I. Executive Summary
Last year the Senate adopted a new rule that allows the members of a Senate committee to close a committee meeting to the public for any reason if two-thirds of the members of that committee vote to close it. The rule prohibits a committee from taking any formal votes or actions during a closed meeting. The House has had a similar rule for many years. The Senate voted on this rule shortly after our membership chose it as one of our three issues for the last session, but before we had a chance to brief the issue. Accordingly, we decided to conduct our briefing and polling process on this issue in advance of the coming legislative session, which will convene January 9.
These briefing materials aim to provide you with information that will help you develop your views on primarily one question: What should the policy of the Senate and House be with respect to closing committee meetings to the public? We review the merits of three different answers to this question. The first answer, offered by some leaders in the Legislature, is the answer given by the new Senate and long-standing House rules: committees should be able to close their meetings for any reason on a two-thirds vote, as long as no formal action is allowed in closed meetings. The second answer, argued primarily by the Idaho Press Club, is that legislative committees should never be closed to the people. A third answer, a version of which was drafted by the Legislative Services Office at the request of the Legislative Council, tries to strike a balance between the first two. It argues that legislative committees should be given the authority to close their meetings only in specified, extraordinary circumstances.
We review the merits of each of these three positions in Section V. Prior to that, we use Sections II, III, and IV to provide background information that provides perspective on the surrounding policy debate. Section II provides an overview of the role committees play in the legislative process. Section III reviews the current constitutional, statutory, and internal legislative rule provisions that govern open meetings in the Legislature. As this section should make clear, the existing provisions create a relatively complicated and somewhat contradictory set of policies. Section IV reviews the current controversy, primarily between the Idaho Press Club and some leaders of the Legislature, over open committee meetings. That dispute, including a lawsuit now before the Idaho Supreme Court, revolves to a large extent around contrasting interpretations of the policies that we reviewed in Section III. Then, after Section V—the section reviewing the rationales offered for the three different positions on this issue—we conclude with Section VI, which provides an analysis of the policies of other western states on this issue. Two of the ten other western states give committees the authority to close their meetings for any reason. Three require that committee meetings always be open. Five of the ten other western states give committees the power to close their meetings under specified, extraordinary circumstances. Following Section VI, we offer links to important supplementary information.
If 60% