From the Idaho Press

By LAURA GUIDO

BOISE — A judge has ruled that neither Idaho Attorney General Raúl Labrador nor his solicitor general is allowed to prosecute a case against the State Board of Education in an open meetings law case.

Ada County District Court Judge Jason Scott entered the ruling Friday, court documents show. To pursue litigation against the board for executive sessions regarding the University of Idaho’s bid to purchase the University of Phoenix, Labrador will need to appoint either outside counsel or someone else in his office.

The ruling was first reported by Idaho Education News.

The ruling came one day after the judge heard arguments on the board’s motion to disqualify Labrador from the case, alleging he sought confidential information from the board’s executive director before disclosing his intent to sue. The defendants also argued his office had a conflict because a deputy attorney general assigned to the board had advised members that the closed meetings in question were legal.

Labrador, in a statement posted to Twitter, said he was “pleased with the Court’s decision because it ensures I can do my job and represent the people of Idaho.”

He said the decision confirmed his office’s authority to enforce Idaho’s Open Meetings Law.

“This is an important ruling that will bring greater transparency and accountability to state government,” Labrador wrote. “… I respect the Court’s decision to act cautiously and have ordered certain attorneys in my office to be screened from participating in the Open Meetings lawsuit against the Board. The rest of my office will vigorously enforce the law and defend the people’s right to transparent government.”

Scott wrote in his ruling that the main issue was the phone call that took place with Labrador, Solicitor General Theo Wold, Deputy Attorney General Jenifer Marcus, and board Executive Director Matt Freeman on June 20, hours before the lawsuit against the board was filed.

The judge noted that the accounts of the call provided to the court are distinctly different; Freeman wrote that he “shared information openly and candidly” with Labrador in response to “probing questions” about the meetings in question, and didn’t learn of the lawsuit until the end of the call. Wold wrote in his testimony that the lawsuit was disclosed at the beginning of the conversation and that they at no point sought privileged or confidential information.

Labrador and Marcus did not submit their own accounts of what happened on the call.

Scott wrote he found Freeman’s account “more plausible.”

“(Freeman) says he spoke freely,” the ruling states. “A person in his position would be expected to clam up in response to an announced intention to file suit.”

He also wrote that the claim that Labrador sought no privileged information was “of dubious accuracy,” because by law, Labrador and his employees are lawyers for the state board and communications between the lawyers and their client are privileged.

“The prospect that the Attorney General’s office could or would use client confidences in litigation against a client undermines the trust placed in the office by government agencies and the public alike,” Scott said.

Scott disagreed with the defendants’ argument that Marcus’ conflict in the case was a reason to disqualify the rest of the office.

“Though it is jarring for an attorney general to sue a client of his office for following the advice of one of his deputies, Attorney General Labrador and members of his office other than Deputy Attorney General Marcus are not ethically prohibited from serving as counsel simply because he is suing the Board of Regents for following her advice.”

Scott also disqualified attorney Timothy Longfield from the case but denied the board’s request to disqualify everyone in the office.

Labrador has until Sept. 5 to appoint new counsel or the case will be dismissed.

THE CASE

The lawsuit centers on an executive session held by the state board, acting in its capacity as the Board of Regents for the University of Idaho, in regard to a proposed acquisition of the online higher education school.

The meeting was held May 15 under Idaho’s exemption under the Open Meetings Law that allows closed meetings to “consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations.”

Labrador’s lawsuit alleges that the negotiations at that point weren’t “preliminary,” because the board voted three days later to allow the deal to move forward. It also argues that no other entities were in competition for the sale at that point.

UI and the University of Phoenix have since told the court that negotiations were still considered preliminary, especially because the deal has not yet been finalized, and that there are other entities still interested in purchasing the online school.

Those involved in negotiations had been under strict non-disclosure agreements, and many other officials and the public were largely unaware of the proposal until the day before the board voted to move it forward.

The May 18 vote allowed the university to create a not-for-profit corporation that would execute the sale and oversee the university if the transaction goes forward.

The transaction still requires approval from both schools’ accreditors.

From the Idaho Press

From the Coeur d’Alene Press

Shortly after Idaho’s attorney general was sworn in, The Press made a request on behalf of all Idahoans.

The Jan. 22 Press editorial opened with this:

“Here’s a formal request to new Idaho Attorney General Raul Labrador to continue something his predecessor did, resulting in great public benefit.

“For years, former AG Lawrence Wasden and his right-hand lawyer, Brian Kane, joined esteemed journalist Betsy Russell in taking their public records/open meetings show on the road.”

Impetus for the editorial was this newspaper’s difficult decision to sue an institution it usually defends ardently. North Idaho College attorney Art Macomber and the NIC employee responsible for fulfilling public record requests illegally withheld information The Press had rightfully requested, an assertion upheld some six months later by Judge John T. Mitchell.

The Press editorial request in January persuaded Labrador not one bit. While Labrador looks the other way on serious public record and open meeting issues — except in his bitter dispute with the University of Idaho and the State Board of Education — former champions of transparency and public service are stepping up once again.

Kane and Russell are resurrecting a statewide campaign to help everyone — elected officials, public employees and the constituents they serve — understand how the state’s public records and open meetings laws work.

Only this time, instead of former AG Wasden, their transparency quest is being bolstered by two other outstanding state officials: Controller Brandon Woolf and Secretary of State Phil McGrane.

Kane and Russell will explain public record and open meeting laws in separate workshops, while Woolf will dive into accessing all kinds of public information and McGrane will explain campaign finance and lobbying rules and ways to get that data.

The Press applauds all four of these individuals and Idaho Citizens for Open Government. It’s our hope that people from all sectors of public and private life take advantage of these live-streamed opportunities to make our state stronger.

Here’s the transparency workshop schedule:

Wednesday, Aug. 30, 9 a.m. Pacific time — Transparent Idaho/Townhall Idaho: How to access public data, meeting info online for free. Presenter: Brandon Woolf, Idaho State Controller.

Wednesday, Sept. 27, 9 a.m. — Campaign Finance & Lobbying: The rules and how to access data. Presenter: Phil McGrane, Idaho Secretary of State.

Wednesday, Oct. 25, 9 a.m. — Idaho Open Meeting Law. Presenters: Brian Kane, former Chief Deputy Idaho Attorney General, and Betsy Russell, IDOG president.

Wednesday, Nov. 28, 9 a.m. — Idaho Public Records Act. Presenters: Brian Kane, former Chief Deputy Idaho Attorney General, and Betsy Russell, IDOG president.

To register for the sessions, visit https://openidaho.org/ or contact the Controller’s Office at 208-334-3100, Option 0.

And here’s the Jan. 22, 2023 Press editorial: https://shorturl.at/dxTVX

From the Coeur d’Alene Press

From the Coeur d’Alene Press

COEUR d’ALENE — A Kootenai County judge has ordered North Idaho College to turn over certain public records to the Coeur d’Alene Press, following a lawsuit.

Judge John T. Mitchell ruled Wednesday that NIC must produce a number of employment contracts, as well as several unredacted invoices from college legal counsel.

The lawsuit, filed in February by attorneys for the Coeur d’Alene Press, alleged that NIC and chief communications officer Laura Rumpler violated Idaho’s public record laws multiple times by not fulfilling in whole, or in part, lawful requests for public records made by the newspaper.

The suit also alleged that NIC and Rumpler failed to comply with mandatory timeframes for responding to the newspaper’s public records requests.

North Idaho College denied the requests for employment agreements on the grounds that the contracts were “personnel records” and therefore exempt from disclosure under Idaho’s sunshine laws. The court rejected this reasoning.

“It is quite clear to the court that the employment contracts are not exempt,” Mitchell said Wednesday.

The Press also requested copies of invoices from NIC’s legal counsel, including the December 2022 and January 2023 invoices from attorney Art Macomber. When NIC provided the invoices, they were heavily redacted with many lines blacked out.

After reviewing fully unredacted invoices that were filed under seal with the court, Mitchell determined that several of the redactions made by NIC must be removed.

Mitchell requested briefs from each of the attorneys detailing arguments whether the court should award attorney fees to the Coeur d’Alene Press. The judge will consider the issue Aug. 3.

From the Coeur d’Alene Press

From the Associated Press

By REBECCA BOONE – Associated Press

An Idaho judge has denied a request from roughly two dozen news organizations to lift a gag order in the criminal case of a man accused of stabbing four University of Idaho students to death. The judge did, however, significantly narrow the gag order in response to the news organizations’ concerns.

The ruling was handed down late Friday afternoon.

In it, 2nd District Judge John Judge said it was legally prudent to restrict attorneys from making some statements about the case in order to preserve Bryan Kohberger’s right to a fair trial. Still, Judge also said the original gag order — which also barred law enforcement officers and other people tangentially related to the case from speaking to the press — was “arguably overbroad and vague in some areas.”

Kohberger, 28, is charged with four counts of first-degree murder and burglary in connection with the stabbing deaths in Moscow, Idaho. Prosecutors have yet to reveal if they intend to seek the death penalty.

The bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were found on Nov. 13, 2022, at a rental home across the street from the University of Idaho campus. The slayings shocked the rural Idaho community and neighboring Pullman, Washington, where Kohberger was a graduate student studying criminology at Washington State University.

The case garnered widespread publicity, and in January Latah County Magistrate Judge Megan Marshall issued the sweeping gag order that has barred attorneys, law enforcement agencies and others associated with the case from talking or writing about it.

A coalition of 30 news organizations including The Associated Press asked the Idaho Supreme Court earlier this year to reject the gag order, contending it violates the First Amendment rights of a free press. The high court declined to weigh in on whether the gag order violates the news organizations’ Constitutional rights, and said the media coalition should first ask the lower court to lift the order before asking the Idaho Supreme Court to step in.

“This Court has long respected the media’s role in our constitutional republic, and honored the promises in both the Idaho Constitution and First Amendment to the U.S. Constitution,” Justice Gregory Moeller wrote in the high court’s decision. He went on to quote a ruling from a federal case that said responsible press coverage, “guards against the miscarriage of justice” by subjecting the court system and those who are a part of it to public scrutiny.

In Friday’s ruling, the 2nd District judge said the gag order served a legitimate purpose and “the very limited incidental effects of the speech restrictions on the media’s First Amendment rights are overridden by the compelling interest in ensuring fair trial by an impartial jury.”

The new gag order — formally called a “nondissemination order” — prohibits any attorneys representing parties, victims or witnesses in the case from making statements that could have a “substantial likelihood of materially prejudicing or otherwise influencing the outcome of the case.”

The attorneys are allowed to comment about things like procedural issues, scheduling and make statements that a lawyer would reasonably believe is required to protect their client from substantial prejudicial effects of recent publicity — for instance, they can likely make public comments correcting misinformation about their client.

They cannot express opinions about the guilt or innocence of a defendant outside of the courtroom, and they can’t share information that they know wouldn’t be allowed in court. They also can’t talk about the character of a witness, expected testimony, the likelihood of a plea deal or other case-related matters.

