked her. That disqualified her from reporting the news. The Spokesman-Review could have assigned another reporter to cover the story as news since it obviously wanted Russell on the committee. So much for The Spokesman-Review Newsroom Values.
Comment by Bill — April 7, 2009 @ 7:13 am
As much as I do appreciate Russel’s accounts regarding politics in Idaho, I have to agree that her participation regarding this bill was by far worthless. I am very confused why they/she did not have more power in this matter. It’s like they refused to see and now they really are blind. Way wrong.
Comment by Stebbijo — April 7, 2009 @ 9:05 am
I called the Supreme Court clerk’s office in Boise and was afforded contact with Jody. She is looking at getting me the records/minutes or whatever of the Media/Courts Judicial Committee. I am curious, just what do these guys talk about? She is supposed to call me back and let me know, because she wants to be sure I get the correct information and has to find it.
Comment by Stebbijo — April 7, 2009 @ 9:26 am
Stebbijo,
I do not know what the Media/Courts Judicial Committee discusses. The best information will probably come from the clerk.
Comment by Bill — April 7, 2009 @ 9:36 am
Bill,
I agree, Steve Kenyon is on the committee as well – but getting to these guys is a feat. Jody should be able to provide the leg work. Patty Tobias is also on it as well as our own local Karlene Behringer – Trial Court Administrator Judge, not to mention Betsy Russell – Newspaper Reporter. I don’t specifcally want to talk with any of them personally. I want the record of their formal mmetings. I understand this can happen once a year, twice or year, or maybe thrice a year – depends on money. So, I shall wait for the PHONE CALL! 🙂
Comment by Stebbijo — April 7, 2009 @ 10:02 am
stebbijo,
I want to be sure you understand that as far as I know, the Media/Courts Judicial Committee you’re talking about is not the committee involved in the rewriting of S-1142.
Comment by Bill — April 7, 2009 @ 11:13 am
Bill,
This is how I understand it. The State Affairs Committee rewrote the law, however Betsy Russell and others are on the Judicial Media/Courts committee. So what is the role of this Judicial Committee? Do they have influence regarding the rewrite of the open meetings law when it clearly effects their role in reporting and court procedures and how it plays in open and transparent government? Do they discuss it and then make recommendations? What do they actually do?
Comment by Stebbijo — April 7, 2009 @ 11:27 am
stebbijo,
I have a different understanding. Mine is that the AG’s office assembled the S-1142 rewrite committee under the guidance of DAG Bill von Tagen. That committee included the Association of Idaho Cities, the Idaho Association of Counties, and Betsy Russell representing whom: The Spokesman Review; The Idaho Press Club; Idahoans for Openness in Government? In any event it was this committee that drafted the changes which were then presented to the Senate State Affairs committee by DAG von Tagen. Do not confuse the committee who rewrote S-1142 with the Idaho Supreme Court’s Media/Courts Committee. They are separate. Again, I don’t have any idea what the Idaho Supreme Court’s Media/Courts Committee does other than write a media guide to improve interaction between Idaho’s courts and the media.
Comment by Bill — April 7, 2009 @ 11:56 am
Stebbio, just so you are clear on the Open Meeting revisions path. The revisions came from the AG’s office as they were trying to resolve the enforcement problem the supreme court exposed in the language from 1992 amendments in an Ada Copunty Commissioner appeal. I am told that in order to get any changes in the enforcement, the AG had to agree with the Assn of Cities to provide a cure and clarify agenda changes to their liking. Basically, the AG negotiated the Public’s Right To know. The two tier penalty provision was researched and offered to the AG by Betsy Russell. As an aside, because she was so directly involved in the law making she did not report on the OML and left news coverage up to the Associated Press, who basically reported nothing about it during the movement of S-1142 through the Senate and House. This was the enviornment of under current activity about which most legislators knew nothing.
I voiced strong objection to all of this during the drafting process, but legislators I informed on the Senate and House committees, did not reply to my concerns.
Because your comments above seemed to be getting off tract, I thought It was necessary to set the record straight.
Comment by Gary Ingram — April 7, 2009 @ 12:13 pm
Bill,
Thanks, I am sure you are right.
I guess I became confused with the media/courts committee because Betsy is on that one. How she gets involved under the auspices you just described completely escapes me. I guess I just don’t get it, because I don’t understand how the AG’s office can reassemble a bill then force it down the State Affairs Committee and out from underneath the public without some sort of input.
I also don’t know how Betsy Russel can remain “separate” from all of this since she is appointed to serve on a judiciary committee. Appears to me to be a huge mess, but then I am just the average working poor fool trying to understand this web of crap. And, the more I get in to it and realize just how bad it is, the less I want to have anything to do with with it – at all.
And, if all that judicial committee is doing is writing a media guide, I want my money back. What a waste.
I am glad Jim Clark voted against it. He gets a feather in his cap for that one.
Comment by Stebbijo — April 7, 2009 @ 12:14 pm
Stebbio, also for the record. You are entirely correct in your observation of a forced movement through both committees without public input. In both the Senate and House only one days notice was given for committee action. I have filed a formal complaint with both the Speaker and President Pro-Tem about this. No reply yet.
Comment by Gary Ingram — April 7, 2009 @ 12:20 pm
Thank Gary, I appreciate the lesson. Thanks to you and Bill for getting me straight on this.
It is news to me that the AG’s office can restructure the law based on court cases. It is also very appalling that they only appear to do this when it benefits their cohorts and we have news reporters making the reccomendations. Betsy Russel clearly does not represent me as the President of the Idaho Press Club on this deal, but she does have an impact when she represents me as a member on an Idaho judicial committee. I am bitterly disappointed and disgusted, because she should have fought like hell and she has no place on that committee, if this is the sum of it. Besides, doesn’t she live in Washington?
Comment by Stebbijo — April 7, 2009 @ 12:27 pm
Jodi was nice enough to return my call and found a link on their servers that has the last record of the Judcial Commmittee Media/Courts that Betsy is on. I now know that is is not the same committee involved with the OML, but here is the link and you can take from it what you want.
Their next meeting is in June.
Comment by Stebbijo — April 7, 2009 @ 12:47 pm
I also requested the minutes of the Rule 32 Committee which Betsy is a member (Idaho Judicial Committees). It’s not a link but a downloadable file.
She obviously packs some clout because she makes recommendations to the Supreme Court of Idaho to change or amend such things as the Idaho Court Administrative Rule 32. These reccomendations can be automatically adopted by the Idaho Supreme Court. It is composed of a relatively small group of people. That rule governs judical records and the disclosure or disclosure of those records to the public. She is noted in the minutes representing the Spokesman Review. ICAR 32 also is connected to the Idaho Public Records Laws. I think it all fits under the bill of disclosure and transparency in government which also includes the OML. It’s all connected even though procedure appears to be confusing. If they meet in Boise, we pay for it – not sure what the teleconferencing costs.
I have asked how participates get appointed to such high level committees that I believe legislate right at that level with no public oversight.
Comment by Stebbijo — April 7, 2009 @ 4:12 pm