Officials upbraided for costly litigation

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

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