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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Restricted speech

Posted By on Mon, Mar 16, 2009 at 4:51 PM

The full ballroom at the Boise Centre on the Grove, usually a pedestrian affair, was austerely appointed in ceiling to floor black cloth on Thursday night. The University of Idaho College of Law, celebrating its first centennial, projected a dramatic pair of school logos on the black backdrops. A long, raised dais loomed over the front of the hall, lined north to south with chairs and referred to as the Head Table.

The large crowd of fresh-faced U of I alumni, left- and right-leaning Boise lawyers and state dignitaries picked at their fruit course while somewhere behind the stage an elite group of Idaho politicos mingled in The Perch room with John G. Roberts, U.S. Supreme Court chief justice, sans robes.

The beslinged governor, C. L. “Butch” Otter (recovering from a calf roping injury) introduced the boyish Roberts to Idaho’s portly Secretary of State, one Ben Ysursa.
“I know that name,” Roberts responded, according to Ysursa. (Reporters were not allowed anywhere near the Chief.)

Ysursa, of Basque heritage, does not have a very common family name.

About two weeks prior, Roberts had handed down a bittersweet victory to the State of Idaho in the case of Ysursa, Secretary of State of Idaho, et al v. Pocatello Education Association et al.

“We won the case, but we lost most of the law,” Ysursa commented after the gala, heading across Boise’s Grove Plaza on his way back to his silver Benz. (Ysursa’s Democratic-leaning relations in the Midwest were none too happy that their Idaho brother was taking on the unions.)

Roberts ruled that the state can prohibit school districts, fire departments and other political subdivisions from taking contributions to union political funds directly out of public employees’ paychecks.

“Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities,” Roberts wrote in the 6-3 decision.

Idaho Lt. Gov. Brad Little, who carried the 2003 Voluntary Contributions Act—the target of the Supreme Court ruling six years later—also chatted with Roberts in The Perch. The Chief Justice reportedly complained to Little that the Ysursa decision required a lot of work on his part.

Roberts’ speech in Boise, a prelude to a Friday lecture at the law school in Moscow, for which he was paid an $11,500 honorarium, did not take nearly as much work. The nation’s top jurist spoke for about seven minutes, opening with a lawyer joke about not telling lawyer jokes and recounting the journey to the American West for this western audience: Explorers, trappers, miners, ranchers and farmers.

“Each of these groups made their initial appearance without the assistance of counsel, but the lawyers were, of course, not far behind,” Roberts intoned. “Idahoans have a well earned reputation for self-sufficiency.”

Roberts tipped his hat to federalism, invoking New Deal-era Justice Louis Brandeis’ notion of states as laboratories for experimentation, and gave a nod to Western American jurisprudence, which informs his conservative rulings on natural resources.

“My court’s cases recognize, the pioneers who were drawn to these lands found a climate and topography radically different from that east of the 100th meridian,” he said.

Roberts also quizzed the audience on the name of the chief justice a century ago when the College of Law was founded. None could recall the name Melville Fuller.

Ironically, had Roberts been the speaker at the Republican State Convention last June, he might have found a more knowledgeable crowd; Fuller ruled portions of the federal income tax unconstitutional in 1895, a popular position among one segment of the state GOP.

College of Law Dean Donald L. Burnett, Jr. also invoked Justice Brandeis’ vision of a great university in thanking Roberts, saying that an institution—like Idaho’s only law school—that aims high and broad can inspire great loyalty.

Then Burnett, perhaps subconsciously, spoke to the difference between Roberts’ jurisprudence and that of the more scholarly justices.

Idaho’s law community gathered that Thursday night, Burnett said, as “a great manifestation of the impulse for justice, whether it’s the common sense justice described by the Chief Justice and Idaho’s history, or the scholarly justice that the Supreme Court is charged to produce for us, year in and year out.”

Hundreds of common sense lawyers arm in arm with their dates, flooded out into the daylight savings time twilight.

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