Labrador legal-representation contract allows ADF to oppose public records responses

Editorial from the Idaho Statesman

BY BRYAN CLARK

When voters elect an attorney general, they are hiring a lawyer to represent the collective legal interests of the state. Turning over that duty of legal representation to an unelected political advocacy group is inherently problematic.

“It is a very bad practice to allow an advocacy group to represent the state. They will represent their true client, the advocacy group, not the state,” James Tierney, a lecturer at Harvard Law School and the former attorney general of Maine, told Chris Geidner, a longtime legal journalist who writes the Law Dork substack.

That’s particularly true of the group that is now representing — you. Didn’t know you had a new legal team? Well, you should meet them.

As Geidner first reported, last month the Alliance Defending Freedom quietly entered an agreement with Attorney General Raúl Labrador to represent the state in appealing the federal court decision that prevented implementation of Idaho’s total abortion ban in cases where it conflicts with the federal Emergency Medical Treatment and Labor Act.

That law requires hospitals to provide emergency treatment to save any patient that shows up at their doors — including women who need to end a pregnancy to save their life or health, whereas Idaho law allows abortion only to save a woman’s life.

The group Labrador brought into this case has been designated by the Southern Poverty Law Center as an extremist hate group. It has been at the forefront of efforts to restrict women’s rights and to criminalize the lives of LGBTQ people in Idaho and around the country as part of a broader Christian nationalist agenda.

All of this is predictable, and was indeed predicted, when Labrador was running for office. Labrador is basically a far-right career politician, and he is using his office to service the far right. His experience as a litigator was nowhere near sufficient to be the state’s lawyer.

So it seems he’s beyond his depth in this case, and it might make sense to seek outside help. But hiring outsiders comes at a cost, even if that cost isn’t taxpayer funds.

For example, even though Idaho is the client in this relationship — usually a lawyer’s job is first and foremost to advance their client’s interests — the contract Labrador signed places the ADF’s political propaganda campaign on equal or superior footing to the interests of Idaho citizens.

“Client therefore agrees to cooperate as much as possible, upon the request of ADF, in the publicizing of non-privileged and non-confidential information relating to the Representation,” the agreement states. “Client agrees to allow ADF to use non-confidential information in materials intended to communicate with supporters of ADF and in furtherance of the mission of ADF.”

At the same time, the agreement signs away Idahoans’ right to know about their own government and their own legal representation.

Idaho’s Public Records Act declares that anyone in Idaho can inspect state records, and they’re exempt from disclosure only if they meet specified conditions. And since Idaho is the client in this lawsuit, it seems Idahoans ought to have access to a great many details of their own representation.

Instead, a national advocacy group acting as your pro-bono legal team reserves the right to oppose you obtaining information about your own representation.

“Client agrees not to disclose our communications to third parties, whether orally or by forwarding to or copying third parties on communications, without first obtaining approval from ADF,” the agreement states. “Client will notify ADF in advance of responding to any public records request for communications relating to the Matter, and Client will do so sufficiently in advance of the response deadline to enable ADF to oppose or otherwise respond to such request.”

You and I might have very different views on abortion in general and on this lawsuit in particular.

I think we should not be pursuing this lawsuit. The bill passed by Idaho lawmakers was ambiguous. It made doctors afraid they could be liable for providing treatment necessary to save women from severe bodily harm, put pregnant Idahoans at higher risk and helped drive the flight of OB/GYNs from Idaho.

The federal ruling is narrow and simply provides assurance to doctors they can do what is necessary to save women in emergency situations. It does not protect what most people think of as abortions — though I think that’s a right that should be protected.

But you don’t have to agree with me about that to smell something rotten here. No matter which side of this lawsuit you support, Labrador sold out your interests.

Editorial from the Idaho Statesman

State Board’s closed-door process for picking ISU president draws questions

From the Idaho Press

BY LAURA GUIDO

The Idaho State Board of Education on Thursday voted unanimously and with little discussion to name Robert Wagner as the new president of Idaho State University.

The board had previously announced Wagner was among five finalists for the position — however, it appears the final decision on who would assume the position was all but finalized before the vote, seemingly skirting Idaho’s Open Meetings Law. A board spokesman disagrees, saying the process was typical and in-line with the law.

The law allows for closed meetings to “consider hiring a public officer, employee, staff member or individual agent, wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need.” Negotiations over a contract may also be held outside of public meetings.

However, the law states that, “No executive session may be held for the purpose of taking any final action or making any final decision.”

On Monday, Lewis-Clark State College President Cynthia Pemberton, a finalist for the ISU presidency, wrote in an email to LCSC faculty and staff that she was notified she would not be selected and another individual would be selected, the Lewiston Tribune reported.

Another candidate, Shane Hunt, had also been notified early in the week, multiple sources told the Idaho State Journal.

