From Idaho Reports

By Ruth Brown, Idaho Reports 

Idaho U.S. District Court Judge B. Lynn Winmill issued an order Thursday that will require the Idaho Department of Correction to disclose some additional information regarding the chemicals it planned to use in the execution of Gerald Pizzuto Jr.  

The order comes following the failed execution of Thomas Creech in February. The source of the chemicals that were set to be used in that execution is still unknown.  

Pizzuto filed a lawsuit against IDOC in 2021, asking the state not to execute him with pentobarbital, due to his multiple medical conditions. He claimed it would cause severe pain and constitute cruel and unusual punishment.  

His execution has been stayed since March 9, 2023, while litigation continues.  

Pizzuto has been on Idaho’s death row since being convicted in the 1985 deaths of Berta Herndon and her nephew Delbert Herndon outside of McCall. His two co-defendants, William Odom and James Rice, were given lesser sentences for their roles in the crime.  

The Idaho Legislature in 2022 passed a law to grant anonymity to the manufacturers of chemicals the state procured for lethal injection executions. At the time, IDOC told legislators they were having trouble obtaining the chemicals. 

While IDOC will not be required to name the supplier, some additional information requested by Pizzuto’s attorneys will be supplied. 

Winmill agreed to grant Pizzuto’s request that IDOC disclose the date on which the execution drugs were obtained and supply a purchase order with a date to Pizzuto. The judge also agreed to grant Pizzuto’s request asking about the geographic origin of the execution chemicals and whether they were obtained in the United States or a foreign country and if the chemicals were imported. 

“Ultimately, the Court is left with very little information about the likelihood that answering these RFAs would result in the identification of the drug supplier,” Winmill wrote.  

Pizzuto also requested information on if the chemicals came from a “veterinary source” or a hospital, and whether the drugs were sold by a “wholesaler/distributer” or a pharmacy, and the judge granted that request. IDOC must also “to admit or deny that the execution drugs were manufactured by Akorn, a now-bankrupt pharmaceutical company,” per Pizzuto’s request.  

IDOC will also be required to provide Pizzuto with an unredacted copy of the certificate of analysis done on the chemicals. The copy given to Pizzuto in January had a redacted date.  

“They have not explained how their supplier could be identified if the Report Date is disclosed,” Winmill wrote. “Nor can the Court intuit how that date, which merely reflects when the chemical analysis was performed, is linked to the drug’s manufacture.”  

The court gives IDOC 14 days to comply with the order.  

From Idaho Reports

By LAURA GUIDO

From the Idaho Press

A judge is ordering Attorney General Raúl Labrador to pay more than $242,700 in costs and attorney fees over his unsuccessful lawsuit against the State Board of Education.

Labrador had filed the case against the State Board, which also acts as the University of Idaho’s board of regents, alleging an Open Meetings Law violation in regards to the board’s closed-door meetings held ahead of the public vote to start the process of purchasing the University of Phoenix.

Ada County District Court Judge Jason Scott ordered Labrador’s office to pay $233,362.87 in attorney fees and $9,363.15 in costs in his order filed Tuesday.

“This unnecessary and unsuccessful lawsuit by the Attorney General against his own client took an enormous amount of time and resulted in a large cost to taxpayers,” the State Board wrote in an emailed statement. “The State Board is grateful to be vindicated by the Court once again. Although the Attorney General must pay those costs from his budget, it is profoundly unfortunate that taxpayers ultimately must bear the cost of this frivolous litigation.”

Labrador’s office did not agree with the decision and said in a written statement, “We disagree with the decision and expect to prevail on appeal. At the end of the day, this attorneys’ fees decision will not matter.”

Labrador has appealed the case, and the Idaho Supreme Court is scheduled to hear oral arguments June 13.

Scott determined the fees requested were reasonable and that the State Board was legally entitled to them; however, he reduced the award by $39,907.50 from what was requested because of heavily redacted billing entries from the State Board’s attorneys at Gjording Fouser. He wrote that the redactions prevented the court from being able to fully determine what work was done if it was reasonable.

“By heavily redacting its billing entries, Gjording Fouser has effectively prevented an award of attorney fees in full measure,” the judge wrote.

He rejected Labrador’s argument that hiring multiple lawyers to work on the case was duplicative or unnecessary given the nature of the case.

