From the Associated Press

By SIMON SHIFRIN
Associated Press Writer

BOISE, Idaho (AP) _ The Idaho attorney general says members of the state Board of Education may have violated the state open meeting law when they briefly discussed the possible cancellation of a test behind closed doors during a December meeting in Pocatello.

But Attorney General Lawrence Wasden says penalizing board members with a $150 fine is not an option because of the burden of proving they “knowingly” violated the law.

Wasden released the findings of his investigation Friday along with a recommendation that board members get training to better understand Idaho’s open meeting statute.

“There is a need for training and greater understanding,” Wasden told a news conference. “We need to have an understanding on how this law operates. This is a really critical matter.”

Board spokesman Mark Browning said his agency accepts the investigation’s findings and has already scheduled training for next Wednesday with staff from the attorney general’s office.

“His assertion in the report that the board may have unknowingly done something wrong, we accept those findings,” he said. “There’s always room for improvement. We welcome opportunities to undergo training and improve ourselves.”

In December, the Spokesman-Review newspaper of Spokane, Wash., filed a complaint with the attorney general alleging that the board illegally excluded the public from a Dec. 6 executive session where it discussed eliminating the ninth-grade Idaho Standards Achievement Test. Other newspapers later joined the complaint.

The Idaho Open Meeting Law requires 24-hour meeting and agenda notice be given before holding an executive session. The notice must list specific reasons for the closed meeting.

The law allows executive sessions to cover such things as hiring new employees, disciplinary action, labor negotiations and plotting legal strategy, among other things.

Knowingly violating the law carries a maximum $150 fine per person for a first offense.

The attorney general’s investigation found that the board did discuss for three to four minutes the possibility of cutting the ninth-grade statewide test. Wasden said board members believed it to be a proper discussion in the context of talks about financial constraints on hiring.

Wasden’s investigation found that the board did not deliberate or make a decision on the test during the closed meeting, but board members perceived a sense of “inevitability” that it would have to be cut.

On Dec. 10, the board’s interim executive director, Mike Rush, and Browning decided to notify school districts that the ninth-grade test would be canceled. They issued a statement that said the “board” had eliminated the test.

Wasden called the statement “inaccurate” since the board did not actually approve the cancellation of the test until a public meeting on Dec. 20.

Wasden said it’s clear the board did not make a final decision about the testing during the Dec. 6 meeting, which prevents him from levying fines against board members.

He also noted that an Idaho Supreme Court decision last year established that the use of the word “knowingly” in the statute means that officials have to be aware of the law to break it.

“Knowing really has an element of what’s in somebody’s head,” Wasden said. “That’s a fairly high standard to meet.”

Carla Savalli, a senior editor at the Spokesman-Review, told The Associated Press on Friday that she was pleased that the attorney general took the newspaper’s complaint so seriously. She said, though, that she was concerned about the issue Wasden raised about “knowing” the law.

“We feel that the law here needs to be clarified,” she said. “Ignorance is being used as an excuse for violating the law. I don’t think there’s an excuse for public officials not knowing the basic tenets of the open meetings law.”

From the Associated Press

From Idaho Public Television

Nearly 500 DVDs are being distributed statewide this week by the Open Idaho project of Idahoans for Openness in Government (IDOG) to Idaho city and county officials, media and school districts.

The DVD features video pieces about open records and open meeting laws. Idaho actors — Joe Golden, Christina Lang, Tom Willmorth and Dan Peterson present a series of lively skits about the topics. They demonstrate what Idaho law requires concerning public documents and how the public can access Idaho government records. They also define open meetings and the responsibilities assigned by law to Idaho governments at all levels.

“The public’s business belongs to the public,” says Betsy Russell, IDOG president. ³By teaming up in the spirit of cooperation, Idaho¹s public officials, media and citizens can fully exercise this right.²

The Open Idaho project is designed to provide government employees, government officials, citizens and members of the media with what they need to know about the public records and open meeting laws.

The video pieces, the DVD and a companion Web site (idahoptv.org/dialogue/openidaho) were produced by Idaho Public Television for IDOG.

