Eyewash Legislation
In a February 6 post on a local blog, Kevin Richert, Vice President of the Idaho Press Club, stated the Idaho Press Club supports Idaho Senate Bill 1085. Richart asks newspapers for their editorial support for the bill.
Why? Why should newspaper editors and the general public support bad legislation that worsens rather than corrects the existing problems in the Idaho Open Meeting Law?
The proposed legislation co-sponsored by Senator Kate Kelly (D-Boise) and Representative Jim Clark (R-Hayden Lake) would amend Idaho Code Sections 67-2344 and 67-2345.
The amendment to 67-2344(2) would change the wording from "Minutes of executive sessions may be limited to material the disclosure of which is not inconsistent with the provisions of section 67-2345, Idaho Code, but shall contain sufficient detail to convey the general tenor of the meeting," to "Minutes of executive sessions shall be limited to a specific reference to the statutory subsection authorizing the executive session and sufficient detail to convey the general subject matter but shall not contain information sufficient to compromise the purpose of going into executive session."
Kelly and Clark apparently think that more words increase clarity rather than add confusion. They're wrong.
Including the indefinite article "a" before "specific reference" compels the body to cite only one but not all the subsections being invoked as authority for executive session. The word "each" should have been used instead of the indefinite article "a".
There is little meaningful difference between the "general tenor of the meeting" in the original statute and "general subject matter" in the amendment. Both are vague and subject to situational interpretation. The final clause, "shall not contain information sufficient to compromise the purpose of going into executive session," will be interpreted by those already abusing executive sessions as a legal prohibition from disclosing any information beyond the statutory citation.
The amendment to 67-2345 (1) would change the wording from "under this act" to "by specific reference to one (1) or more paragraphs (a) through (j) of this subsection". This is a harmful change since it requires the governing body to cite only one but not all the statutory subsections being invoked to justify executive session.
The amendment to 67-2345(1)(f) changes the wording from "To consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation" to "To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement." Huh?
Only the last sentence strengthens and clarifies the existing law. The last sentence simply means that a dishonest city council or other dishonest body can't invoke attorney-client privilege as the reason for an illegal executive session merely because the city attorney has been invited in to have a slice of pizza with the gang. The amendment adds cover rather than clarity when it allows the governing body to subjectively decide what issues are "controversies not yet being lititated but imminently likely to be litigated." Define "controversies", and explain when one is "imminently likely to be litigated."
The amendment to 67-2345(1) adds subsection (j) which allows executive sessions to be held "To engage in communications with a representative of the public agency's risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. The mere presence of a representative of the public agency's risk manager or insurance provider at an executive session does not satisfy this requirement." In other words, the governing body is allowed to hide an existing or anticipated claim from the public by going into executive session. Exactly how does adding more exemptions improve openness in government?
This legislation co-sponsored by Kelly and Clark and endorsed by the Idaho Press Club has the effect of empowering dishonest elected and appointed officials to conduct more of the public's business in secret. It does nothing, absolutely nothing, to correct the underlying problems in the Idaho Open Meeting Law. I outlined some of those problems and some suggested solutions in my blog post titled Executive Session - Shell Gaming the Public.
Until the Idaho legislature admits that a significant number of public officials will knowingly, willfully, and intentionally try to circumvent the Idaho Open Meeting Law to deprive the electorate of information we need to hold those public officials accountable and to contribute to the formulation of good public policy, changes like the ones Kelly and Clark propose are eyewash.
Until the Idaho legislature admits that county prosecuting attorneys are not held accountable for the quality of their investigations of complaints of open meeting law violations and imposes mandatory Attorney General review of all open meeting law complaint dismissals, changes like the ones Kelly and Clark propose are eyewash.
The Idaho legislature needs to do one of two things: Either get serious about revising and enforcing the Idaho Open Meeting Law or repeal it. Kelly, Clark, and the Idaho Press Club can put lipstick on this pig, but it's still a pig.
Why? Why should newspaper editors and the general public support bad legislation that worsens rather than corrects the existing problems in the Idaho Open Meeting Law?
The proposed legislation co-sponsored by Senator Kate Kelly (D-Boise) and Representative Jim Clark (R-Hayden Lake) would amend Idaho Code Sections 67-2344 and 67-2345.
The amendment to 67-2344(2) would change the wording from "Minutes of executive sessions may be limited to material the disclosure of which is not inconsistent with the provisions of section 67-2345, Idaho Code, but shall contain sufficient detail to convey the general tenor of the meeting," to "Minutes of executive sessions shall be limited to a specific reference to the statutory subsection authorizing the executive session and sufficient detail to convey the general subject matter but shall not contain information sufficient to compromise the purpose of going into executive session."
Kelly and Clark apparently think that more words increase clarity rather than add confusion. They're wrong.
Including the indefinite article "a" before "specific reference" compels the body to cite only one but not all the subsections being invoked as authority for executive session. The word "each" should have been used instead of the indefinite article "a".
There is little meaningful difference between the "general tenor of the meeting" in the original statute and "general subject matter" in the amendment. Both are vague and subject to situational interpretation. The final clause, "shall not contain information sufficient to compromise the purpose of going into executive session," will be interpreted by those already abusing executive sessions as a legal prohibition from disclosing any information beyond the statutory citation.
The amendment to 67-2345 (1) would change the wording from "under this act" to "by specific reference to one (1) or more paragraphs (a) through (j) of this subsection". This is a harmful change since it requires the governing body to cite only one but not all the statutory subsections being invoked to justify executive session.
The amendment to 67-2345(1)(f) changes the wording from "To consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation" to "To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement." Huh?
Only the last sentence strengthens and clarifies the existing law. The last sentence simply means that a dishonest city council or other dishonest body can't invoke attorney-client privilege as the reason for an illegal executive session merely because the city attorney has been invited in to have a slice of pizza with the gang. The amendment adds cover rather than clarity when it allows the governing body to subjectively decide what issues are "controversies not yet being lititated but imminently likely to be litigated." Define "controversies", and explain when one is "imminently likely to be litigated."
The amendment to 67-2345(1) adds subsection (j) which allows executive sessions to be held "To engage in communications with a representative of the public agency's risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. The mere presence of a representative of the public agency's risk manager or insurance provider at an executive session does not satisfy this requirement." In other words, the governing body is allowed to hide an existing or anticipated claim from the public by going into executive session. Exactly how does adding more exemptions improve openness in government?
This legislation co-sponsored by Kelly and Clark and endorsed by the Idaho Press Club has the effect of empowering dishonest elected and appointed officials to conduct more of the public's business in secret. It does nothing, absolutely nothing, to correct the underlying problems in the Idaho Open Meeting Law. I outlined some of those problems and some suggested solutions in my blog post titled Executive Session - Shell Gaming the Public.
Until the Idaho legislature admits that a significant number of public officials will knowingly, willfully, and intentionally try to circumvent the Idaho Open Meeting Law to deprive the electorate of information we need to hold those public officials accountable and to contribute to the formulation of good public policy, changes like the ones Kelly and Clark propose are eyewash.
Until the Idaho legislature admits that county prosecuting attorneys are not held accountable for the quality of their investigations of complaints of open meeting law violations and imposes mandatory Attorney General review of all open meeting law complaint dismissals, changes like the ones Kelly and Clark propose are eyewash.
The Idaho legislature needs to do one of two things: Either get serious about revising and enforcing the Idaho Open Meeting Law or repeal it. Kelly, Clark, and the Idaho Press Club can put lipstick on this pig, but it's still a pig.
posted by Bill McCrory | 9:50 AM
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