Executive Session - Shell Gaming the Public

A shell game is one type of confidence or "con" game, so named because for the con man to successfully separate the intended victim (the "mark") from his money, the con man needs to gain the mark's confidence. The con man typically uses accomplices ("shills") whom the con man allows to "win" occasionally to support the mark's misperception that he, too, can win. The mark will only win when the con man and his shills allow it in order to retain the mark's misplaced trust. Trust and confidence are important if the con man is to scam the mark before the con is uncovered.

A poster to Huckleberries Online, the weblog of The Spokesman-Review columnist and associate editor Dave Oliveria, said, "I have trouble understanding 'executive session'. This is the business of the people. What, if anything, should ever be discussed behind closed doors?" It sounds as if the poster, pseudonymed John Duh, understands "executive session" very clearly. It's the con game being run by some public officials that troubles him.

"Executive session" is an exception allowed by a state's open meeting laws.

Washington State and Idaho both have open meeting laws. Washington State's open meeting law is codified at RCW 42.30. Idaho's open meeting law is found at Idaho Code 67-2340 through 67-2347.

In passing their respective open meeting laws, both Washington State and Idaho legislatures recognized that government in secret, no matter how convenient or expedient for the elected and appointed officials, is not participatory government of, by, and for the people. The introduction to Washington State's open meeting law reads:

Citizens can control their government only if they remain informed about the decisions their government officials are making.

That important principle underlies Washington's open public records and meeting laws. The laws, which are now more than three decades old, are intended to give us an informed electorate that can evaluate the performance of elected officials and in order to ensure an honest, competent and responsive government.

The Legislature described the purpose of the two laws this way: "The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so they may maintain control over the instruments they created."

Idaho says it less elegantly and more succinctly, thus:

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.

Both legislatures recognized there would be rare occasions when it would be good public policy for selected small parts of the public business to be conducted privately. Not secretly, privately. To allow for conducting certain specific public business in private, both Washington State's and Idaho's legislatures allowed government bodies to adjourn from scheduled public meetings and go into executive session.

The legislatures recognized the potential for abuse of executive session. In RCW 42.30.110 and in IC 67-2345 the Washington and Idaho legislatures prescribed the allowable circumstances and the procedures that must be followed when a public agency believes it is necessary to adjourn from an open meeting into executive session.

Executive session is permitted but never required in both states. Clearly, the legislatures intended for executive sessions to be the exception rather than the rule.

In Idaho, executive session has been flagrantly abused. The first Idaho Open Meeting Law (IOML) was enacted in 1974 by a legislature that didn't impose suitably heavy personal penalties for knowingly violating the IOML. Even if a public agency's legal counsel advises against going into executive session or otherwise knowingly violating the IOML, the personal penalties involved for offenders ignoring counsel's timely and diligent advice are insignificant.

Neither does the IOML compel county prosecuting attorneys to diligently investigate credible complaints of violations. As we in Kootenai County have learned, the prosecuting attorney can easily exercise prosecutorial discretion to dismiss any and all IOML complaints from citizens.

Those two factors, meaningless penalities and unwilling prosecuting attorneys, combine to render useless any citizen complaints of IOML violations.

The solution is legislatively simple but also probably legislatively unacceptable.

First, the IOML has to be rewritten to overcome the 1974 legislature's original presumption that most public officials will want to willingly comply with it. The law must be rewritten with a new underlying presumption that a significant number of public officials will knowingly, willfully, and intentionally try to circumvent the IOML to deprive the electorate of information we need to hold those public officials accountable and to contribute to the formulation of good public policy.

Second, the IOML has to compel county prosecutors to investigate allegations of IOML violations aggressively and honestly. As a minimum, the complainant must be required to make a sworn complaint of an IOML violation. Any statements of witnesses and suspected offenders must likewise be sworn statements. Lying on a material matter by the complainant, a witness, or an accused is perjury. Any decision of the prosecutor to dismiss the complaint must be reviewed by the Idaho Attorney General's office. The Attorney General's review must include a review of the quality and sufficiency of the prosecuting attorney's investigation as well as the applicability of the law and appropriate use of discretion. Of course, the Attorney General's entire review must be public information.

When necessary and appropriate, the laws of criminal conspiracy need to be considered and invoked. For example, if a city council lawfully goes into executive session on one matter but agrees to deliberate (or vote or reach a "consensus") on a different matter not permissible under executive session, the prosecutor needs to consider charging under both the IOML and Idaho's criminal conspiracy law.

But isn't this overkill? Rewrite the IOML to make it tougher? Compel county prosecutors to take IOML violations seriously? Require the state Attorney General to review prosecutor's decisions to not pursue IOML violations? Aren't we going overboard here?

No, I don't think so. Clearly the intent of both Idaho and Washington State legislators was to compel public officials to conduct the public's business in public, not in secret. At least in Idaho, this intent has been knowingly circumvented by mayors, city council members, community college trustees, and other elected and appointed officials including county prosecutors. That needs to be corrected.

Some local elected and appointed officials need only look in the mirror to identify those who continue to con the public by allowing us to think we know which shell the pea of public information is under, even while those officials are concealing it in the palm of executive session.