From the Times-News

AG’s looks into possible open meeting violations

By Sven Berg
Staff writer

BURLEY – The Idaho Attorney General’s office is investigating claims Cassia County commissioners in November 2006 broke state laws governing public meetings when they voted to change address coordinates in the Jackson area to fit Cassia County’s grid.

County Attorney Al Barrus said Deputy Attorney General Karin Jones interviewed commissioners Paul Christensen, Dennis Crane and Clay Handy separately by phone Monday morning in response to allegations raised by Jackson residents. A spokeswoman for the attorney general said the Jackson allegations are being investigated, but declined to comment further.

Jackson resident Stan Buckley also declined to comment Monday on details of the case, except to confirm Jackson residents had submitted paperwork to the attorney general’s office requesting the investigation.

Addressing in Jackson has long been a source of contention between residents of the area and county authorities. Prior to 2007, coordinates in Jackson – the area of Cassia County located north of Interstate 84 and south of the Snake River – corresponded to the Minidoka County grid.

In 2006, Cassia County emergency-service providers complained of confusion stemming from Jackson callers reporting Minidoka County coordinates to Cassia County dispatchers; they proposed switching Jackson addresses to Cassia County coordinates. Jackson residents protested in near unanimity, saying there had been much less confusion when Minidoka County handled dispatching for the Jackson area.

Barrus said Jackson residents have made several complaints in calling for the attorney general’s investigation, including reference to a comment Handy made following an October 2006 meeting of the county’s Planning and Zoning Commission. At that meeting, planning and zoning commissioners recommended allowing Jackson residents to continue using Minidoka County coordinates. Buckley said, following planning and zoning’s vote, Handy said, “I don’t care what they say, your addresses are going to change.”

Handy has acknowledged making the comment, but he says it was not an indication county commissioners had already made up their minds to change Jackson’s coordinates.

Buckley confirmed Monday that Handy’s comment was among Jackson residents’ allegations of improper procedure.

In November 2006, county commissioners went against the P&Z recommendation and voted to change Jackson coordinates. Several months later, residents requested incorporation of the area as a city. County commissioners denied that request.

Jackson residents have complained emergency services have not improved since their address change took effect in the fall of 2007. Commissioners and emergency service providers in Cassia County say more training and time to adjust to the change will clear up confusion.

Sven Berg may be reached at 208-677-8764 or sberg@southidahopress.com

From the Times-News

From the Spokesman-Review

Click here to read the brief.

Bill Morlin
Staff writer
April 16, 2008

The public should be able to “observe all matters” considered by a U.S. District Court jury that will decide if confessed killer Joseph Duncan should face the federal death penalty, 16 media and open-government organizations argued in a legal brief filed on Tuesday.

The organizations, including The Spokesman-Review and three Spokane television stations, urged U.S. District Court Judge Edward Lodge to keep his Boise courtroom open if kidnap victim Shasta Groene is called to testify or if the jury is shown a graphic videotape Duncan made as he tortured and killed her brother.

Public access is important so citizens “can fully comprehend how this unique judicial process works and how the various participants – judge, jury, counsel, witnesses and the defendant – perform their duties and conduct themselves concerning imposition of capital punishment,” states a legal brief filed by attorneys Duane Swinton and Joel Hazel, who represent The Spokesman-Review.

Selection of the jury, begun Monday in Boise, is expected to take several more weeks. The judge said he will decide on the courtroom-closure issues at an unspecified future date without hearing oral arguments.

The judge had asked the media, through court-designated media liaison Betsy Russell, whether he could exclude the public from viewing a videotape Duncan made if the court allows it to be shown to the jury, and if the courtroom also could be closed if Shasta Groene or other potential witnesses testify. Russell is a Boise-based reporter with The Spokesman-Review and also is president of the Idaho Press Club.

“Everyone really cares whether Joseph Duncan gets the death penalty or not,” Russell said Tuesday. “It’s our job to inform the public how the jury reaches that decision, and that’s extremely important. It’s a job we can’t do if the courtroom is closed.”

Duncan’s videotape and Shasta Groene’s testimony – either live or through a videotape – are expected to be used by the prosecution to show there were “aggravating circumstances” warranting the death penalty.

Before the court can close any of its proceedings, a judge must determine there is a “compelling reason for closure” outweighing the public’s right of access under the First Amendment, Swinton and Hazel argue in their legal brief.

