From the Idaho Statesman

If Bob Henry prevails on appeal in his public records lawsuit against Canyon County, the result could end up helping the county in a separate Bujak-related legal struggle.

That’s because the trustee in former county prosecutor John Bujak’s bankruptcy case is suing the county for nearly $1 million based on the presumption that Bujak’s contract to use county resources to prosecute Nampa misdemeanor cases was his private property. Trustee Jeremy Gugino wants proceeds from the contract to be divided among Bujak’s many creditors as part of the Chapter 7 proceedings. The county is one of those creditors, claiming Bujak still owes it about $300,000.

That presumption is supported by a district judge ruling in Henry’s public records lawsuit last year, but Henry now hopes that the state’s highest court will determine that ruling was in error.

If the Nampa contract is declared public record, that would bolster the county’s argument that the money it has collected from the contract is rightfully the county’s and not part of Bujak’s assets for distribution, Henry said.

Trustee Gugino could not be reached for comment Friday. His case against Canyon County is scheduled for a pretrial hearing in U.S. Bankruptcy Court Dec. 21.

At Friday’s hearing, the Idaho Supreme Court didn’t indicate how long it might take to reach a decision in the appeal. But Henry said he was heartened by some of the justice’s questions and statements that seemed to echo his belief that Canyon County commissioners were wrong to support Bujak’s contention that the nearly $600,000 contract was private and appropriately deposited into his private account, with the expectation that the lion’s share of the money would end up in county hands. But Bujak resigned Sept. 30, 2010, after he couldn’t turn over the approximately $300,000 commissioners said he still owed from the contract. County commissioners have said they relied on their then-prosecutor to be true to his word, but he fraudulently used the Nampa money for his personal expenses. He denies he owes the county any money.

Justice Jim Jones commented on the “loosey-goosey nature of this arrangement, where you just kind of hand the money over and there’s not going to be any accounting.”

And Justice Warren Jones voiced the opinion Henry hopes the court will reflect in its opinion: “To me, it’s reasonably clear these are public records. They were public records then, they’re public records now.”

The county’s legal team contends Henry’s appeal in his public records case is moot, because once the county gained access to Bujak’s financial records through the bankruptcy proceeding, it provided them to Henry.

“We don’t know why we’re here,” Canyon County Deputy Prosecutor Carl Erickson told the justices. “Because we’ve turned over everything, there is nothing else that we could produce.”

After Bujak resigned, the county made the Nampa contract and its financial records public, Erickson said. But despite repeated questioning from the justices, he stopped short of saying county officials now believe the contract should have been treated as a public agreement all along.

From the Coeur d’Alene Press

If they’re making a decision, make yourself at home.

If they’re holding deliberations, pull up a chair.

But if a government entity is discussing personnel issues, say, hiring an employee or disciplining an officer, the door will be shut to civilians.

No use complaining. It’s the law.

The open meetings law, specifically.

And it’s there for a reason, explained Idaho Attorney General Lawrence Wasden on Tuesday night.

“(The law) has helped us gain timely access to information,” he said, speaking to a crowd of citizens, reporters and government employees at the Spokesman Review building. “And it’s also protected information that the law ensures be restricted, like the investigative efforts of law enforcement.”

Idaho’s open meeting and public records laws might seem like dry subjects. But if anyone wants to hear a highway district deliberate on a tax increase, or wants a copy of an email between school board members, the information is useful.

That’s why the attorney general, with Idahoans for Openness in Government, held a seminar on the restrictions and allowances of the two recently updated laws on Tuesday.

“Everybody, even if you sing out of tune, you’ll recognize there’s a sheet of music,” Wasden said at the event, co-sponsored by the Coeur d’Alene Press and the Spokesman Review.

The state’s open meeting law, Wasden said, ensures that almost every discussion and decision by a governing agency is open to public viewing.

Officials discussing policy privately at a restaurant, for instance, is illegal.

“You’ve been trusted with the public’s right to watch you conduct your business,” he said.

Deputy Attorney General Brian Kane spelled out the rules: An agency must provide notice of a meeting five calendar days ahead, and notice of the agenda 48 hours ahead.

