Military Reserve Bike Park opponents request investigation into process

From the Idaho Press


BOISE — City Council is poised to approve a controversial mountain bike skills park in the Military Reserve, amid resistance to the project.

On Friday, Boise attorney Bruce Bistline delivered a letter on behalf of three groups to the Ada County Prosecutor’s Office requesting an investigation into both the process Boise City Council used to approve the project and an alleged open meetings law violation. According to Ada County spokeswoman Kate McGwire, the office has received the letter and is currently reviewing it.

Bistline is also challenging Idaho Attorney General Lawrence Wasden in the November election.

The proposed park has stirred up a lot of opposition, both from nearby residents who oppose the project itself and those who feel that the city was not transparent enough in the planning process for the multi-acre, $2 million park.

The park was initially proposed in January 2018 and will be fully paid for by the J.A. and Kathryn Albertson Foundation as a donation. Once complete, the park would revert to city management. The park was proposed by the foundation, but the project was kept secret from the public until the Boise City Council voted to approve it on the consent agenda at a March meeting to formally accept the donation and enter into the development agreement.

City officials said the foundation wished to remain anonymous until the the project was approved by council, which meant that it was rolled out to the public once it passed. An open house was held immediately after the announcement, where residents could provide input on the new dog park and restrooms that will be built in the neighboring flood basin as part of the project but not offer input about whether or not the park should be constructed.After two rounds of appeals, City Council voted last week to approve the permits necessary to build the park but required the Parks and Recreation Commission to hold a public hearing on the project on Nov. 15. However, this will only be about the master plan for the park itself and not whether the agreements to build it should be approved. Those agreements were unanimously authorized at Thursday’s Parks and Recreation Commission meeting and are on City Council’s consent agenda for Tuesday.

Bistline, who is representing Hailey-based nonprofit Wildlands Defense, Friends of Military Reserve and Colorado-based nonprofit Great Old Broads for Wilderness, said accepting a gift without allowing the public to weigh in is not appropriate.

“It’s like deciding you’re going on a trip, buying a ticket and then asking your family what they think about you going on a trip,” he said.

In his letter, Bistline cites city code outlining the duties of the Parks and Recreation Commission, which includes reviewing development and licensing agreements of projects over $1,500 as evidence that the process was handled improperly. Parks and Recreation Director Doug Holloway defended the process, saying although that is a duty of the commission, because the Albertson Foundation did not want the public to know about the donation until it was approved by council, going before the commission was not possible.

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This is not the first time the city has followed a similar process with accepting a donation. Several projects, including the rebuild of Rhodes Skatepark and Esther Simplot Park, were paid for with donations that were not publicized until council voted to approve them.

“From a (city) staff standpoint and from a foundation standpoint it appeared as though the bike skills park would have been a great gift from the city,” he said. “I don’t think anybody anticipated that the neighborhood would have the reaction that they had.”

Although council approved the hillside and floodplain development permits to construct the park last week, at the meeting, several council members voiced concerns about the current policy to allow donors to remain anonymous and not share projects until after they are approved. Holloway said that once his office receives guidance from council he will work on a new policy that will allow public input before project approval.

“In the future one of the options is we would say to the donor, ‘Before we accept the gift there is going to be some public process outside of your giving to gauge public reaction to the gift,’ depending on what that gift is,” he said.

Bistline also alleges that council broke Idaho open meetings law by discussing the project in a series of memos instead of talking about the project at a work session or council meeting and instead used memos to alert council of the project. Council President Lauren McLean confirmed in an email provided to the Idaho Press by Bistline that the project was originally planned for an executive session in January but was taken off because it did not meet the requirements for what could be discussed behind closed doors.

Opponents of the bike park have completed extensive public record requests to look at memos and other documents related to the project, but 248 of those were considered exempt because of attorney/client privilege, according to the packet included with Bistline’s letter.

“We believe from this record and the Council’s decision (last week) it is now reasonable to conclude the Council was engaging in a private deliberative process ‘via’ a stunningly large number of internally circulated ‘memos’ for the express purpose of concealing that deliberative process,” Bistline’s letter said.

City spokesman Mike Journee said council stands behind its actions thus far.

“I think that mayor and council, as they made clear Tuesday night, felt comfortable with the process and felt comfortable with their decision,” he said.

From the Idaho Press

Transparency – for a cost at University of Idaho

From the Moscow-Pullman Daily News

By Scott Jackson

The University of Idaho is likely to charge more for public records than Idaho’s other two major universities, based on a recent public records request filed by the Daily News.

A request sent to Boise State University, Idaho State University and the UI seeking the total number of records requests in 2017 and copies of requests that cost more than $25 would have cost an estimated $191.13 for UI’s Office of General Counsel to furnish.

ISU did not charge a single penny to fulfill the request.

BSU also provided the number of requests at no cost but was unable to say how many of those requests cost more than $25, as the university does not monitor how many requests incur a cost.

“We don’t actually track the amount that any request costs, and that’s because the vast majority of them, we don’t charge for,” said Kirsten Heninger, legal assistant with BSU’s Office of General Counsel.

While BSU received 118 public records requests in 2017, Heninger estimated only two or three were onerous enough to incur a fee. She said she doesn’t recall a request exceeding $100 in several years.

Despite the UI Office of General Counsel sending an initial estimate of $191.13 to begin gathering the records, UI Communication and Media Relations was able to provide the information for free after several days.

According to that information, the UI received 101 records requests in 2017, charging for 16 – 14 of which exceeded $100.

UI Director of Communications Jodi Walker said three requests received an estimate of more than $1,500. The Daily News was unable to obtain details on the requests, but one carried an estimate of $2,667.20.

