For the week of April 17 - 23, 2002

Simon, council lock horns over meeting law

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By GREG STAHL
Express Staff Writer

Ketchum’s mayor and city council president locked horns Monday night over their different interpretations of Idaho Open Meeting Law.

In a one-page statement he read at the meeting, Mayor Ed Simon lambasted Council President Randy Hall for coordinating a determination among a majority of council members outside a noticed public forum.

Hall appears to have attempted to initiate the formation of policy, through a request to the mayor, that would have further included the public in the process of appointing city officials, specifically the appointment of planning and zoning commissioners. Hall’s request is questionable, because he told Simon a majority of the council agreed on the point.

In an April 8 memo to the mayor, fellow council members and the city administrator, Hall began: "The majority of the council has determined that in order to honor our system of open government, we should advertise for any planning and zoning vacancies now or in the future."

Such an action would demonstrate that the administration is "inclusive not exclusive and that anyone who wishes to serve this community in this or any capacity is welcome," Hall continued.

He went on to request that the mayor remove the scheduled appointment of a planning and zoning commissioner from Monday night’s meeting agenda. By city resolution, a majority vote of the city council is required to override the mayor’s agenda, but such a vote never occurred.

Hall said he had spoken with Councilwoman Chris Potters and Councilman Baird Gourlay in separate telephone conversations to determine their opinions on the matter. After speaking with Gourlay a second time, Hall said he withdrew the request because Simon’s appointment, local architect Harold Johnson, appeared very qualified.

Simon said the word "determined" in Hall’s memo upset him.

"As mayor I have attended every meeting of this governmental body, so that my first question was: When was this determination made? Where was this determination made? And what public notice was given?"

The stage for the duel began to be set April 1 when Simon wrote a memo to city council members stating his recommendation that five-year Planning and Zoning Commissioner Susan Scovell be replaced by Johnson.

Despite the memo debate, the council unanimously supported the appointment of Johnson Monday night.

"I don’t want to have anyone there more than six years," Simon explained of his decision to dismiss Scovell, although she was willing to serve another term.

In statements made by Councilwoman Potters and Hall Monday night, the following events appear to have occurred:

Potters conceived of the idea to advertise for planning and zoning commissioners, which the city has done in the past, and told Hall about it. Hall decided the idea had merit and contacted Gourlay to find out what he thought.

However, a city resolution titled City Council Rules of Procedure and Conduct states that "once a matter is placed on the agenda, it shall not be removed without the affirmative vote of a majority of the council."

In Hall’s words: "The reality is that I needed three votes to pull it off.

"It had nothing to do with violating open meeting laws. Everybody was in agreement that it was in the spirit of having an open government, not to the degradation of an open form of government."

He said it is, and has been, common for council members to contact one another outside of meetings to discuss matters before the city. He said he does not believe what he did was beyond the letter of the law.

"If what I did was illegal or improper, I will make amends," he said.

In Simon’s words: "I get the sense that Councilman Hall is trying to tell me how to effectuate and do my job as mayor."

In his written statement, he continued, "The City Council President is misleading the city council through a process of serial telephone conversations for the purpose of making decisions which are not only unlawful, but which deny our citizens the due process required under the Idaho Open Meeting Law.

"I want to say to the council that your council president does not serve you well."

According to the Idaho Open Meeting Law, all public policy must be formed in public forums.

"…(T)he 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."

Deliberation, according to the law, "means the receipt or exchange of information or opinion relating to a decision…," and decision "means any determination, action, vote or final disposition upon a motion…"

In interviews with three lawyers, however, Hall and Simon’s debate appears to fit in a gray area in the law.

"I don’t see a meeting here, not as contemplated in the Open Meeting Law," Ketchum City Attorney Margaret Simms said. "They didn’t take any action. If you look at the word ‘determined’ in its context, it’s like ‘We think.’"

Two other attorneys familiar with the Open Meeting Law agreed with Simms’ assessment, but declined to be identified.

They qualified their assessments, however. If the "majority of the council" was simply making a recommendation, the law was probably not broken. If a vote had resulted, Simon’s case would be stronger, they said.

The only true test, one lawyer added, is for the issue to be taken to a court room.

Legalities aside, Councilman Maurice Charlat said this was not the first time he received a memo from another council member stating a majority of his colleagues were leaning in a particular direction on an issue.

"It doesn’t feel right when you get a piece of paper saying the majority of the city council has decided something," Charlat said.

Hall was obviously shaken and surprised by Simon’s unexpected statement.

"You’re wrong about your assumptions," he said amidst snickers from the audience. "What we wanted to do was have the process be more participatory.

"I actually thought that the mayor would embrace this concept, because he talks so often of a participatory and inclusive government."

But Simon was not deterred.

"You made a determination that wasn’t made in a public hearing," he steamed. "I find that reprehensible."

Before the meeting’s conclusion, Hall asked council members for a vote of confidence. When he did not get one, he said he would step down from the post of council president if his colleagues desired.

"If the council feels I need to step down, I will do that," he said.

The council remained silent for a moment before a second was made on a prior motion to go into executive session to discuss hiring a new city administrator. The vote to enter executive session was unanimous.

 

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