From the Twin Falls Times-News

Measure would make language ‘cleaner’ while strengthening safeguards against violations

By Jared S. Hopkins
Times-News writer

BOISE – Idaho’s open-meeting law would be revised for the first time in 17 years, under a measure backed by Idaho Secretary of State Ben Ysursa, Attorney General Lawrence Wasden and media groups.

Supporters said the bill will make the 35-year-old law clearer for public officials to understand while strengthening the safeguards against violations. It passed the Senate unanimously last week and is expected to receive a hearing soon in the House State Affairs Committee.

“The public’s business should be conducted in public,” Secretary of State Ben Ysursa told lawmakers in a committee hearing.

Due to the size of Idaho and its scattered population, lawyers for the hundreds of governmental agencies vary in their familiarity with the law, said Deputy Attorney General Bill van Tagen. For example, the clarity needed in small sewer districts or recreational districts might differ from issues in bigger areas like counties or even on the state level like the Public Utilities Commission.

“We try to make things as clear as we can,” said van Tagen. “You need to come up with something to provide balance for all of them.”

Among the provisions:

• Fines up to $50 to governmental bodies who violate the law, regardless of intent.

• A civil penalty of as much as $500 against public bodies who knowingly violate the law.

• As much as $500 civil penalty for those who violate the law twice within 12 months.

• Instances where public officials go into executive sessions – closed door meetings – must be cited in meeting minutes. It would also require a governmental agency to list the specific reason for entering the executive session – currently agencies may list only a general description.

The measure has generally been well-received in the Legislature.

“All the Sunshine laws I’m positive on,” said Sen. Chuck Coiner, R-Twin Falls. “We needed the clarification.”

Rep. Bert Stevenson, R-Rupert, the only Magic Valley lawmaker who sits on the State Affairs Committee, said he didn’t know enough about the bill yet to comment on it.

Alleged violations of the law and efforts to better follow it have made headlines in recent months in the Magic Valley.

The city of Twin Falls is currently streaming all council and advisory committee meetings through the city’s Web site, as well as increasing the number of meetings broadcast on the city’s Cable One public-access Channel 17. The City Council has ruled against requests from the golf and the airport advisory commissions, which wanted to keep meeting away from city offices.

Meanwhile the Idaho Attorney General’s Office recently investigated complaints that the Burley City Council had violated the open meeting law by awarding a sewer line bid without proper notice. The AG determined that no violation had occurred. In an unrelated move, Burley Mayor Jon Anderson removed City Councilman Jay Lenkersdorfer from committee assignments, saying he had violated the law by holding committee meetings without proper notice.

Betsy Russell, president of the Idaho Press Club and co-president of the Idahoans for Openness in Government, a statewide nonprofit coalition, said the bill clarifies the law.

Russell filed a complaint last year against the State Board of Education, prompting Wasden to determine the board may have violated the law. However, he said he could not prove the board “knowingly” did so, as required under a Supreme Court interpretation of the law.

“The Idaho Open Meeting law is broken because of a 2007 Idaho Supreme Court decision that made it almost impossible to enforce,” said Russell, who is a newspaper reporter for the Spokesman-Review. “This bill fixes it.”

From the Twin Falls Times-News

From the Associated Press

BOISE, Idaho (AP) – The Idaho Senate has passed a bill to toughen the state’s open meeting laws.

Boise Republican Sen. Kurt McKenzie said Thursday the bill will be easier to understand and will have punishments that can be enforced. The bill, SB 1142, was approved unanimously. It now goes to the House.

A 2007 Idaho Supreme Court decision hampered enforcement of the law, backers said. Idaho Attorney General Lawrence Wasden proposed the reforms after consulting with media groups, local government interests and others.

Under the bill, if boards including city or county commissions simply err and hold an illegal closed meeting they face a fine of $50. Still, they would be allowed to mend mistakes. In more egregious violations where boards flout the limits, however, fines could run to $500.

Among those endorsing the bill are Idahoans for Openness in Government, the Idaho Association of Counties, the Association of Idaho Cities, the League of Women Voters and Idaho Secretary of State Ben Ysursa.

