The Hole's Deep Enough - Stop Digging!
It is rarely possible to extricate oneself from a hole by digging the hole deeper, but Coeur d'Alene Mayor Sandi Bloem and the Coeur d'Alene City Council are trying.
On Friday, March 24, 2006, The Spokesman Review newspaper published an article headlined CdA won't hook up tower. The story's lead was that the City of Coeur d'Alene was unwilling to provide its neighbor, Fernan Village, with additional sewer hookups. Newspaper staff writer Erica Curless noted, "(Coeur d'Alene) Deputy City Administrator Jon Ingalls said the City Council made the decision in a March 7 closed-door meeting..."
Idaho Code 67-2345 (3) explicitly states "No executive session may be held for the purpose of taking any final action or making any final decision." An "executive session" is a closed-door meeting, because the public is excluded.
Oops.
But not to fear. The Coeur d'Alene Press, the City of Coeur d'Alene's appointed, designated and constituted official newspaper, rode to the rescue with its own story, "Cd'A: Fernan sewer deal stinks", (see Addendum below) on Saturday, March 25, 2006. Press staff writer Marc Stewart provided more detail about the nearly 30-year-old sewer agreement between Fernan and Coeur d'Alene. He also gave the Mayor and City Council another shovel.
The Press article today confirms what Deputy City Administrator Jon Ingalls told The Spokesman Review staff writer in yesterday's story: The matter was discussed during executive session at the Coeur d'Alene city council's March 7 meeting. Unlike yesterday's Spokesman Review article, today's Press article reports Ingalls now says no decisions were made. The article goes on to say that Coeur d'Alene Mayor Sandi Bloem asserts that during the executive session, there were no decisions made or any votes taken. However, Press writer Marc Stewart discloses Coeur d'Alene Councilwoman Dixie Reid acknowledging the council "...came to a consensus...".
So how did the Coeur d'Alene city council arrive at Dixie Reid's "consensus" without making any decisions or taking any votes? And wouldn't arriving at a "consensus" require "deliberation", which is supposed to be done in public, not in executive session?
In the Press article today, Coeur d'Alene Mayor Sandi Bloem is quoted saying, "It was a discussion about possible litigation." Is there pending litigation? Has someone filed a lawsuit over the Fernan sewer deal? I don't think so. Well, then is there a "...general public awareness of probable litigation"? Somehow, I doubt that on March 7 the general public in Coeur d'Alene was even remotely aware of the details of the Fernan - Coeur d'Alene sewer agreement, let alone having formed an awareness of probable litigation over the agreement.
The more information published in our newspapers about the Coeur d'Alene City Council's executive session on March 7, the deeper the Open Meeting Law violation hole gets. To our Mayor and City Council: The hole's deep enough; stop digging before it caves in on you.
ADDENDUM: The Coeur d'Alene Press story cited above originally appeared on the Press's website, so I hyperlinked to it. However, on Monday, March 27, 2006, I clicked on the Press link in my post and found it has now been associated with a different Saturday story. Consequently, I've killed the link in my post. Isn't it coincidental that if I had left the Press link alive, it would have linked to a story headlined "Vanished -- No clues, no remains"? Hmmm...
On Friday, March 24, 2006, The Spokesman Review newspaper published an article headlined CdA won't hook up tower. The story's lead was that the City of Coeur d'Alene was unwilling to provide its neighbor, Fernan Village, with additional sewer hookups. Newspaper staff writer Erica Curless noted, "(Coeur d'Alene) Deputy City Administrator Jon Ingalls said the City Council made the decision in a March 7 closed-door meeting..."
Idaho Code 67-2345 (3) explicitly states "No executive session may be held for the purpose of taking any final action or making any final decision." An "executive session" is a closed-door meeting, because the public is excluded.
Oops.
But not to fear. The Coeur d'Alene Press, the City of Coeur d'Alene's appointed, designated and constituted official newspaper, rode to the rescue with its own story, "Cd'A: Fernan sewer deal stinks", (see Addendum below) on Saturday, March 25, 2006. Press staff writer Marc Stewart provided more detail about the nearly 30-year-old sewer agreement between Fernan and Coeur d'Alene. He also gave the Mayor and City Council another shovel.
The Press article today confirms what Deputy City Administrator Jon Ingalls told The Spokesman Review staff writer in yesterday's story: The matter was discussed during executive session at the Coeur d'Alene city council's March 7 meeting. Unlike yesterday's Spokesman Review article, today's Press article reports Ingalls now says no decisions were made. The article goes on to say that Coeur d'Alene Mayor Sandi Bloem asserts that during the executive session, there were no decisions made or any votes taken. However, Press writer Marc Stewart discloses Coeur d'Alene Councilwoman Dixie Reid acknowledging the council "...came to a consensus...".
So how did the Coeur d'Alene city council arrive at Dixie Reid's "consensus" without making any decisions or taking any votes? And wouldn't arriving at a "consensus" require "deliberation", which is supposed to be done in public, not in executive session?
