From the Post Register, Idaho Falls

By Jeff Robinson

The Post Co. sued the Jefferson County Board of Commissioners on Friday, contending that commissioners are in violation of Idaho’s Open Meeting Law.

The lawsuit, filed in 7th District Court, follows a Dec. 3 letter to the commission from attorney Steve Wright. Wright’s letter on behalf of the Post Co. requested commissioners “take the appropriate remedial steps” to cure violations of the Open Meeting Law that reportedly took place Nov. 14.

The commissioners did not respond to the Post Co.’s letter and Friday was the last day under Idaho law the Post Co. could file “an action in state court to correct this impropriety,” the Dec. 3 letter said.

The Post Co. owns The Jefferson Star and Post Register.

Wright said Friday he was “surprised” that he’d heard “nothing whatsoever” from the commissioners in response to the letter. He said he expects to serve the commissioners with the complaint next week. He also is forwarding the complaint to the Idaho Attorney General’s Office for review.

Jefferson County Commissioner Brian Farnsworth, named as a defendant in the suit along with fellow commissioners Tad Hegsted and Jerald Raymond, said he was made aware of the lawsuit Friday.

“I don’t think I can comment right now,” he said. “We’ll just have to wait and see how it plays out.”

Wright, in the letter, said commissioners violated Idaho’s Open Meeting Law by reaching an agreement with Prosecuting Attorney Robin Dunn in executive session.

Specifically, Wright contends, the commission violated the law by:

Posting an improper agenda.

Making a final decision in executive session.

Failing to keep accurate minutes of the executive session.

The issues arose following a two-hour executive session Nov. 14, after which a news release announced the commission had met with Dunn and “requested and (Dunn) has agreed to reimburse Jefferson County all payments made by Jefferson County in the handling of Eagle Rock v. Jefferson County in Federal Court.”

Dunn is scheduled to repay Jefferson County $17,877.40 in legal fees.

As previously reported, Dunn told the commission he couldn’t represent the county in federal court while acting as prosecuting attorney but could do so if the county paid him as a private attorney. An Idaho attorney general’s opinion, issued Oct. 31, said “a county prosecutor does have the authority to represent his or her county in civil matters in any court, including federal court.”

The Jefferson Star reported last week that U.S. District Judge Edward J. Lodge ruled the dumping fee schedule enacted by Jefferson County commissioners in 2011, which was at the root of the Eagle Rock v. Jefferson County lawsuit, is unconstitutional.

The Post Co. demands “actions taken in or as a result of commissioner meetings” Oct. 28 and Nov. 14 “be null and void” and that the board of commissioners be ordered to comply with the law. The Post Co. also wants the commission ordered to pay its attorney fees and costs “in the minimum sum of $3,000.”

The lawsuit marks the second time in a year that the Post Co. has sued a public board for violations of state open meetings or public records laws.

In December 2012, the Post Register sued Blackfoot School District 55 to release documents about a secret $210,856 contract payment to former Superintendent Scott Crane. In that case, the school board chairman apologized for the Open Meeting Law breach and the district voided the agreement to “cure” the violation. But the district later reaffirmed and upheld a separation agreement and payout using a loophole in the law that the violation wasn’t caught soon enough.

“The loophole appears to be, even if you breach the open meeting act — which automatically voids all actions — if no one catches you in 30 days (the action) really wasn’t void after all,” Wright said at the time.

The district reimbursed the Post Register for its legal fees in that case.

From the Post Register, Idaho Falls

Editorial from the Twin Falls Times-News

Bulldozing something that’s stood for decades and rebuilding it anew takes courage. The Twin Falls City Council showed a lot of guts Monday night when it approved transparency legislation that just might strike down years of flawed tradition.

The legislation is a potential victory for openness and transparency, especially if City Manager Travis Rothweiler gets his way. The initiative isn’t perfect. It requires Council members to police themselves. For now, their resolve to do the right thing gives us confidence that the City Council is sincere in its want for change.

The resolution merely creates a general policy and is far from perfect, but we’re encouraged, especially after hearing Rothweiler’s pitch. He convinced us that something better will almost assuredly rise from the ashes when all is said and done.

