From the Associated Press

Two workers at the Idaho National Laboratory have sued the U.S. Department of Energy under the Freedom of Information Act, claiming they were wrongly denied documentation about an accident in which they were exposed to plutonium.

Brian Simmons and Ralph Stanton were among several workers packaging plutonium reactor fuel plates at the Idaho facility when they were exposed to radiation in 2011.

Earlier this year they filed a public records request asking the U.S. Department of Energy for documentation relating to the accidental exposure, including security video of the event.

In the lawsuit, the men contend the federal agency wrongly denied them access to the video because it erroneously determined it wasn’t an agency record but was instead the property of a private contractor.

The accident happened in a building that once housed a nuclear reactor. Workers had been taking plutonium fuel out of storage when they came upon radioactive materials held in two containers, each marked with a label stating the containers were damaged.

After talking to supervisors, workers removed the wrapping on one of the containers and a radioactive black powder spilled out. The workers had on lab coats and some had gloves, but none had respiratory gear or other protective clothing, according to a report released earlier this year by the Department of Energy.

Simmons and Stanton have filed a complaint with the Occupational Safety and Health Administration against Battelle Energy Alliance, the company contracted by the government to operate Idaho National Laboratory. In that complaint, the men contend their concerns about on-the-job safety were ignored, and an unsafe culture existed at the site before they and 16 other workers were exposed to the plutonium. They also allege retaliation after raising safety issues with administrators.

Battelle officials have denied the claims.

In the separate public records lawsuit filed in U.S. District Court in Boise, the men said the Department of Energy obtained the security video during the course of its investigation into the accident and relied on it as a “unique opportunity to observe the entire work process taking place at the time of the accident.”

Initially, the men say, the DOE refused to turn it over under privacy grounds because the agency said that even though the two men were there when the video was taken, sharing it with them would violate the privacy of the other individuals shown in the footage.

Simmons and Stanton say in the lawsuit that the DOE later shifted its withholding rational and claimed the video wasn’t an agency record because it was generated by Battelle.

The two workers want the federal judge to force the DOE to turn over all video related to the Nov. 8, 2011, plutonium release.

Tim Jackson, a spokesman for the Department of Energy with the Idaho Operations Office, said the agency wouldn’t comment because the matter is in litigation, though he did provide the agency’s written decision on the record request.

In that decision, the DOE’s office of hearings and appeals found that Battelle Energy Alliance created the video and intended to retain control of the video, and that DOE didn’t retain a copy of the videotape. As a result, the hearing official concluded, the Department of Energy is unable to use and dispose of the record as it sees fit, and the videotape wasn’t incorporated into the agency’s files.

Additionally, the hearing official found, the agency’s contract with Battelle specifically states that the contractor owns employment-related records, including records generated during employee-related investigations. The video falls in that category, the hearing official decided.

From the Associated Press

Commentary by David Adler from the Idaho Statesman

At the time of the American Revolution the principle of the rule of law was focused on the subordination of the executive to legal prescriptions. The founders, who were keen students of history, had culled from their readings the lesson that kings and despots and tyrants had defied efforts to rein in their powers.

In a historic act, culminating in decisions made in the Constitutional Convention, the presidency was made subject to the limits of the Constitution. Executive transparency and accountability were ascendant. With some exceptions, that trajectory survived well into the 20th century, but the rise of the imperial presidency has proven to be prologue to another perilous era: executive branch creation of secret law.

Since 9/11, the administrations of George W. Bush and Barrack Obama have hidden from public view legal memos prepared by the Office of Legal Counsel that have purported to supply the legal justifications for a range of executive branch initiatives: preventive war, extraordinary rendition, warrantless surveillance, termination of the Geneva Convention, defense of interrogations methods widely condemned as torture and, most recently, targeted killings and the use of exigent letters.

