From the Lewiston Tribune

Aug- 20,2007 – Jim Fisher

Holding invitation-only talks on health care policy without inviting someone representing physicians, as Idaho Gov. Butch Otter is doing, is screwy. It’s like holding talks on education policy without inviting someone representing teachers.

And holding those talks behind closed doors, as Otter is also doing, is plain dumb. It’s like the sessions former first lady Hillary Clinton conducted while preparing her plan for overhauling the nation’s health insurance system.

Members of Otter’s party criticized President Clinton’s wife -justly – for refusing to open the discussions of her 1993 health care group to public view. The proposal resulting from the talks went nowhere, partly because Americans had no understanding of the reasoning behind it and were therefore vulnerable to the distortions in television advertising the health insurance industry broadcast against it.

Can Otter really expect anything of substance resulting from his health care summit Tuesday and Wednesday to fare any better?

To begin with, the governor has snubbed 75 percent of the state’s doctors who belong to the Idaho Medical Association. And apparently, it was no accident. When the association’s executive director, Bob Seehusen, learned of the event, he asked to be permitted to attend, but was rebuffed.

As a result, “there’s no one representing the providers there,” Seehusen says.

The insurance industry is represented, however, as is the hospital industry, employers and of course the Idaho Legislature.

Among those legislators invited to attend is state Sen. Diane Bilyeu. But the Pocatello Democrat says she doesn’t know why. Neither does Bilyeu know why the sessions should be conducted outside of public view.

As a former member of the State Board of Education, Bilyeu is accustomed to arguing in public – the board has a praiseworthy record of that – and she says, “You need the light of day on any issue.”

Otter spokesman Jon Hanian says the sessions of the health care summit are closed because the governor “wants to ensure that these issues aren’t politicized.” How’s that again? An elected governor is going to sit down with elected legislators and representatives of various interest groups to talk about issues of vital importance to those interests in hopes of making proposals to an elected Legislature, but the issues won’t be polticized?

Come on. Shut the people out of these talks if you like, but don’t play them for fools while you’re at it.

From the Lewiston Tribune

From the Associated Press

By JOHN MILLER
Associated Press Writer

July 6, 2007

BOISE, Idaho (AP) _ After months alone in his cell, Scot Noble Payne finished 20 pages of letters, describing to loved ones the decrepit conditions of the prison where he was serving time for molesting a child.

Then Payne used a razor blade to slice two 3-inch gashes in his throat. Guards found his body in the cell’s shower, with the water still running.

“Try to comfort my mum too and try to get her to see that I am truly happy again,” he wrote his uncle. “I tell you, it sure beats having water on the floor 24/7, a smelly pillow case, sheets with blood stains on them and a stinky towel that hasn’t been changed since they caught me.”

Payne’s suicide on March 4 came seven months after he was sent to the squalid privately run Texas prison by Idaho authorities trying to ease inmate overcrowding in their own state. His death exposed what had been Idaho’s standard practice for dealing with inmates sent to out-of-state prisons: Out of sight, out of mind.

It also raised questions about a company hired to operate prisons in 15 states, despite reports of abusive guards and terrible sanitation.

Hundreds of pages of documents obtained by The Associated Press through an open-records request show Idaho did little monitoring of out-of-state inmates, despite repeated complaints from prisoners, their families and a prison inspector.

More than 140,000 U.S. prison beds are in private hands, and inmates’ rights groups allege many such penitentiaries tolerate deplorable conditions and skimp on services to increase profits.

“They cut corners because the bottom line is making money,” said Caylor Rolling, prison program director at Partnership for Safety and Justice in Portland, Ore., a group that promotes prison alternatives.

Payne, 43, was placed in solitary confinement because he escaped from the prison in December by scaling a fence and eluding capture for a week.

He was among Idaho inmates sent to the prison in Spur, Texas, run by a Florida-based company called the GEO Group. The business operates more than 50 prisons across the United States as well as in Australia and South Africa.