“This case presented novel questions of law, was fiercely litigated (by both sides), and was, based on its unique circumstances, expedited, justifying involving more than one lawyer in depositions and hearings,” Scott said.

He partially agreed with an argument made by Labrador that some of the paralegal fees were for clerical work that aren’t compensable under the law, so Scott reduced $913 from some of the requested paralegal billings.

The case revolved around whether the early negotiations conducted in closed-door executive sessions were in compliance with Idaho’s Open Meetings Law.

There are narrow exceptions to rules requiring government business being conducted in public, and the State Board used the exemption for “preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

Labrador’s office contended that the last executive session, held on May 15, 2023, and just three days before the final decision, wouldn’t be considered “preliminary” and also argued that there wasn’t competition “with governing bodies in other states or nations,” because by then, the University of Arkansas had publicly withdrawn its bid to purchase the online school.

There was a three-day trial, after which the judge dismissed the case with prejudice in late January.

The State Board’s decision to create a nonprofit entity to go out for a bond in order to pay around $685 million for the online university is still facing hurdles. This session, legal opinions sought by lawmakers found that the State Board and university may have lacked authority to create the nonprofit entity, which contradicted the University of Idaho’s attorneys’ opinions.

A bill meant to ease some of the concerns was introduced this week and would instead create an independent politic and corporate body to go for the bond and oversee the University of Phoenix and add more input by the Legislature.

A Senate committee approved the bill, but it still awaits votes from the full Senate and House.

From the Idaho Press

From the Associated Press

BY REBECCA BOONE AND GENE JOHNSON

BOISE, Idaho (AP) — In 2012, two Idaho prison officials chartered a private plane and flew to Washington state with thousands of dollars in cash.

They met with a pharmacist behind closed doors and bought the drug for a convicted murderer’s lethal injection.

Only a years-long public records lawsuit revealed the pharmacist’s name, the pharmacy and other details of the exchange. After prison officials said the pharmacist’s exposure had scared away other lethal drug suppliers, Idaho lawmakers barred such information from getting out again.

Idaho tried and failed Wednesday to execute Thomas Eugene Creech, a 73-year-old serial killer who had been in prison for 50 years. Neither his attorneys nor the public knew where the state obtained the drug or the exact qualifications of his executioners.

Opponents say secrecy laws are are a significant hurdle to accountability and make it hard to ensure that the procedures aren’t unconstitutionally painful, whether the deaths are carried out successfully — as Texas did Wednesday in the case of Ivan Cantu — or botched like Creech’s.

Idaho long kept the identities of execution team members and drug suppliers secret but judges were still able to force disclosure of the information if it was relevant to lawsuits or appeals. The new law prohibits state officials from disclosing the information, even if under court order.

The law also prevents professional licensing boards from taking disciplinary action against people for participating in executions.

Such secrecy is typical among states that impose capital punishment, including Texas, where lawmakers passed a similar measure in 2015 to ensure drug suppliers did not face retaliation or harassment for cooperating with executions.

“States are saying, ‘We don’t need to show you the information about … how we find or drugs or the training of the prison staff,’” said Robin Maher, the executive director of the Death Penalty Information Center, a nonprofit that tracks executions. “And then, when things go wrong, they can’t be held accountable.”

Creech was convicted of five murders in three states and suspected of several more. He has been in custody since 1974 and was already serving a life term when he beat a fellow inmate, 22-year-old David Dale Jensen, to death in 1981 — the crime for which he was to be executed.

When his appointed hour came at 10 a.m. Wednesday, Creech was wheeled into the execution chamber and strapped to a table. Medical personnel poked and prodded at his arms, legs, hands and feet for nearly an hour, making eight attempts, but they couldn’t find a vein they thought would hold up long enough to deliver the fatal dose. He was returned to his cell.

It is unclear whether or when the state might try again, or how. Like other states concerned about the availability of lethal injection, Idaho recently passed a law allowing for firing squads as a backup, but the state has yet to write protocols for using that method or build a facility where it could shoot people to death. It has not approved the use of nitrogen gas, a method used for the first time early this year in Alabama.