Scholarly analyses of OLC memos that were leaked or subsequently released during the latter years of the Bush administration have shredded the reasoning employed by attorneys in that office. Worse than the impoverished and indefensible reasoning, however, is the fact that the Obama administration has refused to release the memos so that they could be scrutinized publicly.

If matters could be made worse, they have been made worse — by the judiciary. In the past several years, federal court rulings have granted summary judgment to the Department of Justice, sustaining its claims of the need for secrecy. It’s one thing to withhold on national security grounds certain policy decisions that require secrecy, but it’s quite a different matter to insulate the OLC memos that might disclose advocacy of the desire to violate statutes and treaties, which is what several of the memos have done.

The American people are entitled to an explanation of the legal and constitutional rationales advanced by the DOJ in defense of administration policies. If the executive branch refuses to disclose the decisions it has made, and the reasoning undergirding those decisions, and the judiciary sustains that secrecy the result is the creation of secret law by the executive branch. That pattern inflicts great violence on our constitutional order. Indeed, it diminishes the rule of law when the citizenry is deprived of the opportunity to decide for itself whether governmental programs and policies adhere to the Constitution.

Important cases pending in the federal courts, one seeking disclosure of the OLC memos justifying President Obama’s claim of authority to order “targeted killings,” and the other seeking release of the memo defending the FBI’s resort to “exigent letters” to access phone data, afford the courts an opportunity to stem the tide of executive branch lawmaking and restore a semblance of transparency and accountability.

The Alice-in-Wonderland nature of recent federal court rulings that have failed to find a defensible legal basis for shrouding the OLC Memos in secrecy has introduced a novel and threatening theory into our jurisprudence: if the executive believes a legal memo should be kept secret, it will be kept secret.

When the nation was confronted in 1974 in U.S. v. Nixon — the Watergate tapes case — with President Richard Nixon’s claim of an absolute executive privilege to withhold information from the judiciary, the Supreme Court, in an opinion written by Chief Justice Warren Burger, denounced the claim of absolutism as foreign to our constitutional jurisprudence.

Our system rests on checks and balances, fundamental principle that our judges should remember.

Adler is the director of the Andrus Center for Public Policy at Boise State University where he holds appointment as the Cecil D. Andrus professor of public affairs. He serves as an adjunct professor of law in the University of Idaho’s College of Law, where he teaches courses on the Constitution and the Supreme Court.

Commentary by David Adler from the Idaho Statesman

Hundreds of friends, relatives, and admirers of Allen Derr gathered at the Barber Park Event Center on Wednesday evening to remember the Idaho attorney who won a landmark sex discrimination case before the U.S. Supreme Court and went on to establish a legacy in Idaho of standing up for openness in government.

Derr was a founding board member of Idahoans for Openness in Government (IDOG) and a longtime director of the Idaho Press Club. He held both journalism and law degrees from the University of Idaho; he asked that donations in his memory go to his favorite program there, the Pro Bono Program, University of Idaho College of Law, P.O. Box 442321, Moscow ID 83844-2321.

The event center was standing-room only for Allen’s celebration memorial. Don Burnett, president of the University of Idaho, spoke of the significance of the Reed vs. Reed decision that Derr won at the U.S. Supreme Court. “It created a whole branch of jurisprudence related to gender equality, and it all started right here in Boise, and it started with Allen Derr,” he said.

He also said Derr worked with him to help establish the pro bono program at the U of I law school, where students are required to do pro bono work and taught that “the doing of pro bono service is a professional responsibility.” Said Burnett, “We have more justice than we would have had without Allen Derr.”

Derr’s little sister, Jane Betts, shared stories from Allen’s early life, and former Idaho Supreme Court Justice Jesse Walters told of joining Derr’s law practice in 1965, as a young attorney, fresh off a clerkship. “I learned from the best,” Walters said.

Idaho Press Club President Betsy Russell said, “Allen is legend at the Idaho Press Club. And it may be because before he was the kind, wise, extremely knowledgeable and experienced First Amendment attorney we all knew him as, he was a reporter, too.”