ISU Associate General Counsel James Francel said his office received between 40 and 50 requests in 2017 and no more than three incurred a cost. He said only one – a request for more than nine months of emails between university higher-ups – exceeded $25. That request cost $50.

The UI has been known to charge for public records for several years, sometimes at seemingly excessive costs.

According to The Spokesman-Review, the UI sent an estimate of $89,717.80 for a request in 2015 seeking 10 years of emails, phone logs and other means of communication regarding a tenured professor. The request was later canceled.

Another requester that year was told it would cost an estimated $18,078.11 for public records regarding controversial murals at the university.

The Daily News was given a $1,080 estimate for records regarding thefts at the UI bookstore involving Vandal football players in 2015, and a request to the UI for records regarding cat euthanizations on campus cost $350.93 for the university to begin gathering the records in 2016.

According to Idaho public records law, public institutions can charge for materials and personnel hours that are needed to furnish requests after a certain amount. The law states that the first 100 pages and two hours of labor must be free, but it is permissible to charge a fee – in advance if necessary – if the cost of labor and materials is expected to exceed that amount.

The UI Office of General Counsel estimated the records request sent for this story would take eight hours to fill – five hours for the gathering of documents ($30.79 per hour) and three hours for redaction ($32.92 per hour). The two free hours allowed by the state reduced the estimated cost of the records by $61.58, reducing the estimate of the request from $252.71.

The Office of General Counsel declined to comment to explain why the office assesses higher fees for records than offices at other universities.

In response to the UI’s higher costs, Walker said she can’t speak to other school processes and couldn’t say why the university charged more and more often for public records.

Walker noted documents sometimes require time-consuming analysis and redaction to remove personal information, such as private student data protected under the Family Educational Rights and Privacy Act.

She said while the UI’s goal is to be as transparent as possible, transparency halts when it comes to private personnel data or protected student records.

“We are a state institution, and we have an obligation to share what we’re doing with not only the media but other stakeholders,” Walker said.

Heninger said as a public entity funded by tax dollars, much of BSU’s activity is arguably the business of the public.

While there are mechanisms built into the Idaho Public Records Act that allow for institutions to charge a reasonable fee for excessive requests, Heninger said there is no requirement to assess fees.

“We aren’t obligated to charge, it’s just that if there’s a huge request that it does take a lot of time and labor and is a big expense to the university, then we have the ability to recoup the cost for that,” Heninger said. “We’re not obligated to, and so I think, in the spirit of the law, we make every effort not to.”

Across the state line, Washington State University does not charge for public records, despite a law change in July 2017 allowing the university to do so. Stephanie Horn, of WSU’s Public Records Office, said the university plans to incorporate the new law once it determines a fair policy to charge for such records.

From the Moscow-Pullman Daily News

Editorial: Open meeting violation deserves a fine

Editorial from the Idaho Press

Although the kerfuffle over an open meetings violation at the Ada County Highway District commission has become political theater, we believe the Attorney General’s Office erred in not fining two commissioners who violated the state’s open meetings law.

As the Idaho Press has been reporting, ACHD commissioner Jim Hansen wrote an email to fellow commissioners Paul Woods and Kent Goldthorpe, laying out his conditions for publicly supporting an increase in vehicle registration fees. Goldthorpe then forwarded that email to his own personal email account and then from that account to the personal email accounts of other commission members.

The matter made its way to the Attorney General’s Office, which issued a ruling that Hansen and Goldthorpe had violated open meetings law but there was no need to “cure” the situation, other than to acknowledge the infraction at a future meeting.

The Attorney General’s Office also said Hansen and Goldthorpe did not have to pay a fine, which is laid out in the state’s open meetings law.

According to Idaho 74-208 (2) and (3), “Any member of the governing body governed by the provisions of this chapter, who conducts or participates in a meeting which violates the provisions of this act shall be subject to a civil penalty not to exceed two hundred fifty dollars ($250).

“Any member of a governing body who knowingly violates the provisions of this chapter shall be subject to a civil penalty not to exceed one thousand five hundred dollars ($1,500).”

One could argue whether Hansen and Goldthorpe knowingly violated the law.

Commission chairwoman Sara Baker said Hansen, a lawyer and former state legislator, should know better. In a strongly worded letter back to the Attorney General, she wrote that Hansen should be punished to “the fullest extent of the law.”

It’s clear that Baker has turned this into a political fracas, as evidenced by her position that Goldthorpe didn’t violate the open meetings law while seeking to hold Hansen culpable.

While we disagree with the way Baker has handled the situation, we do agree that when public officials violate the open meetings law, they should be fined.

Looking the other way sends a clear message to other public officials that it’s OK not only to skirt the law here and there, but even if you get caught, nothing’s really going to happen to you.

Instead, the Attorney General’s Office, of all places, should be sending the message that if you violate the open meetings law, you’re going to have to pay the price.

It seems odd to us that the Attorney General’s Office spends so much time holding three-hour sessions on open meetings and public records laws in coordination with Idahoans for Openness in Government all over the state every year trying to explain these laws to public officials only to dismiss a violation so cavalierly without any consequences for the violators.

We suspect the shenanigans that were going on with Hansen and Goldthorpe go on far too often among the various city councils, commissions and school boards across the state. It’s easy to go undetected because of the very secretive nature of the communications. So, for many of these council members and school board members, it’s easy to get away with it.

Fining Hansen and Goldthorpe was a missed opportunity to send a message to other elected officials that there are consequences for violating the open meetings law.

