SB 1142, legislation sponsored by Idaho Attorney General Lawrence Wasden to revamp Idaho's Open Meeting Law after an Idaho Supreme Court decision in 2007 made parts of the law near-impossible to enforce, was signed into law today by Gov. Butch Otter. The bill, which passed the Senate unanimously and the House on a 59-10 vote, was endorsed by an array of media and local government groups. In a rare move, I actually testified in favor of this bill to the Senate State Affairs Committee at the request of the Attorney General's office; click below to read my written testimony.

TESTIMONY OF BETSY Z. RUSSELL on SB 1142
Senate State Affairs Committee, March 16, 2009

Mr. Chairman and Members of the Committee:

I am Betsy Russell, president of the Idaho Press Club and president and co-founder of Idahoans for Openness in Government, or IDOG, a statewide, non-profit coalition that works for openness in government in Idaho. IDOG’s board includes people from the media, government, civic groups like the League of Women Voters and more; IDOG board members who are here today include our Idaho Secretary of State, Ben Ysursa.

IDOG has partnered with our attorney general, Lawrence Wasden, to put on seminars around the state for the past five years for local government officials, citizens and the media to educate people about Idaho’s open records and open meeting laws and to encourage compliance. Since our seminars started, the Attorney General’s office has seen a decline in complaints about non-compliance with these laws. IDOG also received a grant from the John S. and James L. Knight Foundation, through the National Freedom of Information Coalition, to creative an innovative portable version of our seminars on DVD, entitled “Open Idaho.” The entire contents of this DVD also are available for free on the Internet at our Web site, www.openidaho.org.

Mr. Chairman and members of the committee, you also know me as a newspaper reporter for The Spokesman-Review, my full-time work. I am the reporter who last year filed an open meeting complaint against the State Board of Education. Our attorney general conducted an extensive investigation, but concluded that while the board may have violated the law, he couldn’t prove that they’d done so “knowingly” under the new interpretation of the word “knowingly” in an Idaho Supreme Court decision in 2007 in an Ada County case, State of Idaho vs. Yzaguirre. That Idaho Supreme Court case gave a different meaning to the word “knowingly” than had ever been used before in interpreting Idaho’s Open Meeting Law, and essentially blew a giant hole in the law preventing its enforcement.

The new interpretation created an incentive for ignorance: If a public official knew nothing about the Idaho open meeting law, then he or she couldn’t “knowingly” violate it. Under this interpretation, even very sophisticated boards with members who are attorneys could argue that they didn’t think they were violating the law, so therefore they weren’t – and unless it could be proven by investigating their mental state that they really did know, they couldn’t be held accountable for violations of the law.

After the Board of Ed case, Attorney General Wasden’s office contacted various stakeholders, including myself, other media representatives, representatives of local governments including cities, counties and prosecutors, and many others, to work on improvements to our open meeting law. The goals, as I understood them, were:

1)To fix the “knowingly” problem so we would again have a workable, enforceable law.
2)To clarify exemptions that are being construed over-broadly, as identified in the Attorney General’s investigation report on the Board of Education.
3)To make our open meeting law so simple and clear that it’s easy for any public official or member of the public to understand what’s required, what’s forbidden, and what the sanctions are, without having to consult a lawyer.

The result is before you today. I can’t say that I love every piece of this bill, nor do the local government interests; but I can say that on balance, I think it’s a good package of reforms that takes important steps toward improving our open meeting law. With these changes, our law will be workable and enforceable, and it will provide incentives for compliance – rather than the incentive for ignorance we now have as a result of the Idaho Supreme Court decision. The Idaho Press Club’s First Amendment Committee has reviewed the bill and endorsed it. IDOG supports and endorses the bill.

I researched open meeting laws in other states in order to participate in this process, and I found that while many states have “knowingly” language in their Open Meeting Laws, in most cases it is a trigger for more severe penalties than simple violations that don’t carry that modifer. Florida’s law, for example, has a two-tiered approach in which violations are punishable by fines of up to $500, but knowing violations are subject to misdemeanor criminal penalties. Idaho already had a two-tiered system for violations; in our current law, first-time violations are punishable by a fine of up to $150, while repeat violations are subject to a fine of up to $300. SB 1142 sets out a new two-tiered violation system, to allow all violations to be sanctioned, but to set a very low fine of up to $50 for the first-time or simple violation. The more egregious, intentional or repeated violations would bring fines of up to $500. This brings the “knowingly” issue into the proper perspective. Incidentally, both are just civil penalties – 16 states have criminal penalties for violations of open meetings laws, and in six states such violations are grounds for removal from office.

SB 1142 also makes several other changes. It clarifies the notice of meetings section. While I don’t like the idea of agendas being changed during a meeting, our current law allows them to be changed “up to and including the hour of the meeting.” Reporters in Idaho know that agendas are changed all the time, and no reason is given. The interpretation of the “hour of the meeting” language has led to agenda changes during the meeting, during the first hour of the meeting, and so forth. The change in SB 1142 allows agenda changes during meetings, but only with the statement of a good-faith reason for the change, a motion, and a majority vote on the record. Good-faith is important here. It would be bad faith to change an agenda in order to make a decision without the public being present or knowing about it in advance. That would be a violation of the Open Meeting Law, and subject to penalties. On balance, I felt that the changes in SB 1142 provide more transparency than the current law on agenda changes, and thus I’m willing to accept them.

The bill also clarifies some wording in the law that was being construed over-broadly, such as the Board of Ed’s interpretation that the personnel exemption covers any discussion about staffing or budgets. It doesn’t, and SB 1142 makes that clear. It also clarifies that when agencies hold executive sessions – which are closed meetings – they can’t simply cite in their minutes all the possible reasons in the law, “a through j,” and say they’ve complied. They must identify the specific section authorizing this closed meeting, and also provide sufficient detail to identify the purpose and topic of the executive session.

Finally, SB 1142 includes a new method by which an agency may “cure” a violation of the Open Meeting Law. This allows an agency to recognize a violation and correct it. This is probably my least favorite section of this bill, as I know from my colleagues in other states that such “get out of jail free cards” can go much too far, undermining respect for and compliance with the law the first time around. In this case, the Attorney General feels that this language has been narrowly crafted and does not bar enforcement, and he believes it will serve as an incentive for compliance with the law. In that spirit, I’m willing to accept it as part of what I think is a very good package of reforms to our law.

Thank you, and I’d stand for questions.
 

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