From The Spokesman-Review

by Betsy Z. Russell

BOISE – It seems that women need not apply to the federal district court bench in Idaho.

A secretive selection process that Idaho’s two senators have launched to find a replacement for U.S. District Judge Edward Lodge appears to be ignoring female candidates.

Idaho is the only state in the federal 9th Circuit that has never had a woman judge on the U.S. District Court bench. Lodge announced last September that he will take senior status on July 3.

“We are extremely concerned,” said Peg Dougherty, co-chair of the Judicial Recruitment Committee for Idaho Women Lawyers.

Multiple sources say Sens. Mike Crapo and Jim Risch have interviewed just four candidates – all men.

“Are the senators even aware that Idaho is the only state without a woman on the federal court bench at the district level?” Dougherty asked. “If they are aware, do they care?”

Neither Crapo nor Risch would comment.

“The judgeship application process is entirely confidential and remains ongoing,” said Risch’s press secretary, Suzanne Wrasse.

“The senators are working through their confidential process,” said Crapo’s press secretary, Lindsay Nothern. “That’s all I have.”

At least five prominent female Idaho attorneys, including one sitting judge and two high-ranking prosecutors, applied for the position, but have not been interviewed. They haven’t heard anything since their applications were submitted, they say.

“I submitted my judicial questionnaire in December, and was not contacted whatsoever at all, period,” said Boise attorney Terri Pickens Manweiler. “I heard through the grapevine that I was too progressive for the position, which is patently absurd. I’m about as middle-of-the-road as you can get, which is exactly what the position needs.”

Wendy Olson, U.S. Attorney for Idaho, said she, too, completed the questionnaire that Risch and Crapo made available to interested applicants via email. “I did that in January,” she said. “And that is the last I have heard. I got a reply email saying they received my application, but other than that, I’ve not been contacted, not heard anything from the senators.”

U.S. Magistrate Judge Candy Dale confirmed that she, too, submitted her application; she did so in December. She also hasn’t been contacted since then. Dale is widely considered to be a front-runner for the position due to her seven-year record on the court. But she’s also the author of the court decision that overturned a ban on same-sex marriage in Idaho, which Idaho Republicans decried.

Multiple sources say the four male finalists interviewed for the position include two state district judges, and two Idaho attorneys with strong GOP ties – one a Republican elected official, the other the general counsel and a member of the senior management of Melaleuca Inc. That eastern Idaho company contributed $1 million to a super-PAC backing Republican Mitt Romney’s presidential campaign.

All four men declined comment.

The Idaho senators are only making a recommendation – the nominee will be selected by President Barack Obama, a Democrat.

“The process is inherently political,” said Shaakirrah Sanders, a professor with the University of Idaho College of Law.

Russell Wheeler, a fellow with the Brookings Institution, former deputy director of the Federal Judicial Center and an expert on the selection of federal judges, said of the senators, “They’ve had plenty of time to get a nominee up there, if they were of a mind to.”

If the selection process were delayed beyond July because the senators put forth candidates that weren’t acceptable to the Democratic president, Wheeler said, “It’s really doing a disservice to the district. It’s the litigants in the district, especially the civil litigants, who are going to feel the brunt of this.”

Idaho is one of just three states with only two U.S. district judges; it hasn’t gotten an additional judgeship in 60 years, though caseloads have soared. If Judge Lodge takes senior status, only U.S. District Judge Lynn Winmill would be left. “Winmill is going to be working his head off,” Wheeler said.

Plus, he said, failing to consider female applicants is “just counter-productive. Idaho I know is a fairly conservative state. But that’s getting to be a black eye in this day and age, when a court is populated solely by white males.”

Judge Dale was the first woman appointed as a U.S. magistrate judge in Idaho, in 2008. Magistrate judges are appointed by district judges through a merit-selection process and serve eight-year terms; they don’t preside over felony trials, and can adjudicate civil cases only with the consent of the parties. U.S. district judges are lifetime appointees.