The project is funded by IDOG with a grant from John S. and James L. Knight Foundation through the National Freedom of Information Coalition.

A copy of this release is at idahoptv.org/hot on the Idaho Public Television Web site.

From Idaho Public Television

From the Idaho Statesman

Bitter dispute pushed Foothills resident to consider filing a lawsuit, but instead she’s trying to change Idaho law
BY KATHLEEN KRELLER

June Sparks says better communication equals less conflict and harmonious neighborhoods.

So Sparks, who lived through a bitter dispute over landscaping in her own Foothills subdivision, is pushing for the state to require open meetings between homeowners associations and residents.

Boise Democratic Sen. Mike Burkett plans to take the idea to the Legislature this winter. He’s hoping to prevent disputes at meetings of the nearly 2,500 registered homeowners’ associations across the state.

“It makes sense that HOAs adhere to simple rules about open meetings and public information and some of the same rules we want our other bodies of government to subscribe to and abide by,” he said.

In Sparks’ case, the homeowners association wanted to remove view-obstructing trees and a trampoline, among other things. She wanted to address the board in person, but said she never had a chance.

Sparks said she considered suing and even hired an attorney, but decided it wasn’t worth the fight.

“I realized I didn’t want to put my entire neighborhood through a lawsuit that would be costly,” Sparks said. “Instead, I decided to find out what the laws were and look into those laws. ”

Sparks found that Idaho doesn’t have any laws requiring homeowners associations to comply with state open meetings laws – something she said her research showed at least 40 states require. She contacted Burkett to help.

Burkett, an attorney, said he’s worked on many neighborhood disputes exacerbated by a lack of communication. The legislation he’ll propose next month will go a long way toward preventing animosity between neighbors, he said. The topic is especially timely in the Treasure Valley, given an increasing number of new associations as subdivisions and homes multiply.

“Homeowners associations have grown up around our developing economy,” Burkett said. “It’s an important part of many people’s lives these days. It’s a quasi-governmental activity created to represent people.”

Idaho’s open meetings law regulates how government bodies ensure public access as they meet and make decisions. The laws dictate when meetings must be open to the public, how to notify the public of a meeting, when the public can testify and under what circumstances officials can meet in private. The presumption under state law is that the public has access to all government meetings except special “executive sessions” on issues such as personnel or pending lawsuits.

Burkett said he’s not likely to face much opposition during the upcoming legislative session. Other growing areas, like Coeur d’Alene, Pocatello, Twin Falls and Idaho Falls also have a growing number of associations, he said.

In Idaho, homeowners associations are classified as private, non-profit organizations. The Idaho Secretary of State’s Office reports roughly 2,426 registered homeowners associations across the state and 739 in the Boise area.

“I think there is some real benefit to the homeowners and knowing what is going on with the HOA and being aware of this quasi-governmental entity and its impact on them,” Burkett said. “Having a more public meeting environment could go a long ways toward diffusing disputes.”

Mark Richmond, a member of the board for a large homeowners’ association in unincorporated Ada County, doubts the bill will do much to get more people involved in their neighborhoods.

Richmond, a hearing examiner for the Idaho Transportation Department, said his subdivision’s board opens its meetings now, sends out regular newsletters and invites participation. At the association’s annual meeting, 20 people means a “big turnout” out of 486 homes, he said.

Richmond said he got letters from the Moon Ridge association about a boat in his driveway and felt harassed. Until, he said, he was elected to the association board, which is a time-consuming, difficult position. Board decisions are made in the open and are not capricious or unilateral, he said.

“It does get frustrating at times,” Richmond said. “We are a volunteer board. We are there because we have an interest in keeping our neighborhood nice. We are all there to get on the same sheet of music and not fight each other. The fights happen and that’s just human nature. I don’t think open meetings are going to solve that.”

Sparks said she’s resolved all of her neighborhood conflicts, but wishes she could have resolved the problems by talking to her neighbors in person.

“All this false information was getting back to these board members. In this age of e-mailing, we get away from face-to-face meetings,” Sparks said. “Had they just talked to me in the beginning, had they agreed to meet with me at that time, everything would have been taken care of. It never would have gotten to the point where I considered litigation.”

