Editorial from The Idaho Statesman, Sept. 30, 2005

Way to go, Lawrence Wasden.

The attorney general stood up for the Open Meeting Law � and sent a message to politicians statewide � when he accused Ada County commissioners of holding an illegal closed meeting.

The commissioners made the A.G.�s job easy. Their June 15 meeting was a blatant violation of the state law designed to ensure public officials do the public�s work in public. Still, Deputy Attorney General William von Tagen�s civil complaint, released Wednesday, is on target:

* He rejects the notion that commissioners needed to meet in private to discuss legal issues surrounding a proposed eastern Foothills subdivision. State law allows closed �executive sessions� to discuss pending or probable lawsuits. But as von Tagen notes, commissioners didn�t even have their lawyer in the meeting. �In no way was the commission receiving or exchanging information with its legal counsel.�

* Von Tagen criticizes the commissioners and their staff for failing to take minutes at the meeting. State law requires minutes even for executive sessions. Meeting notes don�t even say which commissioner suggested closing the meeting, or how commissioners voted on the idea.

Von Tagen�s complaint should be required reading for all elected officials. The complaint offers a stern reminder about working in the open � and following the rules on the rare occasion when a secret meeting is justified.

We hope Vern Bisterfeldt gets this message. Bisterfeldt, who worked a dozen years as a county commissioner and was elected to the Boise City Council in 2001, attended the June 15 meeting. He, like the commissioners, should have known better.

We hope the message hits home with the city and county officials who considered meeting last week at the members-only Arid Club to discuss building a taxpayer-funded detox center. The meeting was hastily called off when reporters and citizen watchdogs showed up � a public-relations black eye that just might have kept local leaders on the right side of the law.

The case of the June 15 meeting also offers a lesson in the power of citizen vigilance. Wasden got involved in response to a complaint from Tony Jones, an opponent of the Foothills subdivision proposal. By speaking up, Jones demonstrated that the Open Meeting Law is not just the news media�s law, but the people�s law.

Commissioners will make the next move. They can pay their fine � $150 apiece � or take the case to a judge. Considering that both Bisterfeldt and Commissioner Rick Yzaguirre have said the meeting covered topics that could have been discussed in open session, the commissioners ought to just cough up the money. They can chalk it up as tuition for a remedial lesson in Open Meeting Law.

Editorial from The Idaho Statesman, Sept. 30, 2005

From the Idaho Statesman

By Brad Hem, Idaho Statesman

Ada County commissioners broke three Idaho laws when they met privately with a Boise City Council member to discuss city-county relations and a proposed development east of Boise, the Idaho attorney general’s office said in a civil complaint Wednesday.

Commission Chairman Rick Yzaguirre and commissioners Judy Peavey-Derr and Fred Tilman voted to meet June 15 with Councilman Vern Bisterfeldt in executive session because, they have said, they were discussing issues that could lead to lawsuits. Bisterfeldt and Yzaguirre later acknowledged they also brought up issues that could have been discussed in an open meeting.

State law requires government bodies to meet publicly so residents can scrutinize their actions. The law allows elected officials to choose to use executive sessions to discuss personnel matters, real estate purchases and other sensitive matters, including discussion about potential lawsuits with legal counsel. In the civil complaint filed Wednesday, Deputy Attorney General William von Tagen noted the commissioners’ attorney was not at the meeting.

“No valid reason existed for the defendants to hold an executive session on June 15, 2005,” von Tagen wrote. “The deliberations that took place with Councilman Bisterfeldt constituted an illegal meeting of the Ada County Board of County Commissioners in violation of the Idaho Open Meeting Law.”

Von Tagen also said the commissioners violated two other laws because they failed to record minutes of the meeting, as required by law. The commissioners, who have consistently denied breaking the law, have 20 days to respond to the complaint.

Peavey-Derr said the commissioners did not intend to hold an illegal meeting, and they were still reviewing the complaint before deciding how to respond.

“We’re analyzing it at this point,” she said. “We thought we were doing the right thing.”

If the commissioners deny the AG’s allegations, a judge would decide the case.

The maximum penalty for holding an illegal meeting is a $150 fine for each commissioner. Commissioners would pay it personally, not from county money.