Further, they said, the court must rule there would be a “substantial probability a compelling interest would be harmed” if closure didn’t occur, and there are no alternatives to closure that would adequately protect the compelling interest.

“Public access to the proceedings in this matter relating to potential imposition of the death sentence must be provided because this required test for closure cannot be satisfied,” the brief said.

Initially, defense attorneys and prosecutors had agreed to use the videotaped testimony of Shasta Groene to keep her from having to go to a federal courtroom and face the man who kidnapped and sexually abused her and killed her brother. But that legal agreement apparently has fallen apart, and the young victim may now be called as a witness.

The media outlets are not seeking to film or broadcast the girl’s testimony or the videotape Duncan made while holding the two kidnapped children at a remote cabin on the Idaho-Montana border.

The identities of the two Groene children have been in the public domain since May 2005 when their kidnapping and the related murders of their mother and two others generated national media attention for several weeks and regional media coverage for much longer. Shasta Groene appeared on the syndicated Geraldo Rivera show and her father was on Oprah, discussing the impact of the crimes on the family.

“As a result, closing the courtroom will not protect the privacy of (Shasta Groene) concerning the fact that she was assaulted by the defendant and observed the killing of (Dylan Groene) by the defendant,” the brief said.

“These facts and the general nature of the defendant’s treatment of (both children) have already been publicly disclosed and have been widely disseminated not only in Northern Idaho and Eastern Washington but throughout the country,” the brief said.

“We understand the sensitive and painful issues surrounding this case,” said Senior Editor Carla Savalli of The Spokesman-Review.

“It is not our intention to further harm the victims of Joseph Duncan, but we cannot lose sight of the fact that he is facing the death penalty,” Savalli said. “The public must be able to weigh the evidence in this case along with the jury in order to decide whether justice has been served.”

The Spokesman-Review, she said, “is focused on the principle of an open and transparent judicial process because that it what ultimately benefits us all.”

Others joining in petitioning the court are The Associated Press; the Idaho Statesman; the Idaho Press Club; the Idaho Newspaper Foundation; Idahoans for Openness in Government; Idaho Allied Dailies; Idaho State Broadcasters; Boise State Radio; KHQ-TV; KREM-TV; KXLY-TV; KTVB-TV; KTRV-TV; KBCI-TV and KIVI-TV.

Swinton said he was unaware of any recent case in the Inland Northwest where so many different media organizations joined together on an issue of public access to court proceedings.

“This unified effort underscores how important it is that the public be able to understand how the criminal justice system works, particularly where the case involves the extremely rare situation where a jury is to consider imposition of the death penalty under federal law,” Swinton said.

From the Spokesman-Review

From the Idaho Statesman

Looking for a landslide winner in a divisive political year? We nominate openness in government.

A new nationwide survey, conducted by Scripps Howard News Service and Ohio University, demonstrates an overwhelming interest in open government – at all levels of government:

Eighty-seven percent of respondents say a presidential candidate’s position on open government is either very important or somewhat important.

For congressional candidates, it’s 88 percent.

For state candidates, it’s 92 percent.

At the city council or school board level, it’s 91 percent.

This was a survey of 1,012 American adults from all walks of life – people who are, we hope, voters a lot like you.

These survey results are something to celebrate, as media groups join together this week to mark Sunshine Week, an annual celebration of the importance of open government. The public’s right to know clearly is not some vestigial phrase from our high school government classes, memorized for a quiz but soon forgotten. It is a core value, treasured by all consumers of government.

No surprise there. Open meetings and open records laws are not just “media” laws. They belong to us all – and can be used by any of us.

When disgruntled bicyclist Gary Segers wanted to know why a stretch of Garden City’s Greenbelt was open only to walkers, he used public documents to piece together a convoluted history. Public records indicate that the state always intended for the riverside path to accommodate walkers and bikers.

When curious voters want to know who supports their local legislator – either with a cash campaign donation or the “in-kind” contribution of a flight on a private corporate plane – they can turn to campaign finance reports for the information.

When Eagle residents were alarmed about the size of planned communities proposed for the pristine Foothills north of their city, they showed up to speak their mind.

City leaders listened – and ultimately, they also heard. After 36 public meetings on the M3 planned community, the City Council scaled back the project from 13,720 homes to 7,153 homes.

Government doesn’t work fastest when it works in the open; ask anyone in Eagle.