KTVB-TV has a report on the memorial here:

https://www.ktvb.com/news/Friends-and-family-hold-special-memorial-for-Allen-Derr–217864881.html

From the Associated Press

The board overseeing Idaho’s health insurance exchange plans a 3-hour, 40-minute meeting behind a downtown Boise law office’s closed doors where citizens will be barred Thursday — nearly twice as long as a public meeting scheduled later that day.

When the 2013 Legislature approved the exchange in April, it made clear it wanted open meetings. Lawmakers who wrote the statute creating this online insurance marketplace under President Barack Obama’s health care overhaul said “every reasonable effort shall be made to make such meetings televised or streamed.”

With so many Republicans against it — 29 in the Idaho House alone opposed it — making it as transparent as possible would help establish public trust and boost success, went the rationale.

But exchange chairman Stephen Weeg of Pocatello said Thursday’s closed session will allow frank exchanges between board members and private attorneys about protecting the exchange’s intellectual property from those who might exploit it, and to discuss risks facing board members between now and Oct. 1, when the exchange begins enrolling participants.

“We talked to our attorneys about that, and they said we were within the boundaries of the Open Meeting Law to do it this way,” said Weeg, a retired director of a nonprofit community health organization.

Exchange attorney Mike Stoddard from Hawley Troxell in Boise has produced memos detailing issues to be discussed Thursday. These memos, he said, are records exempt from disclosure because they enjoy the protections of attorney-client privilege.

As a consequence, meetings where they’re reviewed can be closed.

“We’ve got memos, quite a few other materials, that walk through the various liabilities and exposures the exchange board members are subject to under federal and state law,” Stoddard said.

Even so, nothing about the memos actually prevents their discussion in a public forum, if the 19-member exchange board chose.

But Weeg says there’s a good reason to shutter the session, especially with a potential threat of lawsuit against the exchange from critics. In addition, every public board meeting since April has been attended by lobbyists for private contractors eager to win a lucrative piece of building and operating Idaho’s exchange. Just the first installment of federal grants for Idaho has totaled $20.6 million.

“I don’t want to talk about risk management or risk exposure when I’ve got people in the audience who may want to figure out how to take advantage of the risks we may be talking about,” Weeg said. “There are times when we need to be reflective, to make sure we’re doing the right things, without having a bull’s eye on our chest.”

According to Idaho’s official Open Meeting Law Manual, distributed by the state attorney general’s office, “closed meetings can lead to distrust of governmental decisions and acts.” That’s a significant consideration with the insurance exchange, in particular, since its creation was branded by many Idaho GOP lawmakers as knuckling under to the federal Affordable Care Act and creeping toward socialized medicine.

Rep. Luke Malek, R-Coeur d’Alene and a lawyer, supported the exchange but said its strict open-meeting provisions were important.

“There was a lot of skepticism about a federal mandate coming into Idaho,” Malek said. “That allows the process to be analyzed by citizens at every stage.”

He didn’t weigh in on Thursday’s meeting, saying he needed to learn more.

Sen. Jim Rice, R-Caldwell, a lawyer and one of three Idaho lawmakers on the exchange board, said he’ll be monitoring Thursday’s session, so board members don’t stray beyond material that otherwise must be handled openly.

“The big thing for me, making sure when we get in there, we stick to only things that are appropriate for an executive session, and when it’s not appropriate, we get out of it,” Rice said.

One thing board members made clear: No decision or vote will be taken in closed session from 11:30 a.m. to 3:10 p.m. By law, those must come afterward, when board members shift locales from the law office to the Idaho Capitol five blocks to the north for the 2-hour public portion of Thursday’s meeting, which begins at 3:30 p.m.

From the Associated Press

From the Idaho Press Club Communicator

By Todd Dvorak

BOISE – For the second consecutive year, a broad coalition of Idaho news organizations has joined together in a fight for openness. This time, the focus of the battle is a lawsuit in federal court pitting a group of inmates against the state’s only private prison contractor, the Corrections Corporation of America.