From the Associated Press

From the Idaho Press-Tribune

Wednesday, March 18, 2009 – 11:00 am

This is Sunshine Week across America. It began in 2002 as an effort by the Florida Society of Newspaper Editors to draw attention to state legislators’ attempts to create exemptions to Florida’s public records law.

It’s really great to see local government providing so much easily accessible light on records these days. Nampa city and now Canyon County are opening up their financial records to the Idaho Freedom Foundation and the public. Read the details here.

I also want to thank Canyon County’s commissioners for taping the meetings now. We editorialized on it earlier this month after new Commissioner Kathy Alder suggested it, and the commissioners instantly made it happen!

The Idaho Legislature can make a huge difference in the Open Meetings Law this session as well. Boise Weekly News Editor Nathaniel Hoffman gives a super report on the proposed changes here.

The revisions, supported by the Idaho Attorney General’s Office as well as the Idaho Press Club — and the Idaho Press-Tribune — have been in the works for three years.

Here’s the bill.

Here’s the statement of purpose: This legislation proposes changes to the states Open Meeting Law. The legislation would amend four sections of the Open Meeting Law. It addresses how notice is given to the public by public agencies that are subject to the Open Meeting Law, as well as how amendments to meeting agendas are to be made. The legislation also covers the subject of minutes pertaining to executive sessions and discusses the manner and method for a governing body of a public agency to go into executive session. The bill provides that an executive session is an exception to the states Open Meeting Law and, as an exception, is to be narrowly construed. Finally, the bill addresses violations to the Open Meeting Law, modifying penalty provisions found in Idaho Code 672347. This legislation provides a provision for governing bodies of public agencies to cure violations of the Open Law by following steps set forth in a new subsection (7) to Idaho Code 672347.

This would be a super — and much needed — enhancement to the current law. It needs to pass — unanimiously.

From the Idaho Press-Tribune

From the Idaho Statesman

By Kevin Richert
Idaho Statesman
03/18/2009

Not all is cloudy on the Sunshine Week front.

Earlier this week, I wrote about Idaho’s lackluster efforts in making public records available online. I researched the issue on behalf of Sunshine Week, a national organization that spotlights the value of public access to government records. Idaho wound up tied for No. 40 in a national ranking of online records access.

Now to a double serving of good news from Monday’s Senate State Affairs Committee meeting. The committee introduced a bill that would require elected officials to file financial disclosure reports, and approved a bill to put some teeth into the open meetings law.

Idaho, a state that prides itself on a citizen’s Legislature, is also one of just three states that doesn’t require lawmakers to disclose who they work for, or where they have business interests. It’s a fundamental disconnect. Senate Majority Leader Bart Davis, R-Idaho Falls, and Senate Minority Leader Kate Kelly, D-Boise, have collaborated on a bill to fix it.

Kelly has been pushing this idea for years, but has run into resistance in the Republican-controlled Legislature. That’s why it’s encouraging to see Davis on board, along with Senate leadership from both parties. With the backing of the Senate’s most influential players, this idea has more momentum than ever.

Why, one of these days these reports might be public record, and easily accessed online. We can only hope.

Attorney General Lawrence Wasden’s office has taken the lead on the open meetings bill.

The most important part of this bill tightens up a gaping loophole in the law, as the state Supreme Court has interpreted it. An elected official now must “knowingly” violate the Open Meeting Law in order to face any civil penalties — a legal hurdle that is all but impossible to prove.

The rewrite revamps the penalties.

A first-time violation, willful or inadvertent, can result in a civil penalty of up to $50. The law now sets the fine at $150.

Repeat offenders — or any officials found to “knowingly” flout the law — can face a $500 civil penalty. The law now calls for a $300 fine for a repeat violation.

This change makes the law more enforceable, especially for first-time offenders who could now plead ignorance of the law. It encourages elected officials to understand their legal obligations to conduct the public’s business in public view. That’s in everyone’s interest.

Granted, media groups have been active on this issue. And, by way of full disclosure, I am vice president of the Idaho Press Club, one of the groups working on this bill. The club supports this rewrite.

But open government serves the citizenry, not just the media. That is the underlying message of Sunshine Week. And it’s why, for anyone who cares about transparent government, Monday was a very promising day in the Senate State Affairs Committee.