Kathleen Kreller: 377-6418

From the Idaho Statesman

From the Associated Press

By JOHN MILLER
Associated Press Writer

BOISE, Idaho (AP) _ The Idaho State Board of Education held a four-hour closed meeting last week to discuss eliminating a statewide ninth-grade test due to a cash crisis, despite a state law requiring most of its sessions be open to the public.

The Spokesman-Review newspaper, which first reported details of the executive session, on Wednesday filed a complaint with Attorney General Lawrence Wasden.

Following the executive session Dec. 6 in Pocatello, the board this week opted to cut the Idaho Standard Achievement Tests for ninth-graders because the agency didn’t have $826,000 to pay Data Recognition Corp., a Minnesota-based testing service that administers the tests.

High school students must pass the 10th-grade version of the test to graduate. Ninth-grade tests were another chance to practice.

The closed meeting was questioned by some lawmakers, including Sen. John Goedde, R-Coeur d’Alene, the chairman of the Senate Education Committee. He told the Spokesman-Review that dumping the ninth-grade test was “not one of those items that’s allowed in executive session.”

Carla Savalli, a senior editor for the Spokane, Wash., newspaper, said it filed the complaint as part of its government-watchdog role.

“We vigorously defend the public’s right to know,” Savalli said. “We take that role very seriously.”

Mark Browning, a Board of Education spokesman, told The Associated Press on Wednesday that Deputy Attorney General Jeff Schrader said the executive session was appropriate.

“I was assured that it was within the bounds of the open meetings law,” Browning said.

When asked by the AP, Schrader declined to provide his rationale justifying an executive session.

Bob Cooper, a spokesman for the attorney general’s office in Boise, confirmed it had received the complaint. He declined further comment.

Knowingly violating the law carries a maximum $150 fine per person for a first offense.

The Idaho Open Meeting Law requires 24-hour meeting and agenda notice be given before holding an executive session. The notice must give the reason for the closed meeting.

The law allows closing the meetings to cover such things as hiring new employees, disciplinary action, labor negotiations, plotting legal strategy, and preliminary trade negotiations where the government is competing with other states or nations, among other things.

“The state Board of Education is violating the Idaho Open Meeting Law by not specifying under which exemption it is holding a closed session; by not keeping minutes of executive sessions that include ‘a specific reference to the statutory subsection authorizing the executive session and sufficient detail to convey the general subject matter;’ and by discussing public policy issues including student testing and the board’s budget in closed session,” according to the Spokesman-Review’s complaint.

The complaint also alleges that board members communicated illegally prior to this week’s decision to eliminate testing.

ISAT testing-related budget problems began earlier this year, when former Board of Education Executive Director Dwight Johnson ordered second-grade and ninth-grade ISAT tests, but failed to see that Data Recognition Corp.’s contract didn’t include those tests in the price of federally required testing for third- through eighth-graders and 10th-graders.

When bills started arriving from the company, the agency realized the mistake, Browning said.

“We said, ‘Wait a minute, we’ve got bills coming in that are more than we can pay for,'” he said.

In September, Gov. C.L. “Butch” Otter ordered the board to eliminate voluntary second-grade and ninth-grade testing. The board cut the second-grade tests, but its staff tried to find money for the ninth-grade tests.

That failed, Browning said, forcing current Board of Education Executive Director Mike Rush to cut the program on Monday following discussions with board members, including board President Milford Terrell.

“Mike Rush made his decision in consultation with Milford,” Browning said. “He said, ‘We cannot find funding for this, there’s no way to pay for it, we’ve got to pull the plug.'”

Copyright 2007 The Associated Press.

From the Associated Press

Board president cites cost savings

From the Spokesman-Review

Betsy Z. Russell
Staff writer
December 12, 2007

BOISE – Idaho ninth-graders won’t take the state’s standardized tests this spring because of a budget shortfall, the state Board of Education announced this week.

However, the board hasn’t taken a vote to make that change, and discussed the matter during a closed session at its Pocatello board meeting last Thursday in apparent violation of the Idaho Open Meeting Law, which allows closed meetings only for specific purposes.

