Archives for May 2007

Open meeting violation dispute began in 2005

From The Spokesman-Review

Betsy Z. Russell
Staff writer
May 26, 2007

BOISE – The Idaho Supreme Court on Friday scolded Ada County commissioners for their protracted litigation over an open meeting violation, but ruled partly in their favor and partly against them.

The ruling sets no precedent because the clause in question, defining when government boards can hold closed meetings to talk with their attorneys about lawsuits, was amended by the Legislature this year. The commissioners also failed to record in their minutes the motion to close the meeting, as specifically required in the open meeting law; they said they had a tape recording of that.

“The commissioners concede that the votes are not recorded in the handwritten notes from the meeting, and apparently concluded that litigating this issue was of more consequence than the expedient of transcribing the recording for a few dollars,” Chief Justice Gerald Schroeder wrote acidly in the ruling.

Since it began in 2005, the case has cost county residents thousands of dollars in legal fees.

The dispute centered around a closed-door meeting the three commissioners of the state’s most-populated county held in 2005 with a Boise city councilman to discuss city-county relations. The commissioners, Rick Yzaguirre, Judy Peavey-Derr and Fred Tilman, justified the closed meeting by citing the “litigation exception” to the Idaho Open Meeting Law, saying they were discussing issues about which there would probably be lawsuits.

The Idaho attorney general prosecuted the commissioners for violating the open meeting law and fined them $150 apiece, in part because they didn’t have their attorney present – which the attorney general said was necessary for the meeting to fall under the litigation exception. The violation regarding the minutes also was noted. The commissioners counter-sued, but an Ada County district court sided with the state and imposed the fines.

The commissioners then appealed to the Idaho Supreme Court.

The court found that the old law could have allowed a closed meeting on litigation without an attorney’s presence, but it was unclear whether the commissioners could be fined because a lower court would have to review evidence on whether they knew they were violating the law. It remanded the case back to district court for further proceedings on that question, though it ruled against the commissioners on the minutes issue.

“To the attorney general’s office, I think the most important element of this case was that there was a violation of the open meeting law, and the Supreme Court has affirmed that,” Bob Cooper, spokesman for Attorney General Lawrence Wasden, said Friday. “We have an obligation to enforce the law.”

Neither the commissioners nor their public information officer was available for comment Friday on the ruling.

While the appeal was pending, the Legislature this year overwhelmingly voted to amend the Open Meeting Law, changing the litigation exception to make it clear that closed government meetings to discuss a pending or imminent lawsuit involving the agency must include the agency’s lawyer.

The new law says closed meetings regarding litigation can be held only “to communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement.”

The previous law, which will be replaced by the new law on July 1, allowed a government board to hold a closed meeting “to consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation.”

Much of the debate in the case was about the grammar of that sentence, and how to weigh the “and,” “in” and “or.”

Justice Jim Jones dissented in part from the otherwise unanimous decision, writing that his analysis of the previous law showed it required the attorney’s presence.

“Although this case has been somewhat mooted by the Legislature’s 2007 amendment … it is worthwhile to make mention of the long-standing policy in Idaho of maintaining openness in government,” Jones wrote. “That requires narrow construction of any exception to the openness rule, including openness at meetings of government bodies.”

From The Spokesman-Review

Editorial from the Idaho Statesman

Unfortunately, not all of last week’s public records news was good.

On Thursday, District Judge Michael McLaughlin said the State Tax Commission does not have to release records justifying a tax break granted to Cabela’s.

Cabela’s does not have to collect sales taxes on its online and catalog sales to Idahoans. Cabela’s has said there is no connection between its retail stores and its Internet and catalog sales divisions — the “nexus,” according to the legalese, that would require the chain to collect taxes on all sales. The commission seconded Cabela’s reading of the law — but since the commission hasn’t released its records, we have no idea why.

Taxpayers deserve some answers.

In siding with Cabela’s, the tax commission is forgoing some sales tax collections. How come?

The state gave Cabela’s a considerable competitive edge in the online and catalog sales sectors — eight months before this trophy buck in the outdoor retail industry opened its first Idaho store. How come?

McLaughlin ruled against the Statesman, which has gone to court demanding the Tax Commission records. All Idahoans lost, though. We all deserve to see tax law interpreted in a transparent environment.

