MOB meeting closed to public
New mediation law thwarts public scrutiny of government
process
"The reason the whole board will not participate
is because then we’d be into the open meeting law problem… It’s
supposed to be a closed session. We gave that a lot of thought."
Blaine County Commissioner Dennis Wright
By TRAVIS PURSER
Express Staff Writer
A dozen top decision makers for St. Luke’s Wood River
Medical Center, the Blaine County Citizens for Smart Growth advocacy group
and county government said they are the first in the state to make use of
a new Idaho law that allows contentious land-use planning issues to be
resolved while the involved parties avoid public scrutiny.
Decision-makers for St. Luke’s Wood
River Medical Center, the Blaine County Citizens for Smart Growth advocacy
group and county government gather at the Wood River Inn on Monday before
closing the meeting to the public. St. Luke’s CEO Jon Moses said the
meeting to discuss the hospital’s proposed medical office building
represented no "technical breaches of law." Express photo by
Willie Cook
The new law, which became effective in April 2000, allowed
St. Luke’s and Smart Growth to voluntarily enter a mediation session at
the Wood River Inn in Hailey on Monday to discuss the Blaine County
Planning and Zoning Commission’s denial of an application to build a
38,000-square-foot medical office building adjacent to the new hospital
south of Ketchum.
Many involved with the mediation, including county
Prosecuting Attorney Jim Thomas and Commissioner Dennis Wright, said the
mediation law permits discussions to take place behind closed doors and
without a permanent record being kept, while also allowing elected
officials to participate. The meeting Monday raises questions about
whether the new mediation rules violate the spirit, if not the letter, of
Idaho’s open meeting law.
Passed in 1974, the open meeting law protects the public’s
right to observe and participate in the government process.
In this case, the P&Z rejected St. Luke’s office
building proposal in May of last year. Rather than complete an
open-to-the-public formal appeal process with the board of county
commissioners to review that decision, the group that convened Monday
hoped to reach a compromise on the proposed project’s points of
contention, such as size, location and parking setup. But not before
barring the public from the meeting.
Only one county official was willing to say publicly that
the county government had taken specific steps to keep out the public.
During a telephone interview Thursday, Wright said just
one commissioner out of the county’s three would attend the meeting so
it could be closed to the public. If two commissioners attended, the
meeting would have to be open under the open meeting law.
"The reason the whole board will not
participate," he said, "is because then we’d be into the open
meeting law problem… It’s supposed to be a closed session. We gave
that a lot of thought."
St. Luke’s Wood River Medical Center CEO Jon Moses,
during a telephone interview on Monday of last week, described the
arrangement as having "no technical breaches of law."
Regardless of the preparations, the group that assembled
at the Wood River Inn on Monday could have decided to open the meeting to
the public under the new rules.
However, Wright and P&Z commissioners Suzanne Orb and
Tom Bowman joined lawyers and leaders from St. Luke’s and Smart Growth
in unanimously agreeing to close the meeting because many members of the
group felt the talks would be more "frank" that way.
While some involved said they would potentially allow the
mediation to occur even with the public present, the group as a whole
opposed the idea.
"We realize that it might facilitate the discussion
to have it confidential," Smart Growth lawyer Marc McGregor told the
group before Monday’s meeting began. "One of the things we need to
discuss early on is what role the [elected and appointed county] decision
makers have, because if they’re going to continue to participate, then
the public is going to have a right to know what they learn. I have no
objection to the press being here, but if the key folks who facilitate
would rather not have the press here, we certainly understand."
During last week’s interview, Moses said St. Luke’s
would participate in the mediation even if the press were allowed to
attend: "If the county came to us and said we want this to be public,
we’d go through with it anyway."
St. Luke’s lawyer Michael Donovan, however, argued
otherwise Monday, saying before the mediation session began, "I think
the process would be better served if it was closed."
Then, despite his earlier pronouncement that the meeting
"is supposed to be a closed session," Commissioner Wright said
Monday, "I think it’s up to everybody involved."
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Another question many involved found difficult to answer
was whether it was appropriate for elected or appointed county decision
makers, such as Wright, Orb and Bowman, to attend the mediation hearings,
given that they might later be required to decide on an appeal or public
hearing on the same matter.
If those attending the mediation, for example, cannot
reach an agreement, the appeal process could begin again, and Wright could
be called upon to decide whether the P&Z had been justified in
rejecting St. Luke’s application for the medical office building. Idaho
law would prohibit Wright from hearing any new information for such an
appeal, yet St. Luke’s could present new information during the
closed-door mediation hearing.
New information could include the results of a telephone
survey St. Luke’s conducted recently with questions about the need for a
medical office building.
In that situation, Wright said he believed he could
"put aside" whatever he hears during the mediation and consider
only admissible information during an appeal. Also, he added, the appeal
is "not a popularity contest."
Wright said he would not recuse himself if an appeal does
happen.
On the other hand, if the mediators do reach an agreement,
say for a smaller building, St. Luke’s would have to go through another
public hearing process with the P&Z to get formal approval. Would
P&Z commissioners Orb and Bowman have a tacit obligation to uphold the
agreement they had helped create?
Wright said no. He said it’s possible Orb and Bowman
could taint the opinions of the other P&Z commissioners, but he didn’t
think that would happen because the others have "good minds" and
are "capable."
Blaine County Prosecuting Attorney Jim Thomas, who helped
organize the mediation, said he doesn’t perceive any conflict of
interest, because the opposing parties have "got a vested interest in
seeing that nothing new is presented [during the mediation]. That gives us
the ability to excise anything that comes out new."
An appeal would not be tainted, he said, if no permanent
record of the mediation is created. The desire for not creating a
permanent record was the reason for not having media coverage, he said.
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Rep. Wendy Jaquet, D-Ketchum, who sponsored the bill that
made the mediation law possible, said during a telephone interview Monday
that the intention of herself and others who worked on the bill was to
create a tool for land-use planners and applicants to avoid lawsuits that
"don’t really solve anything."
Representatives from the Association of Idaho Cities, the
Idaho Association of Realtors and several Idaho cities met with the
Legislative Interim Committee on Private Property Rights to discuss the
proposed mediation law in 1998.
In a February 2000 letter to Jaquet and a local committee
formed to discuss the proposed mediation law, Blaine County Commissioner
Mary Ann Mix stated the commission "enthusiastically endorse[s]"
the bill that would make it law.
Those who supported the mediation bill before the state
Legislature approved it on a 17-to-9 vote last year with nine absent or
excused argued that "strict land-use procedures" in counties
like Blaine "reduce or eliminate" the ability of people to
"resolve land-use controversies by discussion," according to the
records of the Legislative Reference Library.
The law states that its intent is to allow "greater
flexibility for finding solutions on difficult land use planning
issues."
Jaquet said the intention was for the law itself to be
flexible, and that’s why it allows for the public to be barred from
mediations. Without admitting to any flaws it might have, she said the law
is new and "could get changed after this use."