Policy making outside of a noticed meeting is null and void, he said.

The law allows folks to observe, he added, but not participate.

“If you want to give (government officials) a piece of your mind, make an appointment to meet with them,” Kane advised.

Meetings for executive sessions, where members of the public may be excluded, must be specified on an agenda 24 hours ahead, he noted.

Decisions can’t be made in executive sessions, Kane said. Discussions are limited to a very narrow scope of subjects, like personnel and litigation.

“(Governments’) approach to executive sessions should be they’re the exception, not the rule,” he said. “If you can’t do anything without going into executive session, you’ve got a problem.”

Members of the public can record meetings, he said, so long as it doesn’t hamper the process.

For more about Idaho’s open meeting law, go to www.openidaho.org.

Complaints about violations at the local government level should be taken to the prosecuting attorney, Kane said.

Violations by state agencies should be reported to the attorney general’s office.

Kane noted that though officials can be charged up to $500 for knowingly violating the open meeting law, they can avoid fees by admitting error and holding a meeting again properly.

“My advice is, it’s OK to make a mistake. Just own it and fix it quickly,” Kane said. “It’s a lot easier than the road of denial.”

As for Idaho’s open records law, Wasden said, the custodian of a government document can’t deny a record request or question its intent, unless about it being used as a mailing list.

“A public record is a public record,” Wasden said, adding that there are some exemptions like personnel and litigation documents.

Accessible records include handwritten and typewritten documents, photographs, photostats, emails, phone texts and Facebook pages, property tax records and government credit cards.

“If you’re spending public dollars, the public has a right to see what’s going on,” Wasden said.

Kane noted that an agency can grant or deny a records request within three working days, or within 10 working days if more time is needed.

Under the new statute, the first two hours of labor for obtaining a record, or the first 100 pages, are free.

Wasden had simple advice for government employees about not leaking embarrassing intel.

“Listen to your mother, ‘If you don’t have something nice to say, don’t say anything at all,'” he said. “And finally, listen to Mark Twain: ‘Never pick a fight with someone who buys ink by the barrel.'”

From the Coeur d’Alene Press

From the AP/Idaho State Journal

POCATELLO, Idaho (AP) — The Idaho Supreme Court has upheld the dismissal of a lawsuit filed by an Idaho State University professor who claims he was wrongfully terminated, but ruled that a lower court wrongly found the former professor, Habib Sadid, had no First Amendment protection for his comments in a local newspaper critical of the university’s administration.

Faculty leaders at the southeastern Idaho school were pleased with the decision from the Supreme Court, which found that Sadid was not the victim of retaliation and that his employment with the public university did not strip him of his right to free speech as an individual.

“We view it as a massive win,” said biology professor David Delehanty, who holds a faculty leadership post at the university and is a member of the American Federation of Teachers. “The interest of all these organizations is free speech.”

Sadid was suspended from the university in August 2009 and terminated a month later for what administrators called unprofessional and insubordinate conduct. But Sadid said his history of speaking out about campus problems led to his termination; he had written letters to the editor and guest columns and ran a paid ad in the local newspaper with his criticisms.

His legal battle over his termination has gained financial support from groups including the American Association of University Professors, the American Federation of Teachers and the Foundation for Individual Rights in Education.

While the lower court Sadid’s criticisms of his employer did not involve issues of public concern, the Idaho Supreme Court found that the professor’s critique of plans to create a medical school at the university did constitute a matter of public concern. It also found that the published criticisms weren’t “pursuant to his official duties” as a public employee, which would have eliminated his free-speech protections against workplace retaliation.

“There is no evidence showing that Plaintiff’s official duties included making public statements on behalf of the University regarding the subject matter of his letters, nor is there evidence that his employment responsibilities included creating the statements that were published in the newspaper,” wrote Idaho Justice Daniel Eismann in the court’s unanimous opinion. “Therefore, his speech was as a private citizen.”

Sadid sued the university in state court in 2008 while he was still employed at the school, but the case was dismissed; he claimed then that he was retaliated against for publicly voicing his discontent with administration policies, including by not being appointed chairman of the university’s Department of Engineering. The court found no evidence that he was retaliated against at that point. Sadid has other state and federal lawsuits pending over his dismissal.