State Board of Education spokesman Mike Keckler told the Idaho Press on Tuesday that all the candidates had been notified “that the Board will be considering the proposed appointment of one of the five finalists named on November 29, 2023.”

Betsy Russell, president of Idahoans for Openness in Government, said the procedure didn’t seem to follow the intent of the law.

“It seems clear that the board made this decision during a closed session, as it directed its executive director to notify the unsuccessful candidates and begin negotiations with the selected one after that closed meeting,” Russell wrote in an email. “To pretend that nothing has been decided until a unanimous vote is taken later with no discussion flies in the face of the spirit of the Open Meeting Law.”

Keckler clarified that Executive Director Matt Freeman did not receive direction from the board on whom to negotiate with.

Asked about the procedure, Keckler said the board met in executive session to discuss the qualities of each candidate, as allowed by law. Freeman then began negotiations with the candidate who “appears to be most favored” based on the discussion.

“Based on what he heard in that discussion, Matt Freeman, the Board’s executive director entered into negotiations with one of the candidates,” Keckler said in an email. “No Board action was taken in executive session.”

If negotiations are unsuccessful, he moves on to the next candidate, Keckler said.

Keckler responded to questions about if the meetings and decision were within the bounds of the law by noting that the process has been the same for other university presidential searches. He said no concerns about the process were every raised in previous searches.

“Once a finalist has agreed to negotiated terms with the Board’s executive director, the other finalists are personally notified as a professional courtesy before a special Board meeting rather than first learning about the status of their candidacy in the media,” he wrote Friday. “When the meeting convenes, the Board has the discretion to approve or reject the negotiated agreement. If you look at previous Board meetings, members often go straight to motion on action items listed on the agenda, so the actions taken yesterday weren’t unusual. The Board, as a group of volunteers, trusts the work of its professional staff.”

Russell said that there could have been at least one more public meeting in the process that may have added to openness of the decision-making.

“Immediately after the closed session, the board could have taken a public vote on its decision to notify and enter negotiations, even without revealing the name of the favored candidate at that point. Why not be transparent?” She wrote. “… Rather than split hairs about the point at which the final decision occurs, it best serves the public to be transparent all along.”

Keckler highlighted that all five finalists participated in open forums in Pocatello, Idaho Falls and Meridian. All of these forums were open to the public and live-streamed.

“The entire ISU president search process was as transparent as possible,” he wrote.

From the Idaho Press

BSU’s approach to public records raises questions

From BoiseDev.com

A Boise State University official said under oath that a senior university official renamed a document to hide it from public scrutiny and skirt Idaho’s Public Records Act, and that senior employees had been told to keep certain things out of public records due to “political climate.”

It’s the latest in a series of attempts the school has taken to avoid public scrutiny of its workings.

The admissions came from an August deposition of Nicole Nimmons, the school’s associate vice president for campus services. Nimmons was being asked by an attorney for Big City Coffee about records practices in the coffee shop’s lawsuit against the university.

Nimmons had compiled a Google Drive document with information about Big City, including “positive involvement” of the shop and its owner Sarah Fendley in the community.

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The file was named “Big City Coffee,” according to Nimmons. But, she said, at some point, Boise State’s then-AVP for Communication, Marketing and Strategy Lauren Griswold, renamed the file “B space C space C.”  Why? 

“I believe it was for it not to be put forth in a public records request,” Nimmons said under oath.

Nimmons said she could not find the document for a time, because searching for Big City Coffee no longer returned the document in the Google Drive search function.

Big City’s attorney asked Nimmons if it was standard practice to use codes to “evade public disclosure.”

“I’ve been asked and told not to put things in writing at times because of public records requests and documentation,” Nimmons replied.

Boise State often fulfills records requests by searching email and other servers for the term submitted by the person requesting records. For instance, if a member of the public asked for records about “Big City Coffee,” a record named “B C C” might not show up – even though the record would be responsive to the request.

Griswold is now the school’s leader of marketing and communication.

Big City and its owner Sarah Jo Fendley sued Boise State, alleging the school and top officials violated her rights by interfering with a contract she secured to open a second shop location on campus. The shop opened and promptly closed in the summer of 2020, after some students objected to Big City displaying the Thin Blue Line flag at its original shop.

Boise State, the law & lawmakers

Boise State spokesperson Mike Sharp said the school could not comment on the particulars of the Big City deposition because it is a pending legal matter.

Sharp did answer several questions about Boise State’s policies and procedures in general.

“Boise State’s attorneys provide general education on public records laws. Like all attorneys, Boise State’s attorneys also provide legal advice to their clients (in this case, university employees) on specific matters, including the interpretation and application of Idaho’s Public Records Act,” Sharp said. “Our attorneys do not direct employees to violate the law, nor do university administrators.”

We asked Sharp if members of the university leadership team use codes, code words, or any cipher on public work documents to avoid the documents being released later.