But it does work best when it works in public view.

That’s why media groups objected after a closed State Board of Education meeting in December; during the meeting, board members discussed the future of a standardized test for ninth-graders. The fate of the Idaho Standards and Achievement Test, a graduation requirement for Idaho 10th-graders, is clearly in the public interest.

By discussing the ISAT in closed meeting – even briefly – the board might have unknowingly violated state Open Meeting Law, Attorney General Lawrence Wasden said last month.

Compliance with open meetings law and open records law isn’t just a matter of dotting the i’s and crossing the t’s. It is a matter of keeping the public informed, and nothing less.

On open government issues, the American public and the media seem of one mind: passionate but skeptical. Americans want to elect candidates who are committed to openness, the Scripps Howard-Ohio University survey shows.

But the survey also delivered a stinging critique of the outgoing Bush administration: A whopping 74 percent of respondents said the federal government is “somewhat secretive” or “very secretive.”

At least Americans can do something about this, one vote at a time. They elect a new president in November.

In Idaho, voters get to elect a new U.S. senator and two House members. At the state and local levels, Idahoans also will elect 105 legislators and dozens of county officials.

So if you care about your right to know, ask your candidates where they stand.

If you want to demand openness in government, start by demanding it from your candidates.

“Our View” is the editorial position of the Idaho Statesman. It is an unsigned opinion expressing the consensus of the Statesman’s editorial board. To comment on an editorial or suggest a topic, e-mail editorial@idahostatesman.com.

From the Idaho Statesman

Sunshine Week is a national initiative to open a dialogue about the importance of open government and freedom of information. It’s our annual confab about open government in all its forms.

The Southwest Chapter of Idaho Press Club is sponsoring two events:

Debate on Debates
Tuesday, March 18
6:00-8:00 p.m.
Beside Bardenay, 612 Grove Street, Boise

Join journalists, analysts and political professionals as we discuss the validity and usefulness of public debates. Are they still useful? Should they be mandatory for candidates? Is the public paying attention?

Appetizers and a no-host bar
$10.00 members, $12.00 non-members and $7.00 students
Panelists: Marcia Franklin, Jim Weatherby, Jeff Malmen, Marty Peterson
Moderator: Marc Johnson
RSVP idpc@mindspring.com or (208) 389-2879

Deciphering Finance Reports
Thursday, March 20
12:00-1:30 p.m. Luncheon
The Boiler Room at Bardenay, 612 Grove Street, Boise

We’ll take a tour through the arcane but essential (and sometimes newsworthy) world of campaign finance reports with three veterans as our guides.

Panelists: John Miller, Dan Popkey, Betsy Russell
Moderator: Shea Andersen

$10.00 members, $12.00 non-members and $7.00 students
RSVP idpc@mindspring.com or (208) 389-2879

Details are on the Idaho Press Club Website: idahopressclub.org

From the Spokesman-Review

Official documents would be stored online

Betsy Z. Russell
Staff writer
February 24, 2008

BOISE – Despite a 1972 law that requires them all to be saved, official Idaho state publications have been vanishing left and right.

The reason: Idaho’s state repository system is so out of date that few agencies comply with its requirement to send 20 copies of every publication to the state librarian for placement in a series of libraries around the state.

These days, that requirement is expensive, unwieldy and not suited for publications that in many cases only exist in cyberspace, officials say. So state lawmakers are considering legislation to set up a new “digital repository” for state publications, which would collect all state publications and make them easily available on the Internet.

“We have been aware for quite some time that the current system is not effective,” said State Librarian Ann Joslin.

An example cropped up in 2006 when then-Gov. Dirk Kempthorne headed to Washington, D.C., to become the new secretary of the Interior, and Lt. Gov. Jim Risch took over as governor. Overnight, Kempthorne’s Web site and everything on it vanished, replaced by Risch’s.

“The Kempthorne Web site was gone. You couldn’t access it,” Joslin said.

Some agencies archive publications on their Web sites. Many simply overwrite one publication such as a newsletter or manual when a new one comes out.

Joslin said it’s not uncommon for her office to get calls from agencies looking for something they published 20 years prior, hoping someone, somewhere, has a copy. Often, no one does.

Under the digital repository system, one electronic copy of every state publication would go to the state Commission for Libraries, which would preserve it in the new digital repository. If the publication is available in print, agencies would send two print copies – one to the Idaho Historical Society and the other to archives at the University of Idaho.

