Archives for August 2011

From the Moscow-Pullman Daily News

By Brandon Macz

The University of Idaho sought a court’s opinion Monday on whether it can release employment records for former assistant professor Ernesto Bustamante, who killed a graduate student and then himself, last week.

Specifically, the UI regents filed a motion for declaratory relief in Latah County 2nd District Court.

The motion was made as a cooperative effort between the university and media outlets the Idaho Statesman and TPC Holdings, which publishes the Lewiston Tribune and Moscow-Pullman Daily News. These and several other media outlets have expressed an interest in employment records regarding Bustamante.

He once had a relationship with UI psychology graduate student Katy Benoit, 22, who was shot to death on the porch of her Lilly Street residence Aug. 22. He took his own life hours later in a room at the nearby University Inn-Best Western.

Idaho Code prevents the university from releasing certain personnel information for former employees — in this case grievances and complaints like the one Benoit filed against Bustamante in June — without the employee’s consent. The university, enlisting TPC Holdings and the Statesman as defendants in the matter, is seeking legal judgment to determine if the Idaho statute applies to employees who are dead and, therefore, cannot give consent.

“This is an unusual request, because it asks the court to resolve an issue before a complaint is ever filed,” said Kent Nelson, UI general counsel, in a statement released Monday. “It’s fitting in that we want to provide a timely accounting for the public within the bounds of the law.”

The university also filed Monday a motion for a speedy hearing to expedite a judge’s decision on the matter.

The issue was raised, according to the motion, when a Tribune reporter filed a public records request with the UI on Wednesday seeking “emails, correspondence and reports” involving UI officials and how they handled the June sexual harassment complaint filed by Benoit against Bustamante. The UI had until Monday to grant or deny the request, and until Sept. 8 to provide the requested information had they approved its release. The university has since asked media agencies to join in its motion for declaratory relief to provide as much disclosure as legally possible.

“It’s a cooperative effort,” said Nathan Alford, Tribune and Daily News publisher. “We’re pleased that the Daily News’ sister paper, the Tribune, provided a public records request that gives the university grounds to pursue this declaratory opinion. The university’s cooperation in clarifying our request for more information is appreciated. They could have waited until we filed a complaint against the university, but instead they chose to cooperate and seek a more timely and efficient opinion from the local court.”

After receiving an opinion from the U.S. Department of Education, the university on Friday released a timeline of its contact with Benoit following her June 12 written complaint. It states she met Bustamante while taking his Psychology 218 course in fall 2010, which developed into a sexual relationship over the course of the semester.

The relationship deteriorated in May following several incidents, Benoit told the UI, where she had been threatened by Bustamante with violence, and he “held a gun to her head and detailed the manner in which he would use it.”

University officials have yet to confirm if he resigned or was terminated effective Aug. 19 following Benoit’s complaint.

Alford said other daily newspapers are working with TPC Holdings and the Statesman with the expectation they might join in the legal action.

“The idea is to share that (court) cost among those with similar interest in obtaining more information for the public,” Alford said. “We’re hopeful there’s something to be learned by sharing more information with the public and the university community about this unimaginable event.”

Brandon Macz can be reached at (208) 882-5561, ext. 238, or by email to bmacz@dnews.com.

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(c)2011 the Moscow-Pullman Daily News (Moscow, Idaho)

Visit the Moscow-Pullman Daily News (Moscow, Idaho) at www.dnews.com

From the Moscow-Pullman Daily News

From the University of Idaho

Media Contact: Tania Thompson, University Communications-Moscow, (208) 310-9736, taniat@uidaho.edu; Ysabel Bilbao, University Communications-Boise (208) 989-8855, ybilbao@uidaho.edu

U-Idaho Files Action With Court Seeking Records Release Ruling

MOSCOW, Idaho — The University of Idaho filed an Action for Declaratory Relief with the Latah County District Court late this afternoon — as directed by President M. Duane Nellis last Friday — to seek a ruling on whether the personnel records for Ernesto Bustamante, who police believe shot Kathryn Benoit last week, can be released.

Today’s filing asks the court to interpret the meaning of the Idaho Public Records Law §9-340C(1), which bars public agencies from releasing most personnel records for current and former employees without the employee’s consent. The question to be resolved by the court is whether this law applies after the death of the former employee.

“This is an unusual request, because it asks the court to resolve an issue before a complaint is ever filed,” said Kent Nelson, university general counsel. “It’s fitting in that we want to provide a timely accounting for the public within the bounds of the law.”

The university has been in touch with several media agencies. Those that agreed to participate as defendants in this action include the Lewiston Publishing Company, which publishes both the Lewiston Morning Tribune and the Moscow-Pullman Daily News. The Idaho Statesman also has agreed to join. Others may join as well.