Creech’s execution team comprised volunteers who, according to Idaho execution protocols, were required to have at least three years of medical experience, such as having been a paramedic, and to have “current venous access proficiency.” They were not necessarily doctors, who famously take an oath to “do no harm” — though Idaho Department of Correction Director Josh Tewalt later told lawmakers that the executioners regularly use their IV skills to save lives in their day jobs. They wore white balaclava-style coverings to conceal their faces.

Tewalt defended the state’s approach, saying the department ensures execution drugs are acquired lawfully, provides test results showing their authenticity, and ensures medical members of the execution team meet or exceed required qualifications.

“I would argue we are very transparent about any information that speaks to the integrity of the process,” said Tewalt. “What we won’t do is tell you their names.”

Tewalt also disagreed with characterizing the attempt as “botched” — stopping the execution after the failed IVs prevented the process from truly going awry, he said.

Creech, according to his attorneys, suffers from several conditions that could have made vein accessibility challenging: Type 2 diabetes, hypertension and edema. It can also be more difficult for older people to have IVs inserted, as their veins can be less stable.

“This is precisely the kind of mishap we warned the State and the Courts could happen when attempting to execute one of the country’s oldest death-row inmates in circumstances completely shielded in secrecy,” Creech’s attorneys, with the nonprofit Federal Defender Services of Idaho, said in a written statement.

Among the arguments they made in their unsuccessful last-minute petitions to the U.S. Supreme Court was that the secrecy violated Creech’s due-process rights and could constitute cruel and unusual punishment if the lethal drug, the sedative pentobarbital, was of poor quality and caused unnecessary pain or complications.

Idaho did confirm the drug would not expire until February 2025. A purchase order obtained by the Idaho Statesman showed the state spent $50,000 for 15 grams of pentobarbital — 10 grams of which were prepared for use in Creech’s execution. The name of the supplier and purchase date were blacked out.

Idaho also provided what defense attorneys described as a heavily redacted certificate of analysis purporting to show the drug’s validity, but they said the document lacked so much information that it was impossible to verify.

Creech’s failed execution marked the sixth time since September 2009 that an inmate has survived an attempted lethal injection because the executioners couldn’t place an IV. In the 2018 case of Doyle Lee Hamm in Alabama, executioners tried and failed for 2.5 hours; in the process they punctured his bladder and penetrated his femoral artery. Hamm died in prison three years later of cancer.

Still, failure to administer lethal injection is the exception. Over that same period, states successfully executed just over 400 people.

In Texas, condemned inmates sued in 2014 over the state’s refusal to provide information about execution drug suppliers that they said they needed to verify quality. In response, lawmakers banned the disclosure of such information, saying suppliers could face harm, and the Texas Supreme Court upheld the law in 2019.

The secrecy prevents the public from fully understanding how the death penalty is administered and unnecessarily complicates legal cases, said Deborah W. Denno, founding director of the Neuroscience and Law Center at Fordham Law School.

“If you’re confident in your product, you’re going to be very open and transparent,” she said. “Usually when people are secretive, that does not mean good things.”

From the Associated Press

From the Idaho Capital Sun

BY CLARK CORBIN 

News reporters will not be allowed inside the Idaho Republican presidential caucus on March 2 or allowed to observe party officials tabulating results at party headquarters, raising concerns among some transparency advocates. 

Idaho Republican Party Chairwoman Dorothy Moon and Executive Director Kiira Turnbow told the Idaho Capital Sun that Idaho Republican Party’s rules for the caucus only allow registered Republicans and their minor children to attend. The Idaho Republican Party is using 210 different caucus sites during the March 2 presidential nominating caucus. 

Some caucus sites will be held on private property, such as churches. 

But dozens of caucus sites are in public buildings, including public schools paid for by Idaho taxpayers. 

Additionally, Idaho Republican Party officials plan to close the state party’s headquarters in downtown Boise while they tabulate results that are called in from each of the 210 caucus sites. News reporters will not be allowed inside during that time but can wait outside the party headquarters, Turnbow and Moon said. Once the results have been tabulated, Idaho Republican officials plan to open the doors to their Boise headquarters, announce the caucus results publicly and post the results to the Idaho Republican Party’s website, Turnbow said. 

“As for the caucus sites, per the Idaho GOP rules of the caucus, only registered Republican voters and their minor children will be admitted into the caucus sites,” Turnbow said.  