“We are pleased that the Court significantly narrowed the nondissemination order, a clear recognition that the initial order was overbroad,” said Wendy Olson, the attorney representing the media coalition. “We all agree that a defendant’s Sixth Amendment rights are important but that in preserving those rights, nether the parties nor the courts can completely cast aside the First Amendment rights of the press. The press in cases like this one provide important transparency regarding how the criminal justice system works.”

The judge also denied a gag order-related request from an attorney representing one of the victims’ families. Shanon Gray, who represents the Goncalves family, asked to be excluded from the gag order so that he could talk to the press on the family’s behalf.

In the ruling, Judge noted that as an attorney, Gray could have access to confidential information about the case that would be prejudicial if it was released to the public.

From the Associated Press

From the Moscow-Pullman Daily News

by ANTHONY KUIPERS

Originally published June 7 in the Moscow-Pullman Daily News.

The media coalition urging Latah County 2nd District Court to end a gag order in the Bryan Kohberger case filed another motion arguing it creates “a vacuum for rampant speculation online.”

Since Magistrate Judge Megan Marshall signed a gag order in January prohibiting attorneys and law enforcement involved in the case from speaking publicly about it, media organizations argue it violates their First Amendment rights.

According to the gag order, as well as Kohberger’s attorneys, it is necessary to protect Kohberger’s right to a fair trial.

Kohberger faces four counts of first-degree murder and one count of burglary in the November stabbing deaths of University of Idaho students Kaylee Goncalves, Madison Mogen, Xana Kernodle and Ethan Chapin. Kohberger remains in Latah County Jail.

His jury trial is scheduled for Oct. 2.

On Friday, Latah County District Judge John Judge will preside over a hearing where the media coalition will make its argument to vacate the order. Judge will also hear arguments from the Goncalves family attorney, Shanon Gray, who sought a hearing to amend the gag order so he can speak to the public on behalf of his clients.

Wendy Olson and Cory Carone, the attorneys for the media coalition, wrote a recently released memorandum to support the argument that the gag order should be vacated. They are urging the judge to balance the First Amendment right with Kohberger’s Sixth Amendment right.

“The State’s and Mr. Kohberger’s failure to present any evidence of prejudicial news coverage, and the Court’s failure to consider alternative measures, means the competing constitutional rights here were improperly balanced and the Gag Order should be vacated,” the memorandum says. “If anything, the Gag Order prejudices Mr. Kohberger by depriving the public of quality information, creating a vacuum for rampant speculation online.”

Olson and Carone argue that Kohberger and the Latah County Prosecutor’s Office did not submit evidence when the gag order was first issued. Therefore, the memorandum states, they should not be allowed to “ambush” the media with evidence they should have disclosed earlier.

The media coalition also filed statements from reporters giving examples of ways they were denied information because of the gag order. The examples include police officials declining to answer their questions and denying public records requests.

A June 27 court date has been set to discuss Kohberger’s request to release the record of the grand jury proceedings, including transcripts and the list of jurors. Kohberger was indicted by a grand jury May 17, which led to his arraignment May 22. Judge entered a not guilty plea on Kohberger’s behalf during his arraignment after Kohberger chose to stand silent rather than enter a plea.

From the Moscow-Pullman Daily News

From the Coeur d’Alene Press

By KAYE THORNBRUGH

COEUR d’ALENE — A report issued by North Idaho College attorney Art Macomber recommended that trustees nullify President Nick Swayne’s employment contract due to an open meeting law violation that allegedly occurred the day Swayne was hired.

Trustees Todd Banducci, Greg McKenzie and Mike Waggoner took Macomber’s advice Monday night, voting to nullify the contract but keep Swayne on as active president until further notice.

Tarie Zimmerman and Brad Corkill strongly opposed voiding the contract based on the report. Corkill said Macomber’s “unhinged analysis” appeared to be a “roadmap for a coup to get rid of the college president.”

NIC published the full 173-page report Tuesday afternoon after trustees agreed to release it to the public. Read it at cdapress.com.

Macomber acknowledged in the report that an order issued last month by Judge Cynthia Meyer — which called Macomber’s investigation into Swayne’s contract “a sham” — prohibits firing Swayne and that doing so could result in charges of contempt. In fact, following the board’s Monday night vote, a contempt hearing in Swayne’s lawsuit is scheduled for June 2.

But if trustees nullify the contract, Macomber argued, the judge’s order is no longer binding.

“The board should recognize the Swayne contract is null and void,” Macomber said. “As such, the Swayne lawsuit may and likely should fail for a lack of valid contract to interpret.”

The allegations of an open meeting violation stem from a phone conversation between Laura Rumpler, NIC’s chief communications officer, and Angela Provart, the independent consultant who facilitated the national search for presidential candidates.

NIC trustees met June 22, 2022, to choose a president from among four finalists. Prior to the meeting, in preparation for the announcement of the trustees’ choice of a president, Rumpler reportedly prepared a news release for each finalist, so that one would be available as soon as one of them was selected to be hired.

The morning of June 22, she reportedly sent an email to Provart, as well as to former trustee David Wold and former NIC attorney Marc Lyons.

“If there are two of the four candidates that are rising to the top, can you give me an indication so I can best prep, knowing we won’t know the final outcome until the board takes action tonight?” Rumpler wrote. “I’d really like to narrow down our work and strategy if possible.”

Later that morning, Rumpler said she and Provart spoke on the phone.

Rumpler alleges that Provart told her Swayne would be selected that night.

“Telephone conversations are difficult to verify, but the facts show Ms. Rumpler concluded her email exchanges with (the other finalists) early in the afternoon, while her exchange with Dr. Swayne continued late in the afternoon,” Macomber wrote in his report.

It appears that Macomber did not speak to Provart about the matter.

