Idaho Conservation League wins suit

From The Spokesman-Review

Betsy Z. Russell
Staff writer

BOISE – The Idaho Supreme Court has ruled that a state agency can’t keep public records secret by handing them over to someone else and saying they’re no longer in the agency’s possession.

“These documents are clearly public records that are not expressly exempted by statute, regardless of whether ISDA (Idaho state Department of Agriculture) retains possession of them,” Justice Linda Copple Trout wrote in the decision filed Monday. The 3-2 decision also said the court was “not persuaded by the ISDA’s attempts to circumvent these statutes.”

The case involved a lawsuit by the Idaho Conservation League against the state Department of Agriculture because the department refused to disclose nutrient management plans – plans showing how large quantities of manure and wastewater would be disposed of – for beef cattle feedlots. The department cited a law that requires its staff to give all copies of the required plans back to the feedlot operators after it has reviewed and approved them.

“The department made a good-faith effort to comply with statute,” department spokesman Wayne Hoffman said Monday. “From time to time, courts hand down decisions that require agencies to re-evaluate how they do business.”

Hoffman said the department still is reviewing the decision.

Justin Hayes, program director for the conservation league, said, “Average citizens just want to know that the waste that’s being generated is being disposed of properly, in a way that’s not going to harm their air quality or their water quality or result in blankets of flies smothering their grandchildren when they come over for a picnic.”

“When ISDA tries to hide these things from people, it makes people very angry at their government,” he said.

A district court had reached the same conclusion, but the state department appealed to the Idaho Supreme Court. The Supreme Court ordered the department to pay the league’s attorney fees for the appeal, concluding that the department’s appeal was “frivolously pursued” because it focused on who had possession of the records – not on whether the records were public or not.

The court wrote, “A state agency is expressly prohibited from preventing examination of a public record ‘by contracting with a non-governmental body to perform any of its duties or functions.’ … This statute indicates a clear policy by the Legislature that the public has a right to view and inspect records relating to the public’s business and this right cannot be denied by having some other entity conduct the public’s business at some other location.”

Chief Justice Gerald Schroeder and Justice Daniel Eismann dissented. Justice Roger Burdick and Justice Pro-Tem Wayne Kidwell concurred in the majority opinion.

Eismann wrote that the majority suggests that public documents remain so forever. “Such reasoning could require agencies to search landfills for public documents they threw away,” he wrote.

The American Civil Liberties Union represented the Idaho Conservation League in the case. Jack Van Valkenburgh, head of the Idaho ACLU, said under current law, “many agencies have records retention policies, and if they call for the destruction at some point of a document … it is no longer a public record.”

But in this case, Van Valkenburgh said, the state conceded in court that the nutrient management plans were public records. “The dispute was whether surrendering custody of a record means it’s no longer accessible to the public. Fortunately, the court said no. You can’t evade the law by simply transferring the custody holder.”

The feedlots in question don’t include dairies, though mega-dairies and the waste they produce have been a hot issue in Southern Idaho. Both Hayes and Hoffman said nutrient management plans for dairies have routinely been released to the public. Only feedlots for beef cattle were affected by the law about returning the plans to the operators.

The court also upheld the district court’s ruling on another issue, affirming that plans submitted as part of the “Idaho OnePlan” online system operated by the Department of Agriculture are exempt from public disclosure. That’s because the Idaho Public Records Law includes an exemption for the OnePlan system, through which operators can confidentially seek guidance on how to improve their practices.

Hayes hailed the court ruling. “A state agency and the Legislature tried to open up a huge hole in the Idaho Open Records Law by basically farming out documents,” he said. “That was a blatant attempt to make it hard for citizens to learn important information to protect their quality of life.”

From The Spokesman-Review

Editorial from the Idaho Statesman

Faced with a defining decision that will reshape Garden Valley, Boise County commissioners made an abject mess of things.

They met behind closed doors without proper notice, without taking minutes — and without justification. Even their attorney, county Prosecutor Theresa Gardunia, says commissioners shouldn’t have met behind closed doors.