From the Idaho Statesman

Editorial from the Idaho Statesman

By Kevin Richert
Idaho Statesman
March 16, 2009

We’re No. 40. When it comes to online access to public records, we could do better.

For Sunshine Week — an annual celebration of the importance of public records — I was handed an intriguing homework assignment. I was told to look for 20 public documents on Idaho¹s Web site, everything from comparable school test scores to a searchable database of state purchases.

I found eight out 20, which puts Idaho in a tie for 40th. Texas headed the list, scoring 20 out of 20. Mississippi came in dead last, with only four documents out of 20.

Here’s the key sentence from the Sunshine Week assignment: “Our goal is to demonstrate not just whether information is posted, but also how easy — or difficult — it is for the average person to find these records on state government sites.”

I tried to follow that instruction to the letter. Rather than calling contacts at the agencies to ask if the information was online, I wanted to see if I could find it readily through a simple search. If I could, I figured any reasonably Internet-savvy person could do likewise.

Some answers were easy. I knew from experience that the Secretary of State’s Office is great about posting up-to-date campaign finance reports — which are easily found on the office’s election page. I also knew Idaho is one of only three states that doesn’t require legislators to file financial disclosure reports, so there was no point trying to find them on the Net.

What I found — behind our low ranking — was a state that could significantly better, without a lot of extra effort.

* The Idaho Transportation Department does a good job of posting links to its construction projects, but doesn’t link to the contracts. The ITD has a Web page for its bridge division, which conducts biennial inspections. The inspection reports, however, are nowhere to be found.

* The state’s district health departments offer timely inspection reports for day-care centers and restaurants. The catch is, you have to remember to go to the districts, rather than going to the Department of Health and Welfare. If you’re looking for hospital and nursing home inspections, good luck. I couldn’t find them.

* The Board of Medicine has a nice search option that allows patients to review a doctor’s license status. A newsletter lists disciplinary actions but, unfortunately, this hasn’t been updated since last spring.

The state ought to do better. And not just to stay ahead of Mississippi. Easy online access to records helps people make better consumer decisions, and provides taxpayers with a better sense of how their government functions.

Editorial from the Idaho Statesman

LEAGUE OF WOMEN VOTERS TREASURE VALLEY
IDAHOANS FOR OPENNESS IN GOVERNMENT

FOR IMMEDIATE RELEASE Contact: Kip Winter

Date: March 12, 2009 208/794-7688

Shine Light on Openness in Government

On his first day in office, President Barack Obama directed his Administration to develop
recommendations for an “Open Government Directive” that moves government towards being
“transparent,” “participatory” and “collaborative.”

To bring this message home and look for ways that local and state government can also become more collaborative, the League of Women Voters Treasure Valley and Idahoans for Openness in Government will hold a public meeting on March 20 from 11 a.m. to 12:30 p.m. at the Star City Hall Council Chambers, 10769 West State Street, Star.

The meeting is a nationwide webcast broadcast by OpenTheGovernment.org. It is part of national Sunshine Week March 15-2l. The webcast allows citizens to participate in the crafting of the President’s “Open Government Directive.” Sunshine Week is a national initiative that brings together print, broadcast and online news media, civic groups, libraries, non-profits, schools and others interested in the public’s right to know.

During the webcast, individuals who are intimately involved in formulating the Administration’s policies and agendas will explain the initiative’s goals, receive feedback by phone and email from the audience, and let members of the public know how they can continue to participate in the discussion.

Whether it is to track how federal stimulus dollars are being spent or to attend a local government meeting where land use decisions are being made, “Sunshine Laws” afford us access and create government transparency.

Because of the increasing need for public access to governmental decisions and policies, the members of the League of Women Voters Treasure Valley and the Idahoans for Openness in Government will continue working for the community in monitoring the use of these Laws.

League of Women Voters is a nonpartisan group that studies public issues and works to enact them into law. League never supports a political party or a political candidate.

Idahoans for Openness in Government, or IDOG, is a broad-based, non-profit coalition for open government. Like similar coalitions in more than 40 other states, IDOG’s mission is to promote open government and freedom of information.