“University employees are not instructed to code records or use ciphers to avoid public records requests,” Sharp said. “However, University employees are encouraged and reminded to be thoughtful about what they put in writing.”

Boise State has come under increasing scrutiny from the Idaho Legislature on a host of issues in recent years. The legislature has moved to cut Boise State’s funding for what it sees as activity related to diversity, equity and inclusion. The Joint Finance Appropriations Committee has tried to stop the school from fundingBoise State Public Radio. Budget writers grilled University President Marlene Tromp last year on a host of issues, to which she provided few concrete answers at the time.

BoiseDev’s extensive reporting on Boise State over the past three years indicates a number of senior school officials have worked to keep their activities away from the public spotlight. The school has used a mix of exemptions in the Idaho Public Records Act, training for employees, coordination and review between employees and leaders, and other techniques.

‘Political climate’

Big City Coffee
Big City Coffee in Boise. Photo: Don Day/BoiseDev

During the August deposition, Nimmons said a number of employees had been instructed similarly by the school’s top brass “in a leadership meeting with regards to political climate overall and not putting detailed notes within meeting minutes and having documentation on subjects that could be very sensitive in nature to the university.”

Nimmons said the instruction wasn’t related directly to the Big City Coffee case, but open records requests in general.

The exchange continued for a few minutes, with Big City’s attorney pressing to get a better understanding of what Nimmons meant by the political climate. Lawyers for Nimmons and the university interjected several times, and took a break. After the break, university attorneys moved to end the deposition and said they’d seek some type of protective order.

Boise State and records

Boise State University has taken an aggressive and, at times, contentious approach to the Idaho Public Records Act.

The act’s preamble notes that “every person has a right to examine and take a copy of any public record of this state, and there is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”

Boise State has often taken great pains to keep items it wants to protect away from the public.

  • Boise State excluded some information about school president Dr. Marlene Tromp’s travels to both Idaho EdNews and BoiseDev, including seat assignments. To BoiseDev, the school cited the federal Health Insurance Portability and Accountability Act. However, Boise State is not a covered entity under HIPAA. The three such entities are health plans, health care clearinghouses, and health care providers. Boise State, as an employer, is not a covered entity, and HIPAA doesn’t apply to it.
  • In July, BoiseDev inquired about how funds gained from Boise State’s on-campus vending machines were distributed. Though the questions didn’t rise to the level of a reportable story, the school misrepresented how the money was spent. A spokesperson said the funds were spent “in a number of different ways including scholarships and other expenses not covered by another funding source.” A later public records request showed the funds for the past three years were used to cover a portion of an employee’s salary, except for a one-time charge of $50 for maintenance. The dollars were not spent on scholarships.
  • A top school official admitted in an email later viewed by BoiseDev that some records sought were shielded from scrutiny because they were “on a timer,” which blocked the public from seeing disclosable records. According to the records, a third-party vendor was providing information for school officials to review on a server that deleted documents after a set period of time. This allowed public employees to see the documents – but kept them from the public.
  • On numerous occasions, school attorneys communicated with officials asking for review of records, and asking if the record should be provided in response to BoiseDev’s public records requests, instead of reviewing the records for exemptions on behalf of the public without interference or input from leadership.
  • Officials tried to charge Idaho EdNews more than $700 to review emails about professor Scott Yenor. The school later backtracked.
  • In 2020, as BoiseDev previously reported, we requested the Twitter “block list” of former head coach Bryan Harsin. The school repeatedly denied the request over several months before finally providing the list after a slew of requests made it clear the record was public.
  • university official incorrectly told the Idaho Statesman in 2019 that no contract had been signed for a Garth Brooks concert at Albertsons Stadium, when, in fact, one had.

Keeping ‘secrets’

On more than a dozen occasions in recent years, Boise State’s attorneys have asserted that it has the right to keep secrets from the public — specifically trade secrets.

The school has blacked out dollar amounts it expected to be paid by Dollar Loan Center. It redacted the third priority for capital funding of the tennis team. It blocked a list of people it hoped to ask for money.

In short, if it wants to hide an activity from the public, the school’s attorneys often call it a trade secret. The school’s use of this provision in Idaho Code as a Swiss Army knife to keep things it wants to keep secret isn’t new.

In 2013, the school denied an Italian journalist’s efforts to obtain records on the Amanda Knox case. Knox was freed, in part after the work of the Idaho Innocence Project, which operated within Boise State. In this case, the school told the journalist that the Idaho Innocence Project’s work was still secret, even though the project’s director Greg Hampikian, widely publicized his work on the case.

The trade secrets provision in Idaho code is spelled out in plain language that they are for secrets submitted to public agencies by third parties “in response to public agency requests for proposal” and the like. Nowhere does it say that a public agency may keep its own secrets.