Turnbow said that means reporters will not be allowed inside the caucus sites. When asked by the Sun, Turnbow said the rule applies equally to all news reporters, and that national outlets such as Fox News or the Wall Street Journal would also be barred from entering caucus sites and barred from observing the vote tabulation inside GOP headquarters. 

Blocking reporters from presidential caucus raises transparency concerns 

David Adler, a political scientist who has taught the U.S. Constitution and government at Idaho’s public universities and now serves as president of the nonprofit Alturas Institute, said the Idaho Republican Party’s decision to bar news reporters from access to the presidential caucus is a disturbing, anti-democratic policy “that exalts secrecy over transparency.”

“As the U.S. Supreme Court has held, the Free Press Clause acknowledges the critical role that the press plays in American society, politics and elections,” Adler said in a written message to the Sun. “Press coverage of both the caucus and the official tabulation of votes informs the public, reassures citizens about the legality and fairness of the caucus process, and confirms party representations and voting results.”

“Chairman Moon’s decision to block press access to the presidential caucus and the official tabulation of votes betrays the presumption of openness that inheres in our democracy and, certainly, in the electoral contests for public office,” Adler added. “ I don’t understand Moon’s penchant for secrecy, and question the GOP’s alleged advocacy for free, fair and transparent elections.”

Betsy Russell, president of Idahoans for Openness in Government, urged Idaho GOP leaders to reverse their decision before the presidential caucus. 

“To exclude our free press from the process by which our state’s largest party selects candidates for the highest office in our nation would be absurd and extremely inappropriate,” Russell said in a written statement. “We all know that transparency builds trust, and secrecy generates suspicion. Selecting our leaders is a public matter in this country, not something that should be conducted in secrecy in back rooms. This announcement by the Idaho Republican Party prompts the question: What are they trying to hide? I sincerely hope they rethink this decision and allow the free press to observe the process and report on it to the public, so that citizens can know the process is being carried out as promised. At a time when suspicion of public institutions is running high and conspiracy theories abound, it’s mind-boggling that a major party would want to undermine public trust by conducting such an important process in secret.”

Idaho Press Club President Melissa Davlin also raised concerns about excluding reporters from the caucus.

“For years, Republican candidates have raised questions about integrity surrounding candidate nominations and elections. Now, the Idaho Republican Party has chosen to shut out journalists for this high-interest event,” Davlin said in a statement to the Sun. “Transparency benefits everyone, from the citizens of Idaho to the party officials charged with running the local caucuses. Voters across the nation will be looking to Idaho on March 2, and it’s disappointing the Idaho GOP is making it more difficult to get information to the public.”

Jaclyn Kettler, a Boise State University political scientist, said news reporters have generally been allowed to cover caucuses – pointing to public coverage of the Iowa caucuses, for example. But Kettler said the issue of media coverage fits in with broader discussions political parties are having about how they organize themselves, make decisions behind closed doors and exclude people who are not members.

“These (political parties) are quasi private organizations, yet they are engaging in public functions,” Kettler said in a telephone interview. “But when you’re in the public realm, who gets to make that call?” 

The issue of media coverage came up recently in the Nevada caucuses, Kettler said. The Reno Gazette Journal reported Feb. 7 that Washoe County School District policy prevents the local Republican Party from banning the general public or news media from attending the Republican caucus at 16 public schools that were serving as Nevada caucus sites. 

Members of the Idaho Republican Party are running, paying for and organizing the Idaho caucus themselves – not the Idaho Secretary of State’s Office or county clerks. 

Republicans also set their own rules for the caucus, including banning anyone but registered Republican voters, candidates or their surrogates from entering the caucus sites. Moon told the Sun she is simply enforcing party rules. 

During state-run elections and primary elections, on the other hand, news reporters are allowed into polling places. Many Idaho news reporters maintain direct contact with state and county elections officials across the state on the day of elections. And news reporters are also allowed to observe the Idaho State Board of Canvassers certify the official election results.

During a breakfast meeting with reporters on Tuesday in Boise, Gov. Brad Little said he is planning to participate in the Idaho Republican presidential caucus near his home in Emmett. When asked, Little said he did not know news reporters are banned from entering and observing the caucus. 

“I did not know that; so that’s news to me,” Little said. “I’m kind of a transparent guy.”

Why is Idaho switching to presidential nominating caucuses this year? 