Sincerely,

Kip Winter, President, League of Women Voters Treasure Valley

Betsy Russell, President, Idahoans for Openness in Government

From the Twin Falls Times-News

Counties vary in accepting e-mailed public records requests
By Nate Poppino
Times-News writer

In 2006, Idaho legislators caught the state’s public records law up with the Internet, inserting that “a request for a public record – may be conducted by electronic mail.”

But the optional language, while giving public agencies the control they need over requests, has resulted in a patchwork of records policies and at least one county – Jerome – where some departments no longer accept them in digital form.

The changes, said former prosecutor and current deputy prosecutor Mike Seib, were made to solve problems with receiving and responding to some requests. E-mails sent to the part-time county commissioners, for example, were only read two days out of the week. And another official didn’t realize that a request sent to several officials was meant for him.

The new policies for the county clerk and planning and zoning department were tested in court last fall as part of a larger case brought by resident Lee Halper.

Although Halper argued state law required the county to accept his e-mailed request, 5th District Judge G. Richard Bevan stopped short of ruling on the statute as a whole, approving the request only for that specific case.

Deputy Attorney General Bill Von Tagen said Wednesday that public agencies aren’t required to accept requests through their computers. But he always encourages them to develop policies for e-mail requests, helping ensure they get to where they need to be and don’t languish in in-boxes.

“It’s dangerous not to,” he said.

Dan Chadwick, executive director of the Idaho Association of Counties, said there doesn’t seem to be one consistent way counties handle e-mails. But a sampling of several county clerk offices in the Magic Valley revealed that Jerome County’s neighbors more or less accept such requests – most adding that they still prefer paper submissions and one saying he asks e-mailers to fill out a physical form.

State agencies contacted Wednesday also had systems in place. The departments of Agriculture, Correction, Education and Health and Welfare all accept e-mail requests in their varying policies, and many have places on their Web sites to submit such requests.

County attorneys consulted about the issue said the challenge is to preserve open access to information while solving some of the issues e-mails present. Cassia County Prosecutor Al Barrus said he would lean towards replying with a form and said it can be harder to verify an e-mail. Lincoln County Prosecutor E. Scott Paul said he’d err on the side of accepting e-mail requests unless they were sent en masse and maliciously.

“I think the default is, you have to consider it a legit request,” Paul said.

Seib said Jerome County would love to accommodate its residents via e-mail in this day and age. But he said officials feel doing that would require restricting some people from e-mailing.

“You’ve got to treat everyone the same,” he said.

From the Twin Falls Times-News

From the Twin Falls Times-News

‘Scammers’ comment was opinion, not fact

By Nate Poppino
Times-News writer

A slander suit over comments on a proposed nuclear power plant in Elmore County seems to be over, with both sides declaring victory.

Alternate Energy Holdings Inc., based in Eagle, sued the Snake River Alliance for defamation in August, basing its case on an Aug. 11 Boise news broadcast in which SRA Executive Director Andrea Shipley called the company “scammers.”

On Jan. 16, just a few days before both parties were set to appear in court, 4th District Senior District Judge G.D. Carey granted a motion made by the watchdog group to dismiss the case – in which the group argued that Shipley stated her opinion, not a fact, and was protected by the First Amendment. He also told AEHI to cover its opponent’s court costs, though those are so minimal that the group won’t pursue them, said David W. Knotts, the SRA’s attorney.

On Monday, Shipley celebrated the decision as proving the frivolousness of the company’s lawsuit. But AEHI CEO Don Gillispie said the dismissal was prearranged through negotiations with the SRA, and that Shipley calling her statement an opinion amounted to a retraction of that statement.

“We think we achieved what we wanted with the lawsuit,” Gillispie said.

Knotts said Shipley’s statement was always an opinion. Her organization was fully prepared to defend itself should the case have proceeded, she said, and she in no way has retracted her statement.

“We would have proved that we were speaking truth to power, and sometimes truth hurts,” she said.

Shipley has been one of the most vocal critics of AEHI’s proposed Idaho Energy Complex, a 1,600-megawatt plant now aimed for a site near Mountain Home that the company says could be built by 2016. Officials have asked for nearly 1,400 acres of farmland to be rezoned for the plant.