Of course, we recognize the argument of ignorance. We’re certain some of these kinds of violations happen simply because council members or school board members, many of whom are just volunteers or are paid a small amount to serve, don’t know any better. But ignorance isn’t a defense. Try telling a State Police officer that you were going 50 in a 35 mph zone because you didn’t know what the speed limit was. “Oh, I see,” says the officer. “Well, in that case, best be on your merry way.”

It would have been much better for the Attorney General’s Office to issue a $250 fine to Jim Hansen and a $250 fine to Kent Goldthorpe and use that money to start a special training fund within the Attorney General’s Office for increased training sessions for public officials on the ins and outs of Idaho’s open meetings and public records laws. They already have the blueprint for these sessions with IDOG; they just need to do more of them. Cities, counties and school districts should make these training sessions mandatory for all of their elected officials and staff members.

The law is the law, and those who violate the law should pay the price.

Editorial from the Idaho Press

Amid open meeting questions, Nampa agency looks to acquire undisclosed public land

From the Idaho Press

NAMPA — The Nampa Development Corporation, the urban renewal agency, wants to acquire a piece of publicly owned land, but some board members don’t want to share what that land is yet.

The board planned to discuss the property in an executive session at its latest meeting Wednesday, but a typo in the agenda led to discussion and action on the topic being postponed to a special meeting.

The agenda item called for an “Executive session to adjourn into executive session pursuant to Idaho Code 74-206-1(C) to acquire an interest in real property which is not owned by a public agency.”

But the board could not discuss the property in an executive session because the property is owned by a public agency, contrary to what was stated on the agenda. The Nampa Development Corporation cited the incorrect code in their agenda and did not have grounds to hold an executive session to discuss the property, according to the agency’s attorney Bill Nichols.

Nichols said the board could amend the agenda by citing “good faith reasoning,” but no final action could be taken on the matter unless there was an emergency. Agencies cannot make any final decisions during an executive session according to state law, but the board’s agenda called for a possible action based on their discussion following their executive session.

Furthermore, Nichols said the board could only hold an executive session to discuss publicly owned land by citing Idaho Code 74-206-1(D) to consider records that are exempt from disclosure, in the event that the board had a confidential memorandum of some kind. The board did not have a confidential memorandum. Ultimately, Nichols advised the board to not take action on the subject at that meeting.

Commissioner Darl Bruner said he was in favor of discussing the property acquisition in open session. Nichols said board members could discuss the property acquisition publicly but still advised them not to take final action on the subject.

“I am totally, 100 percent in favor of full public disclosure,” Bruner said.

But Chairman Randy Haverfield said discussing the property in public would create problems with acquiring it, particularly between the trust of both parties. He said the executive session was merely meant to help officials get a better understanding on what was going on.

Unlike Bruner, Haverfield and Commissioner David Bills, the other remaining commissioner at the meeting, Grant Miller, did not know what the piece of property in question was. Haverfield said he and Bruner knew about it because the acquisition was discussed during an executive session during a Nampa City Council meeting on Monday, where he and Bruner both serve as council members. Bills was also involved in the executive session, Haverfield said. Bills is a former Nampa City Council member who works in real estate.

Bills pointed out that City Council members cited the same incorrect code Monday to hold their executive session. This means that City Council’s executive session may have violated Idaho open meetings law. Maren Ericson, the city attorney present at Monday’s City Council meeting, could not be reached for comment after several phone calls.

Bills requested a five-minute break in the middle of the urban renewal discussion to “think through” the situation, which was granted. Bills said he needed the break to consider whether waiting a month until the board’s next meeting was worth keeping the property off the public record.

During the break, Bills, Haverfield, Nichols and Samuel Mangeac, who was present at the meeting and works as the director of the Good News Community Church food pantry, all left the room. Nampa Finance Director Vikki Chandler also showed up to the meeting to speak with Bills away from his microphone.

Mangeac confirmed that he was involved in the property acquisition and said the matter did not have anything to do with the church or the food pantry, but did not provide further information. Mangeac is the brother of urban renewal board commissioner Claudia Dina, although Dina was not present at the meeting.

After the break, Bills made a motion to discuss the acquisition in open session, which passed with a 3-1 vote. Haverfield was the sole dissenting vote.

“Tread lightly on the egg shells you’re about to throw on the floor,” Haverfield said to Bills.

But the discussion never took place. Before the board revealed what the property was, Bills said he wanted the board to take action at that meeting, but Nichols continued to advise the board against that. Several commissioners said they did not want to wait another 30 days to take action, so they decided to schedule a special meeting to discuss the subject.

Commissioners hoped the special meeting could be held in the next week or two, but a specific date has not been set yet. It was unclear whether the acquisition would be discussed in open or executive session.


From the Idaho Press

Can Idaho news media face lawsuits for reporting the truth?

From the Idaho Press


At the heart of the case attorneys argued Friday before the Idaho Supreme Court is the question of when and why news organizations can face lawsuits for factual reporting, as well as who can file that lawsuit.

The suit involves former Idaho teacher James Verity, who sued news outlets last year for reporting on a sexual relationship he had with a student and the subsequent fallout, even though the teacher did not claim the reporting was inaccurate or ask for a correction.

Attorneys launched into arguments Friday about Idaho’s defamation law, and whether news organizations can libel individuals through the mere implications of a news story. Verity declined through his lawyer to speak with the Idaho Press. His case lists USA Today and Boise’s KTVB as defendants in connection with a Pulitzer Prize finalist story the organizations published, but the lawsuit didn’t begin with a high profile case filing in Idaho — in fact, it stems from events that took place about 13 years ago in another state

“Conduct in Oregon”

It began in 2005 in Prineville, Oregon, when Verity — then a middle school teacher and high school basketball coach — had an “inappropriate physical relationship involving sexual contact” with an 18-year-old student-athlete, a relationship Verity has since admitted to, according to documents filed by attorneys.