Following Monday’s 6-1 vote, Rothweiler outlined a potential practical application of the Council’s dictate. He said that in the coming weeks he will propose opening up the most sensitive committees, such as the city’s group that negotiates with businesses eyeing the region, by turning them over to the City Council. The groups would be public, under the city’s new policy.

“I believe this is a really appropriate step,” he said.

We railed Sunday against the sudden $75,000 raise for City Attorney Fritz Wonderlich. Our criticism wasn’t about whether Wonderlich was worth the pay increase. It was about how the entire issue was never made public until it reached the floor for an up or down vote. It was a stark example of what has been broken in Twin Falls for far too long.

Much of what happens in these long-closed subcommittees will remain outside of public view in executive session. That’s legal. That’s the system. But any final vote to move the issue to the City Council for consideration will be done in public. Clif Bar representatives made it very clear during those negotiations that if the company’s name reached the media, the deal could die. We understand Council members’ concerns about job-killing leaks. But we also believe that the public, who will be affected by new development, should be involved somewhere in the process. It’s a fine balance, one that can’t be completely tilted toward corporate interests. Making this work will require some massaging.

This was a quintessentially democratic process, rife with personality clashes and political rifts. It was beautiful. The City Council worked through it and ultimately embraced change and we laud them for it.

The initiative’s ultimate success, however, will be decided in the coming weeks, as a city government is redesigned piece by piece. The new subcommittee structure will determine the actual significance of Monday night’s vote. But Rothweiler’s comments are an indication that the city is about to enter an new era of transparency and citizen involvement.

Should that happen, Twin Falls will be a model for Idaho’s local governments to aspire.

Editorial from the Twin Falls Times-News

From the Twin Falls Times-News

TWIN FALLS • The 14 closed workgroups that provide input on finances, contracts and open positions will be asked to start over and fall under state Open Meeting Law due to Monday night’s Twin Falls City Council approval of a transparency resolution.

The resolutions prohibits the council from forming “ad hoc volunteer groups” or subcommittees intended to provide members with recommendations unless the council votes to create the group as a formal committee or commission, which makes the groups subject to state Open Meeting Law.

Councilwoman Rebecca Mills Sojka was the lone dissenting voice in the 6-1 vote.

“I think what it truly does, it tells the mayor or the council anytime we say we’re going to put together a committee to review something then we need to stop and formalize that committee,” said Councilman Don Hall.

The city’s use of closed subcommittees came under scrutiny when Mills Sojka attempted to open the meetings on Nov. 12 but her resolution failed 4-2.

Before voting, Mills Sojka said she felt new transparency legislation didn’t go far enough. When Councilman Shawn Barigar asked what could be done to improve the resolution to achieve an unanimous approval, Mills Sojka offered two unsuccessful amendments.

“I don’t think it’s addressing the issue I was hoping to address,” she said. “I think it’s a good step in the direction.”

The city was using 14 informal workgroups made up of City Council members, as well as city staffers and private citizens to provide input on finances, contracts and open positions.

Councilman Chris Talkington amended the resolution to include the provision that only up to two council members can be appointed to any commission or committee.

“Three has been an unholy alliance on this council,” he said of three Council Member blocs.

“I don’t think that was anyone’s intention, that was just the number that wasn’t a quorum,” said Mayor Lanting.

“I disagree entirely,” Talkington said.

Talkington also warned that there was no penalty for the council if they choose not to comply with the resolution.

“It doesn’t take the burden of proof off of us,” he said.

After the resolution was passed, City Manager Travis Rothweiler listed subcommittees that he believes should be made open to the public.

the list of closed subcommittees not created under the council but still deliberate city business that should also be formed under the council. These include the zoning amendment committee and an economic development committee used to attract businesses to Twin Falls.

From the Twin Falls Times-News

From the Twin Falls Times-News

TWIN FALLS, Idaho • After receiving a complaint over the city’s use of closed subcommittees, Twin Falls City Council members were presented with a second transparency resolution during Monday’s meeting.

