Possible open meeting law violations by a Boise agency are in the news, as BoiseDev.com reported yesterday that a citizens group that opposes construction of a publicly funded downtown sports stadium has filed a complaint with the Ada County prosecutor, and the Idaho Statesman reported today that the complaint has been referred to the Ada County Sheriff for investigation.
Pat Rice, executive director of the Greater Boise Auditorium District, told both news outlets that he believed the district complied with the open meeting law. The complaint focuses on a series of emails in which Rice arranged for stadium developer Chris Schoen to meet, in turn, with two GBAD board members at a time in 2014, in order to avoid having the developer meet with a quorum of the board.
“Since I have 5 board members and a quorum requires a public meeting, I’d recommend an hour each in groups of 2+1,” Rice wrote to Schoen in September of 2014, in a message that was copied to the city redevelopment agency, known as the Capital City Development Corp.; the Boise mayor’s office; and others. In a follow-up message, Rice reiterated, “I can’t have more than two at a time otherwise it is a quorum.”
As the president of the Idaho Press Club and IDOG, Idahoans for Openness in Government, I was quoted in both articles, in part because IDOG leads open-government seminars with Idaho Attorney General Lawrence Wasden, and has since 2004, around the state, aimed at educating Idahoans about compliance with the Idaho Open Meeting Law and the Idaho Public Records Law. The emails immediately suggested to me that GBAD was trying to hold what’s sometimes called a “serial meeting” – a meeting where someone meets with small numbers of board members in turn, rather than a full quorum, in an attempt to avoid triggering the requirement under the law for an open public meeting. That, as we’ve detailed again and again at IDOG seminars, would violate the Open Meeting Law.
The point of the law is to ensure that the public’s business is done openly, and that the public can observe it.
As I told Statesman reporter Sven Berg, “There’s a reason that we have an open meetings law, and our government agencies shouldn’t be going to elaborate means to avoid it. They should just comply with it.”
Rice told the Statesman that he believed he was avoiding violating the law by scheduling the sub-quorum meetings, and said, “It was purely meet-and greet. There was no district business discussed.” But board members told the newspaper they recalled discussing stadium projects Schoen had worked on elsewhere and his interest in building a stadium for the minor-league Boise Hawks baseball team.
Under the Idaho Open Meeting Law, the key is whether a quorum of the governing body – whether all together at once, by serial contact, or even through a series of emails – deliberates on the public’s business. That’s when the Open Meeting Law applies.
The law says, “‘Deliberation’ means the receipt or exchange of information or opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature which do not specifically relate to a matter then pending before the public agency for decision.”
If GBAD wants to justify the two-by-two meetings as “informal or impromptu discussions of a general nature which do not specifically relate to a matter” before the agency, there are two problems: The developer apparently talked with board members about a project he was interested in later proposing to them; and the carefully arranged meetings were hardly “informal or impromptu discussions.”
Here’s an example that’s often used at our IDOG seminars: If all three members of a county commission go to lunch together and talk about their grandkids, they’re a quorum, but they’re not meeting. But if they talk about county business, they’re violating the open meeting law – unless they’ve provided notice and invited the public along to listen in on the luncheon discussion.
If members of a board send a series of emails and responses among themselves on a topic on which they’ll decide, and a quorum of the board is involved, that, too, could be a serial meeting and violate the open meeting law.
Bill Ilett, one of the citizens group’s leaders and former managing partner of the Idaho Stampede basketball team, told BoiseDev, “The documents show that City Hall and GBAD have been very devious in the way they have pushed the project forward, working with the out-of-town developer for the past two-plus years without public disclosure.”
Gary Michael, former longtime Albertson’s CEO and the group’s other leader, told BoiseDev his group had filed public records requests for thousands of documents from the city of Boise, GBAD, and the Capital City Redevelopment Corp. “As we searched through the documents provided in response to our public records requests, it was clear to us that the Idaho Open Meeting Law was ignored,” Michael said. “We want it investigated and, if the law was violated, we want it brought to light.”