The caucus is new this year. Idaho Republicans have not participated in a caucus since 2012, and Idaho Democrats have not participated in a caucus since 2016. 

Idaho voters are voting in presidential caucuses instead of primaries because the Idaho Legislatureseemingly unintentionally eliminated the presidential primary election last year. The Idaho Legislature passed House Bill 138, which was intended to move the presidential primary election back from March to May, when the rest of the state’s primary electrons take place. However, House Bill 138 just eliminated the presidential primary election altogether, and legislators adjourned for the year without passing the trailer bill that was designed to fix the problem and actually move the primary election to May. 

Without a state run presidential primary election available in law, the Idaho Republican Party voted last summer to conduct a presidential nominating caucus on March 2. 

Idaho Democrats will also conduct a presidential caucus this year, but their caucus is not until May 23.

More information about the Idaho Republican Presidential Caucus is available online.

From the Idaho Capital Sun

From Idaho Education News

by Kevin Richert

Idaho Education News has already paid the University of Idaho $88.65 for a set of public records.

We haven’t received the records. On Friday, we received a second bill for the same documents — this time, in the amount of $326.15.

The U of I says both bills are legal. And the U of I doesn’t rule out billing us a third time.

At issue are records that we believe will tell an important part of the story about the U of I’s proposed University of Phoenix purchase — a controversial $685 million deal that could make or cost the U of I millions of dollars, and forge a partnership with a for-profit university with a troubled track record.

We have asked, twice, for invoices paid by the U of I and its affiliates, related to the Phoenix purchase. We submitted our original request on Dec. 22.

The U of I first billed the $88.65 to cover the cost of identifying and gathering the invoices. The U of I now says it needs an additional $326.15 to review and potentially redact the records.

In both cases, the U of I says the costs are estimates. If costs come in lower, the U of I promises to refund the difference. Or if the costs come in higher, the U of I says it will ask for more money.

In other words, the U of I isn’t ruling out charging us three times for the same set of public records. Not even when EdNews asked for assurance that the second bill would cover all costs.

“Simply put, this process, which is authorized under the law, ensures that taxpayers are not funding labor that goes solely to the benefit (of) individual requestors, such as you and your employer,” U of I senior associate general counsel said in a Wednesday email to EdNews.

State law allows agencies to bill for public records — for labor costs exceeding two hours of staff time. But the law doesn’t require agencies to seek payment, and many agencies don’t.

We also take issue with Klein’s insinuation that our records requests are self-serving. We have spent eight months pushing for details on the Phoenix purchase on behalf of our readership — and all Idahoans, who have a vested stake in this decision.

We are a public news source. And a well-read news source. Since last week, our stories on the trial that threatened to block the Phoenix purchase have been republished by the Idaho Statesman, the Idaho Press, the Lewiston Tribune, Boise State Public Radio, the Idaho Capital Sun and BoiseDev — and anyone else we might have missed along the way.

So, no, we’re not just doing this for kicks.

On Wednesday, we sent the U of I another $326.15. We’ll let you know what we get next — whether it’s a stack of public records, or another bill.

From Idaho Education News

From the Idaho Press

by Laura Guido

The University of Idaho’s bid to purchase the University of Phoenix has cleared a major hurdle this week.

Ada County District Court Judge Jason Scott on Tuesday dismissed an Open Meetings Law case involving the Idaho State Board of Education’s decision to pave the way for the transaction.

Scott dismissed the case with prejudice, meaning it cannot come back, and did not award relief to the plaintiffs.

Attorney General Raúl Labrador last June filed the lawsuit, arguing that the state board, acting as UI’s Board of Regents, had violated the Open Meetings Law in its closed-door meeting leading up to a public vote to allow UI to create a not-for-profit entity to acquire the online school.

Attorneys for the state board argued that Labrador seemed to be trying to delay the deal.

During the course of litigation, Labrador’s office had made more claims about why the executive sessions, which are not open to the public, may have made the final decision null and void. These included questions of whether an agenda was properly posted and whether an early meeting was too early to even be considered part of negotiations.

Scott had dismissed a number of those claims in an earlier ruling, Idaho EdNews reported.

The three-day trial that took place last week was focused on resolving the question of if UI was in competition with any other public entities for the purchase.