The AG’s office investigated the matter after getting a complaint from Tony Jones, an opponent of Skyline Development’s proposed 1,000-home development in the Foothills east of Boise. The commissioners discussed the development with Bisterfeldt during the meeting.

“I’m pleased (the AG) agrees with me,” Jones said. “Though it’s not really cause for much celebration. A $150 penalty is not much of a deterrent when you consider the project could be worth tens of millions of dollars.”

Von Tagen said the penalty is not the point for his office.

“We’re not so much interested in penalties,” he said. “We’re just interested in deterring violations of the Open Meeting Law.”

From the Idaho Statesman

From KBCI-TV Local 2 News

By Scott Logan, Local 2 News

The table was ready and waiting at Boise’s exclusively private Arid Club for a meeting Wednesday of political and civic leaders to discuss funding for a proposed public detox center at the Ada County jail.

Sheriff Gary Raney is seeking support for a $3 million detox center addition to the already approved $7 million county jail’s medical unit expansion.

“I’ve taken that to city council, members of the community, commissioners and asked what do you think, so far everybody has thought it’s a viable idea,” Raney told Local 2 news.

Although they say they didn’t call the meeting, Ada County Commissioners placed it on their public agenda. But when reporters and concerned citizens showed up, there were second thoughts and the meeting was cancelled.

Commissioner Rick Yzaguirre said maybe the private Arid Club was not the best location, due to “the fact that it was private and by invitation, ” he said.

Yzaguirre said given previous criticisms of the commission for alleged open meeting violations, the commissioners only intended to send an emissary to the Arid Club and late in the day, the notice of the meeting disappeared from the public agenda.

The Idaho Attorney General has ruled the Open Meeting Law should not be evaded by holding smaller meetings with less than a quorum or by having a go-between contact governing body members.

Sheriff Raney left the Arid Club without comment although he spoke with Local 2 News later in the day.

Some citizens who wanted to attend were suspicious.

“When the public and media find out about a meeting of hospital CEOs, the sheriff, mayors, county commissioners and simply with presence of people who want to know what’s going on, they cancel the meeting, what do they have to hide?” asked Sharon Ullman, former Ada County commissioner.

Yzaguirre said the county has no secret agenda.

From KBCI-TV Local 2 News

Agency, commissioners violated law, conservations contend

From the Spokesman-Review.

James Hagengruber, Staff writer

A group of Idaho conservationists is accusing the U.S. Forest Service and two Shoshone County commissioners of violating the state’s open meeting law during a session in Coeur d’Alene on Monday focused on proposed changes to the management of Idaho’s roadless forests.

Mike Richardson, a board member of the Idaho Conservation League, said he wanted to sit in on the meeting between Idaho Panhandle National Forests Supervisor Ranotta McNair and Shoshone County commissioners Jon Cantamessa and Sherry Krulitz.

“I don’t understand this. I just went there to observe, not to impose,” said Richardson, of Naples, Idaho. “It makes you suspicious. This is something that should be totally open.”

Forest Service spokesman Dave O’Brien said the state’s open meeting law did not apply because no decisions were made and the two commissioners were acting in their role as representatives of the Idaho Association of Counties. Public meetings will be held in coming months.

“We are going to have tons of public meetings,” O’Brien said. “It’s going to be a very open process. People are going to know exactly what’s going on. Any claims to the contrary are just seeking headlines.”

In May, President Bush took steps toward reversing a sweeping ban on road-building and development in millions of acres of backcountry, including 800,000 acres in the Idaho Panhandle National Forests. The change gives states more control over the management of national forests.

Idaho Gov. Dirk Kempthorne strongly supported the change and asked for local communities to develop recommendations on which areas should be kept off-limits to development. Commissioners Krulitz and Cantamessa are spearheading the information-gathering effort for the Idaho Panhandle National Forests, which includes land in six North Idaho counties. Neither commissioner returned a call for comment Tuesday.

The meeting Monday morning in Coeur d’Alene was simply “process oriented,” and a “mutual scoping session,” O’Brien said. It was Forest Service officials, not the commissioners, who decided to keep the session closed, he said. “They weren’t consulted on this. We made the call.”

The dispute coincided with a public forum Tuesday in Coeur d’Alene on Idaho’s open meeting law. Representatives from the Forest Service as well as the Kootenai Environmental Alliance, which was also denied entrance to the meeting, attended the forum and asked for clarification from Idaho Deputy Attorney General William von Tagen.