Soon after Payne’s suicide, the Idaho Department of Correction’s health care director inspected the prison and declared it the worst facility he had ever seen. Don Stockman called Payne’s cell unacceptable and the rest of the Dickens County Correctional Center “beyond repair.”

“The physical environment … would have only enhanced the inmate’s depression that could have been a major contributing factor in his suicide,” he wrote in a report on Payne’s death.

Stockman said the warden at Dickens ruled “based on verbal and physical intimidation” and that guards showed no concern for the living conditions.

After Idaho’s complaints, GEO reassigned warden Ron Alford, who told the AP he was later fired. He insisted GEO did not provide enough money to make necessary improvements.

“They denied me everything. To buy a pencil with GEO, it took three signatures. They’re cheap,” Alford said in an interview. He disputes Stockman’s findings on his treatment of Idaho inmates.

GEO spokesman Pablo Paez declined to comment on Alford’s performance and would say only that the company had been working to address Idaho officials’ concerns. But on Thursday, the state announced plans to move 125 inmates from Dickens to other facilities, citing the poor living conditions.

The private prison business has been booming as the federal government seeks space to house more criminals and illegal immigrants.

“Sometimes it may be a better situation for the inmates, and sometimes it’s not,” said prison consultant Douglas Lansing, a former warden at the Federal Correctional Institution in Fort Dix, N.J. “Monitoring is a vital component. You can’t just move them out of town and forget them.”

That appears to be largely what happened with Idaho’s inmates.

The prisoners were sent to Dickens in August from another GEO-run Texas prison after complaints about abuse by guards.

But in the following seven months, Idaho sent an inspector to Texas only once. That inspection found major problems, including virtually no substance-abuse treatment, and a complete lack of Idaho-sanctioned anger-management classes and pre-release programs.

There’s no evidence the inspector’s recommendations were followed. And no one from Idaho visited the prison again until after Payne’s suicide.

Most of the time, the Idaho prison employee responsible for monitoring the GEO contract used only the telephone and e-mail to handle grievances, which also included complaints about inadequate church services, poor food and limited recreation time.

Each time, Alford insisted everything was under control, according to correspondence reviewed by the AP.

The new director of the Idaho prison system concedes his department did not adequately review the inmates’ treatment when he took office in January.

“If I had to do it over again, I would have,” Director Brent Reinke said.

Former Director Vaughn Killeen said he couldn’t afford more aggressive monitoring during his term that ended in December.

“We weren’t happy about the things that were going on down there,” Killeen said. “We didn’t have that level of budget to accommodate full-time monitors.”

Some other states are more vigilant. Washington state, for instance, has 1,000 inmates in Arizona and Minnesota and places full-time inspectors at the prisons. A superintendent visits every six weeks.

Problems with GEO prisons are not limited to Dickens.

Elsewhere in Texas, a female inmate’s family sued GEO in 2006 after she committed suicide at the Val Verde County Jail near the Mexican border. LeTisha Tapia alleged she was raped by another inmate and sexually humiliated by a GEO guard after reporting to the warden that guards allowed male and female inmates to have sex.

In March, an investigation into sex abuse allegations at another GEO-run Texas prison led to the firing of a guard who was a convicted sex offender.

And at GEO prisons in Illinois and Indiana, hundreds of inmates rioted this past spring.

The complaints have not hurt the company’s balance sheet. It reported profits of $30 million in 2006, four times the amount reported in 2005.

Inmates at Dickens say conditions have improved since Payne’s suicide.

Hot and cold water problems have been fixed, and cleanliness was judged “adequate,” according to a May 31 report by a new Idaho contract monitor.

But prisoners still complain about sewage from adjacent cells, poor medical and dental care, and a lack of educational programs. Inmates like Robert Coulter, who was convicted of robbery, say authorities should have acted sooner.

“They basically put us down here and just dumped us,” he said.

From the Associated Press

From the Twin Falls Times-News

July 1,2007 – Joshua Palmer – TWIN FALLS TIMES-NEWS

TWIN FALLS – Projects like “Passing on Failure” don’t fall into a reporter’s lap.

The people, places, facts and figures take time to locate.