Under the Open Meetings Law, executive sessions may be held under narrow circumstances, including for “preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

During the trial, UI President C. Scott Green testified that the University of Phoenix had always indicated there were competitors in the deal, Idaho EdNews Reported. Board members had also said during depositions that they had been under the impression that there was competition.

In the findings of fact and conclusions of law document that was filed with the ruling, the judge goes through the timeline of the three executive sessions and process by which the board sought the acquisition. He notes that Green had told board members that there was “fierce competition” for the purchase and that the board’s Deputy Attorney General Jennifer Marcus had OK’d the closed meetings as compliant with the law.

Scott wrote that he thought that, given the circumstances, it was reasonable for board members to believe there was competition, even if this turned out not to be the case, and thus the executive sessions were in compliance.

“In practice, governing bodies use the information available to them in deciding whether an executive session is lawful,” Scott wrote. “The information available to them will not always be sound, even when it reasonably appears to be so.”

He wrote that while it wouldn’t be enough if the board simply thought a transaction might be of interest of other public entities, if there was “reasonable belief that it is in competition with at least one governing body,” that would be sufficient under the law, even if that turns out to be incorrect.

Scott said, “Because the Board of Regents reasonably believed at the time of the May 15 executive session that it was in competition with the governing bodies of one or more public agencies in other states to acquire the University of Phoenix, most notably the University of Arkansas, section 74-206(1)(e) permitted that executive session.”

Labrador said in an emailed statement that the standard set by the judge in his ruling is too low in his view, and he thought the court misinterpreted that law. He said he make seek further litigation.

“The law requires much more of its officials than the District Court required, and it provides much greater protection to the public than the District Court gave,” Labrador said in the emailed statement. “The District Court’s ruling will lead to far less government transparency and accountability. That is bad for Idaho citizens, and it defies the entire purpose of the law. We are looking closely at all appellate options to ensure Idaho’s Open Meetings Law remains a bulwark for openness and government accountability.”

State Board President Linda Clark said in a written statement that the board is “disciplined” in following the Open Meetings Law.

“It is alarming to get sued by your own lawyer, Attorney General Labrador, for listening to the advice of his own staff,” Clark wrote. “The Attorney General’s lawsuit has taken an extraordinary amount of time and resources over the last seven months. Regardless, we are pleased the court recognized the State Board followed the law. We are eager to put this unnecessary litigation behind us and will continue our pursuit of payment of legal fees by the Attorney General’s Office.”

A UI spokesperson said the school administrators will continue to seek the acquisition.

“We appreciate the court’s decision and are pleased that the open meeting/executive session practices of our Board of Regents were found to be sound,” spokesperson Jodi Walker wrote in an email. “We look forward to completing our affiliation with the University of Phoenix in the coming months and bringing this unique opportunity to the citizens of Idaho.”

From the Idaho Press

From the Idaho Press

BY LAURA GUIDO

A judge will allow Attorney General Raúl Labrador to subpoena the University of Phoenix for some documents and depose the university over narrow matters, according to a ruling made Thursday amid an ongoing legal battle over the Idaho State Board of Education’s decision to pursue the acquisition of the online school.

Ada County District Court Judge Jason Scott heard arguments Thursday over whether Labrador may seek additional information from the University of Phoenix (UoPx) and what the information may be. He made the decision, partially granting and partially denying the online institution’s motion to quash Labrador’s subpoena, from the bench immediately after arguments were made.

Labrador brought the lawsuit in June challenging the Idaho State Board of Education’s decision to allow the University of Idaho to move forward in an effort to purchase UoPx, arguing its closed-door meetings held before the public vote were in violation of the state’s Open Meetings Law.

Phoenix’s lawyers argued the information sought was overly broad, burdensome, and unnecessary to decide the case and that Labrador made the move in an attempt to delay the transaction.

“We’re losing, in my mind, the forest for the trees a bit,” University of Phoenix Attorney Benjamin Nielsen said to the judge. “The attorney general sued his own client for relying on the advice of his own deputy. He did so to kill a deal he doesn’t like.”

Deputy Attorney General Gregory Woodard disputed this claim that Labrador simply didn’t like the deal.

“Phoenix is really, they’re acting as a gatekeeper here, they’re deciding what they think is relevant and what is not,” Woodard said. “And that’s not their right and it’s not the standard.”

A key component of the overall legal challenge is whether UI was in competition with another government entity when negotiations took place in a closed session.