Provart confirmed via email with The Press Tuesday that she checked in with the trustees toward the end of the search process to gauge their feelings about the finalists.

“I reached out to all trustees individually, never as a group,” she said. “I talked with all trustees except for Banducci and McKenzie, as they did not respond to my messages.”

In the report, Macomber was critical of Swayne’s relationship with the NIC Foundation, an independent nonprofit founded in 1977 to encourage private support for NIC. Governed by a volunteer board of directors, the NIC Foundation solicits, accepts and stewards resources, including private donations, to enhance college programs and provide student scholarships.

The college president traditionally serves as the foundation’s corporate secretary. Macomber suggested this may be inappropriate and that Swayne’s loyalty may be split between the college and the charity that supports it.

“The board of trustees may want to reevaluate those potential conflicts, especially if Dr. Swayne is enjoying a second paycheck or other remuneration from the Foundation in addition to his presumably primary paycheck as North Idaho College president,” Macomber said. “This author has no written evidence of monetary payment from the foundation to Dr. Swayne.”

Macomber insinuates a conspiracy involving the NIC Foundation and the State Board of Education. The three former trustees who voted to hire Swayne were all connected to the NIC foundation. John Goedde and David Wold had served as board members, while Pete Broschet worked for a board member. Macomber implied that the State Board of Education appointed the trio to the NIC board because of their connections to the charity.

He added that the board should “reconsider the college’s relationship to this private entity.”

Macomber did not interview the former trustees he accused of participating in a conspiracy to hire Swayne. Instead, he issued subpoenas to them, along with college employees and others.

Macomber described Swayne’s lawsuit seeking reinstatement to his job as “unexpected” but “lucky” because it opened the door for him to issue subpoenas for information about Swayne’s hiring he might otherwise be unable to access.

The court quashed three of the subpoenas, calling them “unreasonable and oppressive.” Legal counsel assigned by NIC’s insurer withdrew the rest.

Macomber criticized those who did not comply with his subpoenas and said they are responsible for errors in his report.

“If any action taken by the board of trustees based on this report is found later to be in error due to a lack of information purposefully withheld by those parties, the public should understand that the blame for needless costs and delays must lie at the feet of those persons,” he said.

In her ruling, Meyer noted that the window for any action related to a June 22 open meeting violation closed in January, six months after the hiring.

Macomber disagreed, asserting that a public governing body may “self-recognize” an alleged violation and act upon it at any time, even years after the fact.

“If the board of trustees of North Idaho College wants to self-recognize its own violation of the Open Meetings Law that it may determine occurred in June of 2022, the use of this report to substantiate such act would not be time-barred under the statute,” he said.

But McKenzie and Banducci began to publicly question the legitimacy of Swayne’s hiring the very night he was selected as president, long before Macomber’s report existed.

In the June 22 board meeting, Banducci suggested Swayne’s hiring was a “naked power grab” coordinated by former trustees, the Idaho State Board of Education, Judge Meyer, the Attorney General’s Office, the governor and others.

“As far as I’m concerned, this entire process is null and void,” he said.

McKenzie, too, voiced concerns about “corruption” in the search process.

The pair also objected to voting for a president without first meeting in executive session to discuss the candidates. To enter closed session, four trustees must agree; the private session did not occur because McKenzie and Banducci blocked it.

At least $19,074 was spent to create this report, according to Macomber’s invoices from February and March, which make specific references to a “board report.”

However, because Macomber’s invoices are heavily redacted and his April bill is not yet available, it’s impossible to know the true cost of the report to North Idaho College.

---

Macomber report

From the Coeur d’Alene Press

From the Idaho Statesman

The Ada Community Library board violated Idaho Open Meeting Law at its March board meeting when the trustees voted to remove six books from the library’s collection without noting an action item on the agenda.

The board acknowledged its mistake in a statement posted on its website Tuesday morning after the Idaho Statesman published a story on the vote to remove the books.

“The board acknowledges the error and reiterates that those votes are ineffective and the books discussed will remain in the library’s collection pending any further action,” the statement said.

In a statement emailed to the Statesman, the board said it has no plans to take a re- vote on removing the books.

The board also credited the Statesman for making the board “realize the procedural deficit that occurred at the March meeting.”

The library trustees had voted to remove six books from the collection in March because they believed the content was “harmful to minors.”

“A series of books in the collection were read by trustees and reviewed under existing Idaho code to determine whether they contained material that fell within the current Idaho statutes’ definition of what is ‘harmful to minors,’ ” the board said in a statement to the Statesman. “Where it seemed so, the board voted to remove the books from our collection. Where the books did not contain such material, the board voted to retain.”

The board’s action came after a bill from the Idaho Legislature that would have opened library staff members to misdemeanor charges for disseminating material harmful to minors. Librarians are exempt from the current law in Idaho. The bill passed the Legislature but was vetoed by Gov. Brad Little after the board voted to remove the books.

The board voted to remove the following titles:

• “Gender Queer” by Maia Kobabe
• “Lawn Boy” by Jonathan Evison
• “All Boys Aren’t Blue” by George M Johnson “Out Of Darkness” by Ashley Hope Perez
• “The Bluest Eye” by Toni Morrison
• “This Book is Gay” by Juno Dawson

The vote was taken under the agenda’s “legislative update.” The result was null and void because the agenda didn’t list a related “action item.”

“Due to a miscommunication, this was not done for the March 21, 2023, meeting and went unnoticed until recently,” the board said on its website.

The agenda for the board’s May meeting was not posted online as of Tuesday afternoon.

From the Idaho Statesman

From the Associated Press

By REBECCA BOONE

BOISE, Idaho (AP) — The Idaho Supreme Court on Monday rejected a request by 30 news organizations to lift a gag order in the criminal case of a man accused of stabbing four University of Idaho students to death.