The Times-News initially requested copies of district policies regarding student retention and absences from 20 school districts in the Magic Valley. All complied.

The newspaper followed up by sending to six districts – chosen to represent size and demographic diversity – written requests for information such as class grades, Idaho Standards Achievement Test scores and gradepoint averages for individual students, without names or other identification.

That’s all public information. But only three of those six districts provided it: Jerome, Wendell and Twin Falls.

The superintendents of the Gooding and Cassia county school districts – who both retired weeks later – did not respond to our requests. In Cassia, follow-up calls to a clerk and the School Board chairwoman finally led to Associate Superintendent Gaylen Smyer, who will become superintendent this month.

“We have a lot of excuses, and none ofthem are good ones,” Smyer said. “We dropped the ball on this one.”

The Hagerman School District allowed the newspaper access to the requested information, but neither the school district nor the newspaper had the personnel available to assemble it.

All six school districts said their data were incomplete because they have changed the way they report student performance. Some school districts could not provide the newspaper with data for an entire academic year.

Gaining this public information was the most formidable challenge in understanding the issues facing middle schools in Idaho.

Education will utilize $1.37 billion of Idaho’s $2.8 billion annual budget during the state’s 2007 fiscal year, which makes it the largest state expenditure. It’s a big investment for a big public task: Preparing a future generation of competitive and productive citizens.

The Times-News’ pursuit for access to testing data is a vital task in reporting on the performance of public schools. Although incomplete, the data confirmed students’ statements about their middle-school struggles.

From the Twin Falls Times-News

Passing on Failure

From the Twin Falls Times-News

Ready or not, middle school students move to next grade

Jul 1,2007 – Joshua Palmer – TWIN FALLS TIMES-NEWS

JEROME – Nicole Brewton would pray from her desk in the back of the classroom that her seventh-grade reading teacher would call on another student.

Nicole dreaded questions about the reading assignments because she really didn’t know how to read. But it wasn’t only reading that plagued Nicole. She was failing the other core classes, too – math and language arts.

“It was really embarassing because the teachers would always call on me and I never knew the answers,” said Nicole, now 13. “That was the time when I just thought I was the only stupid kid in my classes because all the other kids seemed to know the answers.”

Nothing could be further from the truth.

Twenty-two other seventh-graders at Jerome Middle School were failing basic reading, according to a copy of student grades provided to the Times-News. Like Nicole, many of those students also failed math and language arts.

Each year hundreds of students in junior high or middle school throughout Magic Valley fail at least one of the three core subjects, yet the schools promote them to the next grade. In an education system that builds on the knowledge that students learn in previous grades, a growin number of students are passing on to higher grades without the basic understanding they need to succeed.

What set Nicole apart from other failing students? She was the only Jerome student in 2006-07 repeating seventh grade.

A rare decision

How many middle-school students are passing on failure? The statistics are startling.

In 2005-06, 105 seventh- and eighth-grade students at Jerome Middle School failed math. Sixteen failed reading. But Nicole was the only student retained to repeat a grade at Jerome Middle School.

That pattern is not isolated to Jerome.

In the Twin Falls School District, 176 seventh- and eighth-grade students from Robert Stuart Junior High and Vera C. O’Leary Junior High failed basic math in 2005-06. But the school district did not retain any students that year. Twin Falls has retained only three students in the seventh and eighth grades since 2001.

Both school districts say the decision to retain a student is left to the parent, and educators often try to persuade parents against it. Educators cite several studies – including one by the professional educators association Phi Delta Kappa, summarized online at Magicvalley.com – which suggest that forcing students to repeat a grade may actually be more harmful than moving on.

Eric Anderson, Jerome Middle School principal, attributes educators’ reluctance to retain students mostly to parents’ authority over schools.

“We do try to accommodate the parents because we want to work in cooperation with them,” Anderson said. “But there is also a big concern about lawsuits from parents who might think that their student was unjustly held back.”