Even if decisions are not made, the state’s open meeting law would kick in when a state agency or a quorum of county commissioners meets to receive or exchange information that would eventually be used to make a decision, von Tagen said. It’s up to the Idaho public officials to ensure they comply with the law, even if they are meeting in a federal office building.

“It’s not an excuse to say the federal government wouldn’t let us in,” von Tagen said, adding that his advice to public officials is usually, “When in doubt, open the meeting.”

Attorney General Lawrence Wasden declined to discuss the matter in detail, other than to confirm he was aware of the dispute. “We have the potential of being the prosecuting entity,” Wasden said.

Kootenai Environmental Alliance executive director Barry Rosenberg said his group is considering filing a complaint on the matter. Alliance member Mike Mihelich was barred entry to the meeting.

Linda Richardson, spouse of the Idaho Conservation League board member, was also kept out of the meeting. She spent part of Tuesday studying open meeting laws.

“I don’t have much understanding of these things,” she said. “But if they have a right to make decisions, the public has the right to be there. … I’m a citizen and I just happen to really like the wilderness and the woods. Its management shouldn’t be decided in backroom meetings.”

From the Spokesman-Review.

By Betsy Z. Russell, Staff writer
July 27, 2005

BOISE – As North Idaho’s field burning season kicks off, the Environmental Protection Agency has asked Idaho to give the public more details on where field burning will take place each day – but the state Department of Agriculture has decided to give fewer.

Callers to the state’s smoke hotline recording Tuesday were informed simply that burning was approved that day in Benewah and Latah counties. The estimated number of acres to be burned in each county has been removed from a state Web site, though times for a burn window, such as from 1 to 4 p.m., still are posted.

“We have found that posting the amounts of acreage online doesn’t help, primarily because conditions change,” said Wayne Hoffman, spokesman for the department.
The department also is citing a public records law exemption enacted in 1992 that classifies the location of seed crop fields as a “trade secret.”

“That is what the statute says, and so far we have not been given a reason to believe the law ought to be amended,” Hoffman said. “We’re trying to balance what the law says with the public’s need to know about where a burn is taking place, and so far we think we’ve struck that balance.”
Field burning opponents disagree.

“We need to know exactly where burns are happening, exactly what time and how many acres,” said Patti Gora, executive director of Safe Air For Everyone. “The Legislature has already immunized farmers from being held accountable for any harm they do to people. Isn’t it the only decent thing left to do, to tell people where these burns are going to happen so they can get out of the way?”

State lawmakers passed a law in 2002 preventing farmers from being sued for nuisance or trespass over the smoke from their field burning, as long as they follow state smoke management rules. The law was challenged, but the Idaho Supreme Court upheld it.

Gora’s group, which was started by North Idaho physicians concerned about the effects of smoke on their patients with breathing problems, often hears from people who are afraid to drive to medical appointments or who are uncertain if they should leave their homes because of field burning.

The idea that the location of state-approved field burns is a trade secret is “malarkey,” Gora said. “It just doesn’t pass the smell test.”

The public records exemption was enacted a decade before the department took on the smoke-management program, and was proposed by southern Idaho seed-crop growers who were concerned that when they submitted crop samples to a state lab for disease testing, competitors might be able to find out what varieties they were developing by requesting public records. In addition to field locations, the law exempts the names and addresses of seed crop growers, varieties and acreage by variety.

The bill’s statement of purpose says it was intended to exempt “proprietary information contained in the forms generated by seed testing labs.”

EPA Acting Regional Administrator Ron Kreizenbeck, in a Feb. 15 letter to state Agriculture Director Pat Takasugi evaluating last year’s burn season, praised the state for developing a Web site and televised burn forecasts. “However,” he wrote, “additional improvements are needed to provide more detail on the location of daily agricultural burning activities. This information will reduce the public’s uncertainty about burning activities and provide more useful information so people impacted by smoke may take important precautionary measures.”

Kreizenbeck also recommended a series of public workshops on ways to improve communication and notification, but the department declined to follow that recommendation.

“We believe we have an ongoing dialogue taking place with the public regarding the smoke management program,” Hoffman said, including calls that come in to a complaint hotline. “We’ve used the public comments we’ve received to improve the program.”

