From BoiseDev.com

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

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

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

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

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

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

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

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

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

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

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

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

Boise State, the law & lawmakers

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

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

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

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

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

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

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

‘Political climate’

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

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

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

Boise State and records

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

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

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

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

Keeping ‘secrets’

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

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

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

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

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

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

What’s next for Big City

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

From BoiseDev.com

From the Sandpoint Reader

By Soncirey Mitchell

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bradshaw, Omodt and Rosedale all disagreed with this claim.

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

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

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

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

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

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

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

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

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

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

From the Sandpoint Reader

From the Idaho Statesman

BY KEVIN FIXLER

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

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

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

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

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

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

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

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

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

UNABLE TO GET DRUGS, IDOC DELAYED EXECUTION

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

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

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

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

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

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

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

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

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

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

QUESTIONS OVER USE OF COMPOUNDING PHARMACIES

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

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

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

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

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

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

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

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

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

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

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

IDOC DISPUTES PARKING LOT PURCHASE

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

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

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

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

From the Idaho Statesman

From Idaho Education News

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

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

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

And the clock is ticking.

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

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

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

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

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

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

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

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

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

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

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

From Idaho Education News

Op-Ed from the Idaho State Journal

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

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

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

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

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

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

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

Op-Ed from the Idaho State Journal

From the Coeur d’Alene Press

The state’s most powerful board showed last week why legal counsel oversight is so important during public meetings.

The Idaho Land Board committed a violation of Open Meetings statute and then had to reassemble Friday to fix the violation. The Land Board is comprised of the governor, the secretary of state, the state controller, the superintendent of public instruction and the attorney gen —

Oh. Right.

The attorney general.

Not only was Idaho Attorney General Raul Labrador present for the Land Board meeting, he’s the one who committed the Open Meetings violation. The illegal act was flagged by Idaho Statesman Opinion Editor Scott McIntosh on behalf of the Idaho Press Club’s First Amendment Committee.

In Labrador’s view, the boo-boo was merely a technical omission. He had made a motion for the board to adjourn to executive session but, counter to Idaho law, did not cite the statute that specifically covers why the behind-the-doors huddle might have been necessary.

The law is there for a reason: To try to ensure that when officials are conducting the public’s business, they’re as transparent as possible.

Yes, it’s OK to laugh out loud at that last sentence, considering the open meeting violations that have been flagged in North Idaho, particularly with the North Idaho College’s board of trustees and new Community Library Network board majority.

But when the state’s top legal beagle looks more like a watchdog taking a nap, that’s cause for concern. Scarier still is if Labrador doesn’t know the law he’s sworn to uphold.

The attorney general is engaged in a bitter legal fight with the Idaho State Board of Education over University of Idaho’s potential purchase of University of Phoenix. The board’s approval of the deal is being challenged by Labrador based on an alleged Open Meetings violation.

A judge has ruled that Labrador and two of his staff can’t participate in the lawsuit, though other members of his office may. The AG quickly twisted that ruling into a statement that now is biting him where the Open Meetings light don’t shine.

“Idaho law makes the Attorney General the sole enforcer of the Open Meetings Law against state agencies like the Idaho State Board of Education,” Labrador said in a statement, “and the Court agreed.”

The Court of Public Opinion rules against Mr. Labrador’s hypocritical stance, suing a state board for allegedly violating the law he clearly violated.

It further advises Mr. Labrador to attend one of the open meeting/public record workshops being put on this fall by former Deputy AG Brian Kane and reporter Betsy Russell. The sole enforcer might learn something important.

From the Coeur d’Alene Press

From the Idaho Press

by ERIN BANKS RUSBY

CALDWELL — The Canyon County Board of Commissioners will consider ratifying earlier decisions from its budget process following allegations of open meetings law violation.

The board of commissioners will hold a public meeting on Thursday, Sept. 7 at 4 p.m. at the Canyon County Commissioners’ meeting room at the courthouse (1115 Albany St., Caldwell) to consider ratifying two budget decisions: the Aug. 17 decision to publish the tentative budget and the Aug. 30 decision to adopt the final budget.