The case was filed last year and the inmates allege, among other things, that a pattern of understaffing and mismanagement at the prison has created a reality where gangs to run the lockup. Ultimately, that culture led to a brutal attack by the gang members on the plaintiffs in the case. The inmates are suing for damages and reforms at the prison.

But earlier this year, CCA lawyers filed a motion asking the judge to seal whatever it wants in the run-up to trial. The CCA motion is broad and could cover a range of motions, evidence and affidavits that in most other lawsuits would be ripe for public consumption. The plaintiffs in the case oppose the protective order and a judge is still weighing the merits.

Now the judge also has something else to consider in that decision making process: A motion to intervene by the Idaho media coalition and a separate motion arguing against sealing the court file. In June, the Associated Press led the charge to challenge CCA’s bid to close the court file by enlisting the help and financial resources of 16 other news organizations.

The list of partners includes: Idaho Statesman, The Spokesman-Review, The Times-News, KBOI-TV, Idaho Press-Tribune, Post Register, Lewiston Tribune, Moscow-Pullman Daily News, Coeur d’Alene Press, Bonner County Daily Bee, Challis Messenger, Shelley Pioneer, Jefferson Star, Pioneer News Group, Idaho Press Club and the Newspaper Association of Idaho.

The coalition, and through its Lewiston-based attorney Chuck Brown, contend sealing the court file would make it nearly impossible for reporters to cover an important lawsuit. Moreover, Brown argues the protective order would violate the public’s right to know what is happening in the federal courts and the specifics of allegations against a company that is paid $29 million annually by the state of Idaho.

“This civil case raises issues of profound concern to the general public,” Brown wrote on behalf of the news organizations. “… Drawing a curtain of secrecy behind which the defendants can operate simply does not comport with the requirements of the First Amendment, nor Ninth Circuit case law as to the openness required of our judicial system, but also the openness required of our government.”

Brown’s name should be familiar to Idaho media and Press Club members. He was the attorney who represented more than a dozen Idaho media organizations that sued the Idaho Department of Correction last year in an effort to change the agency’s execution policy. The news organizations won that case when the 9^th U.S. Circuit Court of Appeals held the state’s policy violated the right for the public to see the full process of an execution.

Brown says he is confident the news groups have another strong case, one also supported in appellate court precedent. As of press time, U.S. District Judge Edward Lodge had yet to make a decision on the media’s motion to intervene to challenge CCA’s request for a protective order.

It should also be noted the same media coalition may be filing a similar action in a separate lawsuit involving CCA. This one involves the ACLU Idaho on behalf of inmates and a series of motions filed in a case that had been settled, but recently reopened and subject to mediation. Earlier this year, AP legal affairs reporter Rebecca Boone noticed that two motions and a judicial order had been filed under seal and separate from the mediation, which is routinely off limits to the public.

But because the new motions essentially create a court record, the media coalition has asked Brown to consider filing a motion to intervene in this case as well, arguing again that the motions and order should be unsealed and made part of the public record. Brown is still researching and deciding whether to file as of press time.

Todd Dvorak is the Boise correspondent for the Associated Press, and is the vice president of the Idaho Press Club board and chairman of the club’s First Amendment Committee.

From the Idaho Press Club Communicator

Commentary by David Adler from the Idaho Statesman

The rush of commentary on the Obama administration’s efforts to equate investigative reporting with espionage has brought to a new pitch the tension between the perceived need for governmental secrecy and the virtues of freedom of the press.

When an administration seizes journalists’ telephone records and emails, and tracks reporters’ movements, it puts reporters on notice, chills investigations of governmental actions, dries up reporters’ sources and deters whistle-blowers and leakers.

