Archives for 2011

From the Associated Press

A federal judge has refused to unseal a settlement agreement between an Idaho inmate and a private prison company involving allegations of rampant violence at a lockup near Boise known as “Gladiator School.”

The Associated Press had asked the court to unseal the settlement between Marlin Riggs and Corrections Corp. of America.

However, U.S. District Judge Edward Lodge said Wednesday the interests of Riggs and the company in keeping the settlement confidential outweighed the interest the public has in learning its terms.

The AP’s West regional editor, Traci Carl, said the news organization’s attorneys were reviewing the ruling and considering the legal options.

“The AP is disappointed with the ruling and believes the public has a right to know the terms of the settlement,” Carl said.

Neither Riggs’ attorney James Huegli nor CCA’s attorney Kirtlan Naylor immediately returned messages from The Associated Press seeking comment.

Riggs initially asked for $55 million in damages, saying the Idaho Correctional Center was nicknamed “Gladiator School” and that guards knew Riggs was about to be attacked but failed to protect him.

The AP contended the lawsuit raised profound and far-reaching issues of public interest. In his written ruling, Lodge acknowledged that the operation of a prison raises issues of public concern, but he said he feared releasing the document would place Riggs at risk for intimidation or assault in prison. He also said future litigants would be discouraged from participating in judicially supervised settlement conferences if they believed the outcome could be made public.

The judge also noted that a settlement agreement in a “companion lawsuit” between other inmates at the prison and CCA was released to the public. In that case, the inmates were alleging the same types of civil rights violations that Riggs claimed, but they didn’t ask the court for any monetary damages. Instead, the inmates wanted changes to the way the prison is run — and in the settlement agreement, CCA agreed to make those changes, though the company did not acknowledge any guilt or liability. Both CCA and the American Civil Liberties Union of Idaho, which was representing the inmates, agreed to make that settlement public.

“The present case now involves only a single prisoner seeking monetary damages for an assault,” Lodge wrote. “The public’s interest in knowing the precise terms of his agreement with CCA is outweighed by the parties’ interest in confidentiality as a means of minimizing the serious risks that the Court has found to exist.”

From the Associated Press

From the Idaho Statesman

If Bob Henry prevails on appeal in his public records lawsuit against Canyon County, the result could end up helping the county in a separate Bujak-related legal struggle.

That’s because the trustee in former county prosecutor John Bujak’s bankruptcy case is suing the county for nearly $1 million based on the presumption that Bujak’s contract to use county resources to prosecute Nampa misdemeanor cases was his private property. Trustee Jeremy Gugino wants proceeds from the contract to be divided among Bujak’s many creditors as part of the Chapter 7 proceedings. The county is one of those creditors, claiming Bujak still owes it about $300,000.

That presumption is supported by a district judge ruling in Henry’s public records lawsuit last year, but Henry now hopes that the state’s highest court will determine that ruling was in error.

If the Nampa contract is declared public record, that would bolster the county’s argument that the money it has collected from the contract is rightfully the county’s and not part of Bujak’s assets for distribution, Henry said.

Trustee Gugino could not be reached for comment Friday. His case against Canyon County is scheduled for a pretrial hearing in U.S. Bankruptcy Court Dec. 21.

At Friday’s hearing, the Idaho Supreme Court didn’t indicate how long it might take to reach a decision in the appeal. But Henry said he was heartened by some of the justice’s questions and statements that seemed to echo his belief that Canyon County commissioners were wrong to support Bujak’s contention that the nearly $600,000 contract was private and appropriately deposited into his private account, with the expectation that the lion’s share of the money would end up in county hands. But Bujak resigned Sept. 30, 2010, after he couldn’t turn over the approximately $300,000 commissioners said he still owed from the contract. County commissioners have said they relied on their then-prosecutor to be true to his word, but he fraudulently used the Nampa money for his personal expenses. He denies he owes the county any money.

Justice Jim Jones commented on the “loosey-goosey nature of this arrangement, where you just kind of hand the money over and there’s not going to be any accounting.”

And Justice Warren Jones voiced the opinion Henry hopes the court will reflect in its opinion: “To me, it’s reasonably clear these are public records. They were public records then, they’re public records now.”

The county’s legal team contends Henry’s appeal in his public records case is moot, because once the county gained access to Bujak’s financial records through the bankruptcy proceeding, it provided them to Henry.

“We don’t know why we’re here,” Canyon County Deputy Prosecutor Carl Erickson told the justices. “Because we’ve turned over everything, there is nothing else that we could produce.”

After Bujak resigned, the county made the Nampa contract and its financial records public, Erickson said. But despite repeated questioning from the justices, he stopped short of saying county officials now believe the contract should have been treated as a public agreement all along.

From the Coeur d’Alene Press

If they’re making a decision, make yourself at home.

If they’re holding deliberations, pull up a chair.

But if a government entity is discussing personnel issues, say, hiring an employee or disciplining an officer, the door will be shut to civilians.

No use complaining. It’s the law.

The open meetings law, specifically.

And it’s there for a reason, explained Idaho Attorney General Lawrence Wasden on Tuesday night.

“(The law) has helped us gain timely access to information,” he said, speaking to a crowd of citizens, reporters and government employees at the Spokesman Review building. “And it’s also protected information that the law ensures be restricted, like the investigative efforts of law enforcement.”