The council focused primarily on the resolution’s description of closed subcommittees.

The city’s subcommittees are made up of City Council members, as well as city staffers and private citizens who provide input on finances, contracts and open positions.

Councilwoman Rebecca Mills Sojka attempted to open the subcommittee meetings during a Nov. 12 meeting, but her resolution failed 4-2. One week later, Idahoans for Oppenness in Government submitted a complaint to the Twin Falls County prosecutor’s office over the city’s use of subcommittees.

During Monday’s meeting, Councilman Don Hall said he wished he had more time to consider Mills Sojka’s resolution. Working with Councilman Jim Munn, the two submitted their own resolution, also addressing transparency.

The critical piece of the resolution was in section three, Munn said, which addresses ad hoc volunteer groups.

“The City Council acknowledges that, from time to time, ad hoc volunteer groups may form, without the authority of statute, ordinance, or other legislative act, and without authorization to make decisions or recommendations,” the section reads.

Munn said he would approve the resolution if the council amended this section.

“The question has to be, for us to consider, will no ad hoc volunteer groups form by you or anyone sitting up here?” Munn said.

Councilman Chris Talkington, who voted in favor of Mills Sojka’s resolution two weeks ago, said he was surprised to hear other council members’ change of heart.

“I recall claims we had to use these subcommittees because it’s efficient,” he said. “Now, you’re all supporting the issue for open government. Welcome aboard. … I’m glad to see you were finally wrong.“

Mills Sojka also voiced her support of the resolution.

“The public has a right to know; they have a right to know what’s being discussed,” she said. “I believe this a step in the right direction.“

Mayor Greg Lanting said while he supported the most current resolution, he also pointed out that most of the closed subcommittees were used to select people to open City Council, commission or board positions.

“Every bit of information from the subcommittees has to come back to the public and be vetted in public,” he said.

Councilman Shawn Barigar said after taking two weeks to reflect on the failed transparency resolution, he might have been hasty in his discussion during the meeting.

“I think it was a good opportunity to hear all of the provisions of the Idaho Open Meeting Law,” he said. “I think we all express a willingness to look at these work group activities.“

Councilwoman Suzanne Hawkins said, as the newest council member, she believed citizens have multiple opportunities to learn about how the city works.

“I have nothing to hide,” she said.

The council agreed to make a final decision on the resolution Dec. 2.

From the Twin Falls Times-News

From the Twin Falls Times-News

Idahoans for Openness in Government filed a complaint against the city of Twin Falls Tuesday, claiming city officials have repeatedly violated the state’s open meeting law.

The complaint stems from the city’s use of closed subcommittees. The panels are made up of fewer than four City Council members, plus city staff and citizens. The groups make recommendations on who should fill open city positions and on city finances, for example.

The meetings were “purposely designed to evade the law,” wrote Betsy Russell, president of Idahoans for Openness in Government, in the complaint emailed to Twin Falls County Prosecutor Grant Loebs.

“The Open Meeting Law applies to a subagency if it has ‘the authority to make decisions for or recommendations to a public agency regarding any matter.’ These City Council subcommittees clearly fit that definition,” Russell wrote in the complaint.

On Nov. 13, the council voted 4-2 to keep its 14 subcommittees closed after Councilwoman Rebecca Mills Sojka submitted a resolution to open the meetings.

Mayor Greg Lanting said during the meeting that complying with the Open Meeting Law would require the city to hire an additional staff member to take minutes for the 14 subcommittees. City Council members also worried about public discussions of sensitive economic development negotiations.

Russell, however, wrote in the complaint that one member of each subcommittee could be designated to take minutes.

“This would not require the hiring of a city employee,” she said. “Besides, there is no exemption in the law for those who believe compliance would be inconvenient.”

The closed meetings are not posted, and no minutes are kept.

City Attorney Fritz Wonderlich and Lanting told the Times-News that because the subcommittees are formed solely by the mayor, not the City Council, the meetings are not obligated to follow Idaho’s Open Meeting Law.

