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Commissioners face complaint

by KAYE THORNBRUGH
Staff Writer | April 1, 2022 1:08 AM

COEUR d’ALENE — County commissioners were poised to decide whether to put changes to Kootenai County’s administrative structure in the hands of voters.

Now an alleged violation of Idaho’s Open Meeting Law could slow the proposal’s path to the ballot.

The Optional Forms of Government Study Commission (OFGSC) formally submitted its recommendations to the Board of County Commissioners on March 10.

The group voted 5-4 in support of increasing the size of the BOCC from three to five members, as well as switching to the commission manager form of government.

Under that form, the commission manager handles administrative work that otherwise falls to commissioners and serves as chief budget officer, a role currently filled by the county clerk.

The commission manager’s role is not to create policy but to implement it.

Coeur d’Alene, Post Falls, Hayden and Rathdrum all have unelected administrators who work with their mayors and city councils to manage the day-to-day operation of their cities, a role similar to the one recommended by the OFGSC.

About two-thirds of U.S. counties reportedly have either an administrator or an elected executive.

The OFGSC also recommends the county clerk, treasurer, assessor, sheriff, coroner and prosecuting attorney remain elected positions, rather than hired.

All recommendations are allowed under Idaho Code 31-5001.

In a letter to the BOCC and to Kootenai County Prosecuting Attorney Barry McHugh, Coeur d’Alene resident Don Warner alleged the study commission violated Idaho’s Open Meeting Law in the weeks before it submitted its final recommendation.

In late February, the OFGSC formed a three-person subcommittee to write the final report that would go before county commissioners.

The sub commission reportedly shared drafts of the report with other members for feedback during the writing process. No public meetings occurred during this time.

Idaho law requires that all meetings of a governing body of a public agency shall be open to the public, with some exceptions.

Advisory committees, boards and commissions are subject to the Open Meeting Law if the body is created by or pursuant to statute, ordinance or other legislative act and if the body has authority to make recommendations to a public agency.

In contrast, an administrative committee, board or commission is not subject to the Open Meeting Law if it is not entrusted with the formation of public policy and if its activities do not constitute the making of “decisions or recommendations to” a public agency.

OFGSC Chair Dave Botting said the three-person writing subcommittee was not tasked with making policy or recommendations.

Rather, he said, the committee was tasked with taking the recommendations that had been developed publicly and putting them in an appropriate format. He asserted that no deliberations about policy occurred.

“The recommendation had already been made,” Botting said. “The only thing they were to discuss was how to structure it to meet the statutory requirement.”

For that reason, Botting said he doesn’t believe the subcommittee violated the Open Meeting Law.

Though it’s unclear whether a violation occurred, at least one county attorney has reportedly urged commissioners to err on the side of caution.

A governing body “cures” a violation by repealing any action taken at an illegal meeting or disregarding deliberations made in violation of the law.

In a subsequent, properly noticed meeting, the governing body may repeat the deliberation or decision.

To cure the alleged violation, the OFGSC would first hold a meeting to undo approval of the study commission’s final report.

Such a meeting could happen as soon as Monday night.

Commissioner Bill Brooks said Thursday he believes the writing subcommittee acted in accordance with Idaho law.

He said he suspects the complaint is part of a larger effort by some residents to keep changes to the county’s administrative structure off the November ballot.

“Their primary goal is to deny the people of Kootenai County the option and the right to vote on the form of government,” he said.

Brooks said a “group of thugs” opposed to any changes to the county’s form of government attended the weekly OFGSC meetings and heckled the nine-member commission.

“They want to go back and have two more meetings where they can … pressure, yell, scream, chant and boo these people who have donated hundreds of hours of their time to come to a recommendation,” Brooks said.

A heated, five-hour public comment hearing in January drew more than 300 people.

The vast majority of speakers opposed any changes to the county’s form of government, with many saying they don’t want the matter on the November ballot.

Several individuals screamed at the study commission, warning that those who recommend changing the county’s form of government will face retribution. Others asserted that those who support the proposal are “evil” and will “burn in hell for eternity.”

Brooks said he thinks the BOCC should move forward, without undoing approval for the final report, and put the matter to a public vote.

The deadline to do so is fast approaching. The OFGSC must submit its final recommendation within one year of its first meeting, May 17.

Commissioner Chris Fillios said Thursday he believes the OFGSC will meet the deadline even if the additional meetings occur.

He said he’s perplexed by the pushback from some residents who don’t want to see the matter on the ballot.

“Why is there so much opposition to a public vote?” he said. “For the life of me, I can’t understand that.”

Commissioner Leslie Duncan declined to comment because “this matter is under investigation.”

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Chris Fillios

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Duncan