The high court did not weigh in on whether the gag order, which prohibits attorneys, prosecutors, law enforcement agencies and others involved in the case from talking to the news media, violates the First Amendment rights of a free press. Instead, the unanimous Idaho Supreme Court justices said the news organizations should have brought their request to the magistrate judge who issued the gag order.

“This Court has long respected the media’s role in our constitutional republic, and honored the promises in both the Idaho Constitution and First Amendment to the U.S. Constitution,” Justice Gregory Moeller wrote in the decision, going on to quote a ruling from a federal case that said responsible press coverage, “guards against the miscarriage of justice” by subjecting the court system and those who are a part of it to public scrutiny.

Still, Moeller wrote, the balancing act between the First Amendment protections afforded to the press and the Sixth Amendment fair trial rights promised to defendants has become increasingly difficult with the advent of the internet and social media.

Though those are “well-guarded rights,” Moeller said, news organizations who wish to challenge gag orders should start at the lower courts and work their way up to the state’s highest judicial bench, rather than approaching the Supreme Court first.

Bryan Kohberger, 28, is charged with four counts of first-degree murder and burglary in connection with the stabbing deaths in Moscow, Idaho. Prosecutors have yet to reveal if they intend to seek the death penalty.

The bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were found on Nov. 13, 2022, at a rental home across the street from the University of Idaho campus. The slayings shocked the rural Idaho community and neighboring Pullman, Washington, where Kohberger was a graduate student studying criminology at Washington State University.

The case garnered widespread publicity, and in January Latah County Magistrate Judge Megan Marshall issued the sweeping gag order, barring attorneys, law enforcement agencies and others associated with the case from talking or writing about it.

The coalition of news organizations, which includes The Associated Press, contends the gag order violates the right to free speech by prohibiting it from happening in the first place.

An attorney representing the family of one of the victims has also filed an opposition to the gag order in state court. Shannon Grey, who represents the Goncalves family, said in that challenge that the gag order is unduly broad and places an undue burden on the families. Marshall said a hearing on the matter would be held after the Idaho Supreme Court issues a ruling on the news organizations’ challenge.

Kohbergers’ attorneys, meanwhile, contend the gag order essentially requires the attorneys involved in the case to act ethically to ensure Kohberger gets a fair trial.

“This is not a case where the attorneys seek to use the rules as a weapon against one another. It is a case where a young man is on trial for his life,” Logsdon wrote. “There was nothing inappropriate about the Magistrate Court reminding the attorneys involved of their ethical obligations.”

High-publicity cases often present a conundrum for judges, who work to protect the defendant’s right to a fair trial. Courts sometimes feel that controlling the flow of information around the case — by forbidding those involved from talking about it — is an effective way to limit publicity.

But gag orders can infringe on the First Amendment rights of the public and of the people involved in the case. News organizations that cover the courts serve a watchdog role, keeping the public informed about how the judicial branch operates. During the investigation into the University of Idaho students’ slayings, news organizations’ interviews with investigators and law enforcement officials often worked to quash misinformation spread online by people who styled themselves as sleuths on social media sites.

“While we are disappointed that the Court denied the petition, the media coalition now has a clear path under Idaho law to challenge the gag order and vindicate these important First Amendment rights,” Wendy Olson, the attorney representing the news coalition, said.

The Idaho Supreme Court ruling means the news coalition could now go to the magistrate judge to ask her to reconsider the gag order. The coalition has not yet announced any next steps.

From the Associated Press

From the Coeur d’Alene Press

By KAYE THORNBRUGH

COEUR d’ALENE — North Idaho College attorney Art Macomber and trustees Greg McKenzie, Todd Banducci and Mike Waggoner used personal email addresses to secretly prepare for public meetings during which the three trustees, as a board majority, hired Macomber and ousted NIC President Nick Swayne by placing him on administrative leave.

Two such emails revealing the communications became public Thursday as part of a lawsuit filed by Mike Gridley, the former attorney for the city of Coeur d’Alene.

The lawsuit, submitted to the court in December 2022, accuses Macomber and the three trustees of fraud and of violating Idaho’s open meeting laws. The suit also alleges interim president Greg South has received “unjust enrichment” as a result of his hiring.

Emails obtained through the discovery process show private planning for public meetings by a board majority: Banducci, McKenzie and Waggoner.

“The emails memorialize ‘This is what we want to do at the December meetings,’” said Kinzo Mihara, the attorney representing Gridley, before Judge Ross D. Pittman during a hearing Thursday in Kootenai County Magistrate Court.

Court records show that Macomber sent an email Nov. 21 — two weeks before his hiring — to McKenzie, Banducci and Waggoner via their personal email addresses.

Banducci and Waggoner frequently use personal email accounts for college-related communications, while McKenzie typically uses his NIC-provided email account, although he too uses a personal email account at times.

“Leslie and I are leaving on December 15 for Texas and returning December 29,” Macomber wrote. “The December NIC meeting could be the 14th or earlier, or December 30, unless you guys want to pay me to fly for a day in between. I would say it’s not worth it and either set it earlier in the month or really late.”

“I would suggest earlier,” replied Waggoner.

In a Dec. 1 email to the three trustees, Macomber attached and described documents he had created in preparation for meetings that would occur throughout the month.

“These three resolutions cover the bases,” Macomber wrote. “Also, the letter to Lyons is changed.”

One resolution instituted a hiring freeze for the president’s cabinet, while the other two had to do with the college’s legal counsel.

The letter was a demand that Marc Lyons, the college’s former attorney, turn over “all NIC records” in his possession. Lyons resigned from his position last November, after 23 years, citing tensions on the board of trustees.

