Ada County commissioners’ actions brush up against Idaho Open Meeting Law once more
For the second time this year, the Ada County Board of Commissioners has prompted questions about a potential violation of Idaho Open Meeting Law over its handling of an appointment to the region’s public health board.
Just days before the three-member commission was set to convene for public interviews with three doctors competing for a vacancy on the Central District Health Board of Health, at least two of the commissioners exchanged emails identifying one’s preferred candidate. The appointment became baldly partisan, commissioners also acknowledged, once the Ada County Republican Party and other conservative groups threw their support behind one candidate and launched an extensive email campaign, while a progressive organization named The Idaho 97 Project publicly pushed for an opposing applicant.
In a written reply to an Idaho Statesman reporter in the days leading up to the public meeting, Commissioner Rod Beck, who acts as chair of the commission, divulged that he and Commissioner Kendra Kenyon had corresponded about her prior responses to a similar list of questions. Included among those answers in Beck’s possession was Kenyon confirming Dr. Sky Blue, an infectious disease specialist backed by the majority of the region’s medical community, as her top choice.
State law holds that a meeting between two county commissioners constitutes a quorum, but the Idaho Attorney General’s Office does not interpret that to bar all communication between commissioners. However, any private discussions, including emails, that could be seen as “deliberation” on an item coming before a commission for a vote are prohibited.
“‘Deliberation’ means the receipt or exchange of information or opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature that do not specifically relate to a matter then pending before the public agency for decision,” Idaho’s law states.
Beck, a Republican who represents District 2, rejected the idea that the email exchange he initiated with Kenyon constituted a potential violation of the state law requiring all public business be conducted in an open forum. Earlier this year, he and fellow Republican Commissioner Ryan Davidson drew scrutiny over a prior CDH board appointment, leading to an investigation by a prosecuting attorney from a neighboring county.
“I see no issues at all regarding the Idaho Open Meeting Law. We at the Ada County Commission follow all relevant laws of the State of Idaho and the Federal Government,” Beck wrote in an email to the Statesman.
Kenyon, who represents District 3 and is the commission’s lone Democrat, also denied that her exchange with Beck ahead of the noticed meeting on Aug. 9 could be construed as a violation of law. After interviews with Blue and Drs. Stan Moss and Ryan Cole, the commission chose to delay its scheduled appointment selection from last week to Tuesday, Aug. 17.
“Never have I deliberated on this matter with my fellow commissioners outside an open meeting that was placed on the agenda for public view,” Kenyon said by email. “For an open meeting violation to occur, deliberations and decision making between two commissioners would need to occur that was not public and noticed.”
Open meeting violation questions anew
Charles Brown, a Lewiston-based attorney specializing in First Amendment and open meeting law, said it is incumbent upon those individuals in government granted decision-making authority to abide by the strictest adherence to the law and to impartiality. Any discussion otherwise has the potential of running afoul of the Open Meeting Law, he said. (Disclosure: Brown previously represented the Idaho Statesman, as well as other Idaho newspapers and publications across the West, in litigation.)
“Elected officials are charged with taking great care in how they discuss items coming before them for a vote, whether that’s during lunch or over email,” Brown said in an interview. “Ultimately, I don’t think it’s a question of intent. The entirety of the deliberative process must occur in the public domain, as that is how our government works and the very basis of the state’s Open Meeting Law.”
The new situation arose about seven months after Canyon County Prosecuting Attorney Bryan Taylor launched a review of Beck and Davidson’s conduct leading up to an earlier appointment to the CDH board. Ada County Prosecuting Attorney Jan Bennetts, who would normally handle such an investigation within the county, recused herself because her office also represents the county commission.
In January, Beck and Davidson kicked off their tenures on the commission by appointing to the board former U.S. Rep. Raúl Labrador, an attorney who previously served as chair of the state Republican Party. The item appeared on the commission agenda but had not included an application process or prior public comment period, which drew Kenyon’s ire. She said it appeared that her new commission colleagues had “teed up” their preferred choice ahead of the meeting.
“I don’t think it’s appropriate for the two of you to make decisions without it being an open forum like this, and having a discussion,” Kenyon told her colleagues at the Jan. 12 meeting. “So the fact that it’s already been teed up, to me, is a little worrisome. I just want to make sure that we’re going through the right process.”
Kenyon later told the Statesman in a June phone interview that she had concerns her fellow commissioners would do the same thing to replace Dr. Ted Epperly, the CDH board’s lone physician, in the decision now before the commission. She walked back those comments in early August as the current appointment process got underway.
Past investigation results into Beck and Davidson
Beck denied that he and Davidson had together made a decision to select Labrador outside of a public meeting or without Kenyon’s involvement, and moved forward with a 2-1 vote in favor. Kenyon told the Statesman that she did not file a formal complaint against her colleagues, but more than 30 emails poured into the Ada County Prosecutor’s Office after the meeting, demanding that the appointment be investigated for violating state law.
“Please look into the secret appointment of Raúl Labrador to the CDH (board). This is an outrage and a violation of Idaho’s open meeting laws!” Boise resident Kari Filson wrote in a Jan. 12 email to Bennetts’ office. “This is a dangerous precedent and it makes me trust government less and less.”
Davidson, who represents District 1, did not respond to the Statesman’s requests for comment. Beck again reiterated his belief that there were no issues with the past appointment process, though it was reopened a week later to include Blue as an applicant before Labrador was again chosen by the same 2-1 commission vote.
“The appointment of Raúl Labrador to the Central District Health board followed Idaho law precisely,” Beck said by email. “There was an unfounded allegation of a potential Open Meeting violation. The Canyon County Prosecutor did a thorough investigation and found the Ada County Commission was in complete compliance with all applicable laws.”
In fact, Taylor’s investigation found that Beck and Davidson, as well as Labrador, each acknowledged to him that they spoke about the appointment leading up to that meeting. However, the law does not pertain to individuals not yet sworn in, he noted.
“… The Open Meeting Law does not, by its own terms, apply to discussions between candidates for office, commissioners-elect, or private parties,” Taylor wrote in a letter to Bennetts of his review.
Furthermore, he wrote that the corrective action under the circumstances would have been to reopen the appointment process to ensure that any violation of state law was remedied.
The subsequent Jan. 19 commission meeting “to reconsider Mr. Labrador’s appointment — during which the qualifications and potential appointment of at least one alternative candidate were discussed — was intended to serve as self-recognition of any potential violation, its cure, and a bar to the imposition of civil penalties,” Taylor wrote. “Accordingly, in my view, the Law here functioned as intended given that the identification of its potential violation led to additional process and perhaps greater substantive open discussion about issues of significant importance and public interest than might otherwise have occurred.”
The commission’s latest brush with the law now extends to Kenyon, with a second occurrence involving Beck, its chair.
“I have been completely transparent in all my communications regarding the CDH appointment,” Kenyon said. “If you remember, I was the one who identified Dr. Blue as a highly qualified candidate by speaking to our health system experts. Ahead of the interviews this time around, I had already read the résumés and application information of the other candidates and remained confident Dr. Blue’s expertise was head and shoulders above the others.”
The commission is poised to make its CDH board selection at its meeting Tuesday morning. Public comments can be emailed beforehand to bocc1@adacounty.id.gov, and the meeting will be streamed live via Ada County’s YouTube channel.
This story was originally published August 15, 2021 at 5:00 AM.