The testing change is controversial because students must pass the 10th-grade version of the Idaho Standards Achievement Test to graduate from high school.

“It seems kind of ludicrous when as sophomores the test starts to count in earnest, they give them a year off as freshmen,” said state Sen. John Goedde, R-Coeur d’Alene, chairman of the Senate Education Committee.

Goedde added that eliminating the ninth-grade test is “not one of those items that’s allowed in executive session. … It would have been much better if the discussion had been held in open session and the public would have had a chance to hear.”

Idaho will save $826,320 this year by not testing ninth-graders this spring, the board estimated. Annual testing of third- through eighth-graders is required by the federal No Child Left Behind Act, though Idaho chooses to test those students twice a year, in spring and fall. The state board voted in September to eliminate second-grade testing, and some educators are pushing for the elimination of the fall tests for all grades.

Board spokesman Mark Browning said the board’s contract with an outside vendor for the testing included third- through eighth-graders as a central part of the contract, with ninth-grade testing as an add-on.

Browning said the board discussed various options in the executive session, but he said no final decision was made there.

The public announcement, however, was clear. “The Idaho State Board of Education announced today that they have eliminated the 9th-grade test as part of the Idaho Standards Achievement Test in both the spring and fall testing windows, effective immediately,” it said, adding later, “The change is due to unforeseen contractual costs associated with the test.”

Even discussion of the matter in executive session – whether or not a final decision was reached – would have violated the Open Meeting Law, since it doesn’t fall under any of the law’s exemptions from open meeting requirements. Those exemptions include hiring, firing or disciplining a public employee, conducting labor negotiations and plotting legal strategy in litigation involving the agency.

“All I know is that I have been given every assurance that nothing was discussed in there that was outside the bounds of the law,” Browning said.

The board’s attorney, Deputy Attorney General Jeff Schrader, declined to comment, referring questions to Browning.

Late Tuesday afternoon, Browning said the press release he sent out Monday might have mischaracterized the status of the decision, and that the board still might discuss the ninth-grade testing issue at its next regular meeting in January or in a special meeting before then. Current state board rules require the ninth-grade testing.

“I should have written that to say that the executive director of the office of the state board has announced that he has ordered work on the ninth-grade test to be stopped,” Browning said.

The board took no action on the ninth-grade testing issue following Thursday’s four-hour closed session, nor did the item appear on the board’s agenda for the meeting.

Four board members didn’t return a reporter’s calls Tuesday. A fifth board member, Sue Thilo of Coeur d’Alene, declined to comment on the executive session.

Bob Cooper, spokesman for the Idaho Attorney General’s office, said he couldn’t comment on whether the board had violated the law. “We have a law enforcement responsibility with regard to state agencies, so if there is a complaint, it would be our responsibility to investigate and thus inappropriate for us to comment prior to receiving any complaint,” he said.

Goedde said there was “a mess-up in the budget this year” that led to the shortfall for testing, and that he doesn’t fault the state board for canceling this spring’s ninth-grade test. “What I’m hoping is they’ll find a way to put it in the budget for next year and continue it in the budget thereafter,” he said.

Thilo said she, too, hopes ninth-grade testing can be restored in future years. State Superintendent of Schools Tom Luna, who serves on the state board, issued a statement, saying, “This is unfortunate. We understand the importance of ninth-grade testing, but like any state agency, the state Board of Education must be fiscally responsible with taxpayer dollars and spend within its budget. We are hopeful we will start testing ninth grade again in future years.”

The ISAT tests students on reading, language usage and math. Fifth-, seventh- and 10th-graders also are tested on science. The computerized test, which takes students about 90 minutes to complete, is used to determine whether each Idaho school is making “adequate yearly progress” under the No Child Left Behind law.

Luna’s spokeswoman, Melissa McGrath, said he missed part of the board meeting and wasn’t there when the ninth-grade testing was discussed.

From the Spokesman-Review

By Kevin Richert

From the Idaho Statesman

Today we catch up, belatedly, on another unusual “no” vote from 1st District Rep. Bill Sali. Sali was among just 21 House members to vote no on HR 2102, a federal “shield law” governing journalists’ ability to protect the anonymity of unnamed sources.