Officials at the Pocatello university lauded the decision of the high court to affirm the dismissal of the 2008 case. “We’re pleased with both the decisions of the Idaho Supreme Court and the district court,” Kent Tingey, vice president for university advancement, told the Idaho State Journal (https://bit.ly/qPO7Yr ).

From the AP/Idaho State Journal

From the Associated Press

The Idaho Department of Correction says it will not allow media witnesses to view the entire execution of Paul Ezra Rhoades, and two separate groups are protesting the policy, the Associated Press reports. Rhoades is scheduled to die by lethal injection Friday, making him the first person to be executed under Idaho’s new lethal injection guidelines.

Prison officials say to maintain Rhoades’ dignity, they won’t allow witnesses to view him being restrained or having the IVs inserted. They also said changing the procedure now could be disruptive. But a group of Idaho news organizations say that policy conflicts with a 2002 federal court ruling that found the public, through the media, must be allowed to view executions in their entirety. The news organizations have asked the state to reconsider. Click below for a full report from AP reporter Rebecca Boone.

Idaho restricts witness access to execution

By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) ? The Idaho Department of Correction says it will not allow media witnesses to view the entire execution of Paul Ezra Rhoades, and two separate groups are protesting the policy.
Rhoades is scheduled to die by lethal injection Friday, making him the first person to be executed under Idaho’s new lethal injection guidelines.

Prison officials say to maintain Rhoades’ dignity, they won’t allow witnesses to view him being restrained or having the IVs inserted. They also said changing the procedure now could be disruptive.
But a group of Idaho news organizations say that policy conflicts with a 2002 federal court ruling that found the public, through the media, must be allowed to view executions in their entirety. The news organizations have asked the state to reconsider.

In a separate effort, the American Civil Liberties Union of Idaho is also protesting the restricted access. The ACLU contends that if the execution can’t be carried out in compliance with federal court rulings, it must be postponed.

Rhoades was sentenced to death for the 1987 kidnappings and murders of 34-year-old Idaho Falls teacher Susan Michelbacher and 21-year-old newlywed and Blackfoot convenience store clerk Stacy Dawn Baldwin. He was also sentenced to life in prison for the 1987 murder of 20-year-old Idaho Falls convenience store clerk Nolan Haddon.

The Associated Press first learned late last week that the Department of Correction intended to restrict witness viewing to after the IVs were inserted. The organization asked department director Brent Reinke to allow the media to view the entire execution process. On Tuesday, Correction Department spokesman Jeff Ray said the state had considered the request but decided against it.

“The procedures were developed so that we would preserve the dignity of the offender,” Ray said in an email to the AP. “After discussing the matter with Director Reinke and legal counsel we have chosen to follow the procedures as they are written.”

The AP then joined with the Idaho Press Club, the Newspaper Association of Idaho, the Idaho State Broadcasters Association, The Post Register, the Blackfoot Morning News, the Idaho State Journal, the Idaho Statesman, the Idaho Press-Tribune and the Lewiston Morning Tribune to formally urge the department to reconsider. In a letter to Reinke and state attorneys, the news organizations’ attorney, Charles Brown, pointed out that the public holds a First Amendment right to view all aspects of the execution.

Brown noted a 9th U.S. Circuit Court ruling arising out of a lawsuit between the First Amendment Coalition and Jeanne Woodford, the warden of San Quentin prison in California. The federal appeals court found that allowing the public to view executions, through the media, plays a significant role in the functioning of capital punishment.

“To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the ‘initial procedures’ which are invasive, possibly painful and may give rise to serious complications,” the 9th Circuit wrote in that opinion.

Wednesday evening, Reinke sent a formal response, again declining to allow the media witnesses to view the full execution.

“The changes you requested at this late hour to IDOC’s execution procedures would have a potentially disruptive effect on the entire process. Among other things, it could compromise the anonymity of members of IDOC’s execution team,” Reinke wrote in the email.

The director said his department was aware of the 9th Circuit’s ruling but contended it was based on facts unique to California.

