Eye on Boise: Interactive skit displays what not to do under Idaho Open Meeting Law

A ripple of apprehensive laughter spread through the audience, as Nampa school trustee Allison Westfall, playing the role of a fictional city council member, read her line: “This isn’t on the agenda tonight, but since we’re all together, let’s straighten out this budget issue.” Her fellow “council members” leaned in close.

Westfall and her fellow actors, gathered at Nampa City Hall, were showing what NOT to do under the Idaho Open Meeting Law, as part of an open government seminar put on by Idaho Attorney General Lawrence Wasden and Idahoans for Openness in Government, or IDOG. In this case, it was “executive session drift” – when a public board goes into a closed-door executive session for a legitimate reason, but then “drifts” on to other topics. That violates the law.

In this interactive skit, one of numerous ones presented during the evening, the fictional Watertown City Council was in a closed session to discuss a pending lawsuit, but strayed off into discussions of the city budget, staffing and the city attorney’s salary.

Wasden, playing the role of a referee, threw a flag. “Holding on the government!” he called out. “I’m throwing a flag for holding – holding an illegal executive session!”

“The Open Meeting Law allows executive sessions, but strictly limits the circumstances under which an executive session is permissible and requires proper notice on the agenda,” Wasden explained to a full house of 80 local and state government officials, reporters, lawyers and interested citizens, once the laughter died down. “An executive session must remain focused on the topic of the specific exemption that was noticed and voted upon.”

The Nampa session on Thursday evening was the third held in the area in October by Wasden and IDOG; it was co-hosted by the Idaho Press and KTVB-TV. An earlier session in Boise, co-sponsored by Ada County, Boise State Public Radio, the Idaho Press and the Idaho Statesman, drew 114 people; another in McCall, co-sponsored by the Star-News, drew 73.

That means a total of more than 265 people across the region learned in depth about the requirements of the Idaho open meetings and public records laws, how important they are and how to comply.

Deputy Attorney General Brian Kane said it was executive session drift that got the Idaho Public Charter School Commission in trouble earlier this year. It also didn’t help that that board was holding a lengthy executive session stretching for two hours, he said. In order to stay on track and limited to the precise topics for which executive sessions are allowed, Kane said, they’re best kept short.

Other topics addressed included that texts are public records – because Idaho is a “content-based state,” that bases the definition of a public record on the record’s content. If it’s transacting public business, it doesn’t matter what form the record takes or on whose device it’s created or sent – it’s public.

Kane also covered the dangers of using the latest “disappearing” or self-destructing message apps for government business. That could potentially violate agency retention policies and create legal issues if litigation ensues, he said, in addition to creating public record and open meeting law issues.

While some people on public boards or commissions say they’d rather not air their “dirty laundry” in public, Kane said there’s no “dirty laundry” exemption under the Idaho Open Meeting Law. “The open meeting law is there because the public needs to see that discussion, they need to see that debate,” he said.

Full disclosure here: I’m the president of IDOG, which is a 501(c)(3) nonprofit coalition for openness in government. IDOG and Wasden have been holding these educational sessions around the state since 2004. They’re funded by grants; there’s more information at IDOG’s website, www.openidaho.org, including much of the material presented at the seminars.

Here are some of the comments session participants wrote in their evaluations:

• “Outstanding information – clarified many issues,” wrote a member of a local board.
• “Eye opening,” wrote a school trustee.
• “Presumption of openness,” wrote a reporter, citing that as the top lesson of the session.
• “I learned a great deal about open meetings laws, that will be helpful in understanding the work of committees I serve on,” wrote a participant.
• An editor wrote that he’d gained a “deeper, more detailed understanding of open meetings and records laws.”
• “Pertinent information, very helpful,” wrote an elected official.
• “The explanation of new provisions of the law was worth the time,” wrote a public records custodian.
• “I have been denied draft minutes … because they weren’t yet approved by the board members. Now I know that’s a violation,” wrote a citizen.
• Summing up what they learned, a government employee wrote, “Transparency leads to confidence in government.”
• Asked if they’d learned something they can put to use, a participant wrote: “Yes! Everything!”

IDOG open government seminars are on a three-year cycle to reach each region of the state. Next year, they’ll head to eastern Idaho, and the following year, North Idaho.