For the week of January 21 - 27, 2004

‘The formation
of public policy
is public business’

Guest opinion by
SEN. CLINT STENNETT and
SEN. FRED KENNEDY

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Senate Minority Leader Clint Stennett, D-Ketchum,
represents District 25 in the Idaho Legislature, and
Sen. Fred Kennedy, D-Mountain Home, represents District 22.

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The Republican majority is once again flexing its muscle, continuing the pattern of holding certain committee meetings in closed or executive session. And once again, our Senate Democratic caucus will continue to protest this illegal and arguably unconstitutional activity.

True to our position we voted "No" on the motion to allow the Resources and Environment Committee to go into executive session to consider and discuss the mediation of Nez Perce water rights in the Snake River Basin Adjudication. The motion passed, the meeting was closed and we did not participate.

Idaho Code Section 67-2346 clearly provides that all meetings of any standing, special or select committee of the House and Senate shall be open to the public at all times. Our senate caucus does not believe that the Senate has the constitutional authority to unilaterally adopt a senate rule that is in direct conflict with a state law adopted by both houses of the legislature and approved by the Governor, and may in fact be in conflict with Idaho's Constitution. As a result, the Senate Democratic Caucus believes that to conduct an executive meeting of the committee, relying on Senate Rule 20(E), is in violation of the open meeting laws of the State of Idaho, and particularly Section 67-2346, Idaho Code. This is the same position that we took when the Senate Resources Committee voted to go into executive session for a committee meeting on April 23, 2003.

We believe there may be legitimate extraordinary circumstances where it would be prudent for a legislative committee to be able to meet in executive session, closed to the public and the press. The purpose of this latest meeting may well be one of those legitimate circumstances. However, it is the judgment of the Senate Democratic Caucus, that if the legislature desires its standing, special or select committees to hold executive closed meetings, to discuss sensitive legal issues to which the State is a party, and if the Idaho Constitution allows it, legislation should be enacted to amend I. C. Section 67-2346, clearly stating the specific circumstances and procedures under which executive sessions of the committees may be conducted.

The Attorney General has issued an opinion stating that since Article III, Sec. 9 of Idaho's Constitution provides that each house of the legislature shall determine its own rules of proceeding, the current rules adopted by both houses providing the authority for committees to conduct meetings in executive session, even though in direct conflict with I. C. Sec. 67-2346, must govern the actions of each house. Other attorneys, however, have taken the position that since Article III, Sec. 12 of the Idaho Constitution provides that "the business of each house, and of the committee of the whole shall be transacted openly and not in secret session," neither house of the legislature has the constitutional power to adopt rules of procedure that conflict with this specific prohibition against secret sessions. Our caucus believes that, unless a court tells us otherwise, this conflict between a rule adopted by the legislature, a state law enacted by the legislature, and Article III, Sec. 12 of the Idaho Constitution, should be resolved and the Constitutional prohibition on secret sessions, set forth above, should take precedence.

The legislative intent when the Open Meeting law was enacted is abundantly clear: "…the 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."

The intent of our forefathers when they adopted the Idaho Constitution is equally clear:

"the business of each house...shall be transacted openly and not in secret session,"

The language in Idaho Code 67-2346 is irrefutable: "...all meetings of any standing, special or select committee of the House and Senate shall be open to the public at all times".

We do not believe there is any ambiguity in the direction expressed in our Constitution and statute. Open public meetings are required – and we expect to abide by that mandate.

 

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