The EPA, in its letter, also urged the state to require flaggers on roads near burns to avoid smoke-caused accidents like one that killed an eastern Idaho man last year; to study what went wrong when pollution levels soared during burns near Grangeville and Moscow last year; and to put more emphasis on finding alternatives to field burning.

“EPA continues to have concerns with smoke from agricultural burning and its impact on public health, welfare and the environment,” Kreizenbeck wrote.

Hoffman said the state intends to notify the public when fields will be burned, and if people need more detail on the location of burns, they can call the complaint hotline and ask. “We’ll tell them, ‘There’s a burn taking place north of Moscow’ or ‘There’s a burn taking place in southern Benewah County,’ ” he said. “We have no problem providing general and pretty useful information on where a burn is taking place. Obviously, we can’t provide the exact address because of the exclusion in the public records law.”

Though it originally was proposed by seed crop growers, the department helped write the 1992 law that created the exemption. The department proposes various amendments and legislation every legislative session.

Doug Cole, air program coordinator for the EPA in Boise, said the department could have proposed amending the law this year after receiving the EPA’s letter. “I don’t know why they didn’t,” he said. “We obviously think that it’s important to provide information to the public on locations and areas. … Clearly it’s something that we’d like to see happen, and that’s why we suggested that.”

Field burning

So far this summer, 5,300 acres have been burned in Idaho, including about 44 acres on the Rathdrum Prairie, where more burning is expected in the coming weeks. To find out about field burning plans:

• On the Internet, go to www.idahoag.us and click on “Smoke Management Program” under “Quick References.” Then click on “Daily Airshed Info.”
• Call toll-free (800) 345-1007 for information or to ask questions or submit complaints.
• Daily burn forecasts also are broadcast on KXLY-TV and on five area radio stations: KPND 95.3 FM, KSPT 1400 AM, KIBR 102.5/102.1 FM, KBFI 1450 AM, and KICR 102.3 FM.

From the Spokesman-Review

Statewide seminars will help keep information flowing

Commentary by A.L. Alford Jr.

Idaho Attorney General Lawrence Wasden is excited about the first three public records and open meetings sessions held so far – in Idaho Falls, McCall and Salmon.

That’s enough to get north central Idaho public officials, citizens and media enthused, too, about seminars No. 4 and 5. The first will be Thursday in Moscow and the second will be Friday in Lewiston.

Moscow’s will be from 1 to 3 p.m. at room 104 in the College of Law at the University of Idaho. Lewiston’s will be from 1 to 3 p.m. in the Clearwater-Snake River rooms at Williams Conference Center at Lewis-Clark State College.

The workshops are mainly for local government officials. About 180 invitations have been mailed to city, county, school and district officials in Nez Perce, Latah, Idaho, Clearwater and Lewis counties, ranging from the Lewiston City Council and Latah County Commission to the Nezperce Rural Fire District and the Ferdinand Cemetery District.

The workshops are also for citizens interested in good representative government.

You may not be familiar with the 2-year-old sponsoring organization, Idahoans for Openness in Government, known as IDOG. IDOG is a broad-based, nonprofit coalition formed in 2003, joining similar coalitions in more than 40 other states.

The board of directors includes Idaho’s secretary of state, Idaho League of Women Voters, the Idaho State Broadcasters Association, the Idaho State Library, a public service lawyer and newspaper reporters and editors.

IDOG’s mission is simply to “promote open government and freedom of information.” The goal is to foster open government and an informed and engaged citizenry. The mantra for the workshops: “We believe that we all benefit when the public, the media and government officials are fully aware of the public’s rights to access government information and observe the conduct of the public’s business.”

The focus, in other words, is fostering open government.

The workshops are personally directed by Wasden.

Why is Wasden enthused after the 2004 seminars at Idaho Falls and McCall and last May’s at Salmon? It’s because he’s leading a collaborative effort with government, IDOG and the Idaho Press Club, a long-standing tradition of his office.

“I hope that these workshops will lead to a common understanding of the basic rules for public records and open meetings,” Wasden said. “The laws are important because they help citizens understand what their government is doing. An informed electorate makes for a stronger democracy.”

A common understanding between local governments and media can serve at least three important purposes, Wasden said. First, provide timely access to public information. Second, protect information that the law requires to be protected, such as records of active law enforcement investigations. Third, reduce conflict over access to government information.