That relationship included more than 2,600 text messages and more than 500 hours’ worth of phone calls, as well as “inappropriate physical contact.”

In June 2005, school authorities relieved Verity of his coaching duties, and he resigned from his teaching position two days later; as a result of that resignation, the school district provided him a letter of reference “that did not include any details of Mr. Verity’s inappropriate relationship,” according to briefs filed by attorneys.

Verity tried to regain his teaching license in Oregon, according to court documents.

As part of the process to reapply for his license, he met with a psychologist who wrote he “should not be alone with any female student over the age of 12,” according to court documents. According to documents filed by Verity’s attorney, however, another psychologist found there was “no significant reason to believe that Verity is a risk to ‘cross the line’ with a student of any age.”

At the same time, he also applied for a license in his wife’s native Idaho, according to court documents. He was initially denied in both states, then appealed in both states, according to a brief filed by his attorney. He eventually chose to focus on Idaho, and thus didn’t attend a hearing for his Oregon license “causing a default order to be entered denying reinstatement in Oregon.”

Verity later applied for a teaching license in Idaho, but the state denied him one in September 2008, based on his “conduct in Oregon.”

Yet, after his attorney submitted “supplemental materials” to the Idaho Professional Standards Commission of the Department of Education, and a day of deliberations, the board ruled he would be granted a teaching license. He and his family moved to Idaho — where he’d attended college with his wife — in June 2009. By mid-July 2009, according to court documents, he had not received a license, so his attorney wrote a letter to the Idaho Attorney General’s Office. In that letter, his attorney wrote the state would only issue a license to Verity if he agreed to tell his new employers he’d had his license revoked in Oregon.

“The obvious intent of such a condition is to effectively render Mr. Verity’s license useless. … This condition serves no purpose except to make it extremely difficult for Mr. Verity to get a job,” his attorney wrote.

After that, Idaho’s Chief Certification Officer Christina Linder did issue Verity a teaching license, although, she later wrote, she did so “against my will.”

Caldwell and Nampa

Verity started applying to Idaho schools after that, and “although Mr. Verity disclosed the circumstances surrounding his license revocation in Oregon to Idaho state licensing officials, he did not provide the same information in his application materials to local schools.”

According to Deb Kristensen, one of the attorneys defending the media organizations, Verity did not dispute that fact — or any other — during his deposition by attorneys during the subsequent lawsuit.

Briefs filed recently by Verity’s attorney, though, paint a slightly different picture, because they read, “Just as he had done with his application for teaching credentials in the state of Idaho, Verity fully disclosed his Oregon revocation and the circumstances that led to such revocation” to the Caldwell School District, where he applied. Those briefs also state Randy Schrader, then assistant superintendent of the Caldwell School District, spoke with Melanie Hensman, a member of the board that awarded Verity his Idaho teaching license. Hensman told the assistant superintendent, according to the briefs, that “she would be comfortable with her own daughter being in Verity’s classroom.”

Still, as Jodie Mills, then superintendent of the Caldwell School District would later tell reporters in 2015-16, when her school district hired Verity to work at Caldwell High School beginning in fall 2010, authorities knew nothing about his history in Oregon. He worked as a physical science teacher there and coached boys’ basketball, according to court documents.

But in February 2013, district officials placed him on leave after receiving reports he’d “made inappropriate contact with female students in his classroom,” according to briefs filed by attorneys.

Also according to court briefs, that contact included “tickling, slapping girls on the butt, and comments made about punching and hitting when students need to go to the restroom.”

Students would also later confirm Verity hit them on the “behind, back of the legs, arms and/or head with a ruler during class time.”

As a result, officials delivered a formal letter of reprimand to Verity in February 2013.

Verity left his position in Caldwell and accepted another at Nampa’s Sage Valley Middle School in 2014. In November of that year, he also began coaching basketball at Eagle High School.

USA Today’s investigation

In late 2014, as Verity settled into his new position as an Eagle High School basketball coach, Stephen Reilly, an investigative reporter and data analyst for USA Today, took an interest in media reports of teacher misconduct across the country.

Reilly and his editors “wanted to do a national analysis of teacher misconduct to identify any issues in the systems that are meant to protect students from teacher misconduct.”

Thus, in 2015 Reilly began the lengthy process of submitting records requests across the country, looking for information about teacher misconduct. His piece — later nominated for a Pulitzer Prize — ultimately included data from school districts nationwide. Within that data was information about Verity, and his revoked Oregon teaching license.

According to court documents, Reilly spoke with Idaho school district employees about Verity. It was only because of his investigation that Mills, the Caldwell superintendent, learned about Verity’s past, she told Reilly over the phone. Had district officials known about the Oregon incident, she told the reporter, “it would ‘absolutely’ have been a concern.”

In February 2016, Reilly tried to reach Verity by email and phone, eventually speaking with the teacher by his classroom phone. The conversation was brief, according to court documents.

That was about the same time KTVB reporter Tami Tremblay began working on the story as well; she spoke with Mills and tried to reach Verity, much as Reilly did.

Ultimately, when the USA Today story appeared in print on Feb. 15, 2016, it included no information about Verity. But USA Today distributed the data from Reilly’s investigation to its partner news outlets in other states, and that included KGW-TV in Portland, Oregon. On the same day as the USA Today story, a story appeared on KGW-TV’s website containing information about Verity.

“The article indicates Verity lost his Oregon teaching license and then obtained a license in Idaho ‘simply by crossing state lines,’” according to recent briefs filed by Verity’s attorney. “The article further states that, in obtaining his license in Idaho, Verity ‘slipped through the cracks.’”