Under the Open Meetings Law, closed executive sessions may be held to “consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

Scott had previously ruled that the school board must show that members reasonably believed other governing bodies were in competition but it wasn’t necessary to demonstrate actual competition existed.

Similarly, he ruled Thursday that Labrador’s office may subpoena UoPx for documents showing communications with the University of Idaho indicating there was competition. He denied the office’s request to seek documents proving actual competitors.

“Ultimately, the state of actual competition, if any, is not going to be a viable means of getting at whether their (the board members’) belief was or wasn’t reasonable,” Scott said. “That’s going to be assessed based on what information they had exactly and what the sources of it was.”

He also narrowed the scope of how the attorney general’s office could depose officials from UoPx, limiting it to asking about communications with UI regarding competition or potential competition.

The trial over whether the state board’s May 15 executive session violated the Open Meetings Law is currently scheduled for Jan. 22, but recent court filings indicate that the attorney general’s office may request to move back the date. Scott said a decision on this could be made next week.

From the Idaho Press

Editorial from the Idaho Statesman

BY BRYAN CLARK

When voters elect an attorney general, they are hiring a lawyer to represent the collective legal interests of the state. Turning over that duty of legal representation to an unelected political advocacy group is inherently problematic.

“It is a very bad practice to allow an advocacy group to represent the state. They will represent their true client, the advocacy group, not the state,” James Tierney, a lecturer at Harvard Law School and the former attorney general of Maine, told Chris Geidner, a longtime legal journalist who writes the Law Dork substack.

That’s particularly true of the group that is now representing — you. Didn’t know you had a new legal team? Well, you should meet them.

As Geidner first reported, last month the Alliance Defending Freedom quietly entered an agreement with Attorney General Raúl Labrador to represent the state in appealing the federal court decision that prevented implementation of Idaho’s total abortion ban in cases where it conflicts with the federal Emergency Medical Treatment and Labor Act.

That law requires hospitals to provide emergency treatment to save any patient that shows up at their doors — including women who need to end a pregnancy to save their life or health, whereas Idaho law allows abortion only to save a woman’s life.

The group Labrador brought into this case has been designated by the Southern Poverty Law Center as an extremist hate group. It has been at the forefront of efforts to restrict women’s rights and to criminalize the lives of LGBTQ people in Idaho and around the country as part of a broader Christian nationalist agenda.

All of this is predictable, and was indeed predicted, when Labrador was running for office. Labrador is basically a far-right career politician, and he is using his office to service the far right. His experience as a litigator was nowhere near sufficient to be the state’s lawyer.

So it seems he’s beyond his depth in this case, and it might make sense to seek outside help. But hiring outsiders comes at a cost, even if that cost isn’t taxpayer funds.

For example, even though Idaho is the client in this relationship — usually a lawyer’s job is first and foremost to advance their client’s interests — the contract Labrador signed places the ADF’s political propaganda campaign on equal or superior footing to the interests of Idaho citizens.

“Client therefore agrees to cooperate as much as possible, upon the request of ADF, in the publicizing of non-privileged and non-confidential information relating to the Representation,” the agreement states. “Client agrees to allow ADF to use non-confidential information in materials intended to communicate with supporters of ADF and in furtherance of the mission of ADF.”

At the same time, the agreement signs away Idahoans’ right to know about their own government and their own legal representation.

Idaho’s Public Records Act declares that anyone in Idaho can inspect state records, and they’re exempt from disclosure only if they meet specified conditions. And since Idaho is the client in this lawsuit, it seems Idahoans ought to have access to a great many details of their own representation.

Instead, a national advocacy group acting as your pro-bono legal team reserves the right to oppose you obtaining information about your own representation.

“Client agrees not to disclose our communications to third parties, whether orally or by forwarding to or copying third parties on communications, without first obtaining approval from ADF,” the agreement states. “Client will notify ADF in advance of responding to any public records request for communications relating to the Matter, and Client will do so sufficiently in advance of the response deadline to enable ADF to oppose or otherwise respond to such request.”

You and I might have very different views on abortion in general and on this lawsuit in particular.

I think we should not be pursuing this lawsuit. The bill passed by Idaho lawmakers was ambiguous. It made doctors afraid they could be liable for providing treatment necessary to save women from severe bodily harm, put pregnant Idahoans at higher risk and helped drive the flight of OB/GYNs from Idaho.

