Prosecutor: Rexburg Council violated ‘spirit’ of Open Meeting Law

From the Rexburg Standard Journal

REXBURG – The Rexburg City Council has been found not in violation of the Idaho Open Meeting Law, according to an opinion delivered to the council by Special Prosecuting Attorney Penny North Shaul on Tuesday.

The opinion draws to a close a five-month investigation into the quick appointment of Rexburg Mayor Richard Woodland to replace Shawn Larsen at a City Council meeting Nov. 4, 2009.

Although at first glance this appears to be good news for the City Council, Shaul said council members “displayed a fundamental lack of understand of the underlying purpose of the Open Meeting Law.”

“Basically the conclusion that I came to … was that there were certain members of the council that violated the spirit of the Open Meeting Law,” Shaul said in an interview.

In other words, although the City Council made no technical violation of the law, in her opinion, the council’s actions violated the intended purpose of the law, which is to “promote open and honest government.”

The opinion letter, which documents Shaul’s investigation of the council, states that several of the Rexburg City Council members engaged in “serial meetings.”

The term “serial meetings” refers to a series of gatherings attended by less than a quorum of members to discuss a public issue in private.

The document states that:

1. “At least four of the council members acknowledged that they had met with other members individually, to determine how many votes certain candidates would garner.”

2. “At least two members discussed which member would move to nominate (Richard) Woodland for mayor and which member would second the motion.”

3. “At least two other members discussed the merits of (Richard) Woodland as a candidate for mayor. …”

4. “There were efforts by several council members to determine which candidate(s) would be unable to garner enough votes for appointment.”

But although the ethics of serial meetings may be in question, the Idaho Open Meeting Law does not prohibit serial meetings.

“There is nothing in the Open Meeting Law language that specifically spells out that you can’t do that,” said Shaul.

The investigation also revealed that there is no evidence that any member of the council “definitively stated what his vote would be.”

There is also no evidence that any council member was pressured into voting a particular way or that there was any sort of “agreement or promise of favors for the nomination of a particular candidate.”

Shaul concludes her legal opinion by suggesting that the council be given further legal training with regards to the “parameters and application of the law.”

The response to Shaul’s opinion has been positive both from the city representatives as well as from those who spearheaded the investigation of the City Council.

“We are not surprised (by the outcome) – it’s pretty much what we expected and confirms what we have said all along,” said City Attorney Stephen Zollinger. “The city has from the outset acknowledged that councilors met on an individual basis.”

In an interview, Zollinger reiterated that although City Council members may have talked with one another, they never engaged in deliberation or decision making outside of a public meeting.

“We are pleased that Mrs. Shaul’s opinion exonerates the council from any criminal behavior or any behavior that even approaches underhanded behavior,” said Zollinger.

He believes the council’s action to have been ethical and disagrees with Shaul’s assessment of a violation of the spirit of the law. But he says that the city will follow up on Shaul’s recommendation and get more education for council members.

But Woodland is less inclined to recommend more education for the council. He says that the council receives sufficient training regarding open meeting laws already.

“We are already doing it – we have training every six months on this very thing,” said Woodland. “No, we won’t do anything additional. We are very aware. … If we did any (additional) training, it would be on public perception and how to avoid pitfalls.”

Still, he did say that any new council members would be given proper training.

Overall, Woodland reports being very happy with the decision, although he remains adamant that no serial meetings ever occurred among the council members.

He said council members occasionally asked each other, “What are we going to do?” But he says that the council did nothing wrong.

“We had no intent of violating the law and we didn’t skirt it – that’s plain and simple,” said Woodland.

But some community members are not satisfied with the City Council’s understanding of Idaho’s Open Meeting Law.

“It’s perplexing for me that council members didn’t know they were violating the law,” said Maria Nate, a trustee on the Madison School Board, who brought the complaint forward to the Madison County Prosecutor’s Office. “Many of them have served for quite some time and have more than likely received training on the Open Meeting Law, and at the very least their attorney should have known better.”

Last November, Nate wrote a letter to the Madison County Prosecuting Attorney’s office requesting an official investigation into whether or not the City Council had violated the open meeting laws.

Like Woodland, she says that she is pleased by the outcome of the investigation, although for a different reason.

“I think that this ruling proves what I have been saying all along – that the process of selecting the new mayor was improper and the council has been put on notice,” said Nate.

Last November, Nate also had the opportunity to file a complaint with the local magistrate court 30 days after Woodland’s appointment to legally challenge his appointment, but she opted not to.

During prior interviews, Nate has said that her only interest in pushing for the investigation was to insure that government be open and transparent. She says it was never her intention to remove Woodland as mayor.

Records show that Nate also played a significant role during the investigative process.

Official investigative documents show that Nate and Tom Kennelly, a resident of Rexburg, provided the majority of the evidence against the City Council during the investigation.

The majority of the evidence presented by Nate and Kennelly came from personal interviews with past and present council members and statements made by city officials during media interviews.

The investigation documents also show interviews with members of the City Council.

Interviews of past and present councilmen by investigator Max Sprague show that Rex Erickson, Randy Schwendiman, Bart Stevens, Adam Stout, Chris Mann, Brad Egbert and Woodland all admitted to speaking in some form or another about the mayor position with another council member prior to the appointment.

Copies of these investigative documents are available, along with Shaul’s official legal opinion, at City Hall.

Woodland says that now the investigation is over, the city is free to respond to the allegations and talk about the events leading up to his appointment.

He says in hindsight the situation could have been handled better.

“What was wrong and what made it look bad was the way that the nomination transpired,” said Woodland.

“We all thought there would have been more discussion … had we submitted someone else’s name we would have had the discussion. But what did happen was that Adam (Stout) nominated me … and they voted and it happened so quickly.”

The mayor says he regrets the speed at which the decision was made and says that if they had to do it again, there would be much more discussion on all the candidates.

“If we were conspiring we surely wouldn’t have done it that way – if we were acting it out or creating a charade we wouldn’t have done it that way because it made us look bad,” said Woodland.

From the Rexburg Standard Journal

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