“We’re working with the media outlets to gain a timely answer to this question,” said Nelson.

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About the University of Idaho

The University of Idaho helps students to succeed and become leaders. Its land-grant mission furthers innovative scholarly and creative research to grow Idaho’s economy and serve a statewide community. From its main campus in Moscow, Idaho, to 70 research and academic locations statewide, U-Idaho emphasizes real-world application as part of its student experience. U-Idaho combines the strength of a large university with the intimacy of small learning communities. It is home to the Vandals, and competes in the Western Athletic Conference. Learn more: www.uidaho.edu.

From the University of Idaho

From the University of Idaho

MOSCOW, Idaho – University of Idaho President M. Duane Nellis today directed the university legal counsel to seek a ruling from the courts to allow the release of personnel information related to former professor Ernesto Bustamante. At the same time, Nellis has ordered an independent review of the institution’s policies and procedures in the aftermath of this week’s homicide-suicide in Moscow to ensure that the university maintains the highest safety and security standards. The university also today released a detailed chronology of its interaction with graduate student Katy Benoit.

“This tragic situation has brought a profound sadness to our entire community,” said Nellis. “And while incidents of violence like this are very rare in Moscow, even one tragedy is too many. We must continue to do everything we can to protect our students and our campus community; for that reason, I am asking for an independent review of the university’s policies and procedures to ensure that we are doing the very best job we possibly can.”

Nellis also has reaffirmed that the university is committed to full public disclosure of all related documents, as it gains authority to release them.

A review of the Family Educational Rights and Privacy Act has found that the confidentiality of student records does not extend beyond the life of a student.

However, Idaho’s public records law concerning employee records do seem to extend after death. To clarify how the public records statutes should be applied to this situation, the university will ask for a legal determination from the courts regarding what records it could release related to Bustamante.

Nellis and Bruce Pitman, dean of students, have spoken directly with the family of Katy Benoit, who was killed off campus Monday evening, to share their personal condolences and those of the university community. They have made university resources available to the family. Details of a Moscow campus memorial are still pending. A memorial service and funeral for Benoit will take place in Boise on Tuesday, Aug. 30, at 4 p.m., at Boise High School, 1010 W. Washington.

“Our hearts and prayers go out to the family of Katy Benoit,” said Nellis. “We understand their desire to have a full accounting of the circumstances that led to Katy’s death. I intend to do everything I can to answer their questions. A tragedy has occurred and we all want answers.”

The university will outline the independent review process in the coming days.

The university maintains its crime statistics online and last year, it ranked as the 36th safest campus in the nation.

The University of Idaho continues to cooperate fully with the Moscow Police Department. It is providing documents with possible relevance to the case to the police as part of MPD’s ongoing investigation of the case.

Here is a timeline for the university’s interactions with Katy Benoit. This does not include any information from the perspective of Bustamante’s personnel record.

• June 10, 2011: University’s first contact with Benoit to discuss a complaint. Based on allegations, the university urged Benoit take safety precautions and that she contact Moscow Police Department (MPD). University provided Benoit with personal contact information for MPD and Alternatives to Violence of the Palouse (ATVP) for assistance beyond those the university could provide. University also contacted Moscow Police Department directly.
• June 12, 2011: University received details of Benoit’s complaint in writing.
• June 13, 2011: Benoit sends e-mail indicating she had contacted MPD.
• June 13, 2011: University replied to Benoit again urging her to also contact ATVP.
• June 14, 2011: Benoit sends e-mail to university saying she does not want Bustamante served with her complaint at this time before discussing it further. She indicates she will come in the next day.
• June 16, 2011: When Benoit did not come in on June 15, the university sent an e-mail to her to encourage the follow-up meeting.
• June 30, 2011: University receives e-mail from Benoit apologizing for being out of touch. Benoit writes she had been out of town and would be gone again the next week.
• July 6, 2011: University informed Benoit by e-mail that her complaint had been sent to Bustamante along with a letter detailing the possible university policy violations. It had been held until this date at her request. The university reiterated the importance of seeking more help, including calling police if Benoit ever felt the need. She was also told that Bustamante had been directed by the university to have no contact with her. Benoit was told to inform the university immediately if Bustamante did attempt to contact her.
• July 9, 2011: Benoit e-mails university to say she is out of town until July 13.
• July 14, 2011: University Threat Assessment Team, including Moscow Police Department representative, meets to assess the level of the safety risk for Benoit and others involved in the investigation.
• July 14, 2011: University investigators met with Benoit to review Bustamante’s response and notify her that university investigators would interview Bustamante on July 19. This was considered a high-risk point so recommendation was made she stay somewhere other than her apartment to avoid contact.
• July 22, 2011: University called Benoit to ask where she would be until the start of school. She said she would be in Moscow. University encouraged her to continue to take safety precautions, including contacting MPD.
• August 22, 2011: University met with Benoit to inform her that Bustamante’s last day of employment was August 19. She was cautioned to remain vigilant and get assistance from the police and others if she had any safety concerns. University also encouraged Benoit to remain in contact with university representatives and to take advantage of university support services.