Minutes after the closed meeting, the commissioners approved Southfork Landing, a 606-home, 858-acre development that has divided Garden Valley’s 1,800 residents. When commissioners faced the most scrutiny — when the process mattered the most — they botched it.

They succumbed to the notion that closed doors make for good governing.

The commissioners’ July 24 closed executive session on Southfork was riddled with potential Open Meeting Law violations. Commissioners didn’t put the meeting on the agenda. They failed to provide 24 hours’ notice. They failed to have a clerk take minutes.

During the closed meeting, commissioners discussed what information to include in the public record before approving Southfork, said Gardunia, who was summoned from court to sit in on the commissioners’ meeting. Preparing a complete record is a legitimate step, she said, but something that could have been done in the open. “I think the executive session was unauthorized,” she said Thursday.

Commissioners can meet behind closed doors under select circumstances. For instance, they can discuss a probable or pending lawsuit — and given the public concern over Southfork, a lawsuit may be inevitable. But litigation never came up in the closed session, Gardunia said.

Now, each commissioner could face a $150 fine for breaking the Open Meeting Law, which may be the least of their problems. The botched meeting could provide an opening for critics who want to stop Southfork by getting a judge to nullify the vote to approve the project. The tortured process certainly casts a shadow on Southfork — a project that, by size alone, would be controversial under any circumstance.

Gardunia acknowledges the process looks bad to outsiders, and concedes the closed meeting was unjustified. She deserves credit for that. By contrast, Ada County officials have spent $17,781.25 in taxpayer money on legal fees fighting an alleged Open Meeting Law violation, dating back to June 2005.

The Boise County situation underscores the need for training. Attorney General Lawrence Wasden has toured the state teaching elected officials about how to operate under the Open Meeting Law; obviously, there is still work to do.

The cautionary tale — for part-time office-holders such as Boise County’s commissioners or full-timers like the Ada commissioners — is to work in public, rather than looking for excuses for secrecy. The excuses won’t fly with skeptical citizens — and sometimes, they violate the law.

If Boise County commissioners don’t believe that, they ought to talk to their lawyer.

Editorial from the Idaho Statesman

From the Idaho Statesman

Boise County commissioners held an invalid closed meeting July 24 to discuss a controversial development in Garden Valley, Boise County Prosecutor Theresa Gardunia said this morning.

But it’s unclear whether commissioners will face any penalties.

Commissioners held the executive session shortly before voting 3-0 to approve Southfork Landing, a 606-home, 868-acre project near the South Fork of the Payette River.

In the closed meeting, commissioners and Gardunia discussed what information needed to be included in the public record before approving the project, Gardunia said.

This discussion could have been held in open session, Gardunia told Statesman editorial page editor Kevin Richert this morning.

“I think the executive session was unauthorized,” she said.

State law allows commissioners to meet behind closed doors to discuss pending or probable litigation. However, a possible lawsuit was not discussed in the closed meeting, Gardunia said.

The executive session was not posted on the commissioners’ agenda and was held without 24 hours’ notice, also in possible violation of Idaho Open Meeting Law.

Elected officials can face fines of up to $150 for violating the Open Meeting Law.

Gardunia says she has not yet received a formal complaint protesting the meeting. If she receives a complaint, Gardunia says she will recuse herself and send the complaint to another prosecutor.

From the Idaho Statesman

From the Star-News

The Star-News in McCall has filed a court action to force the city of McCall to release an investigation into the conduct of former McCall Police Department Chief Ralph Appa and two of his top officers.

The petition was filed July 24 in Fourth District Court in Cascade. In it, The Star-News asks a judge to overturn the city’s rejection of three separate requests made by the newspaper for the report under Idaho public records laws between November 2005 and March.

A hearing on the petition has been scheduled for Aug. 17 before Fourth District Judge George Carey.

“The documents requested contain information that cannot be released, based on the requirements of Idaho Code,” McCall City Manager Lindley Kirkpatrick said in a statement in reaction to The Star-News filing.

