O-SenseI’ve always admired folks who are willing to serve at the city and county level, from elected city council members to volunteers on planning and zoning commissions. These are often thankless positions consuming lots of time and energy. But, they are vitally important and directly impact the lives of residents.
Two recent incidents in Burley and Ammon reflect some of the pitfalls of service in or on behalf of local governments.
The Twin Falls Times-News wrote a rather devastating story (read it here) last week about a flagrant and, frankly, rather disturbing violation of Idaho’s open meeting law.
Last year the city of Burley and Cassia County jointly appointed a panel to recommend a solution to a squabble between both entities over the cost of the Cassia County sheriff providing policing services for Burley.
After multiple meetings, the panel was set to discuss its final recommendations in a public meeting. But, a couple days before, Chairman Bill Parsons whose law firm represents the City of Burley, sent an email specifying that “[i]f any newspaper is there we will say someone is not ready and then we can handle by email.” Further he informed the panel members that he wanted to keep a particular candidate for Burley City Council, Jay Lenkersdorfer, from learning about the recommendations too soon.
This attempt to sidestep public access (including the press) into a public meeting is highly problematic. Idaho Code § 74-202(5) defines a covered “Governing body” under the Open Meeting Act as any group that has the authority to make “recommendations to a public agency regarding any matter.” The Act defines a covered meeting as “the convening of a governing body of a public agency to make a decision or deliberate toward a decision on any matter.” See Idaho Code § 74-202(6). Electronic communications, such as email, are covered, according to a guide prepared by Idaho Attorney General Lawrence Wasden.
The penalty for violations of the Open Meetings Act are a fine of $250 to participants if not deliberate or $1500 if the violation was deliberate. Idaho Code § 74-208(2) and § 74-208(3).
In my estimation, the Parsons’ email clearly violated the Open Meeting Act. It will be interesting to see if the Cassia County attorney takes action.
The other incident was by the elected officials of the City of Ammon which is a rapidly growing suburb of Idaho Falls. Ammon constitutes a significant portion of School District 93, which is holding on Nov. 3 a fourth attempt to approve a bond for a new high school. Enrollments are exploding and the school district’s two high schools are stretched to the limit. The next step, according to the district, is split enrollments where two school sessions are held each day.
The City of Ammon last week distributed a letter to city residents supporting the bond. It was sent with the city utility bills. The letter was over the names of Ammon Mayor Dana Kirkham and all six city council members.
The Idaho Freedom Foundation (“IFF”) brought the matter to light, arguing that the letter may violate the Idaho Constitution. The IFF article and a copy of the actual letter can be viewed here.
According by reporter Kirsten Johnson of the Idaho Falls Post Register, Ammon spent a total of $218.66 to photocopy the letter. That is obviously a minimal amount. But, is it an appropriate use of public funds?
The IFF cites the following provision of the Idaho Constriction (Article VII, Section 10):
Section 10. MAKING PROFIT FROM PUBLIC MONEY PROHIBITED. The making of profit, directly or indirectly, out of state, county, city, town, township or school district money, or using the same for any purpose not authorized by law, by any public officer, shall be deemed a felony, and shall be punished as provided by law. (emphasis added).
This provision has previously been the subject of an Idaho Attorney General opinion. In 1996, Idaho Deputy Attorney Kevin Satterlee wrote a legal opinion directed to the then-president of Idaho State University, Richard Bowen, that “it is illegal to for a state employee use state resources, such as the computer and the state’s Internet services, for political or campaign-related purposes.” That opinion can be viewed here.
My first thought was that IFF is correct. Clearly, the Attorney General’s opinion supports their position.
But, I’m now I am not so sure. The Idaho Code (Section 50-302) provides that municipalities are granted the power to “maintain the peace, good government and welfare of the corporation and its trade, commerce and industry.” Arguably, the letter might be consistent with that grant of power. In the above-mentioned Post Register story, Ammon City attorney Scott Hall justified the expenditure arguing that “public funds are appropriately spent when they’re spent for the general public benefit.” “We’re [The City of Ammon} concerned about the vitality of the city, we’re concerned about what it [turning down the bond] might do to property values . . . .”
Idaho constitutional scholar David Adler told the Post Register that he didn’t think the letter violated the Idaho Constitution, arguing it was more educational than political.
The Legislature could remove this ambiguity by passing a statute directly prohibiting such conduct in the future.
But, beyond legality, there is the question of whether the letter will actually help or hurt the school bond.
I know many of the Ammon officials. They are good people and work hard. Ammon is progressing on many fronts. I understand (and share) their concern that the school bond should pass.
But, I struggle to get past the thought this last minute controversy might actually hurt the bond.
There were other avenues to communicate support for the bond by these elected officials.
For instance, they could have paid for the letter themselves using their campaign accounts and mailed it directly to city residents rather than placing it in the city utility bills. They could have had a similar impact in a press release (not on city letterhead and distributed by bond advocates, not the city) or a newspaper ad or a strong post on social media.
All of these approaches would have avoiding any controversy and put the focus on the merits of the bond, rather that the appropriateness of whether the city could legally pay for and distribute the letter.
Instead, the public will walk into the voting booth on Nov. 3 considering whether this matter should impact their vote. Given that the measure failed by only 17 votes in the previous attempt, it would be unfortunate if the letter actually led to the measure’s defeat.
Steve Taggart is an Idaho Falls attorney specializing in bankruptcy (www.MaynesTaggart.com). He has an extensive background in politics and public policy. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .
