Editorial from the Post Register, Idaho Falls

By Corey Taule

The most interesting aspect of Sven Berg’s and Rachel Cook’s Sunday story on Idaho’s open meeting law was this notion of trust. Idahoans, we were told repeatedly, should trust that elected officials are not
making decisions behind closed doors.

No thanks. We prefer Ronald Reagan, who liked to quote a Russian proverb in situations like this: “Trust, but verify.”

That’s easy to say and difficult to pull off. Idaho’s open meeting law contains myriad exemptions. And it’s almost impossible to catch violators in the act. Unless somebody inside the illegal meeting talks, there is no way of knowing what was said.

Legislators improved the open meeting law in 2009, establishing a tiered punishment system: $50 for an initial violation and fines of up to $500 for repeat offenders.

That was a start. But more is needed. In recent years, citizens have accused a long list of governmental entities of open meeting law violations — from the city councils in Salmon and Rexburg to the Iona-Bonneville Sewer District and the State Board of Education.

Obviously, Idaho needs a greater commitment to transparent government. As problematic as the state’s open meeting law is, the open records law is even worse. No enforcement mechanism. Exemptions continually added. It’s enough to make everyday folks feel as though those in power want them on the outside looking in.

So what’s the solution?

Maybe Idaho ought to look to Washington for an answer to that question. No, not D.C. — there are no answers to be found there — but Washington state, which in 2005 established an open government ombudsman position within the attorney general’s office.

This official’s job is to address citizen concerns about openness in government. Say a local school board jumps into executive session to discuss something that appears to deserve the light of day. Patrons in Washington can turn to the ombudsman to make sure the board is acting legally.

Idaho is uniquely positioned to follow Washington’s lead. Attorney General Lawrence Wasden’s unflinching commitment to government transparency would provide the ideal setting for an official whose job it would be to make sure citizen interests are prioritized over local boards and districts. It’s a matter of finding the right person and spending the necessary money.

A Post Register editorial isn’t going to bring about this change. The press has long fought to make government more transparent with little success. It’s easy for legislators to dismiss proposals as “press
concerns.”

Reagan nailed it. Unfortunately, Idaho’s lawmakers have determined that only half of that Russian proverb applies to them. This won’t change until you demand it.

So, what will it be?

Trust?

Or trust, but verify?

C’mon folks, it’s time to make the Gipper proud.

Editorial from the Post Register, Idaho Falls

From the Idaho Falls Post Register

By SVEN BERG and RACHEL COOK
sberg@postregister.com / rcook@postregister.com

It’s hard not to be suspicious of what goes on behind closed doors.

When governing bodies go into executive sessions, constituents naturally wonder why they are excluded.

Is some shadowy agenda afoot?

Are elected officials using closed-door sessions to conceal conspiracies to enrich themselves and their friends?

Or are they simply protecting individuals’ privacy and taxpayer interests?

In eastern Idaho, executive sessions — meetings or parts of meetings from which the public is excluded — are common practice for city councils, county commissions and school boards.

The Ammon City Council convenes executive sessions at almost every meeting. Idaho Falls School District 91 trustees did so at least 16 times and Bonneville Joint School District 93 board members met in private 13 times in the 2009-10 school year.

These closed sessions often lead the news media and general public to suspect impropriety. But the organizations’ attorneys and elected officials say they rarely, if ever, encounter violations of Idaho’s
Opening Meeting Law.

“Trustees have a responsibility to act in utmost good faith,” said Jerry Wixom, a District 91 board member for the past 22 years. “It’s been my experience that the trust that people place into us as
trustees is not violated.”

Idaho law allows public agencies — except for courts — to conduct executive sessions for a variety of reasons. The three most common are pending litigation, specific personnel issues and real property
negotiations.

In certain circumstances, the need for executive sessions is clear. When it comes to protecting a student’s privacy or maintaining the integrity of real estate negotiations, few would argue against the
wisdom of private discussions.

“If the board is thinking about buying a certain parcel of land or purchasing land, having that out in an open session could affect the price and the availability of that land,” said Scott Marotz, a local attorney who has advised some 20 school districts during the past two decades.

But many public bodies are too eager to shut their doors on the public, said Wayne Hoffman, a former journalist and executive director of the Freedom Foundation, a conservative think tank based in the
Treasure Valley. Some elected officials, Hoffman said, stretch state law permitting closed sessions, particularly those covering personnel matters and potential lawsuits.

“You can’t just go back into executive session to discuss whether you’re going to give raises to the employees,” he said. “You can’t just go into executive session to discuss whether an ordinance that
you’re about to pass is legal or not.”

To enter executive session, a member of the agency must make a motion that specifically references the subsections of Idaho law that authorize it. Once the public has been excluded, discussion is limited to the topic that warranted the closed session.

“You need to stick to the issue at hand. You don’t waver,” District 93 board chairman Craig Lords said. “I think that’s where you trust your elected officials.”

It’s not always easy for trustees, council members and commissioners to stay on topic.

“Frankly, it’s my job to make sure that that’s what happens,” said Scott Hall, Ammon’s city attorney. “If something (off-topic) comes up, then I say, ‘Well now, hold it. We’re fleeing the topic.'”

In order to avoid slip-ups, both Ammon and Idaho Falls hold training sessions to help new council members navigate executive sessions according to the state’s Open Meeting Law.

Though playing the executive session card is the rule for many governing bodies, it is the exception for the Idaho Falls City Council. City Attorney Dale Storer said this “is really a commitment to having open and transparent government.”

Instead of calling an executive session whenever authorized by law, Storer said, the city does so only when necessary.

“There are times when you could call an executive session,” he said, “but there’s no real need for it.”

Throughout his career, Hoffman said, he has occasionally caught governing bodies breaking the Open Meeting Law. But he said he suspects organizations are more likely to break the law than the public is to find out about it.

Bob Cooper, spokesman for Idaho Attorney General Lawrence Wasden, acknowledged that, lacking an inside witness, the public has no way of knowing whether their elected officials are adhering to the law when they meet behind closed doors.

Ultimately, he said, some level of trust is necessary.

“You kind of start with an analysis that people are going to do what the law requires them to do,” Cooper said. “You’re talking here about elected officials who were chosen by the voters, so the voters presumably have some confidence in their integrity.” Marotz agreed.

“People think that when a board goes into executive session they are trying to hide (something),” he said. “Unless you know for a fact that (they are violating open meeting laws), then you should trust them.”

Comment on this story on Post Talk at www.postregister.com/posttalk/.

Open Meeting Law requirements

Idaho enacted the Open Meeting Law in 1974. It is designed to ensure meetings of public agencies — city councils, school boards, etc. — are kept public. Here are some of the law’s requirements:

In general, meetings at which deliberations are held or decisions are made must be open to the public.

No meeting can be held in a place that practices discrimination on the basis of race, creed, color, sex, age or national origin.

Notice of regular meetings must be given at least five days before the meeting.

Notice of special meetings must be given at least 24 hours prior to the meeting.

Public agencies must keep minutes of all meetings.

Executive sessions — meetings or parts of meetings at which the public is excluded — must be authorized by two-thirds of the agency’s members.

Executive sessions can only be held to discuss a limited range of topics.

No action or final decision can be made in executive session.

More information on Idaho’s Open Meeting Law is available at the website www2.state.id.us/ag/manuals/openmeeting.pdf.

From the Idaho Falls Post Register

From The Spokesman-Review

BOISE – The Idaho Transportation Department met with a Korean firm in September that wants to move another 40 to 60 giant truckloads of oil equipment across scenic U.S. Highway 12, and local residents who are suing over four other shipments didn’t find out until their attorney filed a public records request.

ITD officials met with half a dozen representatives of Harvest Energy and its associates on Sept. 15 to discuss the additional oversized truckloads, proposed to start in June of 2011 and travel through Idaho and Montana on the way to the Alberta oil sands project in Canada. The loads would travel from the Port of Vancouver to the Port of Lewiston by barge.

Borg Hendrickson and Linwood Laughy, a couple who live along Highway 12, said in an email, “A single state agency is in the process of changing forever the character of Idaho’s Clearwater-Lochsa corridor.” The two decried “closed-door meetings” and a lack of input.