The Moscow and Lewiston workshop agendas?

The event sponsors, the Moscow-Pullman Daily News and Lewiston Tribune, will extend a welcome. Wasden will address the merits and needs for open government and access to public records, acting as a referee of sorts for skits to demonstrate openness and access, with role playing by elected local officials (playing parts of reporters) and members of local media (playing parts of elected officials).

It promises to be fun. More important, it promises to be informative. IDOG’s Web site is www.openidaho.org. The Web site for a similar Washington organization is www.accessnorthwest.com.

Alford is a member of the board of directors of IDOG, representing Idaho Allied Dailies, and may be contacted at alajr@lmtribune.com.

From the Lewiston Tribune

CALDWELL, Idaho (AP) – The Idaho attorney general’s office is investigating a complaint that Canyon County commissioners violated Idaho’s open meeting laws.

The complaint, filed by government watchdog Deloris Cram, claims that in February the commissioners conducted an executive session without adequate public notice. Cram alleges that the county’s executive sessions are not properly announced nor recorded.

Idaho’s open meetings law requires that public officials give at least 24 hours notice before going into executive session. Executive sessions, which are closed to the public, are allowed only in specific situations, such as when officials must discuss personnel matters or pending litigation.

Cram claims commissioners David Ferdinand, Matt Beebe and Robert Vasquez conducted an improper executive session on Feb. 11 just before a public meeting on the county’s impact areas.

“I really, really only did this to point out that we cannot depend on the elected officials to actually follow the Open Meeting Laws unless we watch them every day, and we should not have to do that,” said Cram, who is an avid watcher of local government.

The commissioners deny Cram’s claims.

“As far as I know, all of our executive sessions are agendized,” Beebe said.

Besides, Ferdinand said, the commissioners make all of their final decisions in public.

Bob Cooper, spokesman for the attorney general’s office, said his department was investigating the matter but he could not say when that investigation would be complete.

“We will engage in fact-finding and legal analysis and then we will inform (Prosecutor Dave) Young and the Canyon County commissioners of our conclusion,” Bob Cooper said.

Commissioners and other officials were fined $175 in 2002 for violating Open Meeting Laws after another complaint filed by Cram. That complaint regarded a meeting with county planners in which a proposed power plant near Middleton was discussed.

Beebe, Todd Lakey and Pat Galvin were county commissioners at the time.

Information from the Idaho Press-Tribune

From the Associated Press

Courtwatch, a Canyon County citizens group, has been named the winner of the 2005 Max Dalton Open Government Award, a $1,000 public service award sponsored by the Idaho Newspaper Foundation.

Courtwatch joined forces with the Angie Leon Citizens Task Force following the murder of Angie Leon of Caldwell in May 2003 by her estranged husband, Able Leon, who was released from jail a few weeks earlier despite a long history of domestic violence against Angie Leon and fears by Angie that she would be harmed by her husband. The group wanted to know how Able Leon was able to “fall through the cracks” of the law-enforcement and judicial system and be set free despite his obvious danger to his wife and family.

Through extensive research, including frequent public records requests under the Idaho Public Records Act, the group found numerous flaws in the system, including poor record-keeping, inadequate procedures by prosecutors and lack of information provided to judges. The group made a series of recommendations to improve the prosecution of domestic violence cases and continues to monitor the court system in Canyon County.

The group earned the Max Dalton Open Government Award because of its persistent use of Idaho’s public records despite roadblocks put up by public agencies, INF Executive Director Tom Grote said. In its report, Courtwatch cited numerous instances in which agencies were unresponsive to public records request, charged inappropriate fees for copies or showed a general lack of understanding of the public records law.

“Courtwatch was not deterred in their legitimate requests for public records, even though the obstacles they faced would have frustrated many citizens,” Grote said. “Because they were dogged in their efforts, the group advanced the public interest by discovering and reporting serious flaws in the legal system.”

The Max Dalton Open Government Award has been given each year since 1999 to a citizen or group judged to be an outspoken advocate of openness in either public records or public meetings on the state or local level.

Max D. Dalton was killed, at age 78, in November 1997 by squatters on his ranch in Costa Rica. Dalton had spent most of his life in Idaho where he operated a Meridian milk-testing business. In 1981, Dalton filed a public records lawsuit that resulted in a 1984 landmark Idaho Supreme Court ruling that reinforced the right of every Idaho citizen to have swift, convenient access to state records.