Commissioner Brad Holton made the announcement at a meeting on Tuesday afternoon, reading from a prepared statement. In the statement, the commissioners noted the allegations while also disagreeing that there was any wrongdoing.

“Although we as a board do not agree with the allegations, in order to move forward, the board acknowledges the alleged violations,” Holton said, reading the statement. “With that acknowledgment, we believe that completes the cure for any violation.”

The Sept. 7 meeting is being held “out of an abundance of caution,” the statement said.

The move comes following an unusually contentious public hearing about the final budget in late August. At the hearing, former Canyon County commissioner Keri Smith alleged that the board had violated Idaho’s open meeting law when its commissioners individually communicated with the county’s chief operations officer, outside of public meetings, to revise the budget, as previously reported.

Specifically, Smith took issue with the commissioners noting the hundreds of hours of work they had dedicated to developing the budget between the Aug. 4 presentation of the suggested budget and the Aug. 15 presentation of the tentative budget. Language in a document explaining Idaho’s open meeting law says that public officials are required to hold a public meeting if they are even receiving information about a matter they will be voting on, as previously reported. No public meetings on the budget were held between Aug. 4 and Aug. 15.

Smith told the board at the Aug. 30 meeting that she intended to file a formal complaint against the board.

In the statement shared Tuesday, the commissioners said that the board had had meetings related to the budget on 21 dates, including 54 budget workshops. Each commissioner also had “informal discussions” with the chief operating officer during that process, and what was discussed at those meetings was put on the record for the public to access at either the Aug. 15 or Aug. 17 meeting, the statement said.

“Although it has been alleged that deliberations were conducted at a meeting violative of the open meetings act, no firm or final decision was rendered upon the questions then discussed, so any alleged impropriety of those meetings did not taint the final action taken … at subsequent meetings,” the statement said.

From the Idaho Press

There was some surprise news at the start of this fall’s first IDOG government transparency workshop on Aug. 30: Idaho Secretary of State Phil McGrane, who was welcoming the audience and introducing the series of four sessions this fall, said, “As of this morning, I have a confession to make.”

“At 9 a.m. today, the State Board of Land Commissioners, of which I am one, just announced a special meeting on Friday at 9 a.m. to cure a mistake in a motion on open meetings. There was a mistake regarding the open meeting law, and so we’re working to cure that.”

McGrane noted that both he and the day’s lead speaker, state Controller Brandon Woolf, serve on the Land Board. Both also are outspoken advocates of government transparency. “So, to kick off IDOG and highlight openness in government … we want to kick it off by making sure we are open and transparent,” he said, “and hopefully encouraging not just state officials but local officials all around the state of Idaho to do the same.” 

As reported by the Idaho Press, the violation occurred during the board’s  Aug. 15 meeting in which board member Attorney General Raúl Labrador made a motion to go into executive session but did not cite the exemption under the Idaho Open Meeting Law that justified the closed-door meeting. The law requires that the code section be included in the motion. The violation was cured at the Sept. 1 special meeting by formally acknowledging the error by unanimous vote of the board, and re-doing the business at issue. 

McGrane noted that the four IDOG sessions this fall, over four months, will cover transparency in finance, issues regarding lobbying and campaign finance, open meeting laws and public records.

Betsy Russell, IDOG president, also welcomed the participants, 80% of whom were participating online via Idaho Public Television’s InSession streaming service. “IDOG’s mission is to foster open government, supervised by an informed and engaged citizenry,” she said. “We believe that we all benefit when the public, the media and government officials are fully aware of the public’s rights to access government information and observe the conduct of the public’s business.”

Russell then introduced Woolf, who is in his third full term as the state’s elected controller. “Brandon started Transparent Idaho in 2012 to provide better access for Idaho citizens to state government financial data, and it has expanded significantly since then,” she said. “He has made government transparency a hallmark of his tenure as state controller.”