Reilly kept reporting on the topic, and since USA Today had partnered with KTVB, the broadcast group did as well.

“All the defendants were working collaboratively and jointly on the story about Verity,” according to a brief filed by Verity’s attorney.

Still, according to court briefs, Verity confirmed all of the details reported by KGW-TV and USA Today, “but he took issue with the fact that ‘more information’ could have been provided in some cases.”

Public reaction to the KGW story on Feb. 15 was immediate, according to court documents — people “inundated” the Vallivue School District with calls laying out their concerns about Verity teaching and coaching in the district.

When Reilly spoke with the principal of Sage Valley Middle School later that month, he said he “did not become aware of documents regarding the revocation of Mr. Verity’s teaching license during the hiring process.”

Days after Reilly’s piece appeared in USA Today, Verity resigned from his job at the middle school. USA Today reported his resignation.

The lawsuit

Less than a month after that, on March 28, 2016, Verity and his wife, Sarahna Verity, filed a complaint in Ada County’s 4th District Court of Idaho against USA Today, KTVB, KGW-TV Reilly and Tremblay.

The Veritys alleged defamation, invasion of privacy, and negligent and intentional infliction of emotional distress. Verity did not, however, claim the piece was inaccurate, nor did he ask the news organizations to retract it, according to court documents. Kristensen said during deposition, Verity confirmed the details in Reilly’s reporting.

Still, in briefs filed before the Idaho Supreme Court date, Verity’s attorney wrote there were “factual and implied falsehoods” in the stories. Among them were the claims the Caldwell School District was unaware of his conduct in Oregon, and the claim he’d been denied a teaching license in Idaho. A third error, according to briefs from both sides, had to do with a claim in a KTVB story that Verity was not included in a national database of teachers who had been disciplined for misconduct — when in fact he was. According to court documents, KTVB quickly corrected the error when it became known.

During deposition though, Verity confirmed the details in the reporting, Kristensen said. Verity’s attorney didn’t make mention of the falsehoods until recent documents.

The fact that Verity didn’t dispute the claims in the stories made the case unusual, because, as Kristensen pointed out Friday, “truth is an absolute defense.”

“You cannot have a defamation lawsuit if you have truth,” she said.

Kristensen and her team asked 4th Judicial District Court Judge Melissa Moody for a “summary judgment” — in effect, asking her to rule on the case without it going to trial, because they felt, since the reporting was accurate, the defamation claim was moot.

Yet an October ruling from Moody seemed to fly in the face of that axiom. Moody wrote if Verity could prove the reporting “though literally true, could create false inference” and if he could prove the reporters were “negligent in publishing a false statement,” Verity might have a case for “defamation by implication” — meaning the implications, not the facts, of the USA Today piece had damaged his reputation.

That decision could be far-reaching, Kristensen said Friday, even for journalists who report the truth.

“If someone could infer you meant to say something else, and that something else was defamatory, they could sue you,” she said.

That ruling seemed inaccurate to Kristensen, which was why she asked for a “permissive appeal” from the Idaho Supreme Court. The Supreme Court usually only hears cases after they have reached some sort of a conclusion in district court. They made an exception in the Verity case, Kristensen said Friday. To her, it seemed to indicate the justices were interested in the issues at stake.

Defamation by implication?

In court documents and in person Friday, Kristensen pointed out Idaho doesn’t have much history with recognizing “defamation by implication.” The issue arose in a 1990 court case, also involving a news story, but has been largely absent from Idaho case law since then.

She added she didn’t think the Idaho Supreme Court needed to adopt any new torts related to defamation by implication either.

“There is no need based on the facts of this case to go there — to adopt a claim many courts have called a slippery slope,” she said. “It’s bringing an action based on what was not said.”

In addition to that, she pointed out, the Idaho Supreme Court has always held that even if a news outlet makes a slight error in reporting, they are protected from lawsuit if the spirit of their reporting accurately represents what happened.

“No one I represent … seeks to do anything but get at the truth, particularly in matters of public concern,” Kristensen told the justices.

Ron Shepherd, Verity’s attorney, saw the case differently. For him, it was about Verity’s right to protect his reputation. He pointed out Verity effectively lost his job after the USA Today piece came out, and said Verity was no longer able to coach his children’s sports teams.

“If this is not a defamation case, I don’t know what is,” Shepherd said Friday. “(Kristensen) never mentioned once the importance of protecting one’s independent right to protect one’s reputation.”

Verity, Shepherd said, “fell prey to one Washington, D.C. journalist’s quest to receive the Pulitzer Prize.”

“(Reilly) learned Verity did not fit the gist of his storyline,” Shepherd told the justices. “This was learned late in the investigation.”

The USA Today story implies, Shepherd said, that Verity “fled Oregon” and “went beneath the radar,” to Idaho. That wasn’t the case, Shepherd pointed out — Verity tried first to get another teaching license in Oregon, then, when he applied for one in Idaho, he told Idaho officials about his past relationship with a student. Reilly’s story did not reflect that, Shepherd said.

“It makes it sound like he slid under the radar screen and now he’s back in the classroom,” Shepherd said.

Additionally, Shepherd claimed, the story seems to imply Verity is a danger to female students.

“This article suggests he is a predator,” Shepherd said. “I think that’s a fair statement.”

He pointed out while Idaho courts haven’t, in the past, referred to certain cases as “defamation by implication,” the precedent still exists, although it goes by other names.

“This is an egregious case of defamation,” he said.

Are public school teachers public figures?