The other two trustees on the five-member board, Brad Corkill and Tarie Zimmerman, confirmed Thursday that they had no knowledge of the private communications between Macomber and the other trustees.

Gridley has asked the court for permission to amend his civil complaint to include new information unearthed through the discovery process, including the emails.

Mihara argued in court Thursday that the emails are relevant to the case because they involve violations of Idaho’s open meeting laws, which exist to prevent the public’s business from being conducted in secret.

“Sunshine needs to shine on these facts,” Mihara said.

Brittney Adams, an attorney representing South and the three trustees, rejected Mihara’s assertion that the emails are evidence of illegal serial meetings.

“These weren’t serial meetings,” Adams said. “This was a series of emails.”

Serial meetings, which violate Idaho’s open meeting law, occur when a majority of members of a governing body have a series of small gatherings or communications to make a decision or deliberate toward a decision, even if a majority is never part of any one communication.

Idaho’s open meeting law requires that all meetings of a governing body of a public agency shall be open to the public, with meeting notices and agendas shared with the public prior to a meeting. The law defines a meeting as any convening of a body to make a decision or deliberate toward a decision on any matter.

At the Dec. 5 board meeting, Macomber and Banducci said that Banducci had drafted the resolutions presented that night.

Three days later, in a subsequent board meeting, Macomber revealed that he had written the resolutions and gave them to Banducci. The Dec. 1 email confirms that he also shared the resolutions with Waggoner and McKenzie ahead of time.

Macomber, who donated to the political campaigns of the three trustees he’d secretly emailed, also claimed during the Dec. 8 meeting that he didn’t anticipate being hired as the college’s new legal counsel. He said he’d taken it upon himself to write his own fee agreement after Lyons resigned.

“I didn’t know if there were other attorneys they were thinking of,” Macomber said Dec. 8. “But I thought, ‘You don’t get anywhere by just sitting back and waiting for life to happen to you.’ So I brought the fee agreement and there it was. These guys voted me in.”

His earlier emails contradict that statement, showing he planned for the board majority to hire him.

Other documents in Gridley’s amended complaint showed that Greg South altered the contract of a temporary employee to add a $40,000 exit bonus after that employee had already resigned. This occurred three hours before trustees complied with a court order to reinstate Nick Swayne as active president.

Emails from South indicate that Jim Forkum, an interim South hired in early January, resigned from his position March 5.

In a declaration filed with the court, Macomber said South instructed him verbally March 6 to draft a modification of Forkum’s contract. He said South didn’t tell him that Forkum had already resigned.

At 6:35 a.m. the same day, Macomber reportedly emailed trustees and members of the president’s cabinet to say that Swayne was not president until the board formally acted to reinstate him, according to records obtained by The Press.

That afternoon, South and Forkum signed the modification prepared by Macomber, which stipulated that Forkum would be paid as if he had worked through June 18, 2023, if he or NIC ended his employment before that date.

“The agreement as signed on January 10, 2023 neglected to add termination provisions related to how Dr. Forkum would be paid by North Idaho College if the contract was terminated early,” the document said.

The cost of implementing the modification would be $52,238.40, an additional $40,000 over the amount owed according to Forkum’s original contract.

Judge Pittman said Thursday that he will consider whether to allow Gridley to amend his complaint and issue a ruling at a later date.

Read the documents at cdapress.com.

Documents from Greg South and Art Macomber

Art Macomber declaration, including emails

Gridley motion to amend complaint

From the Coeur d’Alene Press

From the Idaho Press

By ERIN BANKS RUSBY

A day before the start of the Boise Pride festival last September, Idaho Department of Health and Welfare Director Dave Jeppesen sent a letter to festival organizers saying his agency would be dropping its sponsorships.

Jeppesen’s letter, which circulated on social media, said that though the agency had sponsored the event in previous years, it would be dropping its two sponsorships this time due to “some confusion about whether DHW endorses specific activities involving minors during this event.”

Outcry had erupted two days before over concerns that sponsors of the festival were condoning a festival event called “Drag Kids,” in which kids would dress in drag and perform on stage on Sunday afternoon.

But the letter didn’t include a key detail: The Idaho Department of Health and Welfare is a state agency that answers to the governor’s office. Gov. Brad Little’s office had asked the agency to terminate its sponsorships, email records obtained through a public records request show.

Madison Hardy, the governor’s press secretary, confirmed that in a statement provided to the Idaho Press via email.

“The Governor’s Office asked DHW to pull its sponsorship of 2022 Boise Pride event because of concerns about public funds being used to support an event that planned to feature children as young as 11 performing in drag before an adult audience,” Hardy said.

Hardy declined an interview for Little or other governor’s office staff, and did not provide answers to additional emailed questions regarding the decision or officials’ positions on LGBTQ+ issues.

In an email to the Idaho Press, Niki Forbing-Orr, spokesperson for the Department of Health and Welfare, declined interviews for department staff, saying, “we don’t have anything to add at this point.”

Emails from the agency in the week leading up to the festival show that staff were disheartened by the decision. And Boise Pride Executive Director Donald Williamson said he is considering legal action against the state for breaching its contracts for Boise Pride 2022, amounting to a loss of $38,000.

A quick refresher

The decision to pull sponsorships came following an article published by the Daily Caller, a right-wing news and opinion outlet, which questioned why corporations were sponsoring an event featuring children performing in drag, as previously reported. Following that article’s publication, Idaho GOP Chairwoman Dorothy Moon sent emails denouncing sponsorship of the event, alleging that the drag kids event promotes the sexualization of children. On social media, posts circulated that included sponsoring businesses’ names and contact info and encouraged concerned citizens to call on sponsors to terminate their sponsorships.