Whether they’re e-mails between county employees or correspondence between tax collectors and business leaders, public records ensure accountability. Public records protect your right to know — and more importantly, your right to understand how your government works.

But only when public records are made public.

Editorial from the Idaho Statesman

Editorial from the Idaho Statesman

To: Public Employees-All.
From: The Idaho Statesman editorial board.
Date: May 8, 2007.
Re: BTW …

… if you’re a public employee using a public e-mail account on taxpayer time, you have generated a public record.

Duh.

Believe it or not, the Idaho Supreme Court was actually asked to settle this. IMHO, the court probably had more serious legal issues to deal with, but what do you do?

Kootenai County commissioners went to the Supreme Court because they didn’t want to release more than 1,000 e-mails between Prosecutor Bill Douglas and Marina Kalani, who used to run a federally funded juvenile drug court in Kootenai County.

A newspaper, the Spokesman-Review in Spokane, Wash., wanted the e-mails so it can figure out what went wrong with the court’s drug program, which was shut down in 2005. The county argued the e-mails were private, and Kalani argued that they should be treated the same as personnel records. Douglas told the Spokesman-Review that the e-mails “constitute nothing more than innocent sarcasm, bantering and joking between myself and a subordinate.”

We’ll judge for ourselves. The court certainly did. “It is clear the e-mails contain information relating to the conduct and administration of the public’s business,” says Supreme Court Justice Roger Burdick. He was speaking on behalf of the Supreme Court, which ruled 5-0 Friday to release the e-mails.

FYI, the court got this absolutely right.

The five justices read the law. Especially this part: “There is a presumption that all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute.”

Take it from the court: There’s no exemption covering “innocent sarcasm, bantering and joking.”

The court gets it. Douglas doesn’t seem to. Here’s what he told the Spokesman-Review after the court ruling. “There is no privacy right in private e-mails between government employees, and I feel that is unfortunate.”

LOL.

When public employees use their public e-mail accounts to communicate, what exactly is private about that?

We hope the Supreme Court decision clarifies any conclusion. If you have questions, do not hesitate to e-mail. But be careful what you write. Taxpayers could be reading. It’s their right, you know … 😉

Editorial from the Idaho Statesman

But coordinator’s settlement exempt

From the Spokesman-Review

Bill Morlin
Staff writer

The Idaho Supreme Court ruled unanimously Friday that more than 1,000 e-mails exchanged between Kootenai County Prosecutor Bill Douglas and a woman administering a federally funded juvenile court drug program are public records, not exempt from disclosure.

“It is clear that the e-mails contain information relating to the conduct and administration of the public’s business,” Justice Roger Burdick wrote in the 11-page opinion, with the court’s four other justices concurring.

The ruling came 30 days after the state’s highest court, sitting in Coeur d’Alene, heard oral arguments whether the public should be able to see e-mails between Douglas and Marina Kalani as well as an insurance settlement agreement with Kalani, the former coordinator of the Juvenile Drug Court program.

The Idaho Counties Risk Management Program, representing Kootenai County, agreed to pay Kalani $69,146 to settle a defamation damage claim she filed against the county after resigning in March 2005.

Reporters with The Spokesman-Review sought access to the settlement agreement about the same time they filed public records requests for the e-mails exchanged between her and Douglas between February 2004 and February 2005.

Idaho District Court Judge John Stegner ruled in July 2005 that the e-mails were public records but the settlement agreement was exempt from disclosure. Friday’s Supreme Court ruling completely backed the lower court’s decision.

The Supreme Court ruled that Idaho law allows for the release only of settlement amounts and statistical data, holding that “any other information contained in the settlement agreement or records relating to Kalani’s claim are exempt from disclosure.”

“This decision is an important victory for open government in Idaho,” said attorney Tracy LeRoy, who argued the case for the newspaper.

“This is the first public records case in Idaho to address e-mails as public records, and the court recognized that e-mails between government officials and employees that are investigated by county officials are the public’s business,” LeRoy said.

“We are gratified that the court affirmed the public’s right to investigate through public records how the county and its officials conduct public business,” the newspaper attorney added.

The court’s ruling is expected to affect a similar pending lawsuit in which the newspaper is attempting to gain public access to e-mails of Rick Baughman, Kootenai County’s former chief deputy prosecutor, who is facing sexual harassment allegations by two female co-workers.