Idaho’s open meeting and public records laws might seem like dry subjects. But if anyone wants to hear a highway district deliberate on a tax increase, or wants a copy of an email between school board members, the information is useful.

That’s why the attorney general, with Idahoans for Openness in Government, held a seminar on the restrictions and allowances of the two recently updated laws on Tuesday.

“Everybody, even if you sing out of tune, you’ll recognize there’s a sheet of music,” Wasden said at the event, co-sponsored by the Coeur d’Alene Press and the Spokesman Review.

The state’s open meeting law, Wasden said, ensures that almost every discussion and decision by a governing agency is open to public viewing.

Officials discussing policy privately at a restaurant, for instance, is illegal.

“You’ve been trusted with the public’s right to watch you conduct your business,” he said.

Deputy Attorney General Brian Kane spelled out the rules: An agency must provide notice of a meeting five calendar days ahead, and notice of the agenda 48 hours ahead.

Policy making outside of a noticed meeting is null and void, he said.

The law allows folks to observe, he added, but not participate.

“If you want to give (government officials) a piece of your mind, make an appointment to meet with them,” Kane advised.

Meetings for executive sessions, where members of the public may be excluded, must be specified on an agenda 24 hours ahead, he noted.

Decisions can’t be made in executive sessions, Kane said. Discussions are limited to a very narrow scope of subjects, like personnel and litigation.

“(Governments’) approach to executive sessions should be they’re the exception, not the rule,” he said. “If you can’t do anything without going into executive session, you’ve got a problem.”

Members of the public can record meetings, he said, so long as it doesn’t hamper the process.

For more about Idaho’s open meeting law, go to www.openidaho.org.

Complaints about violations at the local government level should be taken to the prosecuting attorney, Kane said.

Violations by state agencies should be reported to the attorney general’s office.

Kane noted that though officials can be charged up to $500 for knowingly violating the open meeting law, they can avoid fees by admitting error and holding a meeting again properly.

“My advice is, it’s OK to make a mistake. Just own it and fix it quickly,” Kane said. “It’s a lot easier than the road of denial.”

As for Idaho’s open records law, Wasden said, the custodian of a government document can’t deny a record request or question its intent, unless about it being used as a mailing list.

“A public record is a public record,” Wasden said, adding that there are some exemptions like personnel and litigation documents.

Accessible records include handwritten and typewritten documents, photographs, photostats, emails, phone texts and Facebook pages, property tax records and government credit cards.

“If you’re spending public dollars, the public has a right to see what’s going on,” Wasden said.

Kane noted that an agency can grant or deny a records request within three working days, or within 10 working days if more time is needed.

Under the new statute, the first two hours of labor for obtaining a record, or the first 100 pages, are free.

Wasden had simple advice for government employees about not leaking embarrassing intel.

“Listen to your mother, ‘If you don’t have something nice to say, don’t say anything at all,'” he said. “And finally, listen to Mark Twain: ‘Never pick a fight with someone who buys ink by the barrel.'”

From the Coeur d’Alene Press

From the AP/Idaho State Journal

POCATELLO, Idaho (AP) — The Idaho Supreme Court has upheld the dismissal of a lawsuit filed by an Idaho State University professor who claims he was wrongfully terminated, but ruled that a lower court wrongly found the former professor, Habib Sadid, had no First Amendment protection for his comments in a local newspaper critical of the university’s administration.

Faculty leaders at the southeastern Idaho school were pleased with the decision from the Supreme Court, which found that Sadid was not the victim of retaliation and that his employment with the public university did not strip him of his right to free speech as an individual.

“We view it as a massive win,” said biology professor David Delehanty, who holds a faculty leadership post at the university and is a member of the American Federation of Teachers. “The interest of all these organizations is free speech.”

Sadid was suspended from the university in August 2009 and terminated a month later for what administrators called unprofessional and insubordinate conduct. But Sadid said his history of speaking out about campus problems led to his termination; he had written letters to the editor and guest columns and ran a paid ad in the local newspaper with his criticisms.

His legal battle over his termination has gained financial support from groups including the American Association of University Professors, the American Federation of Teachers and the Foundation for Individual Rights in Education.

While the lower court Sadid’s criticisms of his employer did not involve issues of public concern, the Idaho Supreme Court found that the professor’s critique of plans to create a medical school at the university did constitute a matter of public concern. It also found that the published criticisms weren’t “pursuant to his official duties” as a public employee, which would have eliminated his free-speech protections against workplace retaliation.

“There is no evidence showing that Plaintiff’s official duties included making public statements on behalf of the University regarding the subject matter of his letters, nor is there evidence that his employment responsibilities included creating the statements that were published in the newspaper,” wrote Idaho Justice Daniel Eismann in the court’s unanimous opinion. “Therefore, his speech was as a private citizen.”

Sadid sued the university in state court in 2008 while he was still employed at the school, but the case was dismissed; he claimed then that he was retaliated against for publicly voicing his discontent with administration policies, including by not being appointed chairman of the university’s Department of Engineering. The court found no evidence that he was retaliated against at that point. Sadid has other state and federal lawsuits pending over his dismissal.

Officials at the Pocatello university lauded the decision of the high court to affirm the dismissal of the 2008 case. “We’re pleased with both the decisions of the Idaho Supreme Court and the district court,” Kent Tingey, vice president for university advancement, told the Idaho State Journal (https://bit.ly/qPO7Yr ).

From the AP/Idaho State Journal