Shepherd also argued Verity is a private individual, and not a public figure. The distinction is important, because private individuals have more leeway to sue a news organization for defamation than public figures do. Public figures must prove a news organization acted with “actual malice,” meaning reporters either knew their words were false or displayed “reckless disregard for the truth.” Private individuals receive more protection.

“Individuals that aren’t public officials are unique and vulnerable … and so based on that, private individuals are treated differently,” Shepherd told the justices. “I certainly disagree Mr. Verity, or any public school teacher, is a public official just by virtue of being a public school teacher.”

He pointed out private individuals can’t protect themselves from defamation in the media the same way public officials can, and while he lauded the media, he told justices reporting is a means to an end to protect private individuals, not prey on them.

“The media is extremely important … but the reality is the media is really a means to an ultimate end, which is to protect individuals from oppression,” Shepherd said. “Without those individuals, the media is pointless.”

Justices also probed the issue, asking Kristensen if a person becomes a public official anytime they appear in a news report. Kristensen replied that since a public school teacher is a government employee, when a story is written about how a teacher conducts themselves on the job, they become a public official, and thus have less room to claim defamation against a news organization.

“Anytime a teacher has an inappropriate sexual relationship with a student, that would elevate a teacher to public figure status,” Kristensen responded to the justices.

She wasn’t alone in this opinion, she pointed out — the late U.S. Supreme Court Justice William J. Brennan, Jr. had penned a dissenting opinion making a “vehement case” teachers were, in fact, public officials.

“There is plenty of precedent for this court to come to the same conclusion,” she said. “People have looked at that, and found that reasoning to be sound.”

“You’re going to have to meet a hard burden”

Shepherd, after the hourlong hearing, said he and Verity hope the justices rule he is not a public official, and also rule there is precedent for him to sue for defamation by implication. The justices are, in effect, he said, asked to decide what defamation by implication looks like in Idaho.

He said “nothing too surprising” happened Friday morning. He indicated Verity did not want to speak with the Idaho Press.

The case, Kristensen said, is bigger than just one instance of a person claiming defamation against news outlets. It strikes at the core of what news outlets do every day, and whether reporters can stand on the truth they report. She pointed out the justices agreed to hear the case, even though it had an unusual path to the Idaho Supreme Court. That would seem to indicate they were interested in the issue.

“If you’re going to hold someone responsible for something they didn’t say, you’re going to have to meet a hard burden,” she told the justices. “That’s what free speech is all about.”

From the Idaho Press

Judge rules source of lethal injection drug can stay secret for now

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — An Idaho judge has modified a previous decision, and now says state prison officials can hold off on identifying where they obtain the drugs used in executions until a trial is held on the matter.

Fourth District Judge Lynn Norton ruled in May that the state had to turn over nearly all of its execution records, including those identifying the source of the execution drugs, to a University of Idaho professor who sued for access to the documents under the Idaho Public Records Act.

But on Monday, Norton modified her decision, saying the state could redact any information that would identify the source of the lethal drugs for now. A trial will be held in the future to decide whether those redactions are allowable under the public records law.

State prison officials have argued that releasing the name of the drug supplier would subject that entity to such intense public pressure that the state would be unable to obtain the drugs in the future.

The way states find, obtain, pay for and store lethal injection drugs has been a key issue in court cases across the country.

Many state prison officials try to keep such records secret, in part over fears that suppliers will dry up.

Drug companies Alvogen, Hikma Pharmaceuticals USA and Sandoz Inc. have accused Nevada officials in a lawsuit of improperly obtaining their drugs for a use the companies don’t allow — lethal injection — and deceiving the public in the process. Nevada officials had tried to keep the drug companies identities’ secret, but a court order in an American Civil Liberties Union lawsuit in July forced the state to reveal the company names.

Fifteen states, including Idaho, have sided with Nevada in the state court fight against the drug companies.

Pharmaceutical company Pfizer announced in 2016 that it would not provide lethal injection drugs to states, and last year the company asked states to return any previously obtained lethal injection drugs.

With most traditional suppliers gone, some states have turned to compounding pharmacies or foreign countries to purchase the drugs.

University of Idaho Professor Aliza Cover filed a public records request with the Idaho Department of Correction last year seeking purchase orders, receipts, source paperwork and other documents on the drugs the state used in its two most recent executions, along with any documents on the drugs it expects to use in future executions. But the department refused, contending the information was exempt under the public records law.

The state has only executed three people in the last 25 years: Keith Wells in 1994, Paul Ezra Rhodes in 2011 and Richard Leavitt in 2012. Currently nine inmates are awaiting execution.

Idaho Department of Correction spokesman Jeff Ray said the department does not have a comment at this time.

Cover’s attorney, Ritchie Eppink with the American Civil Liberties Union of Idaho, says the new ruling was for technical procedural reasons.

“Secrecy around lethal injection gravely harms democracy and the public interest,” Eppink wrote in an email. “We intend to show that, once again, during the upcoming trial.”

The trial date has not yet been set.

From the Associated Press

Idaho Attorney General rules two ACHD commissioners violated open meeting law through ‘serial meeting’

From the Idaho Press

By Xavier Ward

Following an exchange of emails between Ada County Highway District commissioners, the Idaho Attorney General has ruled that ACHD commissioners Jim Hansen and Kent Goldthorpe violated the open meeting laws by creating a “serial meeting” through the email exchange.

The commission had turned Hansen’s emails over to the prosecutor after Hansen sent an email to commissioners Paul Woods and Kent Goldthorpe regarding his conditions for publicly supporting the November ballot measure to raise registration fees. The Attorney General’s Office also determined that Goldthorpe’s conduct was also a violation of open meetings laws.