In that case, Stegner ruled last month that Baughman’s e-mails on his county computers also should be available for public inspection, but he declined to order their release until the Supreme Court ruling in the Douglas-Kalani case.

Although he didn’t join in the appeal to the Supreme Court, Douglas expressed displeasure with the ruling.

“The court has now given us a bright-line rule: There is no privacy right in private e-mails between government employees, and I feel that is unfortunate,” the prosecutor said Friday afternoon.

Douglas said the court’s ruling, “while accepted by me, will have a chilling effect on e-mail communication about matters employees wish to remain private but do not otherwise violate any law.”

The Supreme Court ruling said Idaho’s public records act gives every person the “right to examine and take a copy of any public record of this state” unless there is a specific exemption.

Kalani’s attorney, Greg Horne, argued the e-mails between his client and the prosecutor were confidential, personnel records and should be exempt from disclosure.

But the Supreme Court didn’t buy that, saying the “public has a legitimate interest in these communications between this elected official and the employee whom he hired and supervised.”

Asked to comment Friday, Horne said, “I really don’t have much to say. I’m disappointed. It’s not appropriate to say much more until I have a chance to talk with my client.”

The court noted that when the juvenile drug court’s financial problems and eventual demise were reported in the media, Douglas defended Kalani’s management to the Board of County Commissioners and the public.

“The e-mail’s content relates to the public’s business because the public’s business includes job performance by a county employee, the spending policies of a county program, the issues surrounding the program’s demise, other employment-related claims and the validity and circumstances surrounding (Kalani’s) claim,” the court’s ruling said.

Douglas said the ruling means a government employee “can no longer complain about a co-worker, adverse work conditions, a supervisor, or act as a whistle-blower without fear of reprisal or that the complaint will become the public’s domain.”

“There never has been a county or state policy prohibiting use of e-mail for private communication, but those policies now ring hollow in light of (this) decision,” he said.

The prosecutor said the e-mails “will be released in an orderly fashion as directed by the court.”

“Unfortunately,” he said, “these e-mails have been the subject of unfair speculation about their nature, (but) they contain nothing obscene or unlawful.

“They constitute nothing more than innocent sarcasm, bantering, and joking between myself and a subordinate, and the type of informal communications that occurs daily in every workplace in America,” Douglas said.

“Unfortunately, some will place unfair speculation on their intent, regardless of content,” he said. “They contain no distasteful attachments. I would only hope that these are reviewed in proper context, and I would be glad to answer any questions about any individual e-mail when they are released.”

From the Spokesman-Review

Newspaper plans to appeal decision; judge says state law clearly exempts tax information from disclosure

By Ken Dey

From the Idaho Statesman

A judge has denied the Idaho Statesman’s request for documents about the state’s decision to allow Cabela’s not to collect sales taxes from the outdoor retailer’s online and catalog customers in Idaho.

District Judge Michael McLaughlin in Boise sided with the Idaho Tax Commission, saying he couldn’t ignore the “plain and obvious” language of state law that exempts tax information from public disclosure.

“The policy reasons for this exemption are obvious,” McLaughlin said in his ruling Thursday. “Taxpayers want to know what their tax liability will be before they engage in an enterprise or action that would subject them to unknown tax consequences.”

The Statesman was disappointed and plans to appeal, Editor Vicki S. Gowler said.

“We aren’t interested in their private tax information,” Gowler said. “But when government decides who or what to tax, that process needs to be open.”

Before opening its Boise store, the Nebraska-based company requested a declaratory ruling from the tax commission to determine whether Idaho would require the company to collect taxes.

Idaho law says companies that have a substantial presence or “nexus” in the state must collect sales tax from their Idaho online and catalog customers. Cabela’s maintains that its retail operations and online operations are two separate companies, so the nexus provision doesn’t apply.

On Dec. 12, 2005, the tax commission issued a ruling granting Cabela’s the tax exemption.

McLaughlin said the declaratory ruling process required the company to disclose sensitive information to the commission. Opening such information to the public would make Cabela’s and other taxpayers “extremely reluctant” to participate in the process, he said.

Other states where Cabela’s has built stores have granted similar exemptions, but some states have fought the company.

From the Idaho Statesman