The suit seemed to catch the SRA off-guard at first, and the normally talkative group said little on the matter, noting in late September that it had secured legal counsel.

In a press release issued Monday, Shipley continued to attack AEHI’s project and business methods, arguing that she thinks the company still relies on misleading public statements and doesn’t have what it needs for the project.

AEHI had sought for the group to retract the August statement and keep from making similar ones in the future. The company also sought payment for alleged damages from the statement, an unclear sum partly based on the number of potential investors who saw the story and decided not to invest.

Asked what the decision means for AEHI’s response to any future comments by the watchdog group, company spokesman Martin Johncox left the door open for possible future actions.

“That’s largely up to (the SRA),” he said. “They’re known for over-the-top rhetoric. If they have trouble controlling their mouths, they could find themselves in this same kind of position again.”

From the Twin Falls Times-News

From the Idaho Statesman

Words removed from the State of the State suggest he might drop his demand for a constitutional amendment.

BY DAN POPKEY – dpopkey@idahostatesman.com
Edition Date: 01/27/09

A passage that Gov. Butch Otter cut from his State of the State address two weeks ago suggested that he may be more flexible about permitting voter-approved local sales taxes than he was last year.

Otter’s unspoken words may suggest a softening of his earlier “unequivocal support” for a constitutional amendment before local governments could ask voters to back sales taxes for spending on transportation and possibly other needs.

That is likely to encourage proponents of a beefed-up public transit system in the Treasure Valley. They were frustrated last year when House Republicans insisted on requiring the constitutional amendment.

Cities, counties and chambers of commerce hope Otter and the Legislature will agree to give local governments this authority by passing a law, which requires simple majority votes in the House and Senate and the governor’s signature. A constitutional amendment requires two-thirds majorities in bothhouses and approval by voters at the next general election. A law would be far easier to amend.

“I think it’s heartening,” said Senate Local Government & Taxation Committee Chairman Brent Hill, R-Rexburg. “My cities in Eastern Idaho are not interested in a constitutional amendment that ties the hands of future legislatures.”

A draft of Otter’s Jan. 12 speech had him urging lawmakers to agree to allow local-option taxes – without mentioning a constitutional amendment.

But on the Friday before the Monday speech he removed two paragraphs, apparently at the urging of House Majority Leader Mike Moyle, R-Star, the most vocal proponent of an amendment. While the House voted for a constitutional amendment last year, it died in the Senate, which preferred the lower bar.

The purged words closed a long passage pitching Otter’s plan to raise fuel taxes and registration fees for highways. Otter provided the draft in response to a public records request from the Statesman. The omitted text:

“I also encourage you to come together in agreement that cities and counties must have the option – with the consent of voters – to provide financially for their own community infrastructure needs. If local folks in a given jurisdiction want to impose a tax on themselves, they should have that opportunity.

“We must not let our own views cloud our commitment to self-determination and enabling people to be the architects of their own destiny.”

Moyle said he asked Otter to remove talk of local-option because of ongoing negotiations. “I told him I was concerned about that being brought up,” Moyle said Monday. “I’d much rather work it out rather than fight it in the State of the State or the newspaper.”

House Speaker Lawerence Denney, R-Midvale, said he continues to oppose local-option without a constitutional amendment. Denney said he has discussed lowering the threshold for voter approval from two-thirds to three-fifths. “As long as it comes as a constitutional amendment, the parameters are up to the committee,” he said.

Otter declined to elaborate on whether he was taking sides on the constitutional amendment. In an interview with Idaho Public Television aired four days after the speech, he said he dropped the topic because leadership told him of “tender negotiations.” Pressed on whether he would insist on a constitutional amendment or could accept a statute, he said, “I’m not going to answer that.”

The excised statements are a departure from a March 12 letter to House Revenue & Taxation Committee Chairman Dennis Lake. Otter wrote of his “unequivocal support” for an amendment as the “best, most timely and most broadly acceptable manner” to grant local tax powers. He closes with a quote from Thomas Jefferson: “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

Boise Metro Chamber of Commerce Chairman Mark Bowen was pleased to learn of Otter’s sentiments in the earlier draft. “We welcome the opportunity to have a broader dialogue rather than, ‘This is the price of admission.’ I’d appreciate it if everybody backed away a little.”