After receiving Hansen’s email, Goldthorpe forwarded the email to a personal email address, then forwarded the message to personal email accounts of commissioners Paul Woods, Rebecca Arnold and Commission President Sara Baker, according to a letter sent to ACHD director Bruce Wong from the Attorney General’s Office.

Goldthorpe did not supply the Attorney General with a reason he used a personal account for ACHD business, or why he forwarded the email to other commissioners’ non-ACHD emails. The letter “strongly cautions against” using personal email addresses for ACHD business in the future.

Goldthorpe did not respond to a request for comment prior to deadline.

“I have always been a strong advocate for open meetings,” Hansen wrote in response to the findings. “I always intend and expect to have the issues that the people I represent care about fully aired in open public processes. The AG’s interpretation is very helpful. Better policies happen when the public is invited to fully engage.”

Hansen’s conduct was first criticized in a staff report that was later handed over to the Ada County Prosecuting Attorney’s Office. The prosecutor then passed the matter to the Attorney General’s Office.

The staff report alleged that Hansen emailing multiple commissioners separately constituted a “serial meeting,” meaning a quorum had been established as three commissioners were involved.

Hansen said at the time he did not believe the emails to be a violation because no decision was reached.

The staff report points out that Idaho law states any meeting of elected officials “is public business and shall not be conducted in secret.”

Hansen also said at the time that he considered the registration fee matter closed, as the commission had voted to add the measure to the ballot July 11.

However, the commission still needed to verify the ballot language, so the issue was not technically closed, the staff report alleged.

The measure seeks to raise Ada County’s maximum vehicle registration fee from $40 to $70.

Motorists registering a vehicle in Ada County pay the county fee at the same time as the state fee. With the proposed increase, registration costs for Ada County vehicles would be $139 for vehicles 1-2 years old. Vehicles 3-6 years old would cost $120, and any vehicle 7 years or older would have a registration fee of $87.

Because no action has been taken on registration fees since the emails were sent in early August, the commission must simply acknowledge the violation occurred during a meeting prior to Sept. 14 to cure the open meetings violation.

The AG did not recommend that Hansen or Goldthorpe pay a fine for the open meetings infraction.

Xavier Ward covers Ada County for The Idaho Press. You can follow him on Twitter at @XavierAWard.

From the Idaho Press

Embattled school board under investigation for claims it broke open meeting law

From the Idaho Statesman


The Gem County Sheriff’s Office is investigating possible Idaho Open Meeting Law violations by the New Plymouth School Board, according to Gem County Prosecutor Erick Thomson.

Several employees and school district patrons are concerned that the school board and its superintendent, Kevin Barker, did not follow law when selecting its current law firm, Anderson, Julian and Hull, said Carrie Aguas, the school district’s federal programs coordinator and a member of a group of concerned citizens.

Requests for comment from all five school board members, as well as Barker, were not returned.

But from other interviews, it’s unclear what level of public approval the board had to give in order for the district to work with the law firm.

Scott Marotz, an attorney with Anderson, Julian and Hull, said law firms can be retained and employed by school districts without a formal contract or public discussion in an open meeting.

“Legal services do not have to be bid,” Marotz said. “They just have to be selected (by the board or administrator). The firm wears a number of hats, and we provide services to many districts throughout the state.”

Karen Echeverria, executive director of the Idaho School Boards Association, said how a school district retains or employs legal representation is largely determined by the policies of the district. Those vary from district to district.

New Plymouth School District policy published online appears to give much leeway on spending to the superintendent, “within the limits of the detailed annual budget.”

A public records request filed with the school district shows that it has no formal contract with the law firm. According to the district’s response to that public records request, Anderson, Julian and Hull’s “services do not need to be approved by the Board before the Board employs them, so there are not any minutes or agenda that would have any information about this.”

The Statesman also requested any records of district payments to the law firm. In its response, the district said it has paid about $41,300 to the firm, but denied “any detail of invoices since it is privileged.”

The district did not cite, as required by law, the statutory authority for the denial, and it’s unclear how any part of Idaho public records law would shield a school district’s financial statements or invoices. But the monthly payments to the law firm turned out to be already available in the monthly expenses posted by the district on its website.

District records show the first payment made to Anderson, Julian and Hull came in April 2017, when Barker met with the law firm in what is labeled a “law seminar” for $275. At the school board’s May 2017 meeting, minutes show Barker said the seminar was “very informative.” No other agenda item or meeting minutes from then until now show any mention of employing the firm.

Aguas said that the school board, with the help of the law firm and under the direction of Barker, began revising in late 2017 a new insubordination policy and a new policy for staff grievances. A new policy for staff grievances was passed in a special meeting of the board after an executive session on Sept. 27, 2017, while the new insubordination policy was passed at its regular meeting Nov. 13, 2017, after an executive session.

The new policies made some employees fear for their ability to come forward with concerns regarding the leadership of the district because they thought they would be punished or lose their jobs, Aguas said. About a dozen employees interviewed by the Statesman over the past six months have echoed those concerns.

“All year I’ve been thinking about this since it happened, because I didn’t understand why we had changed from an employee-friendly attorney firm to this firm that was part of changing our policies,” Aguas said. “It just didn’t seem to be in line with our tone of business in the district.”

Controversy regarding Barker’s leadership style divided the town of New Plymouth for months. In April, it led to his taking of a $400,000 buyout of his contract. Idaho Education News reported that an entity associated local businessman Scott Moscrip was the source of the buyout.

Many Idaho school districts use Anderson, Julian and Hull to represent them in various legal matters, Echeverria said. Through a program financially supported by the Idaho School Boards Association, the association provides four hours of legal services per year through the firm to each school district in Idaho.