The bill passed the House on Oct. 16; to his credit, 2nd District Rep. Mike Simpson voted yes. I can hear the Sali defenders now. “Oh, now Sali’s done it: he has voted against a media bill, ticking off all those reporters and pundits who have never liked him in the first place.”

First off, I’ll defend a Sali no vote when he has a good explanation for it (as I did recently, when I said I could understand his no vote on the State Children’s Health Insurance Program expansion bill and the cigarette tax increase that went with it). And second, an effective shield law isn’t just a media bill. In protecting journalists’ ability to report on sensitive stories, shield law honors the public’s right to know.

Here’s how spokesman Wayne Hoffman explains Sali’s vote: “The congressman was concerned that the bill would encourage the leaking of classified material. At the same time, there’s a concern that the bill would set so high a bar as to discourage investigations and prosecutions of such leaks.”

I can appreciate Sali’s concerns, but I don’t just disagree with his interpretation of HR 2012. This is no get-out-of-jail (or stay-out-of-jail) card for journalists. Reporters could be forced to reveal their sources for reasons of national security; if disclosure is “necessary to prevent imminent death or significant bodily harm;” and if disclosure is in the public interest, “taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.”

This is a balancing act, as HR 2102 seems to recognize. This balance is important even during – and especially during – a nebulous and ongoing war on terror.

Kevin Richert: 377-6437

From the Idaho Statesman

From the Spokesman-Review

Police investigating possibility of crime

Erica F. Curless
Staff writer, The Spokesman-Review
October 19, 2007

Coeur d’Alene police are investigating whether a Kootenai County senior planner broke the law by ordering the destruction of a recording of a public meeting.

After the Sept. 24 Planning Commission workshop adjourned, some members allegedly criticized the Kootenai County Commission and county Planning Director Scott Clark. The planners realized that an audio recorder was still on.

Senior Planner Cheri Howell allegedly ordered an administrative secretary to delete the audio file, which contained the alleged comments and the recording of the entire workshop on the rewrite of the county growth plan.

Scott Poorman, Howell’s attorney, said Thursday she didn’t delete or order the destruction of a public record. It comes down to whether the audio recording is considered a public record under the definition of state law, Poorman said.

County Commissioner Todd Tondee said he doesn’t believe anything illegal occurred because there were other, written minutes of the meeting.

“The file wasn’t the public record,” Tondee said, adding he doesn’t have firsthand knowledge of what occurred or what happened to the file. “We have the minutes of the meeting.”

Howell has been on voluntary medical leave since about Oct. 4 for what Poorman described as “stress and anxiety” stemming from the county calling the Coeur d’Alene police about a “possible criminal act” before ever talking with Howell about the incident.

“If they asked what had happened before they ran to the police, none of this would have happened,” he said. “I think they reported a nonevent.”

Kootenai County Attorney John Cafferty wouldn’t discuss the case but did confirm he contacted the Coeur d’Alene Police Department to report the alleged destruction of a county record.

Coeur d’Alene City Attorney Wes Somerton declined to release the police report Thursday, writing in an e-mail that the city won’t make the report public until after the investigation is complete. The city also declined to give Poorman or Howell a copy of the report.

Poorman said Howell was contacted by a Coeur d’Alene police officer but that she refused to answer questions because she hasn’t seen the county’s complaint and doesn’t know what the department is specifically investigating.

Poorman said he didn’t know whether any Planning Commission members are under investigation.

Commission member Mark Triplett said Thursday that he’s been out of town this week and is uncomfortable talking about the investigation or what occurred after the September meeting. He has not been contacted by the police.

Triplett said the Planning Commission members are all volunteers and have outside jobs and that the stress and demands of the comprehensive plan rewrite is taking its toll on them. The commission is meeting about three times a week to make the deadline to finish the document that will outline how the county should grow in the next decade.

“I don’t think it was a big deal,” Triplett said. “It’s an emotional process. People get emotional about the comprehensive plan.”

