President’s Column: Cities reform open meeting practices

By Betsy Russell

In the fall, while traveling around southern and eastern Idaho for four IDOG open government seminars, I heard about some open meeting law problems in the city of Twin Falls. The Twin Falls Times-News reported on the problems and brought them to everyone’s attention, and the city initially took a defensive posture.

I ended up filing an open meeting law complaint with the local prosecutor, but in the end, the city reformed its practices and the outcome was a good one – especially for citizens of Twin Falls and their access to their city government.

For those who don’t know, IDOG is Idahoans for Openness in Government. It’s our state’s broad-based, non-profit coalition for open government, which includes people from the media, government, civic organizations, attorneys and more. The Idaho Press Club is a member of IDOG; I am IDOG’s co-founder (with former longtime Idaho journalist Dean Miller) and its current president.

IDOG has held more than two dozen public seminars on Idaho’s two key open government laws, the Idaho Open Meeting Law and the Idaho Public Records Act, since its inception in 2004 – all featuring Idaho Attorney General Lawrence Wasden, and bringing a powerful message to communities all around the state. That message is about how to comply with these laws and why they’re important, and it’s resounded with participants from the media, local government agencies and the general public.

Since the Twin Falls incident, I have been contacted by another Idaho city that’s looking to reform its meeting practices to ensure they don’t run afoul of the same issues.

Here’s the complaint I filed with Twin Falls County Prosecutor Grant Loebs, and his response:

TO: Grant Loebs
FROM: Betsy Russell
RE: Open meeting law complaint
Dear Mr. Loebs,

It was with surprise and disappointment that I read on Nov. 13 that the Twin Falls City Council had voted 4-2 to violate the Idaho Open Meeting Law, and to make repeated violations of the law the policy of the city, by delegating City Council business to subcommittees that purposely are designed to evade the law, meet in secret, and keep no minutes. As the county prosecutor, I hereby request that you investigate and prosecute these violations in the interest of upholding the law and obtaining compliance.

The Idaho Open Meeting Law states, “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. Therefore, the legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.”

According to the Nov. 13, 2013 edition of the Times-News, the council has voted to have work groups consisting of city staff, council members and citizens, meeting secretly and in defiance of the open meeting law, meet to deliberate on and make recommendations to the City Council on matters ranging from city finances to major contracts and key hires.

The council and mayor seem to think that by limiting the number of council members on each subcommittee to two – less than a quorum of the full City Council – it can somehow evade the Open Meeting Law. As you know, this is incorrect. The Open Meeting Law applies to a subagency if it has “the authority to make decisions for or recommendations to a public agency regarding any matter.” These City Council subcommittees clearly fit that definition.

The mayor argues that complying with the law would be inconvenient, as he believes the city would have to hire another staff member to take minutes for the 14 subcommittees already formed. This argument is specious. One member of each subcommittee could easily be designated to take minutes at each meeting, which as you know, need only contain this simple information to comply with the law: The names of those present, all motions made and their outcome, and all votes. If the subcommittee takes no votes, the minutes could simply state those present, the topics of discussion and the start and end times. This would not require the hiring of a city employee. Besides, there is no exemption in the law for those who believe compliance would be inconvenient.

Both you and I were at the recent IDOG (Idahoans for Openness in Government) seminar on the state’s open meeting and public records laws in Twin Falls, led by Attorney General Lawrence Wasden, as were city officials. We all heard loud and clear what the law requires. It requires the public’s business to be done publicly. As the county prosecutor, it is your duty to enforce the law with regard to the Twin Falls City Council, and I hereby request that you take immediate action to do so.

Thank you.

Sincerely,

Betsy Russell, IDOG president

TWIN FALLS COUNTY
PROSECUTING ATTORNEY
GRANT LOEBS
Betsy Russell
President, IDOG

Dear Betsy:

You wrote to me last month to complain of perceived Open Meeting Violations in Twin Falls City. As you correctly pointed out, the Idaho Open Meeting laws charge the County Prosecuting Attorney with the responsibility of enforcing those statutes. And, as you know, the broad intent of Idaho’s Open Meeting statutes is to foster openness and to encourage not only compliance with the letter of the law, but with the spirit of open and transparent government.

To that end, I responded to your complaint by investigating the various incidents you referred to in your letter, as well as the policies of the Twin Falls City Council. I spoke with various Twin Falls City officials and Councilmembers, and met with the Twin Falls City Attorney about these incidents, policies and – more importantly – about the comprehensive reformation of their Open Meeting policies which they have undertaken in the last two months.

I agree with Attorney General Wasden that the goal of the State and County Prosecuting Attorneys in these matters should be to encourage such reforms as make State and Local governments more transparent to the citizens.

The questions you posed about some of the City’s previous practices and policies were important and brought to light some serious questions, not only for me, but for the City’s elected officials and staff. Twin Falls City responded to this issue and to my inquiries into these matters quickly and constructively. Issues of compliance with Idaho’s Open Meetings laws were discussed in detail at several City Council meetings. Proposals and counter-proposals were debated; some passed, some defeated. In the end, I believe that Twin Falls City made significant and meaningful reforms which address the concerns you raised.

Your chief complaint, that the City Council was “delegating City Council business to subcommittees that purposely are designed to evade the law, meet in secret, and keep no minutes,” was addressed by enacting several changes.

In December, the City Council enacted a Transparency in City Government Resolution in response to the concerns about their compliance with the Open Meeting Law. Prior to the enactment of this resolution, there existed ad hoc volunteer working groups composed of various Council members, commission members, staff and citizens. While I did not find that these groups were “created by or pursuant to statute, ordinance or other legislative act,” their existence created the perception that official meetings were being held without proper notice or appropriate transparency.

The new Transparency Resolution, in many ways, goes beyond the minimum requirements of Idaho law. In response to the concern about the ad hoc volunteer working groups, the Resolution provides as follows:

“In order to provide more transparency in City government, neither the Twin Falls City Council nor any of its commissions will permit the formation of ad hoc volunteer groups intended to report back to the City Council or commission, unless that group is formed as a committee or commission, created by a vote of the City Council or commission. No more than two elected City Council persons may serve on any committee, including ad hoc groups and subcommittees created by statute, ordinance, or other legislative act. The City Council, and its committees and commissions, shall always comply with all requirements of the Idaho Open Meeting Law.”

With the enactment of this Resolution, all the ad hoc volunteer working groups that included any Council or Commission members were eliminated. The City Attorney has met with each City Commission, to explain the requirements of this Resolution.

Since the enactment of the Resolution, the City Council has created, by vote of the City Council, two subcommittees. Both are complying with the requirements of the Open Meeting Law, including posting of notices and agendas, and the keeping of minutes of the meetings.

By eliminating the Ad Hoc Committees and requiring that those Committees created by the Council or by city commissions comply with notice and minutes requirements, I believe the City has constructively and effectively addressed the concerns you brought forth.

As the county prosecutor, I share your goal, eloquently highlighted by the Attorney General, that “the public’s business be done publicly.” I believe the City’s reforms achieve this goal.

Thank you for your interest in justice in Twin Falls County.

Sincerely,

Grant Loebs
Prosecuting Attorney

Betsy Russell is a Boise-based reporter for The Spokesman-Review newspaper and writes the Eye on Boise blog; she is the president of the Idaho Press Club.