Lanting promised at the Nov. 13 meeting to not appoint more than two council members to each subcommittee. Any groups discussing contracts, economic development or appointing people to an open position — which are the majority of the groups — will remain closed, but the groups on zoning ordinance changes and infrastructure are now open.

“The council and mayor seem to think that by limiting the number of council members on each subcommittee to two — less than a quorum of the full City Council — it can somehow evade the Open Meeting Law. As you know, this is incorrect,” Russell wrote.

Loebs said he will wait to begin investigating the complaint until Dec. 1.

“I intend to follow up on it,” he said. “I’ll take it seriously.”

From the Twin Falls Times-News

From the Lewiston Tribune

By KERRI SANDAINE of the Tribune | Wednesday, November 13, 2013

Clarkston officials agreed to sit down with other entities for a discussion about emergency dispatch, but they said no to meeting behind closed doors.

At Tuesday night’s Clarkston City Council meeting, Councilor Larry Baumberger said the city public safety committee is “not inclined to enter into executive session discussions with the Asotin County commissioners” about the dispatch contract. And Mayor Kathleen Warren has signed a letter saying the city wants to talk about the issue in an open meeting at 6 p.m. Nov. 21 at city hall.

More than two years ago, the city of Asotin raised concerns about the costs associated with emergency dispatch services in Asotin County. Since then, Clarkston administrators and legal counsel have done extensive research on the issue and found similar concerns, Baumberger said.

In June, the council authorized the mayor and staff to proceed with discussions on the renewal of the existing contract, which expires in 2014. Last month, the Asotin County commissioners requested an executive session to discuss the contract with the city council, but Clarkston doesn’t want any secrecy.

“The public safety committee, after further discussions with staff and legal counsel, feel a private behind-closed-doors discussion is not the best approach,” Baumberger said. “We believe any contract negotiations that will directly affect our neighboring public entities, namely the city of Asotin and Asotin County Fire District No. 1, should be held in the public eye, and they should be represented at the table.”

Emergency calls in Asotin County are handled by Whitcom, a regional dispatch center in Pullman.

Clarkston and Asotin County Fire District No. 1 subcontract with the county for dispatch services, and the city of Asotin does not have a contract. Negotiations came to a standstill after the Asotin city attorney began digging into the contract and raised several red flags about the costs. Clarkston has been paying more than its fair share, said Jane E. Richards, Asotin’s legal counsel.

County officials have said there’s more to emergency communications than Whitcom. Dispatch services include the cost of maintaining radio infrastructure, towers, repeaters, mapping and other items.

No representatives from Asotin County, the fire district or city of Asotin were at Tuesday’s meeting.

From the Lewiston Tribune

From the Twin Falls Times-News

The Twin Falls City Council will not open closed-door work group meetings that provide recommendations on city finances, contracts and key hiring positions.

The council voted 4-2 to keep the work groups — consisting of city staff, council members and citizens — closed to the public and not required to keep minutes during Monday’s meeting.

Instead of opening the sub-committees, Mayor Greg Lanting promised to appoint no more than two council members to future work groups, but he held fast that the majority of panels should be closed, citing that keeping minutes at all the work groups would require hiring another staff member.

Lanting then pledged to remove council members from work groups with three council members on the city’s 14 work groups that had been already formed.

The city had no official list of how many groups are making recommendations on critical decisions to the council and mayor.until the Times-News submitted a public records request for a list in late October.

According to records, Lanting created and appointed 14 sub-committees since April 14.

Councilwoman Rebecca Mills Sojka proposed opening the meetings after attending a Times-News-sponsored forum where Idaho Attorney General Lawrence Wasden and Betsy Russell, president of Idahoans for Openness in Government and The Spokesman-Review reporter, spoke with public officials, the media and citizens about Idaho Open Meeting Law and Idaho Public Records Law.

“I would prefer we as a body embrace the intent of the Open Meeting Law,” Mills Sojka said. “I think that is a vital conversation.”

The council work groups are legally allowed to be closed to the public since they are appointed by the mayor instead of the entire City Council, but Idaho Open Meeting Law encourages cities to keep them open.