Triplett said it’s a shame if the incident delays or puts negative light on the comprehensive plan rewrite.

Tondee shared those concerns and said he thinks it’s healthy if the voluntary board feels confident enough to “bad-mouth” the county commissioners.

“It means we will get some honest stuff,” Tondee said, adding he doesn’t know what the planning commissioners allegedly said about the county commission or the planning director. “If everyone was intimidated and scared, what kind of a plan are we going to have?”

Sommerton said he expects the Idaho attorney general’s office will handle the case, deciding whether to make any criminal charges, because it’s a conflict to have the county prosecutor’s office review a case stemming from another county office.

Prosecutor Bill Douglas said he had no knowledge of the investigation.

From the Spokesman-Review

From the Post Register

By Corey Taule

IDAHO FALLS – The argument about what the public should know about a civil case between Melaleuca Inc. and its former vice president of marketing remains unresolved.

Said Ron Swafford, the attorney for former Melaleuca employee Jeff Wasden: “(Melaleuca CEO Frank VanderSloot) doesn’t want anything to be available to the public.”

VanderSloot declined comment. He cited a court document in which District Court Judge Brent Moss made clear that neither party was to seek publicity.

“The parties are directed to refrain from contacting the press or media in an effort to place stories in the media, or to otherwise gain public relations points, about this litigation, as same may adversely affect the ability of the court to obtain a fair and impartial jury,” Moss wrote.

Here’s what we know: Melaleuca and VanderSloot sued Wasden for allegedly violating a separation agreement and recruiting key employees. Wasden denies this, and in a counter claim accused Melaleuca of breach of contract and VanderSloot of defamation.

Saying it worried about proprietary information being made public, Melaleuca asked the court to seal the case file and close the courtroom to the public.

Attorney Steve Wright, representing the Post Register, filed a brief with the court saying that the possibility of trade secrets being revealed is not a reason to seal the entire case and lock the public out of the courtroom.

The brief said the newspaper has no interest in publishing Melaleuca’s trade secrets and that the information could simply be redacted from the court file.

Moss kicked the issue back to the lawyers, telling them to come up with a compromise about what should be public record. That was in April. Swafford and Melaleuca attorney Curt Thomsen tried and failed.

At about that time, Moss was severely injured after falling off a horse, which delayed proceedings. A hearing scheduled Oct. 1 to address the issue has been delayed because Moss will be out of town. It has been rescheduled for Oct.16.

“I wanted to get that pinned down and have the judge tell us what is public record and what is not,” Swafford said.

It appears that decision will be left to Moss, the fourth judge to be assigned the case.

After each side disqualified one judge, the court assigned the case to new District Court Judge Darren Simpson.

But Wasden argued that he couldn’t get a fair trial because VanderSloot publicly and financially backed Simpson’s successful election effort against incumbent James Herndon. Simpson then stepped down.

From the Post Register

From the Idaho Statesman

By Cynthia Sewell

The state has put an end to the ongoing lawsuit over a closed-door meeting more than two years ago between the Ada County commissioners and a Boise city councilman.

Attorney General Lawrence Wasden has decided not to pursue fining commissioners for an open meeting act violation that occurred during a June 2005 executive session. At the meeting, commissioners met with a Boise city council member to talk about intergovernmental relations and a possible lawsuit over a pending housing development.

The commissioners denied any wrongdoing.

In March 2006 the district court ruled the county committed two violations of the open meeting law: holding an executive session without a lawyer present and not keeping a written record of the vote to go into the session.

Each commissioner received a $150 fine. The commissioners appealed that decision to Idaho’s highest court, maintaining the state’s open meeting law is confusing and ambiguous.

In May of this year the Idaho Supreme Court sided with the commissioners in their argument that they were allowed under existing law to meet behind closed doors without a lawyer present. The court sided against the county on the other violation.

The court sent back to a lower court the question of whether commissioners knowingly violated the open meeting law, thereby making them subject to a fine. According to an Aug. 23 court order dismissing the case, “The parties agree that in the best interests of justice and to avoid unnecessary expenditures of further public funds, no fine will be sought.”

From the Idaho Statesman