Nicole’s parents – not the school – held her back

“We told her that if she didn’t bring her grades up and focus in class, that we would have her repeat the seventh grade,” said Cindy Mosley, Nicole’s mother. “So toward the end of the year when she didn’t bring those grades up, we went to the school and asked to have her repeat.”

The decision terrified Nicole, who knew she would watch her friends graduate to the eighth grade while she stayed behind.

The peer problem

Nicole felt the effects during the first week of the following school year. Jerome Middle School’s incoming seventh-graders, who initially thought she was a transfer student, learned the truth.

Then the teasing and name-calling started.

“Some of the kids would make fun of me and call me stupid because I was held back,” Nicole said. “I felt really alone because all my friends had moved on and most of them wouldn’t even talk to me anymore.”

Only one friend from the previous year would still speak to her – the others, she said, worried about being seen with a “lowerclassman.”

Once again, she tried to disappear in the back of the class. But this time she was hiding from classmates as well as the teacher. It’s a common behavior from students who are retained, and it’s another reason most educators are reluctant to hold students back.

“In many cases you see those students (who were retained) performing worse because they feel like they’re only going to fail again,.” said Jeni Taylor, a Title I instructor at Robert Stuart Junior High, who specializes in remediation. “They feel intimidated by repeating the grade level and by their peers who make it very uncomfortable.”

Although Nicole’s mother was concerned about the harassment, she insisted that education comes first.

“To me, repeating a grade so she can get an education is more important than social promotion,” Mosley said. “Besides, my biggest concern is what will happen when she gets into high school and those grades count.”

At that higher level, failing students have two options – catch up or drop out.

From the Twin Falls Times-News

Open meeting violation dispute began in 2005

From The Spokesman-Review

Betsy Z. Russell
Staff writer
May 26, 2007

BOISE – The Idaho Supreme Court on Friday scolded Ada County commissioners for their protracted litigation over an open meeting violation, but ruled partly in their favor and partly against them.

The ruling sets no precedent because the clause in question, defining when government boards can hold closed meetings to talk with their attorneys about lawsuits, was amended by the Legislature this year. The commissioners also failed to record in their minutes the motion to close the meeting, as specifically required in the open meeting law; they said they had a tape recording of that.

“The commissioners concede that the votes are not recorded in the handwritten notes from the meeting, and apparently concluded that litigating this issue was of more consequence than the expedient of transcribing the recording for a few dollars,” Chief Justice Gerald Schroeder wrote acidly in the ruling.

Since it began in 2005, the case has cost county residents thousands of dollars in legal fees.

The dispute centered around a closed-door meeting the three commissioners of the state’s most-populated county held in 2005 with a Boise city councilman to discuss city-county relations. The commissioners, Rick Yzaguirre, Judy Peavey-Derr and Fred Tilman, justified the closed meeting by citing the “litigation exception” to the Idaho Open Meeting Law, saying they were discussing issues about which there would probably be lawsuits.

The Idaho attorney general prosecuted the commissioners for violating the open meeting law and fined them $150 apiece, in part because they didn’t have their attorney present – which the attorney general said was necessary for the meeting to fall under the litigation exception. The violation regarding the minutes also was noted. The commissioners counter-sued, but an Ada County district court sided with the state and imposed the fines.

The commissioners then appealed to the Idaho Supreme Court.

The court found that the old law could have allowed a closed meeting on litigation without an attorney’s presence, but it was unclear whether the commissioners could be fined because a lower court would have to review evidence on whether they knew they were violating the law. It remanded the case back to district court for further proceedings on that question, though it ruled against the commissioners on the minutes issue.

“To the attorney general’s office, I think the most important element of this case was that there was a violation of the open meeting law, and the Supreme Court has affirmed that,” Bob Cooper, spokesman for Attorney General Lawrence Wasden, said Friday. “We have an obligation to enforce the law.”

Neither the commissioners nor their public information officer was available for comment Friday on the ruling.

While the appeal was pending, the Legislature this year overwhelmingly voted to amend the Open Meeting Law, changing the litigation exception to make it clear that closed government meetings to discuss a pending or imminent lawsuit involving the agency must include the agency’s lawyer.