If these practices, part and parcel of an attempt to define investigative journalism as criminal behavior, had become a pattern decades ago, Americans would have been deprived of journalistic disclosures that illuminated governmental deceit about the conduct of the Vietnam War, the Watergate cover-up, the CIA’s network of secret prisons, the National Security Administration’s eavesdropping program and the practice of waterboarding detainees. Without these disclosures, the government would have escaped accountability.

Governmental accountability is central to the maintenance of republican values and constitutional principles. Government officials cannot be held accountable for actions that have not been disclosed. As a consequence, executive secrecy cannot become an issue unless someone in a position to question it has decided to make an issue of it. That “someone” might be a member of Congress, but more often than not it is a reporter digging out the facts, bringing transparency to governmental actions, and exposing deceit and corruption, all in the name of informing the people.

“Our liberty cannot be guarded,” Thomas Jefferson wrote, “but by freedom of the press.” The Free Press Clause, often characterized as “the people’s right to know,” was designed to protect independent reporting on the affairs of government so that the sovereign people would not be dependent on self-interested governmental officials’ determination of what the people ought to know.

The tension between the perceived need for secrecy and freedom of the press, long a simmering issue in the politics of American life, exploded in 1971 in the landmark Pentagon Papers Case, when the Nixon administration sought to prohibit The New York Times and The Washington Post from publishing reports that revealed governmental deceit about the conduct of the Vietnam War.

The Supreme Court, acutely aware of the executive invocation of “national security” claims to hide political activities and embarrassing incidents, dismissed the administration’s claims that publication would “irreparably damage” our national security interests. The court also extolled the virtues of freedom of the press, as envisioned by the nation’s founders, and gave a green light to publication of the papers.

Secrecy has its claims, particularly in the realm of diplomacy and military activities, but problems abound. Executive abuse of the secrecy stamp has rightly resulted in skepticism.

Another problem involves the identification of the constitutional repository of authority to determine what the citizenry has a right, or a need, to know. Whoever has the authority to declare secrecy wields tremendous power. In the early days of the republic, Congress often made the decision, although usually in consultation with the president. Article 1, Section 5 of the Constitution – the only provision to address “secrecy”- granted to Congress, through publication of its journals, the authority to decide what information to withhold from the public. The Constitution grants to the president no comparable authority.

The framers of the Constitution, who exhibited a deep fear of executive power, had, by virtue of the separation of powers, entrusted legislators with the right and power to lawfully regulate secrecy. But Congress, for its own political and policy rationales, has failed to circumscribe executive secrecy. Indeed, the rise of the Imperial Presidency has been built, in part, on executive control of information, and the claim of authority to impose secrecy. Congressional failure has left it to reporters to maintain governmental transparency and accountability.

It’s fair to say, historically speaking, that the press has performed its responsibility pretty effectively. The press may not be Americans’ favorite institution, but it is critical, as Jefferson said, to the maintenance of our liberty. Efforts to subvert press freedom should be required to meet the highest standard – reporting that would inflict “irreparable damage” on our national security. It’s hard to imagine any recent reporting that has risen to that level.

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus Professor of Public Affairs. He has lectured nationally and internationally on the Constitution, presidential power and the Bill of Rights.

Commentary by David Adler from the Idaho Statesman

From the Coeur d’Alene Press

COEUR d’ALENE – A North Idaho College trustee is questioning the legality of a board meeting held earlier this month, and is calling for a motion passed as a result of that meeting to be rescinded.

Christie Wood has asked that the board members, when they meet next week, consider canceling the motion made by Ron Nilson and seconded by Todd Banducci.

The item is on the agenda for the board’s regular monthly meeting on Wednesday.

“We often talk about being open and transparent and this was non-transparent,” Wood said. “There was no opportunity for the board to have input.”

The meeting in question took place on Saturday, April 6, with three of the trustees on the five-member board in attendance: Nilson, Banducci and Judy Meyer.

A notice that the meeting would occur was posted on NIC’s website on April 3, in accordance with the state’s open meeting law. The notice stated the meeting would take place in executive session, meaning behind closed doors. The purpose of the meeting – to discuss personnel matters – is one of the few topics Idaho’s open meeting law allows government officials to discuss without the public present.