Moyle, however, said there’s no reason to conclude Otter has stepped back. “Big deal,” he said. “That’s neutral. You could read it either way.”

Senate President Pro Tem Bob Geddes, R-Soda Springs, cautioned against too much parsing of the omitted passage. “This may be cracking the door open, but it’s not open enough for me to see what’s inside that dark room yet,” he said.

Dan Popkey: 377-6438

From the Idaho Statesman

From The Spokesman-Review

Betsy Z. Russell
Staff writer

BOISE – A new national survey ranks Washington fourth in the nation for governmental integrity, openness and accountability – and Idaho 44th.

The survey, conducted by the Chicago-based Better Government Association, compared open records laws, open meeting laws, whistleblower laws, campaign finance requirements and conflict-of-interest laws, to create a government “integrity index.”

Idaho scored particularly poorly for its open meeting and conflict of interest laws. As one of just four states with no requirement for state legislators to disclose their personal finances, Idaho tied for last place with a zero score in the conflict-of-interest category, while Washington was ranked first in the nation.

Idaho state Sen. Mike Jorgenson, R-Hayden Lake, said, “I think we need to stop and do a little introspective, and ask ourselves what’s going on.”

State Sen. Kate Kelly, D-Boise, who has sponsored ethics legislation, said, “It doesn’t come as a surprise. It’s just one more indication that this is an area we need to focus on.”

Though Washington fared well in the 50-state survey, Jason Mercier, director of the Center for Government Reform in Olympia, said, “This is a good survey of who’s got the best practices out there, whose laws are worth taking a look at. But the more interesting question to me is how are states actually implementing the laws they have on the books.”

Washington has strong open meetings and public records laws, Mercier said. “The problem: There are violations constantly.”

The state is involved in litigation over violations of the public records law, he said. “Just because you have a tool in place, that’s half the battle. Now you have to have elected officials overseeing those tools who’ll execute them properly.”

Washington has set up a Sunshine Committee to review the numerous exemptions in its public records law; Mercier said that committee just decided this week to recommend reversing two state Supreme Court decisions limiting public access to documents due to attorney-client privilege and work product rules.

The Washington Legislature will receive the committee’s first report of recommendations this year.

Idaho Attorney General Lawrence Wasden said he’s less concerned over national rankings than over how Idaho’s laws are working for Idaho. “The open meeting law ought to meet the needs of the respective states – we don’t do business the same way they do in Washington or Illinois or other locales, we do business the way we do it here in Idaho,” he said. “I do think we have an affirmative open meeting law. We are working to refine it.”

The survey ranked Idaho 44th in the nation for its open meeting law, and tied for last on conflict-of-interest laws in the form of legislative financial disclosure requirements.

Wasden investigated the State Board of Education in February for possible violation of the state’s open meeting law but concluded that while the board may have violated the law, he couldn’t prove, under a recent state Supreme Court decision, that they’d “knowingly” done so.

“We’re working on some improvements” to the law, Wasden said. “That’s an issue that we’re trying to address right now. … We’re wrestling with exactly that.”

Jorgenson said he’s also interested in legislation to improve Idaho’s law. “I think there is too much gray area in open meetings,” he said.

Wasden said he’s also working to promote compliance with Idaho’s open government laws. “It’s very important that government in this state operate under the statutes as they’re written, and it’s important in terms of maintaining the integrity of our governmental systems and our citizens’ ability to interact with their government.”

Though Idaho was ranked low in the survey for its open meeting law, the state ranked highly for its whistleblower laws – 9th in the nation – and was in the middle of the pack for open records laws, at 24th, and campaign finance rules, at 29th.

Washington ranked 16th for its open records law, 15th for its whistleblower laws, 28th for campaign finance requirements, 15th for its open meeting law, and first for conflict-of-interest laws.

The top-ranked state was New Jersey; the worst was South Dakota.

Betsy Z. Russell can be reached toll-free at (866) 336-2854 or bzrussell@gmail.com

From The Spokesman-Review