The Ada County Highway District commission may not be in the transit business, but the commission chairman at least had no problem tossing a member under the bus.
In a Monday letter signed by ACHD Commission president Sara Baker to the Chief Criminal lawyer at the Idaho Attorney General’s office, the commission appears to have doubled down on its condemnation of Commissioner Jim Hansen’s alleged open meeting violation. The letter was in response to a letter from the AG’s Paul Panther who agreed the e-mails were in violation, but essentially said there was “no cure” for the violation. The full board will decide Wednesday whether or not to send the response to the AG.
Baker disagreed with Panther’s conclusion “that your office has no basis to seriously enforce Commissioner Hansen’s blatant and egregious violations of Idaho’s Open Meeting laws—his efforts to trade votes in secret is the most serious kind of violation that cannot be excluded or ignored.”
Hansen, through a series of e-mails, attempted to negotiate elements of a vote concerning a proposed fee hike for vehicle registrations. The rest of the board declared the move a “serial meeting,” outside the open meeting law.
Baker’s letter also defended fellow Commish Kent Goldthorpe’s use of e-mail to inform his colleagues of Hansen’s e-mail negotiations.
The entire letter to the AG is here. https://achdidaho.civicweb.net/document/7560/ACHD%20Open%20Meetings2018-08-31.pdf?handle=7C122098E81A464496FD2E538C4A2D7E
Commish Hansen responded to the GUARDIAN in a written statement which follows.
HANSEN’S POINT BY POINT RESPONSE
Attorney General’s Recommendation Provides Useful Guidance:
I am glad the Attorney General’s office in its letter of August 31, 2018, added clarity to how it believes Idaho’s Open Meeting Law ought to be interpreted as a result of evaluating the e-mails I sent six weeks ago. I did not believe my emails were addressing anything actually before the Commission, and I respect and value the Attorney General’s input and advice. Because there was no action to be taken on any of the matters discussed in my emails, acknowledging the error as the Attorney General suggests and moving on is the right approach. I have in fact acknowledged my error publicly on numerous occasions.
Request to Reject A.G.’s Recommendation is Not Supported:
I understand Commission President Baker will ask the Commission tomorrow to reject the Attorney General’s letter. This is profoundly disappointing since the commission asked for the independent review. The A.G.’s office took the proper steps to evaluate the emails and all information the ACHD sent him and to interview me and to understand my view of the events and my intent. This formed the basis for the A.G.’s conclusions.
This is not what happened within ACHD when Commissioner Arnold initiated the ACHD’s own investigation. The ACHD staff attorney did not interview me when he prepared his report and it was that report which the Commission forwarded to the A.G. It turns out, the A.G. identified communications by two commissioners that may fall under the definition of “deliberation” under Idaho’s Open Meeting Law and recommended curing them both the same way. I understand President Baker is asking the Commission to reject the A.G.’s recommendation as to me and to accept it as to Commissioner Goldthorpe.
My Emails Didn’t Address Anything Before the Commission for a Vote:
I acknowledged my mistake in sending the emails and have acknowledged it many times since. It was my understanding that the topics I raised in the emails were not pending in any upcoming public decision. I confirmed this with the investigator for the A.G. when I spoke with him. Time has revealed that in fact nothing raised in my emails has been brought before the commission for decision.
The two examples President Baker continues to cite are wrong. The resolution authorizing the vehicle registration fee (VRF) increase and the related ballot language were approved on July 11. The time for reconsideration had passed by the time Commissioner Woods called me and asked if I could support the fee increase in public notwithstanding my prior vote. It was this call that caused me to advocate for items I believe the Commission ought to be publicly addressing if we are going to be asking for any more tax or fee increases. The VRF has not again been brought to the Commission.
The other example is the budget. We voted on the 2019 budget on August 22nd. That budget did not have any funding for the transit infrastructure for which I have advocated. My constituents want me to advocate for transit. When the budget came up for a final vote on August 22nd, I specifically asked the attorney for the ACHD if I may vote on the budget. The ACHD’s attorney said yes, as long as I don’t speak to any topics in my emails which the A.G.’s office was looking into. I asked a second time. He said yes, I may vote on the budget.
I Have Consistently Publicly Advocated for Issues Important to My Constituents Including Controlling the Pressure to Raise More Taxes and Fees:
I have always wanted important public policy issues my constituents care about to be part of a public process before we ask them to give more money to the agency. For example, I want this agency to develop level of service metrics for pedestrian and bicycle safety. It has not been a part of a decision before this body.
I have questioned whether the governing structure of this agency needs to be revisited in light of the findings of Blue Print for Good Growth and other studies. That is definitely not a popular position with some of my colleagues, but it is a position my constituents agree with.
The only way to advance good public policy changes is with vigorous public engagement. I have been at the forefront of that public engagement and apparently have generated the resentment of some of my colleagues.
President Baker repeats the accusation I was offering to trade “votes” for items for which I have advocated. That is not true. The A.G.’s office investigated the same emails and did not draw that conclusion. I do not support increasing fees or taxes unless there are significant changes in the agency. Those changes will take many public meetings to start to bring about.
Resentment Over My Advocacy is No Reason to Reject the A.G.’s Conclusion:
Neither resentment, nor President Baker’s interpretation of my motives, is a legitimate reason to reject the A.G.’s conclusion and force further costs on the taxpayers. Since there has been no decision nor any action, there is no basis to reject the A.G.’s cure under his definition of “deliberation.” The cure the A.G. said is threefold: (1) release the emails (done) (2) acknowledge the error (done) and (3) provide further education on the Open Meeting Law.
When mistakes happen, they should be acknowledged so that they don’t get in the way of vigorous public discussion of public policy issues the people care about.
My Record is Long and Clear:
It has always been my fervent desire that all of the issues I have advocated for in my career be considered through public processes. My record reflects that. While it has been increasingly painful to raise those issues in the Commission work sessions and hearings, I still should not have written about them first in emails prior to the meeting. I should have waited for the meeting to raise them again. I pledge to continue to represent my constituents on these and all the issues they care about in the most public of ways possible.
We Should Learn From, Not Reject, the A.G.’s Interpretation of Deliberation:
The A.G.’s interpretation of the law is that while there was no decision and no action in this case, “deliberation” may occur on a topic by any form of communication even if there is no response from the recipients of the communication on the topics raised.
Public officials routinely communicate with each other outside of public meetings and can unknowingly trigger this broad standard of “deliberation.” In many cases, that communication is not recorded with emails but is oral.
The A.G.’s interpretation is very helpful and should now inform how this agency and all public agencies must operate going forward. While it is never pleasant to be the test case, I am heartened that this interpretation ought to encourage less private conversations among elected officials about public issues and greater independent thinking and open deliberation of those issues.
For me, being the test case in the face of disdain from one or more other commissioners has been excruciating and expensive. I am sorry President Baker feels it is necessary to prolong the cost to me as well as to the taxpayers.
I have always been a strong advocate for open meetings. This episode has further strengthened my determination to insist on greater openness and public engagement. Better policies happen when the public is invited to fully engage.
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