Executive sessions common practice for local government

From the Idaho Falls Post Register

By SVEN BERG and RACHEL COOK
sberg@postregister.com / rcook@postregister.com

It’s hard not to be suspicious of what goes on behind closed doors.

When governing bodies go into executive sessions, constituents naturally wonder why they are excluded.

Is some shadowy agenda afoot?

Are elected officials using closed-door sessions to conceal conspiracies to enrich themselves and their friends?

Or are they simply protecting individuals’ privacy and taxpayer interests?

In eastern Idaho, executive sessions — meetings or parts of meetings from which the public is excluded — are common practice for city councils, county commissions and school boards.

The Ammon City Council convenes executive sessions at almost every meeting. Idaho Falls School District 91 trustees did so at least 16 times and Bonneville Joint School District 93 board members met in private 13 times in the 2009-10 school year.

These closed sessions often lead the news media and general public to suspect impropriety. But the organizations’ attorneys and elected officials say they rarely, if ever, encounter violations of Idaho’s
Opening Meeting Law.

“Trustees have a responsibility to act in utmost good faith,” said Jerry Wixom, a District 91 board member for the past 22 years. “It’s been my experience that the trust that people place into us as
trustees is not violated.”

Idaho law allows public agencies — except for courts — to conduct executive sessions for a variety of reasons. The three most common are pending litigation, specific personnel issues and real property
negotiations.

In certain circumstances, the need for executive sessions is clear. When it comes to protecting a student’s privacy or maintaining the integrity of real estate negotiations, few would argue against the
wisdom of private discussions.

“If the board is thinking about buying a certain parcel of land or purchasing land, having that out in an open session could affect the price and the availability of that land,” said Scott Marotz, a local attorney who has advised some 20 school districts during the past two decades.

But many public bodies are too eager to shut their doors on the public, said Wayne Hoffman, a former journalist and executive director of the Freedom Foundation, a conservative think tank based in the
Treasure Valley. Some elected officials, Hoffman said, stretch state law permitting closed sessions, particularly those covering personnel matters and potential lawsuits.

“You can’t just go back into executive session to discuss whether you’re going to give raises to the employees,” he said. “You can’t just go into executive session to discuss whether an ordinance that
you’re about to pass is legal or not.”

To enter executive session, a member of the agency must make a motion that specifically references the subsections of Idaho law that authorize it. Once the public has been excluded, discussion is limited to the topic that warranted the closed session.

“You need to stick to the issue at hand. You don’t waver,” District 93 board chairman Craig Lords said. “I think that’s where you trust your elected officials.”

It’s not always easy for trustees, council members and commissioners to stay on topic.

“Frankly, it’s my job to make sure that that’s what happens,” said Scott Hall, Ammon’s city attorney. “If something (off-topic) comes up, then I say, ‘Well now, hold it. We’re fleeing the topic.'”

In order to avoid slip-ups, both Ammon and Idaho Falls hold training sessions to help new council members navigate executive sessions according to the state’s Open Meeting Law.

Though playing the executive session card is the rule for many governing bodies, it is the exception for the Idaho Falls City Council. City Attorney Dale Storer said this “is really a commitment to having open and transparent government.”

Instead of calling an executive session whenever authorized by law, Storer said, the city does so only when necessary.

“There are times when you could call an executive session,” he said, “but there’s no real need for it.”

Throughout his career, Hoffman said, he has occasionally caught governing bodies breaking the Open Meeting Law. But he said he suspects organizations are more likely to break the law than the public is to find out about it.

Bob Cooper, spokesman for Idaho Attorney General Lawrence Wasden, acknowledged that, lacking an inside witness, the public has no way of knowing whether their elected officials are adhering to the law when they meet behind closed doors.

Ultimately, he said, some level of trust is necessary.

“You kind of start with an analysis that people are going to do what the law requires them to do,” Cooper said. “You’re talking here about elected officials who were chosen by the voters, so the voters presumably have some confidence in their integrity.” Marotz agreed.

“People think that when a board goes into executive session they are trying to hide (something),” he said. “Unless you know for a fact that (they are violating open meeting laws), then you should trust them.”

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Open Meeting Law requirements

Idaho enacted the Open Meeting Law in 1974. It is designed to ensure meetings of public agencies — city councils, school boards, etc. — are kept public. Here are some of the law’s requirements:

In general, meetings at which deliberations are held or decisions are made must be open to the public.

No meeting can be held in a place that practices discrimination on the basis of race, creed, color, sex, age or national origin.

Notice of regular meetings must be given at least five days before the meeting.

Notice of special meetings must be given at least 24 hours prior to the meeting.

Public agencies must keep minutes of all meetings.

Executive sessions — meetings or parts of meetings at which the public is excluded — must be authorized by two-thirds of the agency’s members.

Executive sessions can only be held to discuss a limited range of topics.

No action or final decision can be made in executive session.

More information on Idaho’s Open Meeting Law is available at the website www2.state.id.us/ag/manuals/openmeeting.pdf.

From the Idaho Falls Post Register

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