Wood said the meeting was held so Nilson and Banducci, the board’s newest trustees, could learn more about faculty members now being considered for tenure.

Tenure at NIC, according to the college’s policy, is awarded to full-time faculty members “in recognition of demonstrated proficiency.” With tenure comes the “reasonable right to continued employment,” unless the faculty member is terminated for cause, which the policy lists as any actions that may be damaging or detrimental to the college or its students. Other cases in which tenured faculty members may be terminated include under the college’s reduction in force policy and if the employee voluntarily retires, resigns or abandons his or her position.

Wood, who has been on the NIC board since 2004, said she did not attend the April 6 meeting because she didn’t have any questions about the candidates being considered. Wood said that Ken Howard, the trustee who chairs the board, was out of town at the time.

“From what I understand, they spent two hours talking about policy on tenure and sabbaticals,” Wood said.

Idaho Code requires that policy discussions occur in public, in open session.

Wood said she learned that during the executive session, Nilson called for a public forum to be held, to discuss the topics.

The minutes of the meeting show that it began at 10 a.m. and at 12:30 p.m., Nilson, Banducci and Meyer moved the meeting from executive session to open session. The minutes state that after a “brief discussion” about holding a public forum, Nilson made a motion to hold a forum in the near future, and Banducci seconded it, so with just three board members present, the motion passed.

“When I found out how that happened, I was very disappointed because that violated open meeting law,” Wood said.

Wood said she’s concerned because she would have wanted to be part of the policy discussion that took place, and that because it affects people’s jobs, it should have taken place in public so the faculty members could attend.

Wood said she asked Nilson to rescind the motion, but he refused. Banducci told her he would think about it, she said.

Nilson could not be reached for comment on Friday, and Banducci told The Press he didn’t think it was appropriate to discuss what occurred.

“I’m going to have to withhold comment at this time,” Banducci said.

Judy Meyer said she doesn’t feel an open meeting violation occurred, but she understands Wood’s concerns.

“She wasn’t there, and because it was an executive session, I can’t discuss it further,” Meyer said. “The solution is doing as she’s asked, and have all the board members take a look at it.”

The North Idaho College Board of Trustees will hold their regular monthly meeting Wednesday at 6 p.m. on the NIC campus, in the Edminster Student Union Building’s Lake Coeur d’Alene Room.

From the Coeur d’Alene Press

From the Associated Press

By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) — The Idaho Department of Juvenile Corrections wants to have nearly all the documents produced as part of a lawsuit brought by whistleblowers made confidential and sealed to the public.

The lawsuit was filed in federal court last year by a group of employees who said some staffers at a juvenile detention facility in Nampa had sex with incarcerated youths, that the department is rife with cronyism and unsafe policies that put staffers and children in danger, that some employees are committing fraud and wasting money, and that managers failed to take action when one juvenile was caught inappropriately touching another.

Now the Idaho Department of Juvenile Corrections is asking the attorney for the employees who brought the federal lawsuit to sign off on a proposed agreement that would keep all the department’s records — including emails, personnel records, and files relating to juvenile offenders — confidential, even after the lawsuit comes to an end.

The attorney for the plaintiffs, Andrew Schoppe, of Boise, says he won’t agree to the proposal to keep everything secret, though he does agree that “maintaining the confidentiality of the juveniles in IDJC’s custody is of the utmost importance.”

Schoppe said he also agrees that some parts of personnel records should be protected as well.

“However, this is a case against an agency of the State of Idaho and its public officials, and it is therefore inherently of interest to the public,” Schoppe wrote in a letter to the department’s legal counsel. “… As I see it, IDJC is basically seeking a ‘gag order’ that will prevent the Plaintiffs from continuing to discuss the case with local media outlets, which have taken a very legitimate interest in the safety of the juveniles and staff at IDJC facilities statewide and in the operations of IDJC as a whole.”