ITD spokesman Jeff Stratten said, “They (Harvest Energy) approached us, and so obviously we’ll sit down and tell them what the requirements (are).”

He noted that the department is awaiting the Idaho Supreme Court’s ruling on four mega-loads proposed for the the route by ConocoPhillips, which wants to move equipment wider than the two-lane road from the Port of Lewiston to its Billings refinery, and had hoped to start the shipping in August.

Imperial Oil/ExxonMobil plans to send 207 oversize shipments along the same route, on the way to its Kearl Oil Sands project in Canada, starting in November.

Residents and businesses along the route, which is officially designated as the Northwest Passage Scenic Byway and runs along the wild and scenic Clearwater and Lochsa rivers, sued over the ConocoPhillips proposal, and a district judge revoked the permits for the four loads. The company and ITD both appealed to the Idaho Supreme Court; a ruling is pending.

No permits have yet been issued for the larger ExxonMobil project, which would temporarily block the two-lane route at night five nights a week for a year as the loads pass through.

“Idahoans will pay the price in personal safety, a diminished tourism industry, accelerated replacement of damaged highway and bridges, and in being pushed out of our own land by foreign corporations,” Hendrickson and Laughy charged.

Adam Rush, another ITD spokesman, said Friday, “The transportation department and Harvest Energy discussed load dimensions, bridges on U.S. 12, clearances, traffic control plans and the weight of shipments. No proposals were submitted to ITD by Harvest Energy. June of 2011 was mentioned as a preliminary start date to move equipment.”

He added, “The department meets routinely with haulers who have questions about permits.”

From The Spokesman-Review

From the Twin Falls Times-News

BURLEY — A Cassia County judge has sealed a court case regarding child-sex charges levied against a suspended Burley teacher.

Fifth District Judge Michael Crabtree’s order will keep any further information about the case, including its outcome, under wraps and bar the public from the courtroom.

Michael S. Brinkerhoff, 42, was charged in August with felony sexual abuse of a child under 16 and enticing a child over the Internet after he allegedly pretended to be a teenage boy in order to have sexual conversations with a student.

Cassia County Prosecutor Al Barrus told the Times-News in mid-September that he planned to file a motion to have the case sealed in order to protect the female teenage victim.

Brinkerhoff waived his preliminary hearing in magistrate court Sept. 10, and the case was bound over to district court in front of Crabtree.

Barrus had also filed a motion to close the Sept. 10 hearing, which was granted by Magistrate Judge Rick Bollar.

Barrus said afterwards his effort to close the hearing was also made to protect the victim.

Brinkerhoff was suspended with pay by the Cassia County School District pending the outcome of the case. He was hired by the district in 2006 and had a previous record of misdemeanor petit theft charges in Bonneville County. District officials said a background check performed prior to his employment with the district failed to turn up the charges.

Brinkerhoff taught English and drama at Burley Junior High School and was charged after he allegedly pretended to be his own 15-year-old nephew in order to engage the young girl in sexual discussions.

According to court records, the victim’s mother allegedly turned over more than 1,000 pages of messages to law-enforcement officials that had allegedly been sent between the victim and Brinkerhoff. Many of the messages were graphic and sexual in nature.

From the Twin Falls Times-News

From the AP/Idaho State Journal

Idaho State University did not violate the state’s open meeting law when a parking advisory board met behind closed doors in May, the Idaho Attorney General’s office says.

In a letter dated Wednesday, Assistant Chief Deputy Brian Kane wrote that the advisory board was created internally by the school and not by Idaho statute.

Kane said that means the board is not a public agency under the Idaho Open Meeting Act and for that reason didn’t violate the law. The letter was obtained by the Idaho State Journal.

But Kane also writes that the parking advisory board should “voluntarily balance the necessity of holding a closed meeting with the cleansing effect of holding an open meeting and act accordingly.”

Kane notes that his letter is informal and unofficial because the complaint about the meeting was filed after a 30-day deadline. Kane said he responded because of the importance of the issue.