Such messaging about children being in danger has become common among far-right groups in recent years, though the ostracization of the LGBTQ+ community — and their fight to be accepted in society — is not new. The most recent narrative insinuates that members of the LGBTQ+ community are pedophiles, sex traffickers, and the like, and are “grooming” children in order to molest them, ideas promulgated by QAnon and other conspiracy theories.

Following Moon’s email, Boise Pride issued its own statement, saying, “the only perversion and sexualization of this performance are coming from extremists and people like Dorothy Moon who are twisting it into something it is not.”

But the statement did not prevent sponsors from dropping out. In total, the festival lost about 6% of its sponsors, Williamson said. Those that dropped were Zions Bank, CapEd Credit Union, Idaho Central Credit Union, Idaho Power, and the Department of Health and Welfare.

The Thursday before the festival weekend, Boise Pride announced it was postponing the Drag Kids event. But sponsors that had dropped out, including the Department of Health and Welfare, did not opt back in.

‘Incredibly disappointing’

DHW staff emails in the week leading up to the festival show that higher officials in the organization were well-aware of calls to revoke sponsorship.

Late on Wednesday, following Zions Bank’s announcement of its dropped sponsorship, a DHW staff member wrote, “there is a chance the governor’s office may ask us to pull our sponsorships … “

By late Thursday morning, a day before the start of the festival, Elke Shaw-Tulloch, administrator for the public health division of DHW, sent an email to notify some staff that the governor’s office had indeed asked the department to pull its sponsorships and that she would be drafting a letter to let Boise Pride know.

“The governor’s office likes the tone of the Zions Bank letter,” Shaw-Tulloch said in the email. “I would like something that also emphasizes our support for the community and the importance of our services.”

Shaw-Tulloch continued, “I very much appreciate all of the hard work of your programs and your staff supporting the community and I expect that to continue. This saddens me to not support this particular event, but I understand the downstream ramifications.”

Cristi Litzsinger, a bureau chief with the agency, said in an email to some of her staff, “I agree with Elke’s sentiments and it makes me sad it has come to this.”

In a separate thread, Aimee Shipman, the section manager for the HIV, STD, and Hepatitis program, said, “This is incredibly disappointing. We are throwing our strategic populations under the bus just because of a letter?” She appears to be referring to Moon’s email.

After Boise Pride announced it was postponing the Drag Kids event, staff in DHW’s HIV, STD, and Hepatitis program seemed hopeful the sponsorship could still move forward.

“Do you know since the drag (kids) show was dropped if we are still moving forward with withdrawing sponsorship?” Shipman wrote Friday morning.

“Yes, we are waiting to hear if we are back on for sponsorship today,” Litzsinger said. “Hopefully soon.”

“I know the letter (to Boise Pride) was sent, but there still might be a chance the department will change their mind?” wrote Kimberly Matulonis-Edgar, program coordinator for the HIV, STD, and Hepatitis program on Friday morning.

“Correct,” Litzsinger replied.

It is unclear what additional discussions were had, but the department did not reinstate its sponsorships.

In a December email provided to the Idaho Press by Williamson, a staff member with DHW told Boise Pride organizers that “our program heard about the sponsorship retraction after you did, and were equally upset. We weren’t able to talk through the ramifications nor able to convey that it actually presented to stand up to discrimination and stigma.”

The person says their program “hasn’t heard much from DHW since the week after Pride,” and, “our program will do everything in our power to continue supporting the event, and are actually more motivated than ever to make sure we find ways to support organizations that work directly for/with the LGBTQIA+ community.”

DHW’s indirect participation

The Department of Health and Welfare had two sponsorship agreements in place for the festival. And though it had dropped its sponsorships, some components went ahead, records show.

The first sponsorship was from the department’s Project Filter, a smoking cessation program, which was supposed to have a booth at the event. The program is for all Idahoans, not just the LGBTQ+ community, Shaw-Tulloch told a colleague via an email obtained by the Idaho Press.

The department considers the LGBTQ+ population a priority for smoking cessation efforts because “it tends to have a tobacco use rate almost 3 times higher than the rest of the population,” Shaw-Tulloch said in the email.

In addition to the booth, the program’s sponsorship meant a contribution of $18,000, according to the contract for the event. Because of the sponsorship termination, the program did not have a booth at the festival, according to department emails.

The other sponsorship was $20,000 from the department’s HIV, STD, and Hepatitis Section. That program had not planned to have a booth but did provide materials to two other organizations at the event, according to department emails.

Full Circle Health, an Idaho health care provider, received condoms to distribute during the festival, according to email records. And Central District Health, the local health district covering Ada, Boise, Elmore, and Valley counties, received condoms and PrEP, a preventative medicine for HIV, for festival distribution, according to department emails.

In addition, the department contracted with Injury Care EMS to provide vaccinations during the event, Forbing-Orr told the Idaho Press via email. That effort provided 189 doses of MPX vaccine, which protects against the disease caused by the monkeypox virus, and three doses of COVID-19 vaccine, Forbing-Orr said.

Central District Health staff also administered 76 MPX vaccines at The Balcony during the festival weekend, said Maria Ortega, a spokesperson for the district. Those vaccines were originally distributed by the Idaho Department of Health and Welfare to entities that requested them, though they were not distributed specifically for use during pride events, she said.

Potential lawsuit

Of all the Boise Pride 2022 sponsors, including those that rescinded their sponsorship, the Idaho Department of Health and Welfare is the only sponsor that has not paid, Williamson, the executive director of Boise Pride, said.