Dougherty said Idaho Women Lawyers has made a concerted effort in recent years to encourage qualified women to apply for judgeships, and bemoans the lack of female judges in the state, including an Idaho Supreme Court that’s currently all-male.

As for the U.S. District judgeship, Dougherty said the Idaho senators have provided no information about the selection process or what they’re seeking in a candidate.

Wheeler, at the Brookings Institution, said in about 20 states, senators have set up “vetting committees” to encourage and review applications for federal judgeships in an open, often bipartisan, process. That’s what Idaho did when it last got a new federal district judge, Judge Winmill, in 1996; he was appointed by Democratic President Bill Clinton.

The state’s current process is at the other end of the spectrum, Wheeler said. “I can’t say that what’s going on in Idaho is unique, but a lot of other states’ senators are on the face of it more transparent.”

In the past decade, home-state senators have taken an increasing role in selection of federal judges, Wheeler said. There’s an unwritten rule in the Senate Judiciary Committee requiring both home-state senators to complete “blue slips” saying they approve of nominees for federal judge in their state; without those slips, “there’ll be no further proceedings,” he said.

“It really gives home-state senators veto power over the president’s nominee,” he added.

But the process also can lead to big political battles, as occurred in Georgia last year, when the two senators insisted on candidates that weren’t acceptable to Democrats and the civil rights community in their state. One withdrew after the Senate refused to consider him; the other was confirmed, but only after a fight.

“They’re playing more hardball,” Wheeler said. “It’s not a pretty picture, but it’s a reality.”

From The Spokesman-Review

From Eye on Boise/The Spokesman-Review

Gov. Butch Otter has signed HB 324 into law, sharply increasing fines for violations of the Idaho Open Meeting Law. Fines for regular violations would rise from $50 to $250; fines for knowing violations would rise from $500 to $1,500; and fines for knowing, repeated violations would rise from $500 to $2,500. Rep. Linden Bateman, R-Idaho Falls, proposed the bill, saying fines hadn’t been updated since the Open Meeting Law first was enacted in 1974, and the increases reflect inflation.

The bill had a bumpy ride, with a House committee initially rejecting a version with even higher fines. Then, the House passed the bill, but the Senate added technical amendments that turned out to have a serious drafting error, inadvertently repealing a portion of the existing law. Finally, a new version was introduced in the House, where it passed, 60-9, and then passed the Senate, 29-4. Otter had no comment as he signed the bill into law. It takes effect July 1.

It was one of 12 bills Otter signed into law yesterday and today; you can see the full list here. Among them were SB 1174, the Idaho Transportation Department budget for next year, which totals nearly $500 million, nearly half of it from federal funds; and SB 1098a, the bill to allow state parks to seek corporate sponsorships.

From Eye on Boise/The Spokesman-Review

From the Coeur d’Alene Press

by David Cole

From the Coeur d’Alene Press

From AP/Lewiston Tribune

GENESEE, Idaho (AP) — City officials in northern Idaho say they voted illegally four times over the past year.

The Lewiston Tribune (https://bit.ly/1D7STfk) reports that the Genesee city councilors acknowledged their actions during a special March 26 meeting. The four-member panel then voided its most recent email vote, which involved a lease agreement with the Latah County Library District.

Councilor Art Lindquist says City Attorney Erin Tomlin alerted the panel that they violated Idaho’s open meeting law after hearing members discuss the email vote in a prior meeting.

Lindquist added that the council decided to use email after being unable to meet the quorum requirement for a regular meeting.

Along with the vote regarding the lease, two of the email votes were to approve bills and one was to accept an employee’s resignation.

While the council was able to void one of the illegal votes, the three others no longer fall under the 30-day cure period Idaho allows for citizens and officials to question the legality of a vote —even though the vote was never posted or made public until the March 26 meeting.

City councilors were given training in open-meeting laws, Tomlin said. However, the portion of training on conducting city business over email didn’t include voting.

As a result, city council approved organizing an open-meeting law training session for city staffers and elected officials in the near future.

