Serial Meetings: Intentional Evasions of Law
Kootenai County prosecuting attorney Bill Douglas was unwilling to prosecute a blatant violation of the Idaho Open Meeting Law (IOML). Since he didn't prosecute the relatively obvious offense, it is reasonable to wonder if he has the skill or will to recognize and prosecute a more complex and sinister evasion, the serial meeting. Participating in a serial meeting acknowledges the participant is knowingly engaging in behavior intended to evade the IOML and deprive the public of the law's protections.
A serial meeting is a conscious attempt to evade the IOML by dividing the public body into groups smaller than a quorum. The smaller groups meet in some manner, deliberate and often arrive at a decision, then reassemble as the entire body in a public place to "deliberate and vote" so the public is misled into believing the public's business was conducted in the public meeting. Of course, it was not. This serves to deny the public any opportunity to observe government operations so elected and appointed officials can be held accountable, the very opportunity the IOML is intended to assure.
Here's one simple example of a serial meeting: Councilmember A meets with Councilmember B and discusses an item that is currently or is expected to be in front of the Council. Councilmember B delivers the A+B consensus to Councilmember C who agrees and delivers it to Councilmember D. Councilmembers A+B+C+D constituted a quorum, but they did not physically "meet" as a quorum in the same space or time. Still, they conducted an illegal serial meeting. They effectively met, deliberated, and arrived at a decision (euphemistically called a "consensus" by public officials who try to rationalize their violation of law) when public attendance was impossible.
A serial meeting need not be a face-to-face meeting or even occur in real time. It can be a series of communications (direct communication, personal intermediaries such as staff members, or technological methods such as E-mail or telephone calls), with each unique communication involving less than a quorum, but which taken as a whole involves a majority of the body’s members. A serial meeting occurs when there are systematic communications on a particular matter involving a quorum of the body acquiring information, engaging in debate, discussion, lobbying, or any other aspect of the deliberative process.
My blog post of Sunday, November 19, 2006, titled Explosions Shake Coeur d'Alene Place Home, used Coeur d'Alene Councilmember Dixie Reid's own words uttered at the November 7, 2006, Coeur d'alene City Council Meeting to illustrate how a majority of the Council had conducted a serial meeting via telephone in October wherein it agreed to approve an event permit to a private contractor. The event was to be held on November 3. The Council unanimously (absent: Edinger) "ratified" October's illegal serial meeting by voting in public on it on November 7, four days after the event on November 3. The after-the-fact "ratification" of the earlier serial meeting denied the public the opportunity to challenge the permit and prevent its harmful effects.
Though Idaho's law is far less rigorous than California's, we ought to learn from the experiences of California. The California First Amendment Coalition has published a very detailed explanation of the intricacies of that state's open meeting laws. One segment of that publication, The Brown Act: Open Meetings for Local Legislative Bodies, is linked here. Serial meetings are discussed in Section 2 of that publication.
The Idaho Open Meeting Law needs to be revised.
First, the legislature needs to recognize, correct, and prohibit technical evasions that encourage serial meetings. The present law seems to have been enacted in 1974 with an underlying presumption that public officials would voluntarily and willingly comply with a law they understand. The law needs to be revised with a new underlying presumption: Some public officials will intentionally and knowingly seek ways to evade the Idaho Open Meeting Law so they can conduct the public's business in secret.
Second, the legislature must compel county prosecutors to investigate allegations of IOML violations aggressively and honestly. As a minimum, the complainant must be required to make a complaint of an IOML violation under oath or affirmation. Any statements of witnesses and suspected offenders must likewise be taken under oath or affirmation. Lying on a material matter under oath or affirmation by the complainant, a witness, or an accused is perjury.
Under my proposed revisions, any decision of the county prosecutor to dismiss the IOML complaint would have to be submitted within five working days after dismissal to the Idaho Attorney General's (AG) office for review. No exceptions. The AG’s review would include an examination of the sufficiency of the prosecuting attorney's investigation as well as the applicability of the law and appropriate use of prosecutorial discretion. The public is entitled to know if its elected prosecuting attorney conducted a thorough and diligent investigation.
The legislature gets an important benefit from the requirement for an AG review. Since the AG would be reviewing all dismissals, the AG would be better able to identify weaknesses or defects in the law (as opposed to factual insufficiencies in the specific complaint) so the legislature can correct them expeditiously.