Idaho code provides on a single remedy for someone requesting public records to appeal a decision by an agency: suing in district court. Because of the expense and time involved, this step historically has been taken only in rare instances. Otherwise, agencies are left to police themselves.

What’s next for Big City

Big City’s case against Boise State continues to work through the pre-trial process and motions. The trial is tentatively set for August 2024.

From BoiseDev.com

GOVERNMENT TRANSPARENCY – IDAHO PUBLIC RECORDS ACT, NOV. 28

Idaho Public Records Act – Tues., Nov. 28, 2023

Accusations fly over transparency, public records in Bonner County

From the Sandpoint Reader

By Soncirey Mitchell

The Bonner County board of commissioners heard a full hour of public commentary, prior even to the consent agenda, at the regular business meeting on Nov. 14. The meeting lasted more than three and a half hours and seemingly covered every major issue that the county has faced in recent memory, as public comment spilled into commissioner reports and action items.

The often fiery discussion was a precursor to a special meeting scheduled that day at 2:30 p.m., which was abruptly canceled that morning due to several mistakes in the public notice.

They rescheduled the meeting for Thursday, Nov. 16 at 11 a.m. and will feature action items regarding public records requests for Commissioner Asia Williams’ emails, the civil protection order against Commissioner Steve Bradshaw by Williams and the unauthorized video surveillance of executive sessions, among others subjects.

Public comment for the meeting opened with especially pointed testimony from Amy Lunsford and Dian Welle. Lunsford — who, along with a number of residents, regularly files public records requests about county proceedings — questioned the motives behind Sheriff Daryl Wheeler’s Individual Constitutional County Officers committee, which she dubbed a “secret society.” Wheeler formed the ICCO as an audit committee in May 2022 in an attempt to control $9 million given to the county by the American Rescue Plan Act during the COVID-19 pandemic.

Lunsford said she was “only here for transparency,” while Welle testified that the ongoing Israel-Hamas War inspired her to fight against Commissioners Bradshaw and Luke Omodt on behalf of Williams.

“We the people will join this war without hesitation. Before battle, one must put on their armor. I have selected the following pieces: the belt of truth, the breastplate of righteousness, the shoes of the gospel of peace, the shield of fate, the helmet of salvation and the sword of the spirit,” Welle said.

The public consistently used information achieved through public records requests to level accusations at the commissioners. Kristina L. Nicholas Anderson testified that Williams filed her own PRR to learn the value of Bradshaw’s property shortly before alleging a verbal threat against her life and obtaining a protection order against him.

“Why would someone check on someone’s financial worth before making an accusation or claim against someone, if not financially motivated?” asked Anderson. 

Williams spoke to her motivation during her District 2 commissioner’s report.

“Commissioner Bradshaw had continually sent something called ‘Complaints of Public Corruption’ to the AG’s [attorney general’s] office at the beginning of my term,” she said, explaining that legal counsel instructed her to sue her fellow commissioner for libel. “I did not choose to do that. I did look at a records request to see if it was even worth it.”

Public comment continued to focus on details from the commissioners’ pasts and personal lives, with resident Steve Wasylko questioning the board on whether or not they pay their taxes, have had other protection orders issued against them or have sued former employers.

“I was terminated from Kootenai Health for reporting an abuse allegation without their permission,” said Williams, affirming that she had sued.

Resident Darla Fletcher then submitted documents into the public record that she’d obtained to fact-check the commissioners’ answers.

“Our ‘transparency champion’ [Williams] has three outstanding tax liens issued by the Lien Department for the Idaho State Tax Commission,” she said, contradicting Williams’ statement that she had paid her taxes. According to records obtained from the Office of the Secretary of State, the liens against Williams amount to $4,218.27; $1,368.02; and $710.45 each.

“Paying taxes is what I have done,” said Williams, defending her previous answer. “If you ever file your IRS taxes and you owe, you get a lien. It’s automatic, actually.” 

Fletcher continued to refute the commissioner’s testimony by submitting a “petition order for protection for harassment,” which she claimed an unnamed individual filed against Williams back in 2008 in Washington state.

“I married a person who was divorced,” explained Williams. “My name was attached to an order of protection during their custody battle, which he prevailed on. It was removed in real time.” 

Williams said she could not understand why the order was still listed as “active” in Thurston County, Wash.

Patty Omodt, Chairman Omodt’s mother, addressed a number of the aforementioned concerns during her three minutes before stating that Sheriff Wheeler “has illegally spied on executive sessions through a deputy that is supposed to be on a detail to protect Asia Williams.” This accusation is one of the subjects of the forthcoming Nov. 16 meeting and was not discussed in detail on Tuesday. 

Patty Omodt additionally accused Williams of using Bonner County Deputy Prosecutor Scott Bauer as her personal paralegal — a claim that Chairman Omodt reiterated later in the meeting.