Woolf then discussed how public trust in government has been declining nationwide, after hitting a peak in 1964, and how transparency can restore trust, along with other benefits including deterring fraud and increasing accountability.

Woolf shared this quote: “Obscurity is the best friend of conspiracy.” That followed several other quotations shared by McGrane in his introduction, including this quote from Mother Teresa: “Honesty and transparency make you vulnerable. Be honest and transparent anyway.”

Woolf led participants through the Transparent Idaho website, transparent.idaho.gov; its features; and the extensive, searchable, up-to-date financial data available there, from public employee salaries to expenditures of taxpayer dollars. In addition to state government and agency financial information, along with data from the state’s four-year colleges and universities, the site now is in the process of adding local government and school district data as well.

Woolf also covered Townhall Idaho, townhall.idaho.gov, a site he and Gov. Brad Little launched in 2022 to serve as an online one-stop-shop for all public meeting information for state executive branch agencies.

At the close of his presentation, with McGrane and Russell as moderators, Woolf fielded questions from participants, including both those present in person in the Capitol’s Lincoln Auditorium and those participating online, who submitted their questions via email. Among the questions were some seeking information that’s not yet available on Transparent Idaho; Woolf pledged to continue increasing the data posted on the site, and said some of the information sought, including community college financial data, isn’t yet on the site but is on his team’s “to-do list.”

Here are some comments from the evaluations completed by participants in the Aug. 30 session:

From a citizen: “Congratulations on a fantastic job! I am very much heartened by the commitment to transparency and the encouragement of citizen engagement. Thank you to all for this fantastic tool and for educating us!”

From a state employee: “There is way more information on Transparent Idaho than I realized.”

From a reporter: “I didn’t know the Transparent Idaho website existed, which as a local reporter will be very useful. I look forward to looking at salaries and natural resource expenditures in each county.”

From a local elected official: “Thanks so much for putting this on! Sorry I couldn’t attend in person like I originally planned, but the online streaming option was SO convenient and worked perfectly.”

From a member of the news media: “There’s more data about local government entities available on the Transparent Idaho website than I realized. I can never get (my local) county officials to comply with requests for salary information. But, it’s on the Transparent Idaho website, so I can now easily find it. I look forward to that being the case for school districts as well.”

From a state employee: “I learned how to navigate the Transparent Idaho site and that some of the requests for information that we receive may be available there.”

From a citizen: “I plan to get more involved in state and local government now that I am retired and I believe some of what is available online as explained in the training will be helpful to me as I do that.”

From a citizen: “I am looking for employment, so knowing salaries of various state employees is helpful.”

From a former reporter and retired PIO: “I learned that Transparent Idaho is good for much more than finding out salaries. I particularly liked the primer on local government data.”

From a citizen: “Thank you for continuing this excellent programming!”

The full video of the Aug. 30 event, along with Woolf’s Powerpoint slides, are available for viewing at IDOG’s website, www.openidaho.org.

From the Idaho Capital Sun

BY: CLARK CORBIN

Attorney General Raúl Labrador did not cite the section of law authorizing an Aug. 15 executive session.

The Idaho Board of Land Commissioners met briefly Friday morning to acknowledge and cure a violation of Idaho’s open meeting law. 

During Friday’s meeting at the Idaho Department of Lands downtown Boise office, Gov. Brad Little said the violation occurred during the land board’s most recent meeting on Aug. 15.

“I move the board acknowledge that the Aug. 15 motion for executive session violated the open meeting law by failing to specifically identify the specific subsection of Idaho code authorizing the executive session,” Little said during Friday’s meeting.

To remedy, or cure, the violation, the land board voted to void the Aug. 15 executive session and re-do the motion by identifying the section of Idaho code authorizing the executive session. The land board then went into an executive session for about five minutes Friday to meet with its legal counsel to discuss pending litigation. When the land board members returned to open session a few moments later, they announced they took no action during the executive session and then adjourned their meeting. 

