In a press conference which concluded just a few minutes ago, Idaho Attorney General Lawrence Wasden announced that the Idaho State Board of Education may have engaged in a non-knowing violation of Idaho’s Open Meeting Law. The AG’s decision is based on a recent Idaho Supreme Court decision which effectively allows intentional ignorance as an affirmative defense to alleged violations of that law.
One of the critical factors in applying the Open Meeting Law’s nullification and penalty portions is that the violation must have been “knowing.” That requirement arises from the Idaho Supreme Court case State of Idaho v. Rick Yzaguirre, Chairman, Ada County Board of Commissioners, Judy Peavey-Derr, Member, Ada County Board of Commissioners, Fred Tilman, Ada County Board of Commissioners.
The Attorney General’s entire report of his office’s investigation is available here.
The Idaho Supreme Court’s decision in Yzaguirre has created what may seem to be a nearly impossible standard for prosecutors to meet. They must prove alleged violators “knowingly” violated the law. In the absence of offenders’ writings and utterances, how do they demonstrate the violators knew they were violating the law?
AG Wasden insightfully recognized this and took steps to administratively close the loophole. The Ada County Board of Commissioners will be required to attend training in the Idaho Open Meeting Law.
Training in the Idaho Open Meeting Law, the Idaho Public Records Law, and the Idaho Ethics in Government Law ought to be mandatory before any Idaho elected or appointed official is allowed to assume a position of public trust. The State already has a statewide mechanism set up to provide in-person training to these officials. It is the Idaho Peace Officers Standards and Training Academy. That academy has regional representatives who could be used to set up and even administer the training. After all, the AG’s office provides the booklet training material free to any requestor either in hard copy or online.
The state could also offer the training as an online course much the same way colleges and universities do. Registration would be required.
It is worth mentioning that a few years ago, The Spokesman-Review newspaper sponsored an Open Meeting Law – Public Records Law seminar in Coeur d’Alene. Attorney General Wasden and his deputy, Bill Von Tagen, presented the training on behalf of the AG’s office. Coeur d’Alene’s Mayor and City Council just could not find the time to attend. Perhaps they knew that if they attended, they might be held accountable for compliance.
The Idaho legislature needs to adopt AG Wasden’s “fix”: Require all public officials who are subject to these laws to attend certification training and periodic retraining. Remove the “intentional ignorance” defense from their arsenal of weapons of mass evasion.
Bill, I was at the SR open meeting law seminar several years ago. It was very well done and the room was packed. Maybe it’s time for another one. I understand NIC’s board needs an update as well as our city council.
Comment by mary — February 22, 2008 @ 2:38 pm
The law that got them off the hook was this one. Was not sure after I read the statement from the AG’s site what exactly he meant by “good faith.”
Idaho Code 67-2347
Excerpt from the Court Case:
It’s under MISCELLANEOUS PROVISIONS. Go figure.
1. The Commissioners may assert a good-faith defense to the imposition of civil penalties under I.C. § 67-2347(2).
There are two consequences where the open meeting law is violated. First, any action taken at a meeting that violates the open meeting law is null and void. I.C. § 67-2347(1). This provision does not apply in this case because no action or decision is being challenged.
The other remedy, added by amendment in 1992, provides for a civil penalty against any member of a governing body “who knowingly conducts or participates in a meeting which violates the provisions of this act.” I.C. § 67-2347(2).
The word “knowingly” pretty much lends to the “good faith” explanation. Does not really matter much anyway. Those who “knowingly” commit bad faith are only charged up to 300 bucks and that is a subsequent violation. The first one is only 150 dollars.
Who’s going to fix this?
Comment by Stebbijo — February 22, 2008 @ 6:19 pm
Stebbijo,
AG Wasden pointed the way the Idaho legislature needs to go if it wants to fix the “knowingly” problem. Sometimes I’m not really sure that Idaho’s legislators necessarily want to close loopholes.
Comment by Bill — February 22, 2008 @ 7:19 pm
Bill,
Exactly.
Maybe we need a real ‘public’ survey that calls legislators in respect to this law and address the “knowingly” issue to see how/what they think/know – ‘kind of like’-the survey that Mary received? That way we get the necessary information to revise the law and implement the AG’s suggestions.
Seriously, I have unlimited long distance. I could probably get 4-6 of them in an hour with a good script. 🙂
Comment by Stebbijo — February 22, 2008 @ 8:13 pm
Found this link on Eye on Boise update on some recent information concerning the open meeting violation that was coupled with intentional ignorance.