The department had two contracts in place with the festival, and choosing to back out on those just a day prior to the start of the festival means the department is still legally obligated to fulfill them, Williamson said.

“Breach of contract. Absolutely breach of contract,” Williamson said.

On Oct. 5, Williamson sent an email to Jeppesen asking the department to make good on its contracts, but said he reduced the amount invoiced to 75% of the original amount for both the Project Filter and the HIV, STD, and Hepatitis sponsorships.

Williamson’s email discusses how in his understanding, the funding that would have been coming from Project Filter and the HIV program was federal funding those programs had at their discretion to distribute in the fulfillment of their public health objectives. The department still had a presence at the festival through its vaccination booths, and the department’s presence is essential for being able to directly reach members of the LGBTQIA+ community about health issues, Williamson said.

“It was unfortunate that partisan pressure from certain extremist members of the Idaho GOP and their supporters were able to get in the way of that mission and severely damage the years of goodwill and trust-building that your department has developed with the Idaho LGBTQIA+ community,” Williamson’s email said.

“It is easy to be a ‘supporter’ when things are all butterflies and rainbows, but when things get muddy and difficult, that is when support is truly needed and most impactful,” another part of Williamson’s email said. “The citizens of the LGBTQIA+ community and their allies will notice that inaction, and they will remember it.”

On Nov. 15, Boise Pride Board President Michael Dale followed up on Williamson’s email, saying “we have yet to receive any response from anyone at the (department) other than your letter on September 8.”

“We are fine if you do not wish to sponsor or be involved with Boise Pride in the future, but this doesn’t resolve the obligation that is still due from 2022,” Dale said.

On Nov. 17, Sen. Melissa Wintrow wrote to Jeppesen, saying, “I understand that after the head of the GOP started to threaten businesses, that many folks pulled sponsorships but for a state that values contracts, I would hope that my colleagues would understand the importance of following through on them.”

“I know that you are … doing what you are directed to do, but once again, an agreement/contract is an important part of business,” Wintrow said.

On Dec. 8, Jeppesen replied to Williamson and Dale, saying, “it remains the position of the department that it retains the ability to ultimately determine how best to maximize the use of program sponsorship funds, which includes the withdrawal of our sponsorship funding from any applicant if that becomes necessary.”

Forbing-Orr declined to provide an updated comment on the department’s stance for this story.

The politics of bowing out

The events that unfolded around DHW’s sponsorship of the festival and being asked to renege on its sponsorship are unsurprising in the context of Idaho politics in recent years, said Luke Fowler, associate professor of administration and public policy at Boise State University.

Some of the controversies in the state since the beginning of the COVID-19 pandemic, such as whether to mask, have boiled down to how people view the role of government, Fowler said. Drag kids performance aside, some may still see DHW’s public health mission and the strategies it employs to achieve it as government overreach, Fowler said.

“Of course there are issues of discrimination against the LGBTQ community here, but (the controversy was) also about how we are spending public resources and whether DHW should be doing this or not, whether or not this is the role of a government agency,” Fowler said.

It is true that federal agencies give money to state government agencies to spend, including health departments, Fowler said. But state agencies are still at the whim of their governors, legislators, and local government.

“We’re seeing this more and more, where state legislators and the governor are saying do one thing, and federal institutions or laws are saying do something else,” Fowler said. “That puts these bureaucratic agencies in really sticky situations.”

As for why the governor’s office did not publicize its involvement in the decision, Fowler said that while he could not say for certain, it represents a classic political strategy: shifting blame away so as to not be perceived as the center of controversy. Plus, Little likely did not want to pit himself against the will of those who are farther right in his party, Fowler said.

Williamson pointed out that the kerfuffle occurred two months away from the November general election, in which Little was running for reelection.

Fowler said he has not personally spoken with anyone in the governor’s office about the events, but added, “I imagine (Little) looked at it and was like, ‘look, this is not worth the fight … let’s save our political capital to have fights over scholarships, or jobs, or something else.’”

Lessons learned, looking to the future

Children have performed at the festival since its inception 32 years ago, Williamson said.

“Like I’ve said countless times before, there’s a difference between the drag show that you and I would expect to see in a park on a Sunday afternoon with kids performing versus one on a Friday night at 10 where we’re paying a $20 cover and getting alcohol and there’s no kids,” he said. “It’s no different than any other type of performative art, whether it’s musicals, plays, or whatever.”

“(The far right) is just trying to spin it to fit their narrative, and it just happens to be their soup du jour this year that it’s kids and drag and grooming,” Williamson said. “It’ll be something different next summer because this can’t stick forever.”

However, Williamson said he would have phrased the description of the event differently. It read, “You’ve seen the Queens and Kings and now it is time to see the kids. A drag show like none other the drag kids range from 11 to 18 and are ready to bring it all to the Boise Pride festival stage! Come and cheer them on as they bring drag to the younger generation!”

He said he sees why it seemed ambiguous to sponsors what the event would actually entail, particularly when viewed through the narrative of Moon and other politicians.

In reality, the performance was going to feature around five children: two 18-year-olds, two 16- or 17-year-olds, and one 11-year-old, Williamson said. The 11-year-old was slated to perform with their mother, who is a local drag performer, Williamson said. The description of the event could have included more language about the event being all-ages and family-friendly, he said.

One of Williamson’s goals as executive director is to organize additional Boise Pride events throughout the year beyond the diversity prom and September pride weekend.

“Those events are amazing and our community needs those,” Williamson said, “but we have to be a bigger presence in this community than just those two things. It has to be more year-round, whether it’s events, whether it’s outreach, whether it’s resources for mental health. … I have a plethora of ideas, just have to figure out a way to get there.”

From the Idaho Press