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Forming Public Policy is the Public's Business

"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."

And so it began, back in 1974, when the state of Idaho established a basic set of ground rules ensuring the public's right to be informed about the business done by its government. Idaho is hardly alone in this provision - all 50 states have some type of open meeting law - or sunshine law as it's popularly known- on their books. Montana's 1972 Constitution includes a "Right to Know" clause intended to protect the citizen's right to inspect public records and attend meetings of public agencies at all levels.

Montana, in fact, includes not only a right to know, but a right to participation that states, "The public has the right to expect government agencies to afford such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision…"

These are laws that public entities seem to have some trouble with, and there's no end to citizen complaints that the law is not being followed. County commissioners, school boards, city councils, planning and zoning commissions… all have come under fire for suggested violations of the law.

Complaints have arisen around several issues, but perhaps none so much as the question of just what constitutes a public meeting, and under what circumstances can a closed meeting be held.

Idaho's Attorney General, Alan Lance, has published an "Open Meeting Manual" to answer such questions. In it, the guidelines for executive session, or closed meetings, are clear. Executive sessions may be held when considering hiring a person for a position (but not for filling a vacancy in an elective office); to consider evaluation, discipline or dismissal; during labor negotiations or when attempting to acquire property; to consider exempt documents; and to consider and advise legal representatives regarding pending litigation. 

In Montana, the law is not quite so specific. Meetings may be closed when "the demands of individual privacy clearly exceed the merits of public disclosure." Montana is stricter, however, in regard to litigation. "A meeting may be closed to discuss strategy (only…) when an open meeting would have a detrimental effect." Montana agencies must also discuss in public any litigation between two public bodies or associations.

Technology, and the ease of communication associated with it, is providing additional headaches for those charged with complying with open meeting laws. Email is a particular violator of provisions that require public deliberation. 

"Even the receipt of information relating to a "decision," - i.e., a measure on which the governing body will have to vote - amounts to deliberation and thereby triggers the definition and requirement of a "meeting" under the Open Meeting Law," reads Lance's manual for Idaho.

Consider a controversial decision coming up before a governing body - and consider sending an email to all members of that body. Should any one member choose to reply, and choose "reply to all" when doing so, they have violated the requirement to deliberate in public. Members are subject to a $150 penalty (paid personally), for a first violation.

Lake Pend Oreille School District #84 has recently been the subject of community unrest regarding Open Meeting Laws; one such concern surrounds their non-use of microphones during their regular meetings. With meetings held in less-than acoustically desirable locations such as school auditoriums and gymnasiums, the public has many times remarked that they are unable to hear what the Board is saying. And at a meeting last month, a member of the audience was ruled "out of order" by Chairman Tom Scott for remarking she couldn't hear.

In an opinion drafted by John Rumel, an attorney with the Idaho Education Association, the problems with this decision were pointed out - specifically, violations of the Americans With Disabilities Act (ADA), violations of Idaho's Open Meeting Law, and even violations of common courtesy.

A quick look at Lance's manual makes that very clear. "The communication… must be audible to the public attending the meeting in person…"

Rumel states, "The Board's failure to utilize microphones at School Board meetings constitutes a violation of both the ADA and Idaho's Open Meetings Act. Moreover, even if the law did not, under certain circumstances, impose such a requirement, both courtesy and common sense would lead to the same conclusion."

Rumel points out that school boards consist of "public officials whose primary - if not sole - responsibility is to represent the patrons, parents and students of the School District. An integral part of that representation is to allow patrons to hear, understand and participate in School Board meetings. The Board, however, when presented with evidence that both elderly and non-elderly patrons were having problems hearing… did not attempt to address or rectify the problem; instead, the Board declared the complaining patron out of order. By acting in this manner, the Board has lost sight of its responsibility to patrons and treated the very individuals it is supposed to serve with contempt."

Election season is a good time for our officials to remember just who it is they serve- and that's the public who voted them into office. Indeed, as Idaho's legal code states, we citizens do not give up our sovereignty when we elect an official to represent us - and we have a right to expect that those officials, as part of their charter for office, will uphold our individual rights to know, hear and participate in the actions of our government.

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Landon Otis

Tagged as:

education, Politics, Montana, Lake Pend Oreille School District, Idaho, Tom Scott, sunshine law, open meetings

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