The new law says closed meetings regarding litigation can be held only “to communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement.”

The previous law, which will be replaced by the new law on July 1, allowed a government board to hold a closed meeting “to consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation.”

Much of the debate in the case was about the grammar of that sentence, and how to weigh the “and,” “in” and “or.”

Justice Jim Jones dissented in part from the otherwise unanimous decision, writing that his analysis of the previous law showed it required the attorney’s presence.

“Although this case has been somewhat mooted by the Legislature’s 2007 amendment … it is worthwhile to make mention of the long-standing policy in Idaho of maintaining openness in government,” Jones wrote. “That requires narrow construction of any exception to the openness rule, including openness at meetings of government bodies.”

From The Spokesman-Review

Editorial from the Idaho Statesman

Unfortunately, not all of last week’s public records news was good.

On Thursday, District Judge Michael McLaughlin said the State Tax Commission does not have to release records justifying a tax break granted to Cabela’s.

Cabela’s does not have to collect sales taxes on its online and catalog sales to Idahoans. Cabela’s has said there is no connection between its retail stores and its Internet and catalog sales divisions — the “nexus,” according to the legalese, that would require the chain to collect taxes on all sales. The commission seconded Cabela’s reading of the law — but since the commission hasn’t released its records, we have no idea why.

Taxpayers deserve some answers.

In siding with Cabela’s, the tax commission is forgoing some sales tax collections. How come?

The state gave Cabela’s a considerable competitive edge in the online and catalog sales sectors — eight months before this trophy buck in the outdoor retail industry opened its first Idaho store. How come?

McLaughlin ruled against the Statesman, which has gone to court demanding the Tax Commission records. All Idahoans lost, though. We all deserve to see tax law interpreted in a transparent environment.

Whether they’re e-mails between county employees or correspondence between tax collectors and business leaders, public records ensure accountability. Public records protect your right to know — and more importantly, your right to understand how your government works.

But only when public records are made public.

Editorial from the Idaho Statesman

Editorial from the Idaho Statesman

To: Public Employees-All.
From: The Idaho Statesman editorial board.
Date: May 8, 2007.
Re: BTW …

… if you’re a public employee using a public e-mail account on taxpayer time, you have generated a public record.

Duh.

Believe it or not, the Idaho Supreme Court was actually asked to settle this. IMHO, the court probably had more serious legal issues to deal with, but what do you do?

Kootenai County commissioners went to the Supreme Court because they didn’t want to release more than 1,000 e-mails between Prosecutor Bill Douglas and Marina Kalani, who used to run a federally funded juvenile drug court in Kootenai County.

A newspaper, the Spokesman-Review in Spokane, Wash., wanted the e-mails so it can figure out what went wrong with the court’s drug program, which was shut down in 2005. The county argued the e-mails were private, and Kalani argued that they should be treated the same as personnel records. Douglas told the Spokesman-Review that the e-mails “constitute nothing more than innocent sarcasm, bantering and joking between myself and a subordinate.”

We’ll judge for ourselves. The court certainly did. “It is clear the e-mails contain information relating to the conduct and administration of the public’s business,” says Supreme Court Justice Roger Burdick. He was speaking on behalf of the Supreme Court, which ruled 5-0 Friday to release the e-mails.

FYI, the court got this absolutely right.

The five justices read the law. Especially this part: “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.”

Take it from the court: There’s no exemption covering “innocent sarcasm, bantering and joking.”

The court gets it. Douglas doesn’t seem to. Here’s what he told the Spokesman-Review after the court ruling. “There is no privacy right in private e-mails between government employees, and I feel that is unfortunate.”

LOL.

When public employees use their public e-mail accounts to communicate, what exactly is private about that?

We hope the Supreme Court decision clarifies any conclusion. If you have questions, do not hesitate to e-mail. But be careful what you write. Taxpayers could be reading. It’s their right, you know … 😉

Editorial from the Idaho Statesman

But coordinator’s settlement exempt

From the Spokesman-Review

Bill Morlin
Staff writer

The Idaho Supreme Court ruled unanimously Friday that more than 1,000 e-mails exchanged between Kootenai County Prosecutor Bill Douglas and a woman administering a federally funded juvenile court drug program are public records, not exempt from disclosure.