“It’s much more efficient for them to store the documents digitally,” said state Sen. Kate Kelly, D-Boise, who spoke in favor of the bill in the Senate. “And it also provides for much better public access.”

There’s a financial reason for a digital repository, too: Agencies are producing more and more publications, and printing, storing and shipping copies of those – and making them available to the public years later – would cost far more than putting them all online.

“There’s a small amount of capital investment in the technology that’s required to kind of make this conversion, but there’s a huge cost savings in duplication fees and storage fees,” Kelly said. “And then, of course, the greater public access – you can’t put a price on it, but that’s going to be one of the great benefits of this. A lot more information will be available.”

State publications contain information aimed at the general public, as opposed to regulatory documents or forms.

The old repository has everything from past state highway maps to an Idaho Arthritis Resource Guide from 2003. There are statistical reports on arrest rates by police agencies, reports from state fish hatcheries dating back decades, and a series of publications about sensitive plant species.

The repository would cost $202,000 next year to set up, then $132,000 a year to operate and maintain.

State Historical Society Director Janet Gallimore said, “Those collections will be far more complete for current and future users.”

After the digital repository is up and running, Joslin said, old print publications will eventually be digitized and added.

From the Spokesman-Review

From the Associated Press

By SIMON SHIFRIN
Associated Press Writer

BOISE, Idaho (AP) _ The Idaho attorney general says members of the state Board of Education may have violated the state open meeting law when they briefly discussed the possible cancellation of a test behind closed doors during a December meeting in Pocatello.

But Attorney General Lawrence Wasden says penalizing board members with a $150 fine is not an option because of the burden of proving they “knowingly” violated the law.

Wasden released the findings of his investigation Friday along with a recommendation that board members get training to better understand Idaho’s open meeting statute.

“There is a need for training and greater understanding,” Wasden told a news conference. “We need to have an understanding on how this law operates. This is a really critical matter.”

Board spokesman Mark Browning said his agency accepts the investigation’s findings and has already scheduled training for next Wednesday with staff from the attorney general’s office.

“His assertion in the report that the board may have unknowingly done something wrong, we accept those findings,” he said. “There’s always room for improvement. We welcome opportunities to undergo training and improve ourselves.”

In December, the Spokesman-Review newspaper of Spokane, Wash., filed a complaint with the attorney general alleging that the board illegally excluded the public from a Dec. 6 executive session where it discussed eliminating the ninth-grade Idaho Standards Achievement Test. Other newspapers later joined the complaint.

The Idaho Open Meeting Law requires 24-hour meeting and agenda notice be given before holding an executive session. The notice must list specific reasons for the closed meeting.

The law allows executive sessions to cover such things as hiring new employees, disciplinary action, labor negotiations and plotting legal strategy, among other things.

Knowingly violating the law carries a maximum $150 fine per person for a first offense.

The attorney general’s investigation found that the board did discuss for three to four minutes the possibility of cutting the ninth-grade statewide test. Wasden said board members believed it to be a proper discussion in the context of talks about financial constraints on hiring.

Wasden’s investigation found that the board did not deliberate or make a decision on the test during the closed meeting, but board members perceived a sense of “inevitability” that it would have to be cut.

On Dec. 10, the board’s interim executive director, Mike Rush, and Browning decided to notify school districts that the ninth-grade test would be canceled. They issued a statement that said the “board” had eliminated the test.

Wasden called the statement “inaccurate” since the board did not actually approve the cancellation of the test until a public meeting on Dec. 20.

Wasden said it’s clear the board did not make a final decision about the testing during the Dec. 6 meeting, which prevents him from levying fines against board members.

He also noted that an Idaho Supreme Court decision last year established that the use of the word “knowingly” in the statute means that officials have to be aware of the law to break it.

“Knowing really has an element of what’s in somebody’s head,” Wasden said. “That’s a fairly high standard to meet.”

Carla Savalli, a senior editor at the Spokesman-Review, told The Associated Press on Friday that she was pleased that the attorney general took the newspaper’s complaint so seriously. She said, though, that she was concerned about the issue Wasden raised about “knowing” the law.

“We feel that the law here needs to be clarified,” she said. “Ignorance is being used as an excuse for violating the law. I don’t think there’s an excuse for public officials not knowing the basic tenets of the open meetings law.”