The IOML needs to be revised so that dishonest public officials are severely and personally penalized when they use or allow serial meetings or other evasive techniques to conduct the public's business in secret. Their actions need to be exposed so the voters can be informed and take appropriate remedial action. A legislature that fails to protect the public by correcting defects in the IOML and its prosecution invites suspicion of its own motives and integrity.
A serial meeting is a conscious attempt to evade the IOML by dividing the public body into groups smaller than a quorum. The smaller groups meet in some manner, deliberate and often arrive at a decision, then reassemble as the entire body in a public place to "deliberate and vote" so the public is misled into believing the public's business was conducted in the public meeting. Of course, it was not. This serves to deny the public any opportunity to observe government operations so elected and appointed officials can be held accountable, the very opportunity the IOML is intended to assure.
Here's one simple example of a serial meeting: Councilmember A meets with Councilmember B and discusses an item that is currently or is expected to be in front of the Council. Councilmember B delivers the A+B consensus to Councilmember C who agrees and delivers it to Councilmember D. Councilmembers A+B+C+D constituted a quorum, but they did not physically "meet" as a quorum in the same space or time. Still, they conducted an illegal serial meeting. They effectively met, deliberated, and arrived at a decision (euphemistically called a "consensus" by public officials who try to rationalize their violation of law) when public attendance was impossible.
A serial meeting need not be a face-to-face meeting or even occur in real time. It can be a series of communications (direct communication, personal intermediaries such as staff members, or technological methods such as E-mail or telephone calls), with each unique communication involving less than a quorum, but which taken as a whole involves a majority of the body’s members. A serial meeting occurs when there are systematic communications on a particular matter involving a quorum of the body acquiring information, engaging in debate, discussion, lobbying, or any other aspect of the deliberative process.
My blog post of Sunday, November 19, 2006, titled Explosions Shake Coeur d'Alene Place Home, used Coeur d'Alene Councilmember Dixie Reid's own words uttered at the November 7, 2006, Coeur d'alene City Council Meeting to illustrate how a majority of the Council had conducted a serial meeting via telephone in October wherein it agreed to approve an event permit to a private contractor. The event was to be held on November 3. The Council unanimously (absent: Edinger) "ratified" October's illegal serial meeting by voting in public on it on November 7, four days after the event on November 3. The after-the-fact "ratification" of the earlier serial meeting denied the public the opportunity to challenge the permit and prevent its harmful effects.
Though Idaho's law is far less rigorous than California's, we ought to learn from the experiences of California. The California First Amendment Coalition has published a very detailed explanation of the intricacies of that state's open meeting laws. One segment of that publication, The Brown Act: Open Meetings for Local Legislative Bodies, is linked here. Serial meetings are discussed in Section 2 of that publication.
The Idaho Open Meeting Law needs to be revised.
First, the legislature needs to recognize, correct, and prohibit technical evasions that encourage serial meetings. The present law seems to have been enacted in 1974 with an underlying presumption that public officials would voluntarily and willingly comply with a law they understand. The law needs to be revised with a new underlying presumption: Some public officials will intentionally and knowingly seek ways to evade the Idaho Open Meeting Law so they can conduct the public's business in secret.
Second, the legislature must compel county prosecutors to investigate allegations of IOML violations aggressively and honestly. As a minimum, the complainant must be required to make a complaint of an IOML violation under oath or affirmation. Any statements of witnesses and suspected offenders must likewise be taken under oath or affirmation. Lying on a material matter under oath or affirmation by the complainant, a witness, or an accused is perjury.
Under my proposed revisions, any decision of the county prosecutor to dismiss the IOML complaint would have to be submitted within five working days after dismissal to the Idaho Attorney General's (AG) office for review. No exceptions. The AG’s review would include an examination of the sufficiency of the prosecuting attorney's investigation as well as the applicability of the law and appropriate use of prosecutorial discretion. The public is entitled to know if its elected prosecuting attorney conducted a thorough and diligent investigation.
The legislature gets an important benefit from the requirement for an AG review. Since the AG would be reviewing all dismissals, the AG would be better able to identify weaknesses or defects in the law (as opposed to factual insufficiencies in the specific complaint) so the legislature can correct them expeditiously.
The IOML needs to be revised so that dishonest public officials are severely and personally penalized when they use or allow serial meetings or other evasive techniques to conduct the public's business in secret. Their actions need to be exposed so the voters can be informed and take appropriate remedial action. A legislature that fails to protect the public by correcting defects in the IOML and its prosecution invites suspicion of its own motives and integrity.
posted by Bill McCrory | 8:00 AM
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