From the University of Idaho

From the Idaho Statesman

After the city of Boise canceled Clearview Cleaning Services’ $368,000 contract to clean city facilities, its owner filed a public records request to try to learn what happened.

The city refused to turn over some of the records, saying they pertained to a “law enforcement investigation.” So Clearview Cleaning Services owner Sylvia Hampel took the city to court to gain access to the records.

Judge Thomas Neville didn’t accept the city’s claim that the documents were exempt from public disclosure. On Aug. 19, he ordered city to pay most of the legal fees Hampel incurred taking to the city to court.

Neville said seven of 10 withheld documents “could not under any plausible reading be described as investigatory records of a law enforcement agency as claimed by the city.” The judge also found that “the city’s refusal to provide those seven documents was frivolously pursued.”

Since seven of the 10 documents were frivolously withheld, the court ordered the city to pay 70 percent of Hampel’s legal costs, or $4,137.22.

The legal victory did not give Hampel the answers she was seeking. She still does not know why the city canceled her contract just before it was to begin.

The released documents did reveal some details about the city’s decision to end Hampel’s contact.

According to one email, recently retired Boise Deputy Police Chief Jim Kerns called a Feb. 28 meeting with Boise Mayor Dave Bieter’s chief of staff, Jade Riley, and representatives from the city’s purchasing and legal departments to discuss the Police Department cleaning contract and “a security sensitive issue that must resolved before the close of business.”

Clearview Cleaning was to begin the next day cleaning City Hall, the libraries, the police station and other city facilities. After that meeting, the city sent Hampel an email canceling the contract for “purchasing irregularities.”

The city then piggybacked onto the state’s cleaning contract with ABM to also provide cleaning services to the city.

Hampel said she does not plan to pursue further legal action against the city. A city spokesman said the city does not plan an appeal.

Hampel’s company this week was awarded the contract to clean the Ada County Courthouse.

From the Idaho Statesman

From the Idaho Statesman

BY CYNTHIA SEWELL

Board member Judy Peavey-Derr has filed a complaint with the Ada County prosecutor’s office, alleging open meeting and ethics violations by fellow Greater Boise Auditorium District board members Mike Fitzgerald, Hy Kloc and Gail May.

Kloc, the board chairman, said the allegations are unfounded.

Two new members were elected in May to the board, which oversees the Boise Centre convention facilities, collects a 5 percent Boise-area hotel room tax and is looking at building a new Downtown convention center. The complaint is only the latest in a series of district standoffs, rumors and disagreements that have escalated since the election.

In her complaint, Peavey-Derr alleges that the three members — constituting a quorum of the five-member board — discussed proposals coming before the board. She said she based that complaint, in part, on the three having information about agenda items that she and member Stephanie Astorquia were not privy to.

In addition, she said the three members intentionally skirted state procurement laws that guide contracts of $25,000 or more in awarding a $24,500 contract to the Boise Convention and Visitors Bureau. She also said the board let the visitors bureau help draft GBAD’s request for marketing services in such a manner that the bureau would be the only entity qualified to provide these services, another violation of procurement law.

Kloc said he met with Fitzgerald and May outside formal meetings before he took office, but not since. Members do communicate one on one, which does not violate the open meetings law. And, he said, the board’s legal counsel vetted the BCVB contract before the board approved it, and the majority accepted that advice.

Other GBAD issues that have emerged in recent weeks:

Fitzgerald has an eastern Idaho job.

For the past two months, GBAD board member Mike Fitzgerald has been working in eastern Idaho as the general manager of Carino’s Italian Restaurant in Ammon. Of the past seven board meetings, Fitzgerald has attended two in person and the other five via telephone.

Kloc said he consulted with GBAD’s lawyer, who said that since Fitzgerald still has his residence in Boise, is registered to vote in Ada County and intends to return to Boise, he is considered a resident of the auditorium district. Kloc said he’s received a number of queries, but Fitzgerald will not be asked to step down.

The check to the BCVB is still not signed.

For more than a month, GBAD treasurer Astorquia has refused to sign a $24,500 check payable to the BCVB. She said she is not sure the transaction is legal because, in part, the amount intentionally skirts the state’s $25,000 procurement law. She has repeatedly asked Kloc and the board to have independent legal counsel review the contract; she said if it passes muster, she would sign the check.

