Idaho’s Open Meetings Law: To enforce, or not to enforce?

By Matt Tobeck

“The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created.”

Who could possibly disagree with the above statement? Unfortunately, many people do seem to ignore this idea — some state officials in particular. Ben Franklin once said, “There is a natural inclination in mankind to kingly government.” In short, it’s far easier to delegate decision-making to other people, and let them run with the power, rather than taking personal responsibility for those actions and decisions.

Nevertheless, the above quote is the opening sentence of Idaho’s Open Meetings Law. Lawmakers passed it in 1974 because of a belief that “the formation of public policy is public business” and accordingly to ensure that such business “shall not be conducted in secret.” The notion behind this belief was that such openness would help ensure both transparency in government as well as government accountability.

Toward that end, Idaho’s Open Meetings Law mandates a number of requirements for state and local governing bodies. For example, the law requires all meetings held by the governing body of a public agency be open to the public, meaning the public must be permitted to physically attend. It also establishes various notice requirements for such meetings to ensure the public is aware of the time, place, and agenda of public meetings. If members overseeing a meeting violate these requirements, any actions taken during a given meeting are null and void. Additionally, public officials who violate the Open Meetings Law can face civil penalties in the form of money damages.

Government transparency is a great thing. It’s implementation leads to a lot of great things. However, what good are such laws — or any laws, for that matter —if they are violated and no penalties result? Or worse, what good are laws when those tasked with enforcement fail to muster even the strength to acknowledge such violations as violations?

I ask this question because in recent months there have been at least four likely violations of Idaho’s Open Meetings Law of which I am personally aware. None of these instances resulted in any penalties from those tasked with overseeing the implementation of this law, even while its provisions provide for the ability to fine officials violating it. Further, Idaho’s attorney general even failed to designate one of those violations as a violation, despite overwhelming evidence and an indirect admission that an open meetings violation appears to have occurred.

The first two violations I spoke of were the result of Central District Health (CDH) not giving proper notice with respect to its June 20 and June 26, 2020 meetings. CDH at least admitted that it did, in fact, violate the Open Meetings Law. The board voted twice to recognize those violations, and to the attorney general’s credit, his office directed CDH to provide more detailed agenda items in the future.

On August 11, 2020, Central District Health again violated the Open Meetings Law by not allowing members of the public to physically attend their board meeting. As noted above, Idaho’s Open Meetings Law requires the public be able to physically attend all public meetings.

A resident denied entrance to that August meeting requested the attorney general investigate this third violation. In its written response, the attorney general’s office actually freely admitted that the CDH board “did not provide members of the public with an opportunity to attend the meeting in person, as required by Idaho Code § 74-203(5).” Sadly, despite that observation, the attorney general’s office concluded that because of the “challenges and uncertainty” stemming from COVID-19, “the totality of the circumstances do not warrant finding the Board in violation.”

Is it really too much to ask: If the attorney general will not enforce any sanctions for violations of the Open Meetings Law, will he at least properly label them violations in the first place, even if he chooses not to ascribe a penalty to those actions?

Amazingly, the attorney general’s office further responded that part of its reasoning behind not officially recognizing a violation was a “lack of clarity” that existed regarding the in-person requirement of the Open Meetings Law, which was temporarily suspended and then re-instituted by Gov. Brad Little. What lack of clarity?

I don’t serve on any health district board, so it’s not my responsibility to keep up to date with their duties and responsibilities as they are expected to do. But with very little effort, I found  a proclamation made by Little on June 11, 2020, titled “Related to emergency declarations.” In it, the Governor unambiguously reinstated, beginning June 26, 2020, the in-person requirement of the Open Meetings Law, which had been temporarily suspended by his earlier emergency declaration.

Further, the governor’s June proclamation was available on the governor’s public website. The proclamation specifies that in-person meeting attendance must be facilitated, and encourages governing bodies to have an in-person venue for public meetings even sooner than June 26 if possible. In other words, I’m curious exactly where it is that the attorney general’s office found a “lack of clarity.” I can see a lack of due diligence, perhaps, but no lack of clarity existed here.

Given all the above justifications and lack of enforcement by the attorney general’s office, it almost appears that his office is suggesting that ignorance of the law is a valid excuse for not following it. I wonder if private citizens can use that defense as well.

Finally, the attorney general’s office is currently investigating a fourth potential violation of the Open Meetings Law. This time, for a change, it’s not related to Central District Health. This latest investigation addresses whether the Greater Boise Auditorium District impermissibly held a private meeting with developers on August 19, 2020, in contravention of the Open Meetings Law.

We find ourselves in an age of distrust and misinformation, so it is important all of our open records and open meetings laws be enforced, even in times of distress and confusion — or perhaps, especially in such times.

I can only hope Central District Health, other government agencies and boards, and those tasked with supervising government transparency start obeying and enforcing Idaho’s Open Meetings Law with more earnestness than they have to date. The people of Idaho’s faith in fair and open governance requires nothing less.

From idahofreedom.org