Monty Prow, spokesman for the Idaho Department of Juvenile Correction, said the agency wouldn’t comment on pending litigation. But department director Sharon Harrigfeld has previously released a prepared statement that said the department’s detention facilities are safe and department officials take appropriate action when allegations of misconduct arise.

Part of the allegations in the lawsuit of an employee having sex with an incarcerated juvenile appear to reference Julie Elizabeth McCormick, a former employee at the Nampa juvenile detention center who was charged with lewd conduct with a minor after prosecutors said she sexually abused a juvenile offender. McCormick has pleaded not guilty in Canyon County’s 3rd District Court, and she’s scheduled to stand trial in May.

The federal lawsuit is still fairly early in the court process, and so both sides are still working out just what potential evidence they need to share with the opposing legal team. So far, the Juvenile Correction Department has notified Schoppe and his clients that it will provide documents about its policies for reporting sexual abuse allegations, as well as materials relating to any incidents of actual or suspected sexual abuse by employees, including McCormick.

But the department’s attorneys also notified Schoppe in a legal filing that the department doesn’t have any documents showing if those allegations were reported to the Board of Juvenile Corrections, which oversees the department. In another legal filing the department’s attorneys denied allegations that leaders falsified reports on serious incidents at juvenile facilities, and denied allegations that there was a practice of hiding sexual abuse reports.

From the Associated Press

From the Idaho Statesman

Ahead of Wednesday’s House vote, tea party and GOP groups have been fighting the business establishment.

By DAN POPKEY — dpopkey@idahostatesman.com

Using direct mail, radio spots and computer-generated phone calls, opponents of Gov. Butch Otter’s health insurance exchange bill are waging a campaign to try to reverse the momentum after last month’s 23-12 Senate vote.

Their efforts are dwarfed by dozens of lobbyists backing the exchange, led by the insurance and health care industries and broad-based business groups.

But the appeal to conservative Republican voters who will decide the 2014 legislative primaries has captured the attention of lawmakers.

“They’re saying we’re bought and paid for by the insurance companies,” said House Health and Welfare Committee Chairman Fred Wood, R-Burley, a target of a tea party mailer last week.

Wood, a physician, is the floor sponsor of House Bill 248, which is scheduled for debate Wednesday.

The heart of the opposition strategy is coupling hostility to the Affordable Care Act with Otter’s decision to cooperate with the federal government and operate the online insurance marketplace in Idaho, rather than leave the job to the feds.

“Idaho’s version of Obamacare is now before the Idaho Legislature, and it’s bad,” says a voice in a robocall that lets recipients automatically connect to lawmakers’ phone lines. “You can help stop it by telling your legislator to vote no on HB 248.”

Though the calls lack the legally required disclosure of the message’s sponsor, they came from Gem State Tea Party, said the group’s Boise president, Chad Inman. He founded the Gem State Tea Party last year, uniting 13 groups statewide. He said calls were made to all 35 legislative districts.

GOP LEADERS INVOLVED

Inman’s ally is the Idaho Business Alliance, founded in January by conservative Boise businessman and GOP funder George Gersema, Bonneville County Republican Chairman Doyle Beck and former GOP redistricting commissioner Lorna Finman of Post Falls.

Another former redistricting commissioner, political consultant Lou Esposito of Star, is helping with direct mail and radio.

“Too many in Boise say we have no choice but to submit to the economic destruction built into the very structure of Obamacare,” reads a Business Alliance postcard urging citizens to call lawmakers.

Last week, a mailer from Gem State Tea Party went to 4,000 recipients in the Magic Valley legislative district represented by three prominent Otter allies: Wood, R-Burley; House Speaker Scott Bedke, R-Oakley; and Senate Finance Committee Chairman Dean Cameron, R-Rupert.