“I will function as a paralegal to Louis [Marshall] gathering information and generating preliminary draft documents for Louis regarding any matter you want Louis to work on for you,” Bauer stated in an email to Williams, which Omodt referred to in an opinion piece submitted to the Reader on Nov. 15 (see Page 9). Bauer — Wheeler’s son-in-law — is currently suing the BOCC for $3.5 million due to events related to the fairgrounds financials, according to Omodt.

“I don’t have a personal paralegal. Questions of the board from me don’t go to Scott Bauer,” said Williams. 

She explained that the email communications submitted into the public record by Omodt were her attempts to utilize a county employee who was otherwise not working while still on the payroll.

Meanwhile, after addressing public opposition to a minor land division for an affordable housing RV park in Blanchard — which the board ruled on at a special meeting held Oct. 30 — the meeting moved swiftly to three action items proposed by Williams regarding complaints about public records requests.

“My motion is to remove the individual commissioner email addresses and have just one centralized email for all commissioners,” said Williams, whose proposal was met with a mixed response. 

Officials and members of the public argued that, as Williams suggested, it could improve transparency; however, Omodt maintained that it would make their duties more time consuming and introduce unnecessary redundancies.

“I know that I’ve only gone through 3,000 emails so far so, I mean, if we multiply that that’d be like 27,000 emails. We’d get even less work done,” said Omodt. 

Bradshaw agreed and added that, technically, the commissioners already have a shared email address for the office.

Williams specified that her proposal is meant to address the backlog of public records requests that the county has been facing, though Clerk Mike Rosedale — whose department handles records requests — expressed his doubts about this proposed solution.

“The hold up isn’t where the email is, I think it’s where it’s being proofed or legal’s efficiency,” said Rosedale, explaining that his office releases records to legal counsel fairly quickly. All such records must be reviewed for confidential information prior to being made public.

Omodt moved to table the proposal “until the entire board hears from our legal counsel.” His motion passed, though Williams voted “no.”

Williams’ second action item was “to allocate a full-time employee to address public records requests” — though, as Omodt pointed out, Administrative Legal Assistant and Deputy Clerk Veronica Dixon already has that duty. Though she clarified that she did not blame Dixon, Williams insisted that the current staff are unable to accommodate the number of PRRs being issued by residents and other officials — including Omodt.

“Legal has come before this board and said, ‘We need assistance with the public records requests,” she said. 

Williams did not specify whether the suggested employee would work under Rosedale or the Legal Department.

Neither Bradshaw nor Omodt seconded her proposal and the motion died.

For the final item on the agenda, the commissioners returned to the events of the Oct. 25 meeting where they approved an external audit of the fairgrounds finances — a motion initially brought forward by Williams. In an additional meeting on Nov. 2, the board acted on Rosedale’s suggestion and voted to form an audit committee to oversee the proceedings.

In the Nov. 14 meeting, Williams moved to disband the committee on the advice of legal counsel because “it delegates powers of the board and individual commissioners.” 

Bradshaw, Omodt and Rosedale all disagreed with this claim.

“There was no delegation of authority ever mentioned — spoken, implied, inferred — other than after the fact,” said Omodt, maintaining that the commissioners still had complete control over the audit. 

Rosedale echoed this statement, and emphasized that the committee was only meant to protect the external auditor from public harassment.

“There has been an unbelievable slam against my office, against my comptroller and against our external auditor, and it’s based on completely erroneous information and Commissioner Williams knows this,” said Rosedale, visibly upset. 

The alleged “slander,” as Rosedale described it, centered on the decision, made by prosecutor Bill Wilson on Feb. 14, not to audit the Fair Board. 

“Why would I want somebody [Williams] that has ignored that — and not come to the public — to defend my office?” Rosedale said, later clarifying that Williams herself has not “slandered” the clerk’s office.

Part of the clerk’s anger towards Williams stemmed from an email that he offered to read, in which she suggested White Pine Wealth in Hayden as a potential auditing firm for the fairgrounds.

“They’re not even CPAs,” said Rosedale, explaining that White Pine Wealth is a financial management firm and does not specialize in audits. White Pine Wealth is one of an unknown number of firms that Williams reached out to — as she said she would during the Oct. 25 meeting — in an attempt to find an auditor who would put in the work to sort out the alleged fairgrounds fraud. 

Because Williams was acting as an individual commissioner, rather than in conjunction with the board, Omodt alleged that her communications were “ex parte.”

“County commissioners cannot go out and solicit people for proposals,” said Bradshaw, agreeing with Omodt. “If I go out and solicit for an auditor and speak to different companies, when they submit proposals I would have to recuse myself from that selection process to avoid the accusation of quid-pro-quo.”

Williams’ motion to disband the auditing committee died without a second.

From the Sandpoint Reader

Public records show Idaho paid $50K for lethal injection drugs, after years of searching

From the Idaho Statesman

BY KEVIN FIXLER

The price of drugs that Idaho needs to execute a death row inmate has tripled since the last time the state carried out a lethal injection more than a decade ago.