Idaho Freedom Foundation Executive Director Wayne Hoffman requested the opinion after the advisory board denied admittance to reporters. At the meeting, faculty members discussed proposed changes to the school’s parking policy.

“I’m still dumbfounded as to why a university believes this sort of discussion needs to take place behind closed doors,” Hoffman said. “I don’t think anyone can make a sane argument why the parking board needs to meet privately.”

Idaho State spokesman Mark Levine declined to comment on future meetings.

From the AP/Idaho State Journal

From the Associated Press

Public records recently obtained by the Post Register detail a strange incident in which four Idaho State Police officers were left scrambling for safety when they were shot at by an unknown assailant at a remote mining claim.

No one was hit by the gunfire and no arrests were made, but the Jan. 14, 2009, incident was shrouded in secrecy until the Idaho Falls newspaper won a nine-month court battle to unseal the Idaho State Police documents.

The documents, ordered released by 7th District Judge Gregory S. Anderson, say that the police were responding to a citizen’s report of possible illegal drug activity when they rode snowmobiles to a shed on a mining claim at the remote central Idaho ghost town of Gilmore. The ghost town, made up of about two dozen buildings, was once at the heart of Idaho’s largest silver-lead mining district outside of the Coeur d’Alene region.

The officers’ pace was leisurely, according to the reports. Before going to the shed’s door, they ate their lunches while sitting atop their snowmobiles.

Though they knew who owned the building, the officers didn’t have a search warrant and didn’t announce their presence before trying to enter the shed, according to the ISP reports. That’s when someone opened fire, sending the officers running for cover behind a man-made berm.

All of the officers’ names were redacted from the reports.

“I yelled toward the structure that we didn’t want any trouble, and if he stopped shooting we would leave the area,” one of the officers wrote in his narrative of the incident.

Eventually, the officers did just that, leaving their snowmobiles behind and crawling on their bellies through snow to a nearby creek bed. Once under the cover of trees, they walked four miles in 3- to 4-foot-deep snow to their vehicles.

None of the officers returned fire, according to the reports. The group returned days later to retrieve their snowmobiles, which were unharmed.

The incident wasn’t reported until April 2009, after a Post Register reporter began digging into the matter. At the time, ISP Capt. Danny Bunderson refused to provide details because the case was still under investigation.

Bunderson declined requests for an interview this week, saying the agency can’t release additional information without risking investigative efforts being conducted by the Lemhi County sheriff’s office.

According to the ISP reports, the officers knew the building was owned by a former Idaho Falls resident and they’d even conducted surveillance on the man in the past. Lemhi County Sheriff Lynn Bowerman says he believes the man is still in the area and says deputies will try to reach him soon to ask him to meet with law enforcement, on the promise he won’t be arrested or detained.

According to records from the Idaho State Police debriefing following the incident, the officers didn’t take their police radios with them and only had some food. ISP officials concluded the shooting “should have been (treated) like all critical incidents,” and that ISP leaders should have considered relieving the officers from duty for a time. Additionally, the shooting should have been investigated by another agency, the debriefing officials found.

“The biggest thing was that having to do it again, they may not even attempt it or at the least be better prepared,” the debriefing said. “Planning and communication are always essential elements when planning an operation such as this.”

From the Associated Press

From the Idaho State Journal

The Idaho Freedom Foundation has sent a letter to the Idaho attorney general asking him to take enforcement action against Idaho State University for an alleged violation of the state’s open meeting law.

In the letter, Idaho Freedom Foundation Executive Director Wayne Hoffman tells Attorney General Lawrence Wasden he is not asking him to extract civil penalties. He says is he is merely hopeful that through the state’s action, “government transparency and openness will be restored at ISU.”

ISU officials could not be reached Sunday evening to comment on the letter, which stems from a May 12 meeting of the university’s parking advisory committee, which met in closed session and denied admittance to members of the media.

The meeting in the Oboler Library included faculty members who discussed major changes to the university’s parking policy. The parking board acts as an advisory group that advises the administration on parking fees and parking violation regulations. ISU officials believe the parking board is not subject to Idaho’s open meeting law since the board is not a governing body.