“It is clear that the e-mails contain information relating to the conduct and administration of the public’s business,” Justice Roger Burdick wrote in the 11-page opinion, with the court’s four other justices concurring.

The ruling came 30 days after the state’s highest court, sitting in Coeur d’Alene, heard oral arguments whether the public should be able to see e-mails between Douglas and Marina Kalani as well as an insurance settlement agreement with Kalani, the former coordinator of the Juvenile Drug Court program.

The Idaho Counties Risk Management Program, representing Kootenai County, agreed to pay Kalani $69,146 to settle a defamation damage claim she filed against the county after resigning in March 2005.

Reporters with The Spokesman-Review sought access to the settlement agreement about the same time they filed public records requests for the e-mails exchanged between her and Douglas between February 2004 and February 2005.

Idaho District Court Judge John Stegner ruled in July 2005 that the e-mails were public records but the settlement agreement was exempt from disclosure. Friday’s Supreme Court ruling completely backed the lower court’s decision.

The Supreme Court ruled that Idaho law allows for the release only of settlement amounts and statistical data, holding that “any other information contained in the settlement agreement or records relating to Kalani’s claim are exempt from disclosure.”

“This decision is an important victory for open government in Idaho,” said attorney Tracy LeRoy, who argued the case for the newspaper.

“This is the first public records case in Idaho to address e-mails as public records, and the court recognized that e-mails between government officials and employees that are investigated by county officials are the public’s business,” LeRoy said.

“We are gratified that the court affirmed the public’s right to investigate through public records how the county and its officials conduct public business,” the newspaper attorney added.

The court’s ruling is expected to affect a similar pending lawsuit in which the newspaper is attempting to gain public access to e-mails of Rick Baughman, Kootenai County’s former chief deputy prosecutor, who is facing sexual harassment allegations by two female co-workers.

In that case, Stegner ruled last month that Baughman’s e-mails on his county computers also should be available for public inspection, but he declined to order their release until the Supreme Court ruling in the Douglas-Kalani case.

Although he didn’t join in the appeal to the Supreme Court, Douglas expressed displeasure with the ruling.

“The court has now given us a bright-line rule: There is no privacy right in private e-mails between government employees, and I feel that is unfortunate,” the prosecutor said Friday afternoon.

Douglas said the court’s ruling, “while accepted by me, will have a chilling effect on e-mail communication about matters employees wish to remain private but do not otherwise violate any law.”

The Supreme Court ruling said Idaho’s public records act gives every person the “right to examine and take a copy of any public record of this state” unless there is a specific exemption.

Kalani’s attorney, Greg Horne, argued the e-mails between his client and the prosecutor were confidential, personnel records and should be exempt from disclosure.

But the Supreme Court didn’t buy that, saying the “public has a legitimate interest in these communications between this elected official and the employee whom he hired and supervised.”

Asked to comment Friday, Horne said, “I really don’t have much to say. I’m disappointed. It’s not appropriate to say much more until I have a chance to talk with my client.”

The court noted that when the juvenile drug court’s financial problems and eventual demise were reported in the media, Douglas defended Kalani’s management to the Board of County Commissioners and the public.

“The e-mail’s content relates to the public’s business because the public’s business includes job performance by a county employee, the spending policies of a county program, the issues surrounding the program’s demise, other employment-related claims and the validity and circumstances surrounding (Kalani’s) claim,” the court’s ruling said.

Douglas said the ruling means a government employee “can no longer complain about a co-worker, adverse work conditions, a supervisor, or act as a whistle-blower without fear of reprisal or that the complaint will become the public’s domain.”

“There never has been a county or state policy prohibiting use of e-mail for private communication, but those policies now ring hollow in light of (this) decision,” he said.

The prosecutor said the e-mails “will be released in an orderly fashion as directed by the court.”