Comment by Stebbijo — February 27, 2008 @ 7:09 am
Stebbijo,
If you want to see a very questionable and almost certainly unjustifiable use of executive sessions, go to the North Idaho College website and look at the minutes of the NIC Board of Trustees meetings. Start at January 2007, and you’ll see that in the vast majority of their meetings, the convene at 4 p.m. and immediately go into executive session. Those executive sessions typically last until 5:30 p.m. or later. Then at approximately 6 p.m. they open the doors for the public meeting which is usually shorter than the executive session.
Part of the problem is that in Kootenai County, the only recourse we have is to complain to a prosecuting attorney who has retired in place and is unwilling to enforce the Idaho Open Meeting Law.
Comment by Bill — February 27, 2008 @ 7:38 am
It is very frustrating when you know it all stops at the prosecuter’s office and nothing will get done and ‘they’ know it. Really is ‘intentional abuse of the law.’
I read this on their Jan 20th meeting – NIC Board of Trustees.
That’s pretty plain English.
Thanks Bill for the info – Looks like I won’t run out of candidates for my Rotton Tomato Award.
Comment by Stebbijo — February 27, 2008 @ 8:04 am
Bill:
On second thought – I am really getting confused here. Isn’t Christy Wood a police officer? Is she breaking the law?
Comment by Stebbijo — February 27, 2008 @ 8:33 am
Stebbijo,
Well, she’s the police department’s public information officer. Yes, it is legal.
Comment by Bill — February 27, 2008 @ 9:05 am
Okay – so it is legal for NIC Board of Trustees to have closed executive sessions
but it is not legal for the city to meet privately concerning issues (development). That violates the open meeting law?
Comment by Stebbijo — February 27, 2008 @ 10:23 am
Stebbijo,
I’m glad you’re interested in the Idaho Open Meeting Law. Here’s a link to The Idaho Open Meeting Law Manual published by the AG’s office. It should help answer all your questions about executive sessions.
Comment by Bill — February 27, 2008 @ 11:51 am
Thanks -I think I will order the printed manual. I wish I was not a working shlub –
I would have more time to study this. It’s a full time job just keeping track of our officials.
Comment by Stebbijo — February 27, 2008 @ 12:20 pm
Stebbijo,
Since the manuals are free, you might want to look at all the manuals available on the AG’s Publications page.
Your last sentence is an excellent observation. Most of us don’t have the time or the desire to shadow our officials’ actions. Nor should it be necessary. We need to be able to trust our public officials, both elected and appointed. When our trust and confidence has been betrayed by those officials, as it has by some of them in Coeur d’Alene, it becomes risky for us to take their word for anything.
Comment by Bill — February 27, 2008 @ 12:49 pm
I had a chance to look at this a little bit more. Appears that the NIC Trustee meetings regulary cite a portion of the Open Meeting Manual just to cover themselves? I think there was only two times in 2007 there was not an Executive Session and if they violate it – according to the manual – it’s not really a big deal … a little corrective action and hardly worth prosecuting for a misdeameanor.
So, we really do not know what they be discussing because there is no requirement to provide any real record or disclosure:
…only written minutes are required – and as long as they cover themselves in them – there is no verbal recording of those executive sessions that could prove otherwize?
I liked this part:
IF IN DOUBT, OPEN THE MEETING
…that’s the training that is needed, not training specifically to exclude the public. They have that down.
Comment by Stebbijo — February 27, 2008 @ 7:29 pm
Also, I think ‘they’ got this wrong concerning a reason to go into executive session:
(c)To conduct deliberations concerning labor negotiations or to acquire an interest in real property which is not owned by a public agency;
Property discussions should be open to the public – not closed. Just plain wrong.
Comment by Stebbijo — February 27, 2008 @ 7:54 pm
Stebbijo,
It is sufficient for them to cite the section(s) of statute justifying their going into executive session.
You are correct. The Idaho Open Meeting Law is completely toothless unless the prosecutor or AG aggressively prosecute. There are two penalties possible for conviction: Nullifying the business conducted illegally and a very modest personal fine to an individual proven to have “knowingly” violated the OML.
Your comments about the meeting minutes is correct. If you want to control the outcome of a meeting, don’t preside — write the minutes.
Comment by Bill — February 27, 2008 @ 7:56 pm
Stebbijo,
The rationale behind executive sessions to discuss property acquisitions is so the agency’s bargaining position does not become known to the seller. That’s the theory. There are times, I must admit, when it seems that the buyer and the seller already know each other’s positions and the only purpose of executive sessions is to keep the public in the dark. University Place, Chapter 2, AKA the Educational Corridor comes to mind.
Comment by Bill — February 27, 2008 @ 7:59 pm