“We had no intention of having any wrongdoing,” Mayor Steve Odenborg said.

Documents provided through a public-record request from the Lewiston Tribune show that votes via email happened four times during the past five years.

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Information from: Lewiston Tribune, https://www.lmtribune.com

Copyright 2015 The Associated Press

From AP/Lewiston Tribune

Guest opinion from Idaho Attorney General Lawrence Wasden

As we celebrate the 25th anniversary of our state’s Public Records Law, I encourage all Idahoans to take a moment to ask whether a policy decision made a generation ago remains relevant in our state today.

To me, the answer is simple. The statute adopted by Idaho lawmakers in 1990 is as critical now as it was then to fostering public trust, accountability and transparency in our state and local government.

Yet as we honor the steps we’ve made to open government here in Idaho, there is still cause for concern. Currently, we’re engaged in a national debate on public records laws and the risks taken by government officials who, for whatever reason, choose to ignore the spirit of those laws.

The wisdom offered more than 50 years ago by former U.S. Attorney General Ramsey Clark still resonates loud and clear: “Nothing so diminishes democracy as secrecy.”

For the last two weeks, national media have been reporting on the use of a private email account by former U.S. Secretary of State – and leading Democratic presidential nominee – Hillary Rodham Clinton.

Mrs. Clinton has acknowledged using a personal account to send emails while serving as secretary from 2009 to 2013, characterizing it as a matter of convenience. Days after this story was first reported, Mrs. Clinton turned over to government officials more than 55,000 pages of documents covering her time in office. Mrs. Clinton’s lawyers have deemed another 31,000 emails private, meaning they are now shielded from public review.

While I acknowledge Mrs. Clinton for producing those emails and urging their quick release, it’s fair for the public and media to question why a government official – whether elected or appointed – at the very least created the perception of concealing the public’s business.

In so many ways, actions like this do nothing more than erode faith in our republic and its leaders and foster mistrust in our public institutions.

Luckily, however, I can say with confidence that this debate playing out on the federal stage would not occur here thanks to the wisdom and forethought of the authors of Idaho’s Public Records Law.

In 1990, the Idaho Legislature embedded the principles of open, transparent government into law. In their original statement of purpose, lawmakers wrote: “Those who are elected to public office and those who are employed in government are trustees and servants of the people and it is in the public interest to enable any person to review and commend or criticize the operation and actions of government and governmental officials and employees …”

What does that statement mean to me? In simplest terms, lawmakers wanted to send a strong signal that shielding public records – whether it’s a handful of notes written by a clerk or thousands of emails sent by an agency director – will not be tolerated and is against the law.

Those intentions are reinforced in the definition of a public record.

As defined in Idaho Code 9-337 (14), a public record “includes but is not limited to, any writing containing information relating to the conduct or administration of the public’s business prepared, owned, used or retained by any state agency, independent public body corporate and politic or local agency regardless of physical form or characteristics.”

The law also guards against using a private, third-party contractor to make an end-run around disclosure.

Idaho Code 9-338 (13) states: “A public agency or independent public body corporate and politic shall not prevent the examination or copying of a public record by contracting with a nongovernmental body to perform any of its duties or functions.”

These provisions ensure two things: 1. Idaho’s public records remain public; and 2. Government cannot contract away its obligations under the public records act.

In Idaho, there would be no debate about Mrs. Clinton’s use of a private server; the emails and other documents would be public based on their content.

The state’s public records law demands that the public’s business remain the public’s business. This requirement engenders confidence and trust in government with the use of one of nature’s strongest sanitizers: sunshine.

So, happy birthday to our Public Records Law and let’s hope we can all look forward to many more.

Wasden has been Idaho’s attorney general since 2003.

Guest opinion from Idaho Attorney General Lawrence Wasden

Guest opinion from the Idaho Statesman

By Gov. Butch Otter

Open, transparent and accessible government is fundamental to a successful free society. That’s why I appointed a public records ombudsman in April 2014 after hearing from constituents that existing law provides only a burdensome remedy for challenging public record request denials.

