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

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.

Friday, February 22, 2008

The Big Loophole - Intentional Ignorance

In a press conference this morning, Idaho Attorney General Lawrence Wasden announced that the Idaho State Board of Education may have engaged in a non-knowing violation of Idaho’s Open Meeting Law. The AG’s decision is based on a recent Idaho Supreme Court decision which effectively allows intentional ignorance as an affirmative defense to alleged violations of that law.

One of the critical factors in applying the Open Meeting Law’s nullification and penalty portions is that the violation must have been “knowing.” That requirement arises from the Idaho Supreme Court case State of Idaho v. Rick Yzaguirre, Chairman, Ada County Board of Commissioners, Judy Peavey-Derr, Member, Ada County Board of Commissioners, Fred Tilman, Ada County Board of Commissioners.

The Attorney General’s entire report of his office’s investigation is available here.

The Idaho Supreme Court’s decision in Yzaguirre has created what may seem to be a nearly impossible standard for prosecutors to meet. They must prove alleged violators “knowingly” violated the law. In the absence of offenders’ writings and utterances, how do they demonstrate the violators knew they were violating the law?

AG Wasden insightfully recognized this and took steps to administratively close the loophole. The Ada County Board of Commissioners will be required to attend training in the Idaho Open Meeting Law.

Training in the Idaho Open Meeting Law, the Idaho Public Records Law, and the Idaho Ethics in Government Law ought to be mandatory before any Idaho elected or appointed official is allowed to assume a position of public trust. The State already has a statewide mechanism set up to provide training to these officials. It is the Idaho Peace Officers Standards and Training Academy. That academy has regional representatives who could be used to set up and even administer the training. After all, the AG’s office provides the booklet training material free to any requestor either in hard copy or online.

It is worth mentioning that a few years ago, The Spokesman-Review newspaper sponsored an Open Meeting Law - Public Records Law seminar in Coeur d’Alene. Attorney General Wasden and his deputy, Bill Von Tagen, presented the training on behalf of the AG’s office. Coeur d’Alene’s Mayor and City Council just could not find the time to attend. Perhaps they knew that if they attended, they might be held accountable for compliance.

The Idaho legislature needs to adopt AG Wasden’s “fix”: Require all public officials who are subject to these laws to attend certification training and periodic retraining. Remove the “intentional ignorance” defense from their arsenal of weapons of mass evasion.