“The City looks forward to the resolution of this petition in a way that protects the interests of the individuals involved within the limits of the law,” Kirkpatrick said.

After a three-year tenure marked by controversy, Appa resigned as the head of McCall’s police force in June 2005. Also submitting their resignations were Lt. Chris Moore and Sgt. Lance Rogers.

The three were suspended with pay from their duties earlier in June 2005 by Kirkpatrick.

Kirkpatrick launched an investigation into the officers, hiring James Bensley of Northwest Investigative Solutions of Garden City as investigator.

The report has not been released and no official reason for the investigation or the resignations has been given by the city.

After the suspensions, McCall City Council member Bonnie Bertram said the officers were disciplined because of suspected mishandling of evidence in two high-profile investigations.

Those cases included that of former McCall Area Chamber of Commerce Executive Director Tracey Smith, who is now in prison for stealing money from the chamber.

The other case was that of Russell Antonucci, who has pleaded guilty and is awaiting sentencing in the shooting and wounding of two people outside his McCall apartment in April of 2004. )In responding to the public records requests by The Star-News, Kirkpatrick cited state laws that exempt disclosure of personnel records or if release of the records would be an unwarranted invasion of privacy.

“We believe the disclosure of these records are in the public interest,” said Tom Grote, editor and co-publisher of The Star-News. “The Bensley report investigated the conduct of the police department and apparently found things that were terribly wrong,” Grote said. “This is information that city taxpayers who pay the salaries of police officers have a right to know.”

Appa continues to live in McCall, where he operates a handyman service.

In an interview, he said he received a severance package in return for his resignation, but declined to reveal the amount of that severance.

Appa said he requested and received a copy of the Bensley report from the city but that his copy was heavily censored. The parts of the report that he could read, however, show the investigation was biased against him and his fellow officers, Appa said.

“The report was designed to do what the city wanted to do, which is dig up enough garbage to hand their hat on to terminate us,” he said.

Rogers also continues to live in McCall, where he operates a home inspection service, according to his wife, Cherish. Rogers did not return a telephone message.

Moore lives in Boise, but his occupation was not known. He did not return a telephone message from The Star-News.

The Star-News is represented in the case by Boise attorney Debora Kristenensen, who has frequently represented the Idaho Press Club in court and in the Idaho Legislature on public records and open meeting issues.

The Star-News, an independent weekly newspaper, has a paid circulation of 4,500. The newspapers owners are Tom and Tomi Grote of McCall and A.L. Butch Alford Jr. of Lewiston.

Alford also is the owner of The Lewiston Tribune in Lewiston and the Moscow-Pullman Daily News in Moscow.

From the Star-News

From the Idaho Statesman

Legal fees for commissioners who held closed meeting may hit $30,000

By Brad Hern
Idaho Statesman

Ada County taxpayers’ cost to defend their three county commissioners from each paying $150 fines could exceed $30,000 and might climb even higher.

Last month, Senior Judge William H. Woodland ruled the commissioners — Rick Yzaguirre, Judy Peavey-Derr and Fred Tilman — broke the state’s open meetings law when they held a closed-door meeting with Boise City Councilman Vern Bisterfeldt on June 15.

The commissioners have said they disagree with the decision and plan to appeal to the Idaho Supreme Court.

In court papers filed April 19, Deputy Attorney General William von Tagen asked Woodland to award the state attorney fees of $12,829.
The commissioners’ legal fees already were up to $17,781, so the additional fees from the state would take the taxpayers’ total tab to $30,610.

The commissioners’ attorney, Patrick Furey, has agreed to handle the Supreme Court appeal at no additional cost, but if the county loses on appeal, the AG’s office is expected to ask for more legal fees to cover the cost of fighting the appeal.