“The requirement that the Open Meeting Law be complied with whenever a quorum of a governing body meets to deliberate or to make a decision should not be evaded (emphasis added) by holding smaller meetings with less than a quorum present or by having a go-between contact each of the governing body members to ascertain his/her sentiment,” writes Attorney General Lawrence Wasden In the Idaho Open Meeting Law Manual.

The work groups are formed to submit recommendations on a variety of city business that range from who should replace empty council, committee or board positions, city finances and multi-million dollar contracts.

“There’s really no reason to have a closed meetings if it’s not an executive session,” Mills Sojka said. “If people being interviewed for a position can’t be interviewed in a group, then I don’t think I want them.”

Two or three council members sit on almost every subcommittee. Any more would form a quorum, thus forcing the city to follow the Idaho Open Meeting Law.

“I will follow the wishes of the council. If I don’t get my way, I won’t go about complaining about it,” Lanting said before the council voted.

Council members Chris Talkington and Mills Sojka were the only ones to vote in favor of the resolution. Councilman Jim Munn was absent from Monday’s meeting.

The rest of the council said they felt opening the groups and requiring minutes be kept was too extreme.

“I think we’re making a mountain out of a molehill,” Councilman Don Hall said. “I believe we have been following the law in good faith.”

Councilman Shawn Barigar said keeping the work groups closed helped keep city government efficient.

“In my mind, it’s easier to follow the letter of the law than the spirit of the law, because the spirit gets moved around a lot,” Barigar said.

From the Twin Falls Times-News

From the Idaho Statesman

By AUDREY DUTTON – adutton@idahostatesman.com

BOISE • Idaho news media groups, including the Idaho Statesman, the Associated Press, the Idaho Press Club, the Times-News and the Idaho Press-Tribune, have asked that all witness testimony and exhibits in the St. Luke’s antitrust trial be made public.

The request, filed Tuesday, said U.S. District Court Judge B. Lynn Winmill failed to require lawyers to make compelling arguments for keeping courtroom testimony closed and evidence sealed.

“The public’s right to know in the case at bar is absolutely compelling, critical and important,” the request said.

St. Luke’s Health System is accused of building a monopoly on health care in the Nampa area by buying a Nampa physician practice, Saltzer Medical Group, and employing its doctors — a deal St. Luke’s opponents say harmed competition for primary health care.

The lawsuit was filed last year by St. Luke’s competitor Saint Alphonsus Health System and a small Boise surgical center, Treasure Valley Hospital. The Federal Trade Commission and Idaho Attorney General Lawrence Wasden joined the lawsuit after a lengthy investigation.

The trial started Sept. 23 and ended Nov. 7. More than half of the first seven days of testimony occurred behind closed doors, according to the news groups. Doors were open more frequently in the latter half of the month-long trial. During some open-door proceedings, the public was allowed to stay in the room, but only the judge and contractor lawyers could see certain exhibits and hear certain testimony.

Before the trial, Winmill allowed certain pieces of evidence and testimony to be designated for “attorneys’ eyes only” to protect trade secrets.

In early October, while the trial was underway, the news organizations — including the Associated Press, the Idaho Press Club, the Times-News and the Idaho Press-Tribune in Nampa — asked Winmill to open that testimony and evidence. Charles Brown, Lewiston lawyer for the group, argued that Winmill had not required lawyers to furnish a “compelling reason” why trade secrets should trump the public’s right to know.

All parties involved in the trial opposed the news groups’ motion. Idaho health insurers, the independent Primary Health Medical Group and local employer Micron Technology argued they had divulged secrets and offered data under the expectation that the materials would be kept secret. Releasing the secrets would damage the companies’ competitive standing, they said.

Winmill then ruled that all sealed depositions, closed-door testimony and confidential documents must be accompanied by “compelling reason” explanations and references to the types of trade secrets they contain. Among other things, Winmill allowed “trade secrets” to include documents and testimony that could reveal how a health insurance company, hospital or physician practice makes and negotiates contracts, how much a company pays and its future plans.

In the appeal, Brown wrote that Winmill fell short in his enforcement of that rule.