The board has refused to support the request for additional legal review. On Aug. 17, the board voted 3-2 to give check-signing authority to the board chairman as well as the treasurer.

Chairman Kloc said once the bank paperwork is complete and BCVB documents it has completed the contract’s work, he’ll sign the check.

According to BCVB Director Bobbie Patterson, rumors that the money would be used to repay personal loans she has made to the visitors bureau are not true. Patterson — who once made more than $150,000 a year as BCVB director — and her staff have been working without pay since GBAD cut them off last year over legal and oversight concerns.

A new contract with the BCVB is still up in the air.

On Aug. 11, the GBAD board voted 4-1 to offer the visitors bureau a one-year, $288,128 marketing services contract. The contract includes a $208,728 commission on events and business the visitors bureau brought to the Boise Centre in 2010 and $79,400 in-kind office space and equipment the district would provide the bureau.

As of Friday, the auditorium district had not received a response from the bureau as to whether it would accept the contract.

The visitor’s bureau had requested an “annual fee not to exceed $650,000.” Patterson said BCVB and GBAD lawyers are still meeting to iron out details on determining an accurate commission formula and contract amount.

Cynthia Sewell: 377-6428

From the Idaho Statesman

From the Twin Falls Times-News

Investigating a situation as complicated as last month’s Hampton Inn shooting and hostage crisis takes time, and the details aren’t always open for immediate public inspection.

In the case of Clark Cleveland, the suspect charged with taking the life of Utah man Tracy Ivie, Twin Falls County Prosecutor Grant Loebs used the grand jury — a secret investigative body comprised of ordinary citizens but charged with great legal power — to levy 12 felony charges that could send Cleveland to jail for the rest of his life.

The grand jury also offers little transparency. An individual suspected of committing a crime isn’t informed that he or she is a target of investigation, nor is the suspect required to appear in court until indicted and either summonses or arrested. And often, since the defendant isn’t made aware of the hearing, only the prosecution presents evidence and witnesses to the grand jury. But jurors must consider all evidence provided, whether it helps or harms the prosecution’s case for charges.

The public isn’t included in the process either, sometimes giving the false appearance that the wheels of justice aren’t moving. Even after an indictment is filed, a transcript of the secret hearing is available to a defendant, but not the public.

Loebs defends the secrecy, saying it is needed for the protection of all parties.

“The police don’t telegraph to the public what cases they’re working on,” he said. If a suspect knows the grand jury is investigating, he or she may flee, threaten witnesses or destroy evidence. Secrecy also offers protection to the jurors of high-profile cases like the 2008 murder of Dale Miller in Twin Falls and the 2006 strangulation of Rosemarie Murphy. In both cases, suspects who eventually pleaded guilty to the murders were indicted by a grand jury.

On the flip side, the secret nature of the grand jury preserves an individual’s character if he or she is not accused of a crime at the end of the hearing.

“It protects people on both sides and the integrity of the case,” Loebs said.

Custody of the tightly held information of a grand jury hearing is also entrusted in the jurors, who face criminal penalties for sharing information from a hearing, even after its completion.

Steeped in secrecy, the process isn’t without criticism and controversy. Defense attorneys are generally not fans of the grand jury, particularly here, where the body was once disbanded.

The Times-News reported in 1992 that approximately 30 criminal indictments were struck down by a district judge after the county’s public defender, Mike Wood, and other defense attorneys challenged the cases and alleged misconduct in the office of former Prosecutor Ellen Baxter. The grand jury, which must be renewed by a district judge every six months, was discontinued for a few years. According to court records, Twin Falls County didn’t see a single case stem from a grand jury indictment in 1993 and 1994.

Soon after, newly-elected Prosecutor G. Richard Bevan petitioned the court for a new grand jury. Since then, the grand jury has handed down 214 indictments, as Loebs has continued its use since taking the top job in 1997.

Twin Falls County’s current public defender, Marilyn Paul, declined to share an opinion about the grand jury process on Friday.

Every case is different, so Loebs doesn’t have a set of prerequisites as to which cases should go before a grand jury and which cases should be filed as a complaint. Of the hundreds of felony cases filed in the county each year — 470 adult felony cases were filed in 2010 — Loebs said the bulk goes through the preliminary process.

“I can’t take every little grand theft or burglary to (the grand jury),” he said. “It would be too time consuming.”

So don’t be surprised if someday you get a summons for jury duty and wind up on the grand jury. Just keep your lips zipped.

Bradley Guire may be reached at 735-3380

From the Twin Falls Times-News