“Despite this understanding (that the maximum penalty for each commissioner was $150), (the commissioners) chose to undertake an aggressive defensive posture by filing not just an answer, but also a counterclaim and a 44-page response to the state’s motion for judgment, which ultimately failed,” von Tagen wrote. “While failing to achieve their goal, (the commissioners’) aggressive posture succeeded in driving up attorneys fees for the state. Now, (the commissioners) have informed this court and the state that they intend to drive the costs and fees for the state even further by planning to appeal the decision to the Supreme Court.”

The case stems from the June 15 meeting when commissioners met with Bisterfeldt behind closed doors. Records of the meeting indicate they discussed relations between the city and county, and the possibility of lawsuits over large planned communities.

State law allows government bodies to meet in executive sessions on rare occasions to consider personnel matters, labor negotiations, lawsuits and other sensitive issues.

The commissioners closed their meeting with Bisterfeldt because, they said, the possibility of a lawsuit existed.

But no lawyer was in the room to give advice, as is required by state law.

Under Idaho law, the commissioners would pay the $150 fines out of their own pockets, but their legal defense fees are covered by taxpayers because the commissioners were acting in their official capacity.

That’s a problem, said Tony Jones, a county resident who filed the initial complaint with prosecutors regarding the open meeting violation.

“I honestly believe that this should be out of the commissioners’ own private pocket,” he said. “The fine would have been.”

Woodland might not award attorney fees in the case.

State statute and case law say such fees should be reserved for frivolous or unreasonable lawsuits.

Furey responded to von Tagen’s motion Wednesday, saying the case had merit, and the request for attorney fees should be denied.
In a written statement, the commissioners said they are appealing Woodland’s decision because they want clarification of the law, which affects all elected governing bodies in Idaho.

The commissioners say it is unclear whether an attorney must be present in executive sessions that are called to discuss potential or probable litigation.

From the Idaho Statesman

From the Associated Press

By JOHN MILLER
Associated Press Writer

BOISE, Idaho (AP) – The Senate voted 26-8 Wednesday evening to impose strict limits on when its committees can close their meetings to the public, a move applauded by some as a sage plan even as Democrats in the chamber called for a more expansive policy that would keep all meetings open.

A single Republican _ Sen. Gary Schroeder, R-Moscow _ joined the minority Democrats to vote against the bill.

Senate Majority Leader Bart Davis, R-Idaho Falls, and other proponents of the new rules say they strike a balance, keeping most meetings open but allowing the chamber latitude to meet behind closed doors in rare instances.

Before the changes, closed sessions could be held for any reason.

Now, executive sessions will have to be announced a day in advance, they can only occur with two-thirds member consent and the only matters that can be discussed are records exempted from public disclosure, pending litigation, personnel matters, security issues such as terrorist threats and consideration of property purchases.

“It is the narrowest policy in the history of Idaho,” Davis said before the vote.

The Senate’s move came after it won a March 20 Idaho Supreme Court ruling that open meetings provisions in the Idaho Constitution were intended to apply just to general floor sessions, but not legislative committee meetings.

That left it up to lawmakers to make their own committee rules.

The court case had been brought by the Idaho Press Club after some committee meetings were closed in 2003 and 2004. Among those were sessions during which lawmakers negotiated a landmark water rights settlement with the Nez Perce Tribe. A judge had required those water rights sessions to be confidential.

Leaders of the media group, whose members include TV, radio and print journalists, said they were satisfied with Wednesday’s changes _ especially after senators agreed not to eliminate an Idaho statute, passed in 1974 in the wake of the Watergate scandal, that said all committee meetings must be open to the public. Instead, Davis agreed to amend it so that it matches the new Senate rule allowing closed committee meetings in rare instances.

“We can live with this,” said Betsy Russell, Idaho Press Club president and a reporter at The Spokesman-Review in Spokane, Wash. “Since our lawsuit was filed, no more closed meetings have been held. As a state, we are now far better off in ensuring openness in our legislative process than we were when we started this.”

The group has raised more than $25,000 for its lawsuit, but still faces thousands in costs.

Meanwhile, Democrats including House Minority Leader Clint Stennett, of Ketchum, and Sen. Kate Kelly, D-Boise, said the new rules fell short of complete openness.