“Unfortunately,” he said, “these e-mails have been the subject of unfair speculation about their nature, (but) they contain nothing obscene or unlawful.

“They constitute nothing more than innocent sarcasm, bantering, and joking between myself and a subordinate, and the type of informal communications that occurs daily in every workplace in America,” Douglas said.

“Unfortunately, some will place unfair speculation on their intent, regardless of content,” he said. “They contain no distasteful attachments. I would only hope that these are reviewed in proper context, and I would be glad to answer any questions about any individual e-mail when they are released.”

From the Spokesman-Review

Newspaper plans to appeal decision; judge says state law clearly exempts tax information from disclosure

By Ken Dey

From the Idaho Statesman

A judge has denied the Idaho Statesman’s request for documents about the state’s decision to allow Cabela’s not to collect sales taxes from the outdoor retailer’s online and catalog customers in Idaho.

District Judge Michael McLaughlin in Boise sided with the Idaho Tax Commission, saying he couldn’t ignore the “plain and obvious” language of state law that exempts tax information from public disclosure.

“The policy reasons for this exemption are obvious,” McLaughlin said in his ruling Thursday. “Taxpayers want to know what their tax liability will be before they engage in an enterprise or action that would subject them to unknown tax consequences.”

The Statesman was disappointed and plans to appeal, Editor Vicki S. Gowler said.

“We aren’t interested in their private tax information,” Gowler said. “But when government decides who or what to tax, that process needs to be open.”

Before opening its Boise store, the Nebraska-based company requested a declaratory ruling from the tax commission to determine whether Idaho would require the company to collect taxes.

Idaho law says companies that have a substantial presence or “nexus” in the state must collect sales tax from their Idaho online and catalog customers. Cabela’s maintains that its retail operations and online operations are two separate companies, so the nexus provision doesn’t apply.

On Dec. 12, 2005, the tax commission issued a ruling granting Cabela’s the tax exemption.

McLaughlin said the declaratory ruling process required the company to disclose sensitive information to the commission. Opening such information to the public would make Cabela’s and other taxpayers “extremely reluctant” to participate in the process, he said.

Other states where Cabela’s has built stores have granted similar exemptions, but some states have fought the company.

From the Idaho Statesman

From the Post Register

REXBURG — District Court Judge Brent Moss said Monday that attorneys in a disputed civil case involving Melaleuca Inc. and a former employee will get the first crack at deciding what the public should and should not know.

Moss did not directly address Melaleuca’s request that documents in its suit against Jeff Wasden, the company’s former vice president of marketing, be sealed and the courtroom be closed to the public.

The Post Register has challenged that request.

But Moss did say that Melaleuca attorney Curt Thomsen and Wasden’s lawyer, Ron Swafford, need to determine what proprietary business records or trade secrets should not be part of the public domain.

Once agreed upon, those records would be covered under a protection order that prevents Wasden from talking publicly about the case.

“That’s why the protection order is in place,” Moss said.

This debate about closed records took place mainly behind closed doors Monday.

Moss spent roughly 30 minutes in his chambers with Thomsen, Swafford and Post Register attorney Steve Wright, attempting to hammer out a compromise on a case that has become increasingly public.

Melaleuca and its CEO, Frank 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.

After each side disqualified one judge, District Court Judge Darren Simpson was handed the case. But he stepped down after Wasden filed court documents saying he could not get a fair trial because of VanderSloot’s support of Simpson during last year’s election.

Moss’ ruling Monday essentially slowed what has become a frantic paper war between lawyers on both sides of the dispute and the Post Register.

In asking the court to seal all documents pertaining to the case, Thomsen wrote that, “The Post Register has failed to demonstrate any colorable interest it may have in a private employment dispute between Melaleuca and one of its former employees, that exceeds the general curiosity of anyone else in the community, beyond the unusual but well-known and long-standing acrimony the Post Register has nurtured against Frank L. VanderSloot.”

But in a brief filed Monday morning, Wright wrote that Melaleuca’s legitimate trade secrets are entitled to protection and the Post Register has no interest in publishing them. That information could simply be redacted from the court file, Wright said.