In the years since the Dalton decision, the state’s public records law has become undermined with dozens of loopholes requested by special interests, state agencies and city and county governments.

“By honoring those who emulate Max Dalton’s example, we hope more citizens will take personal action against needless government secrecy in Idaho,” Grote said.

The Idaho Newspaper Foundation is a non-profit organization founded in 1983.

From the Idaho Newspaper Foundation

Editorial Published June 2, 2005, in The Star-News, McCall

A miracle happened at last Thursday’s meeting of the McCall City Council. Members of the city council made an important decision about their legal representation apparently without discussing it. They must have conferred by telepathy or intuition, because any other method would have been illegal or unethical.

The topic of where the city gets its legal advice was added at the last minute to last week’s agenda at the council’s regular meeting. Mayor Kirk Eimers made the motion to fire the Boise law firm of Moore Smith Buxton & Turcke, which had represented the city for the last five years and which the city has paid nearly $1 million in legal fees over that time.

There was little discussion before the unanimous vote was made to change one of the most important contractors on the city payroll. Afterward, council members were reluctant to talk about the subject, saying only that change was needed.

The agreement among the council members was remarkable if the assumption can be made there was no prior discussion on the law firm. At least that is the way the record shows. There have been no discussions in a public meeting among the council members of the conduct of the firm. The council could have discussed the law firm in executive session, but minutes of the last several executive sessions – which are required by law to be made – show no evidence of any deliberations.

So, how in the world did council members come to their decision? Did they do a round-robin telephone conference? Not likely, as that would have violated the Idaho Open Meeting Law. Did they discuss the matter while they were in an executive session on a different topic? Let’s hope not, because that also would have violated the open meeting law.

So, the only answer is that council members have developed a keen sense for how the others are thinking and can come to immediate agreement without speaking a word to each other. That is an amazing talent, one they should be able to take on the road and charge admission to watch.

Editorial from the Star-News

From the IDAHO PRESS TRIBUNE, June 5, 2005 – “Our View”

If there’s anything that raises the ire of the public and the press it’s when tax funded agencies meet in secret.

Sometimes, closed meetings – also known as executive sessions – are appropriate and legal.

But there are occasions when a public board or comission meets illegally, and unless challenged, will keep doing it.

Depending on what point of view you look from, Thursday’s school board meeting in Homedale was illegal.

Why?

Because the school board chairman said she didn’t want the press there and when asked by the reporter: “Why do I have to leave when they can stay?” she had no choice but to eject everyone.

And even though the press and the majority of the people in the meeting room were excluded, the meeting was not an executive session.

Why?

Because it was a secret meeting of the school board and the school administrators with hand-selected representatives (about five people) from two points of view.

A legal executive session is designed to keep all of the public from hearing what is being discussed – if the topic falls within the defined parameters.

In the case of the Homedale meeting, the supporters heard what the opponents had to say and the opponents heard what the supporters said. But none of the rest of the public got to hear it.

The irony of the whole situation is that the coach – the focus of the meetings – has wanted the while issue aired in an open forum.

It should have been discussed openly in a hearing scheduled and noticed properly.

The school board had already made its decision to end the coach’s contract. There was no decision to be made. In fact, the school board chairperson rightfully said no decision would be made. After a public hearing, the school board could have deliberated again – in executive session – and returned to an open session and voted to reverse its decision.

Legally, the school board can’t disclose the reasons for why a person is terminated. That falls under personnel rules.

In Homedale, coach and teacher Randy Potter has become the focus on an ongoing tug-of-war in the small community. Potter hasn’t always been the person under attack. It’s been others in the past four or so years.

His teaching status is protected as long as he meets the standards of being a good teacher. But coaches are not protected in the same way, and if the school board and administration don’t like how a football coach stands on the field, they can drop his contract.

And if patrons aren’t happy with a school board, then the patrons need to find new board members. In Homedale’s case, voters recently elected a new board member and ousted the chairperson.

Maybe that change will be enough for the school board to re-evaluate the situation later this summer. Stranger things have happened.

If nothing else, the board – under it’s new superintendent – needs to understand the laws when it comes to executive sessions and follow them.

Editorial from the Idaho Press Tribune