open meetings

Monday, March 16, 2009

Open meeting edits pass Senate committee

Posted By on Mon, Mar 16, 2009 at 5:03 PM

Significant revisions to Idaho’s Open Meeting Law unanimously passed the Senate State Affairs Committee this morning and now head to a full Senate vote.

Deputy Attorney General Bill von Tagen, who said he’s been working on updating the open meeting law for about three years, explained Senate Bill 1142, calling it an overhaul of the law.

“It needs more than just a tune up but it needs less than a new engine,” von Tagen told the panel. “What we’re asking you to do is to provide a statutory framework that is equal to the commitment that has been made to the open meeting law.”

The bill makes clear the process for setting and amending public meeting agendas, clarifies the requirement for documenting executive sessions and, perhaps most importantly, fixes the problem of proving that officials “knowingly” violated the rules, setting up a new framework for penalties.

Idaho appellate courts have never upheld the penalty provisions of Idaho’s Open Meeting Law, von Tagen told the committee. Two high profile cases, including the 2007 Idaho Supreme Court decision in State of Idaho v. Yzaguirre and a complaint filed last year about an allegedly illegal Idaho State Board of Education executive session, confirmed that it was nearly impossible to prove a “knowing” violation of the law.

“The new interpretation [in Yzaguirre] created an incentive for ignorance: If a public official knew nothing about the Idaho open meeting law then he or she couldn’t ‘knowingly’ violate it,” wrote Spokesman-Review Boise Bureau Chief Betsy Z. Russell in testimony submitted to the committee.

Russell, who is president of the Idaho Press Club and president and co-founder of Idahoans for Openness in Government, or IDOG, testified in favor of the bill, though State Affairs Chairman Curtis McKenzie, a Nampa Republican, initially—and mistakenly—called her forward as the lone witness against the bill.

Senate Majority Leader Bart Davis, an Idaho Falls Republican asked Russell if she was a registered lobbyist for IDOG to which Russell retorted: “I am not, nor am I paid for anything I do for IDOG.”

Russell worked with von Tagen and other groups, including the cities and counties associations with the encouragement at the end of last year’s session of Senate Minority Leader Kate Kelly, a Boise Democrat.

At the State Affairs meeting Monday, von Tagen reviewed the history of the state’s open meeting law. First passed in 1974, the law was updated in 1977 to add penalties and again in 1992 to revise the penalties and fix agenda provisions.

According to von Tagen, aside from the technical disagreements over some of the terms, the bill is difficult to understand and this revision puts the law in layman’s terms.

“The language is ambiguous at times,” von Tagen said of the current law. “It’s archaic and oftentimes it’s confusing.”

Among the ambiguities, the law allows for changes to agendas “up to and including the hour of the meeting.” The bill would change that to clarify that boards and commissions can indeed revise their agendas during a meeting—as most do today—but must provide a reason and justification for why it was not on the agenda prior to the meeting.

The bill also requires officials to keep minutes “pertaining to” executive sessions that clearly state the reason for the secret meeting and record the roll call vote that initiates a closed session.

The bill also specifies that executive sessions cannot be used to discuss general staffing needs, but only for discussion of specific employees or hiring decisions.

The section of the bill that addresses the Yzaguirre intent case sets up three levels of civil penalties and a new process for “curing” a violation.

“We’re aiming at compliance with this bill and openness, not just punishment,” von Tagen said.

The bill preserves a $500 fine for “knowing” violators, but also sets up a $150 fine for first time violators and a $500 fine for those who violate the law twice or more in a year.

An agency can fix, or cure, its violation by voiding “all actions taken at or resulting from the meeting in violation of this act.”

Sen. Monty Pearce, a New Plymouth Republican, asked von Tagen if the new language could be a deterrent to people considering service on the numerous local government boards and panels that fall under the Open Meeting Law.

“Are we discouraging local people from sticking their neck in the noose and saying, ‘do I really want to go through this experience?’” Pearce asked.

Von Tagen responded that the bill has what he calls an “olly olly oxen free” component in the “cure” provisions: that if a panel screws up, it can fix it.

Soda Springs Republican Sen. Bob Geddes, who is the Senate president pro tem, complemented the bill’s balance.

Secretary of State Ben Ysursa, who is also an IDOG board member, rose to support the bill as did representatives from the Association of Idaho Cites and the Idaho Association of Counties and Elinor Chehey of the League of Women Voters of Idaho.

IAC executive director Dan Chadwick, told the committee he would not oppose the bill, adding later that his board had not had a chance to review it, and indicated general support with a few minor revisions in mind.

Chadwick, who pointed out that he used to have von Tagen’s job at the Attorney General’s Office, wanted more protection for public officials who were acting on the recommendation of their attorneys, had some concerns about the noticing of agendas and objected to some wording in the executive session section regarding the hiring of employees.

Following the passage of SB 1142 through committee, Davis and Kelly introduced another Sunshine-related measure Monday morning that sets up a process for Idaho elected officials and candidates to make some basic financial disclosures.

The bill, which does not have a number yet, requires candidates to file a form including spouse’s name and place of employment, sources of gross income over $10,000 (which would include legislative salary), a “general description of real estate owned by the person in Idaho,” and a declaration of other financial interests of $5,000 or more.

The bill would also require an annual disclosure from elected officials including the same information.

The Open Meeting Law amendments will go before the full Senate for a vote and if approved move over to the House for further hearings.

From the Yzaguirre decision:
“The legislature’s inclusion of the word “knowingly” in the statute indicates that it intended to condition the availability of a civil penalty on the defendant’s mental state. The State’s interpretation would make the Commissioners strictly liable for any violation of the open meeting law simply for having conducted or participated in the meeting. If the legislature had intended this result, there would have been no need to reference a mental state because conducting and participating are intentional acts. “Knowingly” implies something more than a voluntary act; under the State’s interpretation it becomes surplusage. In order to give meaning to every term, the statute must be interpreted to require knowledge that the meeting violated the open meeting law.”
This wonkish post made possible in part by the people at The Idaho Newspaper Foundation and the Star-News.

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