The arguments “routinely just set forth the entity’s desires and opinions as to what it wants to be removed from public view, but none of them reveal to this court nor the lower court ‘compelling reasons’ to do so,” he wrote, adding that more than 575 exhibits were sealed.

He also argued that consumers and patients should be given a clearer window into the health care industry.

“The District Court, the litigants, and the well-represented nonlitigants are simply hoping that by filing generalized, alarmist affidavits after the fact that the Ninth Circuit Court will blink and sidestep the declarative and clear standards this court has set forth for many years,” Brown wrote.

Editor’s note: Audrey Dutton, who covered the trial, provided information to Brown for the preparation of the news groups’ legal motions.

From the Idaho Statesman

From the Associated Press

By JOHN MILLER, Associated Press

BOISE, Idaho (AP) — Board members of the Idaho health insurance exchange said Tuesday that they will keep secret the findings of a $15,000 taxpayer-funded investigation into how one of its own members won a lucrative no-bid contract.

Your Health Idaho board chairman Stephen Weeg said the two-week-long review by a private lawyer uncovered “lapses in judgment,” though nothing illegal. Exchange executive director Amy Dowd last month awarded a technology contract worth up to $375,000 to board member Frank Chan, who quit the same day the contract was announced.

Dowd gave Chan the contract without advertising it or allowing others to compete. It was later canceled after House Speaker Scott Bedke, R-Oakley, joined critics who called Dowd’s deal with an exchange insider “indefensible.”

Boise lawyer Frederick Mack was hired to scrutinize the deal. He presented his report Tuesday during a three-hour, closed-door exchange board meeting at the Idaho Capitol.

“The key finding was: We violated no law, that lapses of judgment were made around the procurement policy and conflict-of-interest policy,” Weeg said following the meeting. “He had recommendations for us to move forward as an organization.”

Dowd said Tuesday that she thinks the recommendations will help staff and board members make good decisions in the future.

“I’m very much looking forward to focusing all of our attention now on moving ahead,” she said.

But Weeg said the public will never be able to see Mack’s recommendations or findings.

“It deals with personnel, and it’s done under attorney-client privilege,” said Weeg, a retired Pocatello health care industry executive who heads up the volunteer board. He declined to detail the judgment lapses Mack found or who committed them.

“The key is, how do we move forward, rather than how do we point fingers,” he said. “Sure, we stumbled. But we want to minimize the number of stumbles.”

Dowd maintains that she vetted Chan’s hiring with Gov. C.L. “Butch” Otter’s staff before making the move.

While Otter’s staff knew Chan was quitting the board to take the contract, the governor’s aides say they never approved Dowd’s decision to award him the work.

“Our role was not to approve or deny her requests,” said Jon Hanian, Otter’s spokesman, responding to questions about the administration’s role. “Our understanding was that any potential contract would be reviewed by the board, which has that authority.”

Idaho’s online exchange is part of President Barack Obama’s program to provide federally subsidized health insurance to more Americans.

Like exchanges across the country, Idaho’s version has struggled to enroll participants, in part because of glitches in the federal software system seen since its launch on Oct. 1.

The $180-per-hour deal Dowd struck with Chan on Oct. 16 was to oversee Idaho’s effort to replace the federal software with a program of its own. The deal came without board approval.

The 18-member panel has since curtailed Dowd’s powers to award contracts without its approval. The board also updated rules preventing members from capitalizing on their ties to win exchange-related work.

Despite these distractions, Dowd said Tuesday that she doesn’t believe there’s been a delay in the goal of having Idaho’s in-house enrollment system completed by next October.

To complete that project, Idaho aims to use a pending $50 million federal grant, on top of a $20 million grant the exchange has already received.

Also Tuesday, exchange board members created a new “personnel committee” that, among other things, plans to address questions like appropriate compensation. That will subject Dowd, who earns $175,000 annually for her role heading the exchange, to additional scrutiny.

Much of the new committee’s work, like Mack’s investigation, will be also kept from public view, Weeg said, given the board’s need to protect employee confidentiality.

Copyright 2013 The Associated Press

From the Associated Press