Though Stennett wrote in a Jan. 14, 2004, letter to Davis that he agreed some circumstances might require committee meetings to be closed, the minority party has since closed ranks and favors opening all meetings.

The new rules “leave open a pretty wide door,” said Kelly. “Not that it will be abused, but that it has the potential to be abused.”

The Common Interest, a group of 850 self-proclaimed Idaho political moderates that formed in 2005, said the new rules made sense. In a poll last year, its members agreed there were reasons to close some committee meetings _ for instance, pending litigation could call for the kind of discretion afforded only by a closed session, the group members said.

But they said those instances should be clearly defined and as few as possible, said Keith Allred, the group’s president.

“I think it’s a model rule,” he said.

House lawmakers, including Majority Leader Lawerence Denny, R-Midvale, said late Wednesday they were still considering similar changes to their committee rules, though there’s some debate whether a revamp is necessary.

Denney said an existing House rule that allows committee meetings to be closed for any reason with a two-third vote of members “has served us well,” adding that some expressed concern that making changes akin to the Senate’s could cause “unnecessary problems” in the future.

From the Associated Press

From the Associated Press

BOISE, Idaho (AP) – A District Court judge ruled Friday that members of the Ada County Commission violated the Idaho Open Meeting Law when they gathered behind closed doors last June 15 to discuss a proposed new housing development.

No fines have yet been levied against Judy Peavey-Derr, Rick Yzaguirre and Fred Tilman in the lawsuit filed against the commission by the Idaho attorney general’s office.

Both sides can submit suggestions on “the amount of monetary sanction which should be imposed,” Judge William Woodward wrote in a 10-page ruling. Each of the commissioners faces a penalty of $150, the maximum allowed by Idaho law for first-time Open Meeting Law violations.

The commissioners met with Boise City Councilman Vern Bisterfeldt to discuss a proposed 1,000-home, 700-acre development atop a plateau above the Boise River east of Idaho’s capital city. The project has spawned opposition among opponents who say building there could damage wildlife.

The Open Meeting Law allows governmental bodies to hold closed sessions “to consider and advise its legal representatives in pending litigation or where there is general public awareness of probable litigation.”

No lawyer was present at the commission’s closed meeting.

Woodland wrote that the defendants lacked the authority to hold a closed meeting.

Phone calls to Rich Wright, the county commission’s spokesman, to determine how much money the panel has spent on private attorney Patrick Furey to defend them in the case weren’t immediately returned.

From the Associated Press

Editorial from The Times-News

Look it up, read it, and then read it again. The Idaho Constitution demands that our elected leaders operate in broad daylight, with open doors, and in a public venue.

So reads Article 3, Section 12: “The business of each house, and of the committee of the whole shall be transacted openly and not in secret session.”

Apparently, the Idaho Supreme Court disagrees.

In a 3-2 decision released Monday that could have lasting impact on state government, the court ruled the Idaho Constitution doesn’t require legislators to open committee meetings to the public.

The decision came from a case involving the Idaho Press Club which objected to closed committee meetings in the 2003 and 2004 Legislatures. The Press Club and the Legislature agreed to seek the court’s opinion on those closed meetings.

Justice Daniel Eismann described how Section 12 splits hairs between “each house,” the “committee of the whole,” and the legislative committee. The latter is the smaller committee that oversees specific areas of legislation and state issues.

Anyone who observes the Legislature knows committees determine the shape and outcome of legislation in state government. As proof, look no further than the slate of legislation that centered on coal-fired plants. Committee debate determine if they lived or died. And remember, only in committees can the public testify on legislation.

But because the framers of Idaho’s Constitution did not include specific language limiting those committees, the court said the Constitution exempts them from the openness requirement. The majority opinion followed a rationale saying when a law lists some things for regulation, then it excludes all others.

“When the framers drafted a provision expressly limiting certain powers, there is no reason to believe that they intended the limitation to be broader than they drafted it,” Eismann wrote.