“The university holds the unfortunate position that it is prudent and proper to shut students, parents, taxpayers, faculty and the media out of meetings,” Hoffman states in his letter. “We ask that you insist that the university abide by the letter and spirit of the law.”

Immediately following the May 12 meeting, Hoffman wrote a letter to ISU asking the university to restore openness and transparency to the university’s public interactions.

The university’s attorney responded that the parking board is an internal university committee not created by statute, ordinance or legislative act and should therefore be exempt from requirements of the Idaho Open Meetings Act.

“It is not practical to expect that every internal committee adhere to these requirements, and perhaps for that reason, the act does not require them to do so,” ISU attorney Brad Hall wrote in response to the prior complaint from Hoffman.

The university’s legal counsel argued that the parking board is not subject to the open meeting law because the Idaho State Board of Education serves as ISU’s governing board. Hoffman claims that view is a misapplication of Idaho code and it does not absolve the university from the requirements of the law.

“Were ISU’s interpretation to hold true, it would mean that, for example, a city airport commission would be exempt from the open meeting requirements because the governing board of a city is a city council and not an airport commission,” Hoffman writes.

“The parking board is, in fact, a full board charged with recommending and deciding public policies,” he adds.

Hoffman asks Wasden to instruct ISU that any action taken on May 12 is null and void “and that all future meetings of the parking advisory board must be conducted in public.”

From the Idaho State Journal

From the Post Register

SALMON — A May 24 meeting of the Salmon City Council that was called in order to fire Salmon Police Chief Jim Spain violated Idaho’s open meeting law, according to an investigation of the incident by an independent prosecutor.

“It is my determination that this meeting was not properly conducted,” Canyon County Prosecuting Attorney John Bujak wrote in a letter to Lemhi County Prosecutor Bruce Withers and Salmon City Attorney John McKinney.

Bujak declined to impose a penalty for the violation, saying the council rescinded its action — the firing of Spain — after it learned the meeting was likely illegal. After questions arose about the meeting’s legality, the council voted 4-2 at a special meeting June 9 to fire Spain despite pleas from dozens of supporters to retain the veteran lawman.

Referring to Idaho law, Bujak wrote that if “a governing body violates the law, but thereafter rescinds its action and ‘cures’ the violation, the ‘cure’ acts as a bar to the imposition of a penalty.”

Salmon Mayor John Miller called the council to an emergency meeting the morning of May 24 to fire Spain, complaining about his lack of rapport with the chief and that Spain’s officers were coming down too hard on drunken drivers.

Idaho code requires that an emergency meeting, which does not require public notice, must focus on immediate financial damage or physical harm, neither of which was at issue when five of six council members gathered for the emergency meeting. McKinney was neither notified nor consulted about the meeting. Miller could not be reached for comment about Bujak’s findings.

The mayor has faced fallout from his push to oust Spain, including a recall campaign spearheaded by a former council member and the resignation of Salmon City Administrator George Ambrose.

From the Post Register

From Eye on Boise/The Spokesman-Review

The state of Washington won today in the U.S. Supreme Court – and so did Idaho – as the high court upheld Washington’s Public Records Act and its requirement that signatures on a referendum petition be public, not secret. Idaho has similar laws, and joined 22 other states in filing “friend of the court” briefs backing Washington’s position. The group “Protect Marriage Washington” sued to prevent the release of the names of those who signed Referendum 71, the state’s unsuccessful measure that sought to overturn a same-sex domestic partnership law, arguing that the Washington public records law was unconstitutional because making the signers’ names public could subject them to harassment for exercising their right to free speech.

In an 8-1 opinion authored by Chief Justice John Roberts, the high court found that openness is vitally important to help states make sure signatures on referendum or initiative petitions are valid. “Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” Roberts wrote. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.” Justice Clarence Thomas was the only dissenter; the case is Doe vs. Reed, and you can read the court’s opinion here, and more on this story here.

Washington Secretary of State Sam Reed said, “This is a big victory for the people of Washington state and the cause of government transparency and accountability here and in other states. I am delighted.”

From Eye on Boise/The Spokesman-Review