I tasked the new ombudsman, an attorney named Cally Younger, with looking into the state public records process and whether anything should be changed in our laws or agency rules to advance my goal of increasing transparency in Idaho’s state government.

Cally found that state agencies generally do a good job of responding to public records requests and these agencies receive almost no complaints when issuing a denial. However, all state agencies also have room for improvement. Each of them can take steps towards modernizing their request process in order to keep costs down and respond to requests more quickly.

A primary tool for modernizing such administrative processes is better use of the Internet and individual agency Web sites. Contact information for public information officers should be easy to find and public records request policies and fee schedules should be posted online. These are simple things that agencies can do immediately to increase transparency and accountability.

I also asked Cally to examine Idaho code to see if any changes were needed in our laws. The ombudsman assembled a diverse group of stakeholders to assess the Idaho Public Records Act, including representatives from the news media, cities, counties and the Attorney General’s Office.

The first issue the group found was that statutes relating to transparency in government were dispersed throughout Idaho Code, making it more difficult for citizens to readily identify them. The group crafted legislation to put all transparent and ethical government statutes under a new title called Transparency and Ethics in Government. Those proposals are in House Bill 90 and House Bill 91, both of which were approved by the Idaho House of Representatives and await action in the Senate.

This legislation shows that Idaho is serious about increasing transparency – starting with making its laws as easy to navigate as possible.

Still being considered are proposals to formalize the ombudsman role and give it authority to review public record request denials and issue advisory opinions.

I look forward to the group’s continuing efforts to identify and address the burdens on access to public records, and I appreciate the steps Cally and her colleagues are taking to ensure Idaho citizens are among the best informed in the world.

Guest opinion from the Idaho Statesman

From the Idaho Statesman

When Rhonda and Eric D’Amico decided to exercise their right under Idaho law to see public records, they were surprised when Idaho State University told them to fork over $1,235.

Not easily deterred, the D’Amicos decided to set up an online fundraising campaign to help pay the tab.

Within three days of an Idaho State Journal article about their plight, the D’Amicos had the money, which was used to get ISU to turn over the documents.

“Citizens are truly interested in the public process and even willing to pay for it out of their own pockets,” Rhonda D’Amico said.

The D’Amicos didn’t start out to be public records crusaders.

But when plans for ISU to spend $600,000 on a new home for its president surfaced last fall, the D’Amicos wanted to know more about the plan and why the school wanted to jettison the existing president’s house, the historic Servel House, which the school said was in need of a $795,000 remodel. They submitted a public records request for Servel House receipts, labor costs, inventory and renovation estimates.

Then they got the bill.

“We are prepared to complete the process of locating the documents when a check or checks totaling $1,235, made payable to Idaho State University, are presented to General Counsel’s office,” ISU General Counsel David Alexander wrote in a Jan. 8 email to the D’Amicos.

Under state law, agencies can charge a fee to recover the actual labor and material costs of processing a public records fee. The law says the first two hours and 100 pages of paper records must be provided at no cost.

Alexander told the D’Amicos that gathering the documents would require 58.5 to 80.5 hours of staff time at an hourly rate ranging from $15.26 to $58.85.

“We were very surprised by it. But we also felt it was in the public’s best interest, so it was worth our time to get that information out to the public,” D’Amico told the Statesman.

To do it, they went public.

They posted a plea at the fundraising website GoFundMe.com.

“The price for Idaho State University transparency is $1,235,” the D’Amicos wrote on GoFundMe.com. “Please help us learn about the costs behind the Servel House’s estimated renovation costs ($750,000) and average annual maintenance, care, and operating costs ($31,000) as reported to the Idaho State Board of Education.”

Twenty-seven people donated to the cause via GoFundMe.com. Once the D’Amicos reached their goal, they stopped accepting donations.

When they got the 910-page document, the D’Amicos made it available at ISU library so any member of the public could see it.

