Whitecaps

Commentary and information about public safety and security, intelligence and counterintelligence, open government and secrecy, and other issues in northern Idaho and eastern Washington.

Name:
Location: Coeur d'Alene, Idaho, United States

Raised in Palouse, WA. Graduated from Washington State University. US Army (Counterintelligence). US Secret Service (Technical Security Division) in Fantasyland-on-the-Potomac and Los Angeles. Now living in north Idaho.


Thursday, December 28, 2006

A Stern Warning or a License to Disobey?

Today's Coeur d'Alene Press report shows how lightly Kootenai County Prosecuting Attorney Bill Douglas takes his duty to enforce the Idaho Open Meeting Law (IOML). He won't enforce it in court. He will, however, send a stern letter of warning to violators.

Douglas's toothless warning was reported in Press staff writer Dave Turner's article headlined Prosecutor gives LCDC a warning. The article reported Lake City Development Corporation (LCDC) Executive Director Tony Berns saying there was no intent to hide anything. Prosecutor Douglas evidently accepted that excuse and decided the LCDC didn't intend to violate the law.

The IOML does not require that intent to violate the law must be shown. What it does require is evidence that a member of the governing body knowingly conducted or participated in a meeting which violated the IOML. Apparently Prosecutor Douglas does not believe public officers such as Coeur d'Alene's Mayor, its City Council members, the LCDC Board of Commissioners (one is an Idaho attorney) and its Executive Director had any duty to know the IOML existed and to comply with it. They had a duty to know the obligations the IOML imposed on them. Those who allowed the public to be excluded from the December 6, 2006, LCDC meeting knowingly violated the law.

The Coeur d'Alene Mayor and City Council members, the City Attorney, the City Administrator, and the City Clerk acknowledge their awareness of the IOML every time the City publishes a City Council meeting agenda announcing an Executive Session will be held and every time they publish Council meeting minutes reporting an Executive Session was held. The agendas and minutes specifically cite the IOML sections allowing them to go into Executive Session! The LCDC is a component of the Coeur d'Alene city government. To suggest the LCDC's executive director and Commissioners weren't expected to know and comply with the IOML on and before December 6, 2006, is absurd.

In October 2004 Idaho Attorney General Lawrence Wasden published the user-friendly 25-page Idaho Open Meeting Law Manual. It is available online or from the Attorney General's Office.

Then on August 23, 2005, Attorney General Wasden and his deputy lectured at a workshop in Coeur d'Alene on the Idaho Open Meetings Law and the Idaho Public Records Law. That workshop was sponsored by the Idahoans for Openness in Government and The Spokesman-Review. It was open to the public, and the people who attended came away much better informed about these two laws. Coeur d'Alene's Mayor and City Council members just could not find time to attend, but Coeur d'Alene City Attorney Mike Gridley and Kootenai County Prosecutor Douglas were there. Yet Prosecutor Douglas doesn't expect Coeur d'Alene city government officials to have the level of knowledge and understanding of the IOML that the Attorney General makes readily available to us average citizens.

Kootenai County Prosecutor Bill Douglas has sent an unmistakably clear message to every local official in Kootenai County: No matter how egregiously you violate the IOML, his office won't prosecute. You're above the law; it doesn't apply to you.

His message is equally clear to citizens who object to having the public's business conducted in secret: So what?

Correction on 12-30-2006: The correct date of the LCDC meeting was December 6, not December 20 as posted originally. The date has been corrected in the blog text as well.

4 Comments:

Blogger Dogwalkmusings said...

Douglas keeps throwing it in our collective face as do our commissioners. What realistic recourse do we have? Other than the ballot box. That doesn't slways seem to work.

3:01 PM, December 28, 2006  
Blogger Bill McCrory said...

Dogwalkmusings,

It's interesting you bring up our three County Commissioners: Lame Duck, Lamer Duck, and Incumbent. They could, if they chose to, petition the District Court to appoint a special prosecutor to look into this blatant violation of both law and public trust by the Lake City Development Corporation Board of Commissioners, the Mayor, and the City Administrator at the meeting on December 20. Idaho Code 31-2603 allows the Commissioners to submit that petition. They won't, of course, but they could. IC 31-2603 doesn't specifically allow them to make the request when the Prosecutor is unwilling to perform his duty, only when he is unable to perform it. Still, it would be an interesting hearing in an open District Court courtroom anyway!

I read the Press article carefully and note it said, "Douglas, while confirming The Press' allegation that no executive session was held, nevertheless concluded there was no intent by the city's urban renewal agency to violate the law."

A violation of the IOML is proven when one or more persons are shown to have violated it "knowingly." Proof of "intent" to violate the IOML is not required. "Knowingly" refers only to knowledge of the facts that constitute the offense. It does not require proof of knowledge by one or more offenders that their conduct was contrary to the statute. To oversimplify a bit, there was probable cause to believe Berns and perhaps others attending the meeting violated the IOML if they knew the public (Tom Greene) presented himself, asked for admission to the public meeting, and was denied access or was excluded after the meeting began. It did not need to be shown they knew Tom Greene's exclusion was contrary to the IOML.

The Press article seemed odd in another way. It suggested the Prosecutor relied on the minutes of the December 20 meeting to form his decision. The Prosecutor characterized those minutes as "sketchy". It seems to me the "sketchiness" of those minutes aggravate rather than mitigate the illegal conduct.

What wasn't reported in the Press article was any indication the Prosecutor had contacted each person present at the meeting and obtained sworn statements from them. Perjury attaches if a witness knowingly misrepresents a material fact under oath. Of course, he could also have convened a grand jury to investigate, but no one in his right mind believes Prosecutor Bill Douglas would ever do that. Subject "civic leaders" to the indignity of being compelled under oath to tell the truth? Unthinkable in Kootenai County!

8:24 AM, December 29, 2006  
Anonymous Anonymous said...

Unthinkable is right Bill. My question is. Where in the heck is Michael Jorgenson in all of this? He makes a big deal in telling everyone he sits on the Judiciary and Rules committee. He wears it like a bag of honor. If anyone should be calling for a grand jury investigation into the conduct of Bill Douglas and his office it should be Michael Jorgenson.

2:23 PM, December 30, 2006  
Blogger Bill McCrory said...

Anonymous,

Don't look to any of our elected local representatives for any help. There is not an overwhelming number of community members demanding that Douglas be recalled or even resign. Even the Coeur d'Alene Press has failed to write the obligatory outrage editorial when its own reporter was illegally booted from the LCDC meeting. The only call for Douglas's resignation came from The Spokesman-Review in its December 6 editorial. Ironically, it was December 6 when the LCDC Board of Commissioners conducted its illegal meeting. Nope, I don't expect any elected representatives in our area to do much. For all we know, our Idaho state representatives are fully in favor of closed-door meetings. After all, they face a greater challenge from an informed electorate than from a compliant county prosecutor.

4:10 PM, December 30, 2006  

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