The postcard indicates that the trio “are leading the effort over in Boise to impose Obamacare on the people of Idaho.” Pictured are piles of cash behind a “Show Us the Money” headline, along with an accounting of health, insurance and medical industry campaign contributions to the lawmakers.

“The garden path to Obamacare has been laid by tens of thousands of dollars to Idaho politicians over the past several years,” according to the mailer.

Cameron, an insurance agent, objects, noting that Otter and the GOP-controlled Legislature heartily backed the lawsuit to overturn the Affordable Care Act. “We’ve been opposed to it all along,” said Cameron. “But we lost in court and we lost the presidential election.”

Exchange proponents – including Blue Cross, Idaho Hospital Association, Idaho Association of Commerce and Industry, and local chambers of commerce – say Idaho is better off running its own exchange, even under federal rules.

Beck, an Idaho Falls businessman, distrusts the powerful economic interests arrayed behind the exchange, asking, “Have you ever known anything favorable to the insurance industry that was also good for you and me?”

Cameron was among a group of GOP incumbents unsuccessfully targeted for defeat in 2012 by political action committees run by consultant Esposito. Cameron said the new campaign doesn’t prompt him to shy from the issue, though it might signal another serious primary challenge next year.

“If anything, it cements our resolve,” Cameron said. “We firmly believe the governor made the right decision and we’re standing behind him.”

GAPS IN SUNSHINE LAW

Campaign and lobbying spending by exchange proponents are disclosed under Idaho law. But spending by Gem State Tea Party and the Business Alliance can’t yet be quantified.

“They know what they’re doing,” said Secretary of State Ben Ysursa.

Tea Party Boise has a lobbyist, but he is unpaid, exempting the group from disclosure. Gersema told Ysursa’s office that the Business Alliance has no paid lobbyists and the group is funding the mailings itself, exempting it from monthly lobbying reports.

Esposito will have to report his PAC spending, but not until annual reports for 2013 are due on Jan. 31, 2014.

“No, I’m not disclosing a dime,” said Inman. “That’s the beauty of it.”

Said Esposito: “The amount of money we have spent on postcards and radio ads is a spit in the ocean compared to the money spent by Blue Cross, IACI, IHA and others on lobbyists, legislators and their media campaigns. When you factor in the complicity of a nonobjective news media, our efforts pale in comparison.”

Ysursa said he’s exploring possible amendments to the Sunshine Law in 2014. “What’s being done is lobbying; it’s pertaining to legislation, it doesn’t pertain to candidates,” he said.

Speaker Bedke said he’s also interested in tightening the law. “I am not comfortable with the large gaps of time in the reporting schedule. I think the public has a right to know,” he said.

Bedke remains optimistic that HB 248 will pass.

“With very few exceptions, they’ll vote their conscience, regardless of the pressure,” he said. “I haven’t seen a lot of legislators knuckle under.

Dan Popkey: 377-6438, Twitter: @IDS_politics

From the Idaho Statesman

From the Idaho Newspaper Foundation

Nominations are now being accepted for the 2013 Max Dalton Open Government Award sponsored by the Idaho Newspaper Foundation.

The 2013 award will be the 15th annual award given each year since 1999 to a citizen or group judged to be an outspoken advocate of openness in either public records or public meetings on the state or local level.

Nominations should be submitted by March 22 by sending a letter of nomination to starnews@frontier.com. Go to www.idnewsfound.org for more information and profiles of previous recipients.

The letter should provide a general description of the nominee’s dedication to open government and cite specific examples of the nominee’s use of the Idaho Open Meeting Law or the Idaho Public Records Law to advance the public interest. Examples can include links to newspaper articles or testimonials from citizens or public officials.

The Max Dalton Open Government Award has frequently been awarded in the past to citizen activists. However, activism by itself is not sufficient to receive the award, INF Executive Director Tom Grote said. Nominees must have demonstrated their use of the state’s open meetings or open records laws in support of their activism, said Grote, who is also publisher of The Star-News in McCall.

From the Idaho Newspaper Foundation