Rhonda D’Amico said she knew gathering the documents would be a tedious task, but she thinks ISU should have compiled the information prior to her request, because the previous fall the school was prepared to ask the State Board of Education to approve spending $600,000 for the new home. D’Amico said the board would have needed the documentation and reports to bolster its argument that the Servel House was too expensive to keep.

D’Amico said she had no opinion one way or another on the proposal.

“My primary goal was getting the information into the hands of the people making the decision,” she said. She said the public should get to review the data behind the university’s estimated costs.

When she reviewed the documents, D’Amico said she did notice one thing: “There does not seem to be a long-term strategic plan for the Servel House as far as maintenance and operations.”

Since paying the tab, D’Amico learned that state law does allow reporters and citizens to request public records fees be waived if their release is in the public’s interest. Additionally, since assembling her request, a committee the school has set up to review the residence question is examining the same documents she requested.

Since ISU would have had to assemble the information anyway, Rhonda D’Amico reasons, ISU should refund the money.

She has twice asked ISU to refund the $1,235, because the pubic records request served a public benefit. She’s gotten no response.

“If we are refunded, we will make every effort to contact donors and give back the money,” she said. If the D’Amicos cannot reach all the donors – some people gave anonymously – any money not returned will be put into a scholarship run by a non-ISU entity, D’Amico said.

From the Idaho Statesman

From Eye on Boise/The Spokesman-Review

The House State Affairs Committee gave a far different reception this morning to Rep. Linden Bateman, R-Idaho Falls, for his new version of legislation to raise the fines for violations of the Idaho Open Meeting Law. Bateman modified his proposal to raise the fines from the current $50 to $250; and from the current $500 to $1,500 for knowing violations, and to $2,500 for repeated knowing violations.

“I think that this is an excellent edit of the last bill,” Rep. Vito Barbieri, R-Dalton Gardens, said. “I hope that the district attorneys and those that are given information about these violations will now find it worth their time to pursue these a little bit more diligently than we’ve seen in the past. Thank you.”

Rep. Melissa Wintrow, D-Boise, told Bateman, “I just wanted to say again, thank you. Informally, many people actually approached me after the last hearing and they were very thankful for you coming forward and raising that.”

The committee was far less receptive last week when Bateman proposed upping the penalties from $50 to $500 and from $500 to $5,000; Barbieri said then that he was “appalled” by the proposal for a ten-fold increase. Bateman retooled the bill to match the increases to inflation since 1974, when the Idaho Open Meeting Law first was enacted. “This is just a matter of concern,” he told the committee. “Public policy should be open. And to keep the 1974 penalties would be to diminish the significance of the legislation.” Today’s unanimous vote clears the way for a full hearing on Bateman’s bill.

From Eye on Boise/The Spokesman-Review

From The Spokesman-Review

When Rep. Linden Bateman, R-Idaho Falls, today proposed sharply increasing fines for violating the Idaho Open Meeting Law, he ran into a buzz saw of opposition from members of the House State Affairs Committee, led by Rep. Vito Barbieri, R-Dalton Gardens.

“Rep. Bateman, I’m appalled at this tenfold increase here,” Barbieri declared. “How does this act as a deterrent? Isn’t the public disclosure that such a thing happened, and being fined whatever it may be, enough to allow the public servant to recognize that they’re in violation of this rule?”

Bateman said he was only proposing increasing the maximum penalties, and he proposed a big increase – from $50 to $500 for violations, and from $500 to $5,000 for knowing or repeated violations – to reflect inflation since the Open Meeting Law first was enacted in 1974. “This is a serious business, I think, violations of open meeting law,” Bateman told the House State Affairs Committee. “It’s a deterrent. You won’t have many prosecutions, I’ll admit, but it’s on the books.”

Rep. Pete Nielsen, R-Mountain Home, said he thought a tenfold increase in a single year was too much, and suggested a smaller increase.

Rep. Lynn Luker, R-Boise, said he wants the existing Open Meeting Law changed so that repeat violations within 12 months don’t bring the higher fine unless they’re “willful” violations; Barbieri said he agreed.