The Idaho Department of Correction paid $50,000 for 15 grams of pentobarbital, according to a purchase order for the execution drugs obtained by the Idaho Statesman through a public records request. The document’s release also is the first time state prison officials have revealed which drug they acquired for the planned execution of Thomas Creech, Idaho’s longest-serving death row inmate.

“Upon payment, vendor agrees to maintain and store the items in accordance with all applicable regulations until IDOC takes possession of the items,” the document read. “Vendor agrees to refund IDOC an amount up to $50,000 if it fails to provide to IDOC the purchased items, in whole or in part.”

IDOC last month disclosed that prison officials had secured lethal injection drugs for the first time in years when they also announced a death warrant for the 73-year-old Creech, a convicted quadruple-murderer.

Prison officials declined to tell the Statesman whether they have the pentobarbital on hand. Creech’s execution has since been postponed.

According to the state prison system’s execution procedures, officials use 5 grams of pentobarbital to lethally inject a prisoner in the one-drug protocol. In case they are needed, two backup sets of syringes also are prepared for a lethal injection, each with 5 grams of pentobarbital.

IDOC Director Josh Tewalt did not respond Thursday to a Statesman interview request through a department spokesperson about Idaho’s execution process. Tewalt, appointed to the post in December 2018, has not made himself available for similar interview requests from the Statesman concerning executions for more than two years.

In a phone interview with the Idaho Capital Sun earlier this month, Tewalt said IDOC won’t force the issue as Creech’s legal process plays out. The Idaho Commission of Pardons and Parole agreed to grant Creech a hearing in January to review whether to recommend reducing his death sentence to life in prison.

“We will not move forward unless we can do it in a way that is dignified,” Tewalt said. “We are committed to carrying it out with integrity, dignity and respect for everyone involved.”

UNABLE TO GET DRUGS, IDOC DELAYED EXECUTION

The prison system’s ability to purchase execution drugs came as a bit of a surprise.

Prisons in the states across the U.S. that maintain active capital punishment have increasingly struggled to buy the drugs used to perform lethal injections. Prison officials have said manufacturers and other suppliers won’t sell them drugs like pentobarbital, a potent sedative that can stop a person’s breathing in higher doses, out of fear of being identified, leading to public backlash for assisting with an execution — a hotly contested national issue.

Unable to locate execution drugs despite past efforts, Idaho last year passed a shield law that prevents the release of certain records to the public to protect the identity of potential drug suppliers. Proponents said the goal of the law is to conceal the suppliers’ information to encourage them to sell the drugs to the state.

Prison officials still found themselves without the ability to acquire the drugs necessary for a lethal injection. Late last year, IDOC was forced to postpone the execution of another death row inmate after the agency could not purchase them. The occurrence led state lawmakers earlier this year to pass another law that establishes a firing squad as the backup execution method when lethal injection drugs are unavailable.

In a legal filing in March, state officials again acknowledged the prison system still had not been able obtain the lethal drugs. And as recently as Oct. 10 — two days before Creech was served a death warrant — state officials once more affirmed in a legal filing that Idaho’s prison system “does not have the present ability to carry out an execution via lethal injection or firing squad” while the shooting facility remains in development.

As a result of the shield law, it’s unclear where prison officials found the drugs intended for Creech’s execution. Also redacted from the execution drug order was the purchase date.

IDOC officials cited several public records exemptions related to executions for redacting the purchase date, including those covered in the shield law. The agency failed to provide the responsive records within a maximum of 10 business days, as required by the Idaho Public Records Act. Instead, IDOC staff took more than double that amount of time, at 23 business days.

In its eventual response, IDOC raised concerns that release of the information may jeopardize the state’s ability to carry out an execution.

The redaction made former state Rep. Greg Chaney, a Caldwell-based attorney who sponsored the shield law, wonder about IDOC’s rationale. The law appears to have worked as intended, he said, in that it helped IDOC obtain lethal injection drugs, but concealing the purchase date left him with questions.

“Exceptions to government transparency should be as narrow as possible,” Chaney said in a statement to the Statesman. “I’d be interested to know how its disclosure would lead to the identity of the supplier. If there isn’t a way that the withheld information could lead to the disclosure of the supplier, then it goes beyond the spirit of the legislation.”

QUESTIONS OVER USE OF COMPOUNDING PHARMACIES

For Idaho’s most recent executions, prison officials resorted to covert tactics to conceal information from the public about where they bought execution drugs, and how much they paid, the Statesman previously reported. In the middle of a yearslong legal battle over public records, which IDOC lost in 2021 and finally forced release of documents disclosing the information, the agency further tightened its rules around records exemptions for documents related to executions.