In the Press article today, Coeur d'Alene Mayor Sandi Bloem is quoted saying, "It was a discussion about possible litigation." Is there pending litigation? Has someone filed a lawsuit over the Fernan sewer deal? I don't think so. Well, then is there a "...general public awareness of probable litigation"? Somehow, I doubt that on March 7 the general public in Coeur d'Alene was even remotely aware of the details of the Fernan - Coeur d'Alene sewer agreement, let alone having formed an awareness of probable litigation over the agreement.
The more information published in our newspapers about the Coeur d'Alene City Council's executive session on March 7, the deeper the Open Meeting Law violation hole gets. To our Mayor and City Council: The hole's deep enough; stop digging before it caves in on you.
ADDENDUM: The Coeur d'Alene Press story cited above originally appeared on the Press's website, so I hyperlinked to it. However, on Monday, March 27, 2006, I clicked on the Press link in my post and found it has now been associated with a different Saturday story. Consequently, I've killed the link in my post. Isn't it coincidental that if I had left the Press link alive, it would have linked to a story headlined "Vanished -- No clues, no remains"? Hmmm...
posted by Bill McCrory | 11:40 AM
6 Comments:
Bill, your blog is probably one of the most important ones I read and I always appreciate the things you discuss.
This is obviously no different from me, being a journalist.
I am very interested in finding out what exactly happened and I think that it is a very common occurence for public officials to discuss things behind closed doors, citing executive session, but not knowing exactly the letter of the law.
It is very disappointing to me when these things happen and I really wish more people would care about these types of issues.
I sincerely believe that nearly all business should be conducted in the open - and I understand that litigation can often be troublesome, but I don't think every litigation matter should be secret. The people have a right to know about litigation involving tax-payer money as well.
Anyway - I could opine on this for days, so I will end it there for now.
Thanks again for discussing this, Bill.
They oughta just re-do the whole thing. Discuss it in open, and take the vote. They've been caught.
Through the discussions here I’ve been convinced that going back and reviewing open meetings opinions again makes sense. That just seems prudent to do and I appreciate the attention on it, suggestions, and, yes, pressure, to do so from a few folks whom I respect.
Now, as someone who sat in the executive session in question I have to tell you I still think it was appropriate. City attorney Mike Gridley, who is very strong on the need to observe and protect the open meeting law, was in the room and didn’t express any hesitation on the topics being discussed. Potential litigation was discussed, as has been reported in the paper. No votes were taken, no official decisions made – I considered it a briefing on pending legal issues that I didn’t know before. Now I’m not a lawyer, and I’m always open to the possibility of being wrong, but I think that’s within the realm of what is appropriate in executive session.
As I read the statute, I do have one sincere question that I’ve been struggling with in your posts, Bill. Here is what the statute says about appropriate executive sessions “...to consider and advise legal representatives in pending litigation or where there is a general public awareness of probable litigation”. How does a body or group “advise its legal representatives” if you can’t have some kind of “consensus” in executive session?
That last post posted before I could add my last name!
Freezing little Fernan out of the growth that is taking place everywhere, is a tasteless misuse of power. Shame.
Mike,
Your last question was a good one, one that the Idaho legislature was evidently trying to address with the introduction of House Bill No. 620 this year to amend Idaho Code 67-2345(f).
"An executive session may be held (f)To consult with its legal counsel following the commencement of litigation in which the governing body is a party or where litigation is probable. For the purposes of this act, litigation is probable only upon:
(i) A decision of the governing body to consider initiating a law-
suit;
(ii) Receipt of written communication from its legal counsel recommending that the governing body initiate a lawsuit;
(iii) Receipt of written communication from a third party that threatens a lawsuit or implies that a lawsuit may be filed against the governing body.
In other words, if the bill passes and is signed into law, you would be able to justify executive session only after the commencement of litigation in which the governing body is a party OR where litigation is probable. The law wisely goes on to explicitly define the three circumstances comprising "probable". As I read it, the "decision" to consider initiating the lawsuit would have to be made in an open public meeting since litigation wouldn't be probable until after that decision and since the law does not repeal the prohibition against making decisions in executive session.
In this instance, the March 24 Spokesman-Review clearly had Deputy City Administrator Jon Ingalls saying the City Council made the decision (to deny Fernan Village additional residential sewer hookups) in a March 7 closed-door meeting. Then on March 25, The Coeur d'Alene Press confirms the March 7 executive session but has Ingalls saying no formal decisions were made in it. Yet Councilwoman Dixie Reid told the Press that "...the council came to a consensus that the city wouldn't open the sewer agreement." So exactly how did the Council arrive at that consensus? How was each council member's opinion learned and expressed? My point is that at least one party (Jon Ingalls) to the executive session apparently believed a decision had been made if you believe the Spokesman Review account.
So what are we, the public, supposed to believe? It is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.
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