“In the months to come we shall review every aspect of Friday’s execution. As we do, we shall welcome your clients’ input on how we can improve this process,” Reinke wrote.

The 9th Circuit ruling addressed California prison officials’ concerns that allowing viewing of the entire execution in that state would allow reporters to figure out the identity of execution teams. In that case, the court found that surgical garb including facemasks could effectively conceal the identities of the team, and the judges noted that even if media witnesses were kept out of the room until the execution team left the area, a condemned inmate could easily reveal their identities by giving their names in his final statement.

In its separate effort, the ACLU of Idaho sent a letter to the Idaho Department of Correction on Tuesday citing the same 9th Circuit case. The letter said the “initial procedures,” such as bringing a condemned inmate into a death chamber, strapping him or her down and inserting IVs, are “inextricably intertwined with the process of putting the condemned inmate to death.”

In the letter, ACLU of Idaho staff attorney Lea Cooper called on the department to postpone all executions until they can “be brought in line with existing federal law.”

“The First Amendment rights of prisoners and of the public cannot be sacrificed at the whim of IDOC or any persons involved in administering executions,” the ACLU wrote.

It was unclear late Wednesday whether the ACLU or the news organizations planned to take further action, such as a filing a lawsuit, to challenge the Correction Department’s policy.

From the Associated Press

Op-ed from the Moscow-Pullman Daily News

When residents of U.S. Highway 12 started hearing rumors about giant megaloads rolling past their homes, they found out what was really going on by filing public records requests.

When a state senator wouldn’t talk about his DUI arrest after he was found in a stolen jacknifed SUV and trailer, the public records did the talking for him, and the whole story came out.

When new legislative district lines were drawn this year, public records requests yielded information that showed people what direct impact the new lines would have on their representation: Which incumbents landed in the same districts and would have to face off for a chance to remain in office.

And reporters around the state have been combing through thousands of public records about the former University of Idaho professor, Ernesto Bustamante, who shot a graduate student to death and then killed himself, trying to help people make sense of how it happened and how the university dealt with the events leading up to the tragedy.

All these things were possible because laws protect citizens’ rights to know what’s going on in the government they fund with their tax dollars and participate in with their votes. In Idaho, the Idaho Open Meeting Law and Idaho Public Records Law play key roles in ensuring that our government remains open to us. Best case: An open government, supervised by an informed and engaged citizenry. That’s how we get government of, by and for the people.

All are invited to a one-day symposium on Nov. 9 entitled “Open Access: Citizens, Media & Government,” sponsored by the University of Idaho School of Journalism and Mass Media, with support from the McClure Center for Public Policy Research and the Society of Professional Journalists.

A new documentary film by UI students Hans Guske and Ilya Pinchuck, “Fighting Goliath: Megaloads & the Power of Protest,” will debut at 3 p.m.; a panel including megaloads opponents Lin Laughy and Borg Hendrickson, Lewiston Tribune reporter William Spence and myself will discuss “In the Sunshine: Holding Government Accountable” from 4-5 p.m.; and I’ll give a lecture entitled “Open Government: Why it Matters” at 7 p.m. in Room 106 of the Iddings Agricultural Sciences Building on the corner of Rayburn and Sixth streets; a reception will follow.

There’s more: In December, Idahoans for Openness in Government, known as IDOG, will bring Idaho Attorney General Lawrence Wasden to town for a seminar on exactly what is, and isn’t, covered by the open meeting and public records laws and how everyone can comply with them. That seminar, co-sponsored by this newspaper, will be Dec. 7 from 6-8:30 p.m. at Moscow City Hall in the city council chambers; like the UI’s symposium, it is free and open to the public. Local and state government officials and their staffers, reporters, and interested citizens all are invited.

Sure, as a reporter who covers state government, open government makes it easier – possible, really – for me to do my job. But it also does more than that: It enables all of us to be informed, effective participants in what happens in our public life – and that matters.

Betsy Z. Russell is a Boise-based reporter for The Spokesman-Review, and is president of the Idaho Press Club and president and a founding board member of IDOG.

Op-ed from the Moscow-Pullman Daily News