The records revealed that IDOC used confidential cash accounts to hide the execution drug purchases from two out-of-state compounding pharmacies with questionable safety records. Compounding pharmacies are custom drug producers that are less regulated because they’re not closely monitored by the U.S. Food and Drug Administration.

In 2012, state prison officials paid as much as $15,000 in cash for pentobarbital, according to public records and past court depositions. The drugs, bought from the Union Avenue Compounding Pharmacy in Tacoma, Washington, were used in the lethal injection execution of convicted murderer Richard Leavitt in June 2012.

The year prior, prison officials paid as much as $10,000 in cash to the University Compounding Pharmacy in Salt Lake City for pentobarbital, according to a sworn deposition by another of IDOC’s former deputy prison chiefs, The Salt Lake Tribune reported. Those drugs were used to execute Paul Rhoades, a convicted triple-murderer, in November 2011.

Because of Idaho’s new shield law, the public is no longer entitled to know whether prison officials again purchased pentobarbital from a compounding pharmacy, rather than from a commercial drug manufacturer. The difference between the two versions is considerable, with potentially significant consequences for the expiration of a drug like pentobarbital, said Dr. Jim Ruble, an attorney and longtime doctor of pharmacy who teaches law and ethics courses at the University of Utah’s College of Pharmacy.

Compounded pentobarbital reaches its “beyond use date” as far out as 45 days, but as early as two days, based on several factors, including the conditions in which it’s stored, Ruble told the Statesman by phone. However, a manufactured version — like that sold to hospitals — doesn’t expire for up to four years, he said.

“Therein is the challenge with the transparency in all of this,” Ruble said. “We don’t have readily available to us the recipe, so to speak, or the formulation that is being utilized by compounding pharmacies, so we have to take it to some degree on faith or face value.

When either version reaches its shelf life, it begins to lose potency and essentially becomes toxic, he said. Visible crystallized particles begin to form in the liquid pentobarbital solution, which, if injected, can cause “undue suffering” from “excessive levels of pain,” Ruble told the Statesman. If injected particles are large enough, they can cause internal bleeding in tissues, the lungs or other organs.

Such treatment, including during the lethal injection of a prisoner, could be grounds for a legal challenge that the use of potentially expired execution drugs violates an inmate’s rights against cruel and unusual punishment guaranteed under the Eighth Amendment of the U.S. Constitution.

In a statement after IDOC announced Creech’s death warrant, his attorneys at the nonprofit Federal Defender Services of Idaho said they’d be exploring just that very kind of litigation.

“Given the shady pharmacies that the state has obtained the lethal drugs from for the past two Idaho executions, … we remain highly concerned about the measures the state resorted to this time to find a drug supplier,” Deborah A. Czuba, supervising attorney of the legal nonprofit’s unit that oversees death penalty cases, said in a statement. “We will be doing everything we can to fight for Mr. Creech’s life, including challenging the quality of the drugs and execution by lethal injection.”

IDOC DISPUTES PARKING LOT PURCHASE

Attorneys at the Federal Defender Services of Idaho alleged in a prior case representing Gerald Pizzuto, another death row inmate, that Tewalt, then a deputy chief of prisons, was among two Idaho prison officials who bought the execution drugs in Tacoma in an evening exchange in a Walmart parking lot. The compounding pharmacy in Tacoma is located across the street from the city’s only Walmart.

Flight records, previously obtained by the Statesman from the Idaho Division of Aeronautics through a public records request, place Tewalt and then-IDOC prisons chief Kevin Kempf on a state-chartered flight back and forth from Tacoma in May 2012 at an estimated cost of about $2,500. The Tacoma pharmacist acknowledged in a December 2021 statement to the Statesman the in-person delivery of pentobarbital to members of IDOC in May 2012.

In a statement to the Capital Sun since shared with the Statesman, IDOC officials denied the account of how they acquired the drugs. The agency called the legal nonprofit’s accusation that they bought the drugs in a parking lot “absurd and false,” in anticipation of additional media coverage tied to Creech’s scheduled execution.

“Some of it will surely include a repetition of certain absurd and false allegations that were intended to shock and mislead, like the allegation that the chemicals used in prior executions were bought in a Walmart parking lot,” read the statement from Jeff Ray, IDOC’s spokesperson. “Department officials deny that allegation. The chemicals were procured in accordance with state and federal laws.”

From the Idaho Statesman

See you in court: Open meetings lawsuit will head to trial

From Idaho Education News

An open meetings lawsuit will continue to loom over the proposed University of Phoenix purchase — possibly for several more months.

A judge has ordered a trial in the case to settle one legal issue: Was the University of Idaho in competition with other bidders as it pursued the $685 million Phoenix purchase?

Attorney General Raúl Labrador’s lawsuit is one of several big obstacles standing in the way of the Phoenix purchase. Accreditors for the U of I and Phoenix must approve the deal, and a nonprofit must go into the bond marketing to line up financing.