The concerned residents initially contacted the Payette County Sheriff’s Office and Payette County Prosecutor’s Office, which cited a conflict of interest and asked to be recused from the investigation, Thomson said. The investigation is still in its preliminary stages, and Thomson has not received a report on the claims.

“It’s an open-ended complaint, so we’re trying to figure out if it’s a single issue or a widespread thing,” Thomson said.


From the Idaho Statesman

Open government seminars set in North Idaho


The public is invited to attend an upcoming free seminar on Idaho’s key open government laws – the Idaho Open Meeting Law and the Idaho Public Records Law – on May 29 in Moscow or Lewiston, or May 30 in Coeur d’Alene, led by Idaho Attorney General Lawrence Wasden.

It’s a chance to learn what is covered by these important laws and how to comply, in a fun and accessible format. Presenters in addition to Wasden will include Deputy Attorney General Brian Kane and IDOG President Betsy Russell. Government agency employees, public officials, reporters, editors and photographers from all media, and interested citizens all are invited.

These sessions are recommended by the Office of the Attorney General, the Association of Idaho Cities, the Idaho Association of Counties and the Idaho Press Club. Admission is free; because space is limited, attendees are asked to RSVP:

  • Tues. May 29 – MOSCOW – Co-sponsored by the Moscow-Pullman Daily News
    Moscow City Hall, Council Chambers, 206 E. Third St. ~ 1 pm
    RSVP to Devin Rokyta, (208) 882-5561 ext. 4637 or
  • Tues. May 29 – LEWISTON – Co-sponsored by the Lewiston Tribune and LCSC
    Lewis-Clark State College, Sacajawea Hall, 4 th St. & 7 th Ave. ~ 6 pm
    RSVP to A.L. “Butch” Alford Jr. (208) 848-2250 or
  • Wed. May 30 – COEUR D’ALENE – Co-sponsored by The Coeur d’Alene Press,
    Coeur d’Alene Resort, Bay 4, 115 S. 2 nd St. ~ 1 pm
    RSVP to Holly Paszczynska, (208) 664-8176 ext. 2016 or

IDOG and Wasden have been holding these sessions around the state since 2004. They are funded in part by grants from the John S. and James L. Knight Foundation through the National Freedom of Information Coalition, the Best of the West Foundation, and the Idaho Media Project at Boise State University. Next year’s sessions will be in the Treasure Valley.

IDOG is a non-profit coalition for open government whose mission is to promote open government and freedom of information. There’s more information, plus an online “User’s Guide” to Idaho’s open government laws, available at IDOG’s website,


A tax on public records? Idaho agency says yes, for now

From KUER 90.1 NPR Utah

Spurred by questions from KUER News, the Idaho State Tax Commission expects to introduce legislation next year that would prevent public agencies from collecting sales tax on documents and other records released by officials, KUER has learned.

Until a change is introduced, existing state law regarding taxes on copies of public records is open to interpretation, a Tax Commission spokeswoman wrote in an email. As of Friday, the Tax Commission website still notes that a sales tax can be charged.

“The Idaho State Tax Commission wants to thank you for bringing the issue of sales tax and public records request copies to our attention. It prompted us to evaluate the Idaho statutes,” spokeswoman Renee Eymann wrote. “The Tax Commission intends to bring legislation next year to clarify in the code that public records aren’t subject to sales tax in the interest of openness and transparency in government.”

The Idaho governor’s office must approve the proposed legislation before it goes to lawmakers. The state’s next legislative session begins in January 2019.

The Tax Commission’s aim to clarify Idaho public record law follows a request submitted earlier this year by KUER News to the Pocatello Police Department. Claire Jones, a KUER newsroom assistant working on an upcoming podcast, asked for records on calls for service in the southern Idaho city.

Pocatello police applied redactions to records that tallied more than 200 pages, charging $145.80 for the time spent to complete the effort and copying costs. Idaho and other state and federal laws allow government agencies to assess fees to process and reproduce public records. In an unusual twist, the Pocatello department also charged a 6 percent sales tax of $8.75 on top of the cost to reproduce the records.

“I’ve never heard of that. That sounds extremely odd” to assess a tax on copies of public records, said Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press, a Washington, D.C.-based group that advocates for journalists. “The fact that no one in state government can point to a statute where it gives an agency the authority to charge a sales tax speaks volumes about this issue.”

Pocatello City Attorney Jared Johnson acknowledged that the interpretation of the law can vary. Pocatello has chosen to charge a sales tax on copies of public records, he said.

“It’s not clear in the code whether in fact that can’t be done,” he said.

A screen capture from the Idaho State Tax Commission website shows that state agencies may assess a sales tax on copies of public records. A Tax Commission spokeswoman said that the agency expects to introduce legislation next year to clarify state law that public records are not subject to sales tax. CREDIT KUER NEWS

The state Attorney General’s Office, in contrast, does not collect sales tax on reproduced public records, spokesman Scott Graf said.

How much money Pocatello or other Idaho agencies may have collected from the practice is unknown. It is also unclear how often officials in the state charge a sales tax when releasing public records. The Tax Commission does not track what portion of an agency’s reported sales tax revenue comes from released copies of requested public records, Eymann, the commission’s spokeswoman, said.

“The only way to determine that would be to contact each government entity separately to see if they have the information,” she wrote in a separate email.

After reviewing the assessed fees, Pocatello police decreased the sales tax from $8.75 to 43 cents. But the amount of money isn’t the issue, said Betsy Russell, president of the Idaho Press Club and a veteran journalist.

“The point is to preserve citizen access to government records, not to soak people for extra money,” she said. “It’s just wrong.”

From KUER 90.1 NPR Utah