That explanation still doesn’t jive with the rest of the opinion. Eismann noted instances from the state constitutional convention where delegates specifically voted against giving the Legislature broad powers to close meetings.

In his dissenting opinion, Justice Jim Jones (joined by Justice Roger Burdick) repeatedly pointed out instances where the framers expressly objected to closed proceedings.

Jones added, “I find the Legislature’s argument that it may under the Constitution close committee meetings a bit disingenuous, in light of Idaho Code Section 67-2346: ‘All meetings of any standing, special, or select committee of either house of the legislature of the state of Idaho shall be open to the public at all times.'”

Long before the court made its decision, Idaho legislators agreed to drafting new rules that would curb their ability to close committee meetings. House Speaker Bruce Newcomb, R-Burley, discourages closed meetings with the exception of caucuses and litigious matters.

But Newcomb is on his way out, and tightened rules for these meetings can be undone at any time by future legislators — a fact enlightened further in Jones’ dissenting opinion.

“If legislative committee work is shielded from public view, what is there to keep either house from conducting even more of its legislative work in committee, including perhaps the final debate, leaving only the final vote to occur in open session? This is not a wise road upon which to embark.”

If that sounds frightening for democracy, it is. Unfortunately, this court opinion gives future legislators the chance to make it happen.

Editorial from The Times-News

Our view: Lawmaking should be done in plain sight

Editorial from The Spokesman-Review

By a one-vote margin, Idaho Supreme Court justices decided this week that legislators can conduct committee meetings in secret.

The majority in the 3-2 decision penned by Justice Daniel Eismann against the Idaho Press Club focused on the fact that committee meetings weren’t addressed by the drafters of the Idaho Constitution when they insisted that lawmakers conduct public business openly. So, Justices Eismann, Linda Copple Trout and Gerald Schroeder ruled that the constitutional demand for openness applied only to full meetings of the House and Senate, not committees.

In handing down the disappointing decree, Eismann, Copple and Schroeder resembled the biblical Pharisees who were mesmerized by the letter of the law but failed to understand its intent. That the Idaho Constitution intended that the business of the Idaho Senate and the Idaho House “be transacted openly and not in secret session” is without dispute. That the Legislature has farmed out much of the business of the two houses to their committees is without dispute, too. That 21st-century Idahoans desire that public business be conducted in full view has been supported by several polls.

At this point, supermajority Republican lawmakers can proceed in one of two directions. They can view the split court decision as a license to close meetings to avoid controversy or other uncomfortable situations. Or they can act responsibly and close meetings only when dealing with extreme situations, such as litigation or state security, realizing that two justices dissented in the case and that their constituents disdain secret meetings. Those who show contempt for open government by abusing this carte blanche authority to close committee meetings should be defeated at the polls.

In his excellent dissent, Justice Jim Jones explained why it is important to keep all committee meetings open:

“… Bills are formulated in committees, competing proposals are considered, amendments are made, public policy is formulated, and the people are entitled to participate. They have a limited ability to do so when the Legislature debates and votes in full session. If legislative committee work is shielded from public view, what is there to keep either house from conducting even more of its legislative work in committee, including perhaps the final debate, leaving only the final vote to occur in open session? This is not a wise road upon which to embark.”

Justice Roger Burdick joined Jones in the dissent.

All is not lost for those who understand the importance of public access. Idaho lawmakers may have a slim majority of Supreme Court justices on their side, but they don’t have their constituents in their corner. They should be held accountable each time they meet behind closed doors. Last year, the Senate voted 26-9 to close committee meetings for any reason, with four North Idaho Republicans supporting the action: Joyce Broadsword of Sagle, Mike Jorgenson of Hayden Lake, and John Goedde and Dick Compton, both of Coeur d’Alene. Only Republican Sen. Shawn Keough of Sandpoint opposed the move.

Compton isn’t running again, but North Idahoans should remember this vote when the other three senators campaign this spring.

Editorial from The Spokesman-Review