Rep. Brent Crane, R-Nampa, posed a hypothetical: What if six city council members, during a long meeting, went in a back room for a snack during a recess in the meeting, and four of them were there eating at the same time? “Would they then be subject to the penalties and it would cost them $5,000 to go back there and have a break?” asked Crane, R-Nampa.

Bateman said no. “No prosecutor in his right mind would ever prosecute under that,” he told Crane. Plus, officials don’t violate the Open Meeting Law just by being in the same place – they violate it by conducting public business outside an open meeting. So snacking wouldn’t count, unless they were debating on council issues while they were at it.

Luker said he’s concerned about low- or unpaid local officials. “They’re just there trying to do their best, and they get sucked into a meeting that maybe they shouldn’t have been sucked into,” he said.

Bateman said a group of his constituents asked him to propose the big increase in the fines. “They want to be tough. I’m representing my constituents,” he said.

“I had the privilege to know the legislator who wrote the Sunshine Law when I came here 30 years ago, Gary Ingram,” Bateman told the committee. “He wrote the act, it was fresh off the press, and I recall just almost every speech he gave in the House he found a way to reference it. He just believed that public business should be conducted in the public and we should have adequate deterrence for violation of the Open Meeting Law.” He added, “I think we need to be perhaps more aggressive in this – our prosecuting attorneys should be more aggressive. That’s the public trust, and public business should be conducted in public.”

Rep. Kathy Sims, R-Coeur d’Alene, backed Bateman’s bill. “This is a maximum,” she noted. “What I’ve found in my district is the prosecuting attorneys are reluctant to even pay attention to this because of the fines being so small, and in my area it has been an issue many, many times. So this will make a prosecuting attorney think more seriously about a complaint that’s been filed. I think this is justified.”

Rep. Gayle Batt, R-Wilder, agreed, saying, “I think this is the people’s business … and they have a right to know, and it should be done openly.” She moved to introduce Bateman’s bill. Rep. Melissa Wintrow, D-Boise, offered a substitute motion to return it to Bateman and ask him to amend it to half the increase, to better match inflation since 1974.

Before the committee could vote on that, Bateman asked unanimous consent to return the bill to him. “We’ll come back with one that’s been adjusted somewhat,” he said.

From The Spokesman-Review

From the Associated Press/Idaho State Journal

An eastern Idaho family has launched an online fundraising effort to help cover the estimated $1,235 cost to get public records about the Idaho State University president’s residence.

ISU emailed the bill to Eric and Rhonda D’Amico and their son, Sam D’Amico, after the family submitted a public-records request for documents detailing how much the school spends on maintenance and improvements at the Servel House, which is used as a residence for ISU President Arthur Vailas.

The Idaho State Journal () reported Monday that the D’Amico family launched a fundraising effort on the crowd-sourcing website Gofundme.com to help pay for the bill. The money will cover the expense of having an ISU staffer collect the documents and other related costs.

Last year, university officials were preparing to ask the State Board of Education to approve a $600,000 expenditure to purchase a new president’s home to replace the Servel House. In November, university officials said the new house would save the school about $195,000 in maintenance costs during the next 10 years and eliminate the need for about $750,000 in needed renovations.

University leaders later dropped the proposal for a new house, however, after hearing negative feedback from the community.

The D’Amicos asked for receipts, work orders and estimates for repairs at Servel House to back up those estimates.

“You would think the university would have collected that information before going to the state board,” Eric D’Amico said.

ISU Vice President for Advancement Kent Tingey said the university sent adequate information for the new house proposal to the State Board. The D’Amicos wanted documentation dating back several years, Tingey said, and the school doesn’t have that information readily available.

Idaho’s public records law allows public entities to recoup some of the costs associated with filling public records requests, although the first 100 pages and first two hours of labor are free.

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Information from: Idaho State Journal, https://www.journalnet.com

From the Associated Press/Idaho State Journal