From the Associated Press

From Idaho Public Television

Nearly 500 DVDs are being distributed statewide this week by the Open Idaho project of Idahoans for Openness in Government (IDOG) to Idaho city and county officials, media and school districts.

The DVD features video pieces about open records and open meeting laws. Idaho actors — Joe Golden, Christina Lang, Tom Willmorth and Dan Peterson present a series of lively skits about the topics. They demonstrate what Idaho law requires concerning public documents and how the public can access Idaho government records. They also define open meetings and the responsibilities assigned by law to Idaho governments at all levels.

“The public’s business belongs to the public,” says Betsy Russell, IDOG president. ³By teaming up in the spirit of cooperation, Idaho¹s public officials, media and citizens can fully exercise this right.²

The Open Idaho project is designed to provide government employees, government officials, citizens and members of the media with what they need to know about the public records and open meeting laws.

The video pieces, the DVD and a companion Web site (idahoptv.org/dialogue/openidaho) were produced by Idaho Public Television for IDOG.

The project is funded by IDOG with a grant from John S. and James L. Knight Foundation through the National Freedom of Information Coalition.

A copy of this release is at idahoptv.org/hot on the Idaho Public Television Web site.

From Idaho Public Television

From the Idaho Statesman

Bitter dispute pushed Foothills resident to consider filing a lawsuit, but instead she’s trying to change Idaho law
BY KATHLEEN KRELLER

June Sparks says better communication equals less conflict and harmonious neighborhoods.

So Sparks, who lived through a bitter dispute over landscaping in her own Foothills subdivision, is pushing for the state to require open meetings between homeowners associations and residents.

Boise Democratic Sen. Mike Burkett plans to take the idea to the Legislature this winter. He’s hoping to prevent disputes at meetings of the nearly 2,500 registered homeowners’ associations across the state.

“It makes sense that HOAs adhere to simple rules about open meetings and public information and some of the same rules we want our other bodies of government to subscribe to and abide by,” he said.

In Sparks’ case, the homeowners association wanted to remove view-obstructing trees and a trampoline, among other things. She wanted to address the board in person, but said she never had a chance.

Sparks said she considered suing and even hired an attorney, but decided it wasn’t worth the fight.

“I realized I didn’t want to put my entire neighborhood through a lawsuit that would be costly,” Sparks said. “Instead, I decided to find out what the laws were and look into those laws. ”

Sparks found that Idaho doesn’t have any laws requiring homeowners associations to comply with state open meetings laws – something she said her research showed at least 40 states require. She contacted Burkett to help.

Burkett, an attorney, said he’s worked on many neighborhood disputes exacerbated by a lack of communication. The legislation he’ll propose next month will go a long way toward preventing animosity between neighbors, he said. The topic is especially timely in the Treasure Valley, given an increasing number of new associations as subdivisions and homes multiply.

“Homeowners associations have grown up around our developing economy,” Burkett said. “It’s an important part of many people’s lives these days. It’s a quasi-governmental activity created to represent people.”

Idaho’s open meetings law regulates how government bodies ensure public access as they meet and make decisions. The laws dictate when meetings must be open to the public, how to notify the public of a meeting, when the public can testify and under what circumstances officials can meet in private. The presumption under state law is that the public has access to all government meetings except special “executive sessions” on issues such as personnel or pending lawsuits.

Burkett said he’s not likely to face much opposition during the upcoming legislative session. Other growing areas, like Coeur d’Alene, Pocatello, Twin Falls and Idaho Falls also have a growing number of associations, he said.

In Idaho, homeowners associations are classified as private, non-profit organizations. The Idaho Secretary of State’s Office reports roughly 2,426 registered homeowners associations across the state and 739 in the Boise area.

“I think there is some real benefit to the homeowners and knowing what is going on with the HOA and being aware of this quasi-governmental entity and its impact on them,” Burkett said. “Having a more public meeting environment could go a long ways toward diffusing disputes.”

Mark Richmond, a member of the board for a large homeowners’ association in unincorporated Ada County, doubts the bill will do much to get more people involved in their neighborhoods.

Richmond, a hearing examiner for the Idaho Transportation Department, said his subdivision’s board opens its meetings now, sends out regular newsletters and invites participation. At the association’s annual meeting, 20 people means a “big turnout” out of 486 homes, he said.

Richmond said he got letters from the Moon Ridge association about a boat in his driveway and felt harassed. Until, he said, he was elected to the association board, which is a time-consuming, difficult position. Board decisions are made in the open and are not capricious or unilateral, he said.