An executive session is a closed-door meeting of a governing body, which is allowed under Idaho law only under a specific set of narrow circumstances. Those circumstances include meeting with legal counsel to discuss legal options for litigation or pending litigation, acquiring property not owned by a public agency, considering hiring a public officer or employee or considering disciplining or dismissing a public officer, employee or public school student. 

The violation occurred after Idaho Attorney General Raúl Labrador made a motion to go into executive session on Aug. 15 but did not cite the specific subsection of Idaho law authorizing the executive section, the Idaho Press reported Thursday. 

Idaho Statesman opinion editor Scott McIntosh noticed the violation and contacted the land board about it on behalf of the Idaho Press Club’s First Amendment Committee earlier this week, the Press reported. 

The land board is made up of Idaho’s top statewide elected officials, including Little, Labrador, Superintendent of Public Instruction Debbie Critchfield, Idaho Secretary of State Phil McGrane and Idaho Controller Brandon Woolf. The land board’s job is to provide direction to the Idaho Department of Lands for managing more than 2.5 million acres of state endowment lands. 

From the Idaho Capital Sun

From the Idaho Press

by LAURA GUIDO 

The Idaho State Board of Commissioners announced it would be holding a special meeting Friday to rectify an Open Meetings Law violation.

The violation was made during its Aug. 15 meeting in which board member Attorney General Raúl Labrador made a motion for an executive session but did not cite the exemption under the law that justified the closed-door meeting. The exemption was cited in the agenda, but Idaho Code requires that it be included in the motion.

The violation was flagged by Idaho Statesman Opinion Editor Scott McIntosh on behalf of the Idaho Press Club’s First Amendment Committee. He wrote to Land Board members in an Aug. 29 email to highlight the violation and asked that the board cure the violation.

Board member Secretary of State Phil McGrane, who had seconded the motion at the Aug. 15 meeting, responded and said he would “work with the board both to remedy the situation and ensure it doesn’t happen again.”

McGrane told the Idaho Press that the Friday special meeting will note the violation and what the motion should have said.

Beth Cahill, communication director for the attorney general’s office, said in an emailed statement that there is “no question of public transparency” in the Aug. 15 meeting because the agenda and minutes identified the correct citation of code.

“The Land Board is doing the right thing in this matter,” Cahill wrote. “A board or commission should quickly cure a violation in open meetings laws. Technical omissions happen from time to time, and when they occur government boards should work to remedy it.”

The motion had been unanimously approved by the other board members who were present: Gov. Brad Little and Superintendent of Public Education Debbie Critchfield. State Controller Brandon Woolf is also a member but had left the meeting prior to the motion being made.

Toward the end of the meeting, Labrador said, “We have an executive session. My attorney needs to talk to the board members real quick.”

Little responded that a motion was required as well as a roll-call vote.

Labrador said, “So, motion to go into executive session.”

The section of Idaho Code that allows for narrow exemptions to the Open Meetings Law states, “The motion to go into executive session shall identify the specific subsections of this section that authorize the executive session.”

The agenda cited Idaho Code and wrote that the session was “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.”

Labrador is currently litigating an alleged Open Meetings Law violation against the State Board of Education, arguing it improperly held an executive session during negotiations in the University of Idaho’s bid to purchase the University of Phoenix.

A judge recently ruled that Labrador and two other employees in his office could not pursue this litigation against the board, because of information they may have obtained in a privileged phone call, but that other attorneys in the office may continue in the case.

Labrador, in response to the ruling, said in an Aug. 28 statement that the judge “upheld the right of my office to hold state agencies accountable for Open Meetings Law violations.”

“I am very pleased with the Court’s decision because it ensures that I can do my job and represent the people of Idaho,” Labrador wrote. “Idaho law makes the Attorney General the sole enforcer of the Open Meetings Law against state agencies like the Idaho State Board of Education, and the Court agreed.”

The Land Board special meeting will be held 9 a.m. Friday.

From the Idaho Press