Sara M. Baker, President Rebecca W. Arnold, Vice President Jim D. Hansen, Commissioner Kent Goldthorpe, Commissioner Paul Woods, Commissioner September 10, 2018 Paul Panther Deputy Attorney General Chief, Criminal Division P.O. Box 83720 Boise, ID 83720-0010 Dear Mr. Panther, This letter is in response to your August 31, 2018 letter regarding Open Meeting Law violations. Ada County Highway District ( ACHD ) appreciates the candor of your letter and your Office s finding that Commissioner Hansen violated Idaho s Open Meeting Laws. But as set forth below, ACHD respectfully disagrees with a number of other the conclusions reached by your office including: (1) that Commissioner Hansen s deliberate violations of the law may somehow be cured; (2) that the Commission has not taken any action concerning the topics addressed in Commissioner Hansen s serial emails since the dissemination of those emails; (3) that Commissioner Goldthorpe s forwarding of one of Commissioner Hansen s emails to alert his colleagues of the violation somehow itself violated Idaho s Open Meeting Laws; and (4) 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. (1) COMMISSIONER HANSEN S DELIBERATE VIOLATION OF THE LAW IS UNCURABLE ACHD strongly disagrees with your letter s evaluation of Commissioner Hansen s misconduct and the conclusion that his conduct is somehow curable. Your letter seems to imply that Commissioner Hansen s conduct was an unintentional violation based on ignorance of the law. But Commissioner Hansen is a trained attorney and a former state legislator at the time the open meeting law was passed. He has served on the ACHD Commission for approximately six years and has received extensive training on Idaho s Open Meeting Laws both internally at ACHD and elsewhere. Commissioner Hansen s engagement in serial email meetings is substantially more than an inadvertent curable violation. Instead, Commissioner Hansen intentionally violated the Open Meeting Laws in order to further his own political agenda. His violations are blatant and egregious as he attempted to trade votes on deliberative issues pending before the Commission for decision. Indeed, Ada County Highway District 3775 Adams Street Garden City, ID 83714 PH 208 387 6100 FX 345-7650 www.achd.ada.id.us
Commissioner Hansen deliberately attempted to hold the other Commissioner s hostage outside the public view. ACHD agrees with you that each of Commissioner Hansen s emails is a separate violation and believes Commissioner Hansen needs to be held accountable for his purposeful disregard of Idaho s Open Meeting Laws. See I.C. 74-208(3). (2) THE COMMISSION HAS TAKEN ACTION CONCERNING A TOPIC ADDRESSED IN COMMISSIONER HANSEN S SERIAL EMAILS, AND ACHD INTENDS TO CURE THAT ACTION Your letter assumes that the Commission took no action concerning the topics addressed in Commissioner Hansen s serial emails. But that is not entirely correct. On August 22, 2018, the Commission voted on a budget that included transportation funding and elected to not go forward with the scheduled VRF language hearing one of the issues deliberated by Commissioner Hansen in his many emails. Thus, while that public meeting was properly noticed and complied with the Open Meeting Laws, ACHD s actions related to the matters deliberated in Commissioner Hansen s emails are likely null and void. See I.C. 74-208(1). And while ACHD may revisit these matters by placing them back on the agenda, acknowledging the Open Meeting Law violation, and again voting, see I.C. 74-208(7), that statutory opportunity to cure will do nothing to undo Commissioner Hansen s intentional violation of the law. ACHD and the remaining Commissioners take pride in their duties to honestly serve the public and will not stand behind Commissioner Hansen s betrayal of the public trust. (3) COMMISSIONER GOLDTHORPE DID NOT ENGAGE IN ANY CONDUCT VIOLATIVE OF IDAHO S OPEN MEETING LAWS ACHD also respectfully disagrees with your letter s conclusions regarding Commissioner Goldthorpe. First, your letter fails to appropriately distinguish the serious violations committed by Commissioner Hansen compared to the entirely justified conduct engaged in by Commissioner Goldthorpe. Commissioner Hansen s emails, seeking to trade votes behind closed doors, pales in comparison to Commissioner Goldthorpe s efforts to notify his fellow Commissioners of Commissioner Hansen s reprehensible conduct. Second, while the use of a personal email account is generally not a best practice and ACHD agrees this should normally be avoided by its Commissioners, it is not a violation of Idaho s Open Meeting Laws. The reason Commissioner Goldthorpe used his personal email account was because he was legitimately concerned about using public resources, including computer resources, for the advocacy for or against various ballot measures. See I.C. 74-601 et al.; see also Ameritel Inns, Inc. v. Greater Boise Auditorium Dist., 141 Idaho 849, 855, 119 P.3d 624, 630 (2005). Indeed, Commissioner Goldthorpe s intent in complying with Idaho law is further confirmed by his deliberate effort to send his email to the other Commissioners personal emails accounts again, not using public resources. Commissioner Goldthorpe s concern in this regard was specifically rooted in President Baker s directive to refrain using public resources in such a manner. Notwithstanding the merits of Commissioner Goldthorpe s concern, the text of his email demonstrates that he was engaging in an administrative act for the sole purpose of alerting his fellow Commissioners to the Idaho Open Meeting Law violation perpetrated by Commissioner Hansen. At the time, Commissioner Goldthorpe believed that he alone had received Commissioner Hansen s email attempting to trade votes. We now know that was not the case as Commissioner Hansen sent similar
emails to all his fellow Commissioners. Notwithstanding, because Commissioner Goldthorpe thought he was the only one to receive such an email, he felt it incumbent upon himself to educate his colleagues so that the issue could be appropriately dealt with. What is abundantly clear from the context and face of the email is that Commissioner Goldthorpe did not send the email as part of a deliberative or decisional process. Deliberation includes the receipt or exchange of information relating to a decision. I.C. 74-202(2). Commissioner Goldthorpe was not receiving information when he forwarded Commissioner Hansen s email. Nor was he exchanging information relating to a decision. Commissioner Goldthorpe was merely alerting his colleagues to Commissioner Hansen s maneuverings. He said: After receiving the message below from Jim Hansen I believe the only thing he wants is to hold the entire matter hostage. Enjoy the terms of our surrender that he has provided. Recognizing that Commissioner Hansen s email discussed pending decisional matters before the Commission, Commissioner Goldthorpe did nothing more than appropriately inform his colleagues of Commissioner Hansen s behind-the-scenes attempt to deliberate. For these reasons, ACHD respectfully requests you reconsider your conclusions with regard to Commissioner Goldthorpe. (4) COMMISSIONER HANSEN S EFFORTS TO TRADE VOTES IN SECRET IS THE MOST SERIOUS KIND OF OPEN MEETING LAW VIOLATION, WHICH YOUR OFFICE SHOULD PROSECUTE TO THE FULLEST EXTENT ACHD respectfully disagrees with your office s attempt to diminish the seriousness of Commissioner Hansen s violations. The intent and policy behind the cure provision of Idaho s Open Meetings Laws does not justify its use here to sweep under the rug an elected official s purposeful violation of the law. ACHD encourages your office to make an example of Commissioner Hansen so it will be well understood that compliance with Idaho s Open Meeting Laws are a necessary component of a transparent and accountable public agency. ACHD stands ready to address any further inquiries you may have regarding these matters. Very truly yours, ADA COUNTY HIGHWAY DISTRICT Sara M. Baker President