“It does get frustrating at times,” Richmond said. “We are a volunteer board. We are there because we have an interest in keeping our neighborhood nice. We are all there to get on the same sheet of music and not fight each other. The fights happen and that’s just human nature. I don’t think open meetings are going to solve that.”

Sparks said she’s resolved all of her neighborhood conflicts, but wishes she could have resolved the problems by talking to her neighbors in person.

“All this false information was getting back to these board members. In this age of e-mailing, we get away from face-to-face meetings,” Sparks said. “Had they just talked to me in the beginning, had they agreed to meet with me at that time, everything would have been taken care of. It never would have gotten to the point where I considered litigation.”

Kathleen Kreller: 377-6418

From the Idaho Statesman

From the Associated Press

By JOHN MILLER
Associated Press Writer

BOISE, Idaho (AP) _ The Idaho State Board of Education held a four-hour closed meeting last week to discuss eliminating a statewide ninth-grade test due to a cash crisis, despite a state law requiring most of its sessions be open to the public.

The Spokesman-Review newspaper, which first reported details of the executive session, on Wednesday filed a complaint with Attorney General Lawrence Wasden.

Following the executive session Dec. 6 in Pocatello, the board this week opted to cut the Idaho Standard Achievement Tests for ninth-graders because the agency didn’t have $826,000 to pay Data Recognition Corp., a Minnesota-based testing service that administers the tests.

High school students must pass the 10th-grade version of the test to graduate. Ninth-grade tests were another chance to practice.

The closed meeting was questioned by some lawmakers, including Sen. John Goedde, R-Coeur d’Alene, the chairman of the Senate Education Committee. He told the Spokesman-Review that dumping the ninth-grade test was “not one of those items that’s allowed in executive session.”

Carla Savalli, a senior editor for the Spokane, Wash., newspaper, said it filed the complaint as part of its government-watchdog role.

“We vigorously defend the public’s right to know,” Savalli said. “We take that role very seriously.”

Mark Browning, a Board of Education spokesman, told The Associated Press on Wednesday that Deputy Attorney General Jeff Schrader said the executive session was appropriate.

“I was assured that it was within the bounds of the open meetings law,” Browning said.

When asked by the AP, Schrader declined to provide his rationale justifying an executive session.

Bob Cooper, a spokesman for the attorney general’s office in Boise, confirmed it had received the complaint. He declined further comment.

Knowingly violating the law carries a maximum $150 fine per person for a first offense.

The Idaho Open Meeting Law requires 24-hour meeting and agenda notice be given before holding an executive session. The notice must give the reason for the closed meeting.

The law allows closing the meetings to cover such things as hiring new employees, disciplinary action, labor negotiations, plotting legal strategy, and preliminary trade negotiations where the government is competing with other states or nations, among other things.

“The state Board of Education is violating the Idaho Open Meeting Law by not specifying under which exemption it is holding a closed session; by not keeping minutes of executive sessions that include ‘a specific reference to the statutory subsection authorizing the executive session and sufficient detail to convey the general subject matter;’ and by discussing public policy issues including student testing and the board’s budget in closed session,” according to the Spokesman-Review’s complaint.

The complaint also alleges that board members communicated illegally prior to this week’s decision to eliminate testing.

ISAT testing-related budget problems began earlier this year, when former Board of Education Executive Director Dwight Johnson ordered second-grade and ninth-grade ISAT tests, but failed to see that Data Recognition Corp.’s contract didn’t include those tests in the price of federally required testing for third- through eighth-graders and 10th-graders.

When bills started arriving from the company, the agency realized the mistake, Browning said.

“We said, ‘Wait a minute, we’ve got bills coming in that are more than we can pay for,'” he said.

In September, Gov. C.L. “Butch” Otter ordered the board to eliminate voluntary second-grade and ninth-grade testing. The board cut the second-grade tests, but its staff tried to find money for the ninth-grade tests.

That failed, Browning said, forcing current Board of Education Executive Director Mike Rush to cut the program on Monday following discussions with board members, including board President Milford Terrell.

“Mike Rush made his decision in consultation with Milford,” Browning said. “He said, ‘We cannot find funding for this, there’s no way to pay for it, we’ve got to pull the plug.'”

Copyright 2007 The Associated Press.

From the Associated Press

Board president cites cost savings

From the Spokesman-Review

Betsy Z. Russell
Staff writer
December 12, 2007

BOISE – Idaho ninth-graders won’t take the state’s standardized tests this spring because of a budget shortfall, the state Board of Education announced this week.

However, the board hasn’t taken a vote to make that change, and discussed the matter during a closed session at its Pocatello board meeting last Thursday in apparent violation of the Idaho Open Meeting Law, which allows closed meetings only for specific purposes.

The testing change is controversial because students must pass the 10th-grade version of the Idaho Standards Achievement Test to graduate from high school.

“It seems kind of ludicrous when as sophomores the test starts to count in earnest, they give them a year off as freshmen,” said state Sen. John Goedde, R-Coeur d’Alene, chairman of the Senate Education Committee.

Goedde added that eliminating the ninth-grade test is “not one of those items that’s allowed in executive session. … It would have been much better if the discussion had been held in open session and the public would have had a chance to hear.”

Idaho will save $826,320 this year by not testing ninth-graders this spring, the board estimated. Annual testing of third- through eighth-graders is required by the federal No Child Left Behind Act, though Idaho chooses to test those students twice a year, in spring and fall. The state board voted in September to eliminate second-grade testing, and some educators are pushing for the elimination of the fall tests for all grades.

Board spokesman Mark Browning said the board’s contract with an outside vendor for the testing included third- through eighth-graders as a central part of the contract, with ninth-grade testing as an add-on.

Browning said the board discussed various options in the executive session, but he said no final decision was made there.

The public announcement, however, was clear. “The Idaho State Board of Education announced today that they have eliminated the 9th-grade test as part of the Idaho Standards Achievement Test in both the spring and fall testing windows, effective immediately,” it said, adding later, “The change is due to unforeseen contractual costs associated with the test.”

Even discussion of the matter in executive session – whether or not a final decision was reached – would have violated the Open Meeting Law, since it doesn’t fall under any of the law’s exemptions from open meeting requirements. Those exemptions include hiring, firing or disciplining a public employee, conducting labor negotiations and plotting legal strategy in litigation involving the agency.

“All I know is that I have been given every assurance that nothing was discussed in there that was outside the bounds of the law,” Browning said.

The board’s attorney, Deputy Attorney General Jeff Schrader, declined to comment, referring questions to Browning.

Late Tuesday afternoon, Browning said the press release he sent out Monday might have mischaracterized the status of the decision, and that the board still might discuss the ninth-grade testing issue at its next regular meeting in January or in a special meeting before then. Current state board rules require the ninth-grade testing.

“I should have written that to say that the executive director of the office of the state board has announced that he has ordered work on the ninth-grade test to be stopped,” Browning said.

The board took no action on the ninth-grade testing issue following Thursday’s four-hour closed session, nor did the item appear on the board’s agenda for the meeting.

Four board members didn’t return a reporter’s calls Tuesday. A fifth board member, Sue Thilo of Coeur d’Alene, declined to comment on the executive session.

Bob Cooper, spokesman for the Idaho Attorney General’s office, said he couldn’t comment on whether the board had violated the law. “We have a law enforcement responsibility with regard to state agencies, so if there is a complaint, it would be our responsibility to investigate and thus inappropriate for us to comment prior to receiving any complaint,” he said.

Goedde said there was “a mess-up in the budget this year” that led to the shortfall for testing, and that he doesn’t fault the state board for canceling this spring’s ninth-grade test. “What I’m hoping is they’ll find a way to put it in the budget for next year and continue it in the budget thereafter,” he said.

Thilo said she, too, hopes ninth-grade testing can be restored in future years. State Superintendent of Schools Tom Luna, who serves on the state board, issued a statement, saying, “This is unfortunate. We understand the importance of ninth-grade testing, but like any state agency, the state Board of Education must be fiscally responsible with taxpayer dollars and spend within its budget. We are hopeful we will start testing ninth grade again in future years.”

The ISAT tests students on reading, language usage and math. Fifth-, seventh- and 10th-graders also are tested on science. The computerized test, which takes students about 90 minutes to complete, is used to determine whether each Idaho school is making “adequate yearly progress” under the No Child Left Behind law.

Luna’s spokeswoman, Melissa McGrath, said he missed part of the board meeting and wasn’t there when the ninth-grade testing was discussed.

From the Spokesman-Review