The federal ruling is narrow and simply provides assurance to doctors they can do what is necessary to save women in emergency situations. It does not protect what most people think of as abortions — though I think that’s a right that should be protected.

But you don’t have to agree with me about that to smell something rotten here. No matter which side of this lawsuit you support, Labrador sold out your interests.

Editorial from the Idaho Statesman

From the Idaho Press

BY LAURA GUIDO

The Idaho State Board of Education on Thursday voted unanimously and with little discussion to name Robert Wagner as the new president of Idaho State University.

The board had previously announced Wagner was among five finalists for the position — however, it appears the final decision on who would assume the position was all but finalized before the vote, seemingly skirting Idaho’s Open Meetings Law. A board spokesman disagrees, saying the process was typical and in-line with the law.

The law allows for closed meetings to “consider hiring a public officer, employee, staff member or individual agent, wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need.” Negotiations over a contract may also be held outside of public meetings.

However, the law states that, “No executive session may be held for the purpose of taking any final action or making any final decision.”

On Monday, Lewis-Clark State College President Cynthia Pemberton, a finalist for the ISU presidency, wrote in an email to LCSC faculty and staff that she was notified she would not be selected and another individual would be selected, the Lewiston Tribune reported.

Another candidate, Shane Hunt, had also been notified early in the week, multiple sources told the Idaho State Journal.

State Board of Education spokesman Mike Keckler told the Idaho Press on Tuesday that all the candidates had been notified “that the Board will be considering the proposed appointment of one of the five finalists named on November 29, 2023.”

Betsy Russell, president of Idahoans for Openness in Government, said the procedure didn’t seem to follow the intent of the law.

“It seems clear that the board made this decision during a closed session, as it directed its executive director to notify the unsuccessful candidates and begin negotiations with the selected one after that closed meeting,” Russell wrote in an email. “To pretend that nothing has been decided until a unanimous vote is taken later with no discussion flies in the face of the spirit of the Open Meeting Law.”

Keckler clarified that Executive Director Matt Freeman did not receive direction from the board on whom to negotiate with.

Asked about the procedure, Keckler said the board met in executive session to discuss the qualities of each candidate, as allowed by law. Freeman then began negotiations with the candidate who “appears to be most favored” based on the discussion.

“Based on what he heard in that discussion, Matt Freeman, the Board’s executive director entered into negotiations with one of the candidates,” Keckler said in an email. “No Board action was taken in executive session.”

If negotiations are unsuccessful, he moves on to the next candidate, Keckler said.

Keckler responded to questions about if the meetings and decision were within the bounds of the law by noting that the process has been the same for other university presidential searches. He said no concerns about the process were every raised in previous searches.

“Once a finalist has agreed to negotiated terms with the Board’s executive director, the other finalists are personally notified as a professional courtesy before a special Board meeting rather than first learning about the status of their candidacy in the media,” he wrote Friday. “When the meeting convenes, the Board has the discretion to approve or reject the negotiated agreement. If you look at previous Board meetings, members often go straight to motion on action items listed on the agenda, so the actions taken yesterday weren’t unusual. The Board, as a group of volunteers, trusts the work of its professional staff.”

Russell said that there could have been at least one more public meeting in the process that may have added to openness of the decision-making.

“Immediately after the closed session, the board could have taken a public vote on its decision to notify and enter negotiations, even without revealing the name of the favored candidate at that point. Why not be transparent?” She wrote. “… Rather than split hairs about the point at which the final decision occurs, it best serves the public to be transparent all along.”

Keckler highlighted that all five finalists participated in open forums in Pocatello, Idaho Falls and Meridian. All of these forums were open to the public and live-streamed.

“The entire ISU president search process was as transparent as possible,” he wrote.

From the Idaho Press

From BoiseDev.com

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

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

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

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

A story BoiseDev members got first. Sign up to support Boise Dev’s journalism and get future stories in your inbox before anyone else.

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

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

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

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

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

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

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

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

Boise State, the law & lawmakers

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

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

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

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

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

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

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

‘Political climate’

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

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

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

Boise State and records

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

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

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

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

Keeping ‘secrets’

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

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

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

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

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

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

What’s next for Big City

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

From BoiseDev.com