Wright wrote that the possibility of trade secrets being revealed is not a reason to seal all documents in the case or to shut the public out of the courtroom.

“This sledge hammer approach is clearly unacceptable where the Constitution and the law require the use of a scalpel,” Wright wrote.

Wright said the newspaper would wait to see how broadly Swafford and Thomsen define “proprietary business records” and “trade secrets” before deciding upon a next step.

Moss made clear Monday that he plans to treat the dispute as just another case.

The disagreement between Melaleuca and Wasden — and the flap over Simpson and whether the court documents and proceedings should be sealed — has inspired several newspaper and television stories. It’s also caught the attention of political bloggers. And Melaleuca employees recently took out a two-page advertisement in the Post Register lauding the company.

“I don’t want this case tried in the newspaper or on the television screen,” Moss said.

VanderSloot, fresh off a trip to Cuba with a contingent of business leaders and Gov. Butch Otter, spent Monday morning in the plaintiff’s chair while his attorney met behind closed doors with the judge.

“Judge Moss stated today that he is going to handle this like any other case,” VanderSloot said in an e-mail Monday afternoon. “I think that is all that anyone could ask.”

Senior reporter Corey Taule can be reached at 542-6754.

”I don’t want this case tried in the newspaper or on the television screen.”

From the Post Register

Editorial from the Idaho Statesman

Bad ideas surface at the end of any legislative session. Some zip through both houses during the rush to adjournment.

In the worst last-minute act of the 2007 session, lawmakers created a $15 million economic reserve slush fund. The money could well be up for grabs today, during a water summit orchestrated by Gov. Butch Otter. Portions of the daylong summit will be closed to the public.

This is certainly no way to spend tax money. Even Otter dislikes the process for spending the $15 million. However, legislators set this in motion with its hasty passage of House Bill 330.

The timeline: The budget-writing House Appropriations Committee introduced the bill on March 28; the bill passed the House 52-12 on March 29; and the bill passed the Senate 25-7 on March 30, the final day of the session.

These 77 lawmakers were, at the risk of a bad pun, logrolled. The last-minute spending bill also earmarked $3.5 million in state money for cash-strapped rural schools in Idaho timber country. The idea is to have a contingency that could replace a federal program that, in turn, has replaced declining timber receipts in past years.

With this as bait, lawmakers put a separate $15 million into the hands of a legislative Gang of Four: Senate President Pro Tem Robert Geddes, R-Soda Springs; House Speaker Lawerence Denney, R-Midvale; Senate Finance Committee Chairman Dean Cameron, R-Rupert; and House Appropriations Chairwoman Maxine Bell, R-Jerome. HB 330 empowers these lawmakers to decide how the Department of Commerce spends the money, although lawmakers must get Otter’s “concurrence.”

Where might the money go? Perhaps, as the speculation goes, to buy out some water users who might otherwise get left dry this summer. Cameron, usually one of the Legislature’s clear-eyed pragmatists, dismisses the suggestion of an under-the-table handout during the closed portions of today’s summit. “I don’t believe for a moment that the decision on spending that money will be made behind closed doors,” Cameron told The Associated Press.

Trouble is, when you combine closed meetings with a big uncommitted lump of dollars, it’s not too much of a stretch to put the two together.

Things get worse. When lawmakers rushed to create this $15 million slush fund, they didn’t take the time to trouble themselves with the Constitution. They allowed a few of their own to decide whether to release this money to a state agency. Otter cannot act unless the lawmakers act first. This “quite possibly” violates the Constitution’s separation of powers language, Deputy Attorney General Mitchell Toryanski wrote on March 30, the day the Senate approved the bill.

As Otter testily but fairly put in a letter to Denney last week, “I refuse to be an active party to the Legislature’s usurpation of executive authority.” Otter doubted the courts gave him the ability to veto a line item of a spending bill, so he allowed the bill to become law without his signature. To his credit, Otter at least gave this bad idea considerably more thought than legislators had.

Editorial from the Idaho Statesman