And the clock is ticking.

U of I and Phoenix officials hope to close the deal by early next year. Either party can walk away from the table after May 31 if no deal is in place, State Board of Education Executive Director Matt Freeman said in a recent court deposition.

The trial will push the legal dispute closer to that May 31 date, although the timeframe isn’t set. Ada County District Judge Jason Scott has set a Nov. 16 hearing to set a trial date. In his order, issued Wednesday, Scott said he wants to finish the trial within three months.

After that, either side could appeal to the Idaho Supreme Court.

While Scott’s 33-page ruling kept the June 20 lawsuit alive, it also narrowed the scope of the case considerably.

Scott rejected several arguments from Labrador’s legal team. He said the State Board’s May 15 closed-door discussion met one criteria of the law, since board members were holding “preliminary negotiations” about a possible Phoenix purchase. Scott also rejected Labrador’s objections to the agenda for the State Board’s May 18 meeting — its one open session on the issue, which ended in a unanimous board vote supporting the purchase.

The State Board, which doubles as the U of I’s board of regents, held three closed-door meetings to discuss Phoenix. Board members said the closed meetings were justified under a section of law which allows closed meetings for “preliminary negotiations” of a transaction that pits an Idaho public agency against public bidders from other states or nations.

One public bidder for Phoenix, the University of Arkansas, appeared to drop out of the running on April 24, when its board of regents voted down a purchase. State Board and U of I officials have insisted the bidding process was competitive, although no one has named any other suitors publicly.

In a statement, Labrador conceded that the court had dismissed several of his arguments, but claimed vindication.

“For months, the State Board of Education has resisted accountability and has loudly claimed that my office was pursuing baseless claims,” Labrador said. “The court’s decision demonstrates just how credible this case has always been.”

In a statement Monday, Freeman predicted the State Board will prevail at trial — while decrying the legal battle that began five months ago.

“The State Board of Education is pleased that Judge Scott dismissed all but one of the attorney general’s claims,” Freeman said. “It is unfortunate, though, that the public has to bear the expense of having the invalid claims dismissed.”

From Idaho Education News

GOVERNMENT TRANSPARENCY – OPEN MEETINGS, OCT. 25

Idaho Open Meeting Law – Wednesday, Oct. 25, 2023

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OPINION: The value of training

Op-Ed by Debbie Critchfield from the Idaho State Journal

When I became a school trustee in Cassia County in 2001, I knew I wanted to serve my community by being part of important educational decisions. I knew I wanted to help provide an environment for our students to gain the skills and knowledge they would need to be productive citizens. I had worked as a substitute teacher for six years prior to running for my local board and I felt as though I had a pretty decent working knowledge of our school system. Looking back, there was so much more for me to understand.

The transition from willing community member to effective school leader doesn’t happen overnight. Chances are good that most new trustees are not well versed in the complexities of school budgets, student achievement goals and open meeting laws. In fact, many trustees running for a second term often share that it took them the first term to know what they were doing!

Thankfully, trustees grow into these roles. The same goes for superintendents, principals, educators and district staff. We learn on the job, but exposure to training can flatten the learning curve and shorten the timeline it takes to become effective. In education, I would argue that training is critical for success. Fortunately, the Idaho education community is blessed with great organizations that support school administrators, trustees, teachers and others. Their workshops and seminars help us become the leaders we all want to be.

With that in mind, I want to highlight two upcoming trainings hosted by Idahoans for Openness in Government (IDOG). On October 25, IDOG will hold a training on the Idaho Open Meeting Law. A similar session on Idaho’s Public Records Act is scheduled for November 28. Both begin at 10:00 a.m. MT. They are free and will be streamed statewide through Idaho Public Television’s Idaho in Session service. The trainings will originate from the Capitol’s Lincoln Auditorium and in-person seating will be available. Recordings of the events will be archived at the IDOG website. More details are available at OpenIdaho.org.

Attendees will learn — or re-learn — the ins and outs of these two important Idaho laws to ensure future adherence and, ultimately, increase transparency. And in our work in the public sector, transparency is essential. It provides accountability to the public and fosters trust amongst the people we serve.

When opportunities like these present themselves, it’s important that we as an education community take advantage. If your schedule allows, I encourage you to attend or tune in online. If it doesn’t, I hope you can find time later to watch the recordings.

Open meetings and public records requests are part of our day-to-day in public education, so it’s crucial that we’re following the law. Your engagement with these trainings will help promote quality leadership for Idaho’s districts, schools and communities.

Op-Ed by Debbie Critchfield from the Idaho State Journal

GOVERNMENT TRANSPARENCY – CAMPAIGN FINANCE/LOBBYING, SEPT. 27

Campaign Finance & Lobbying – Wed., Sept. 27, 2023

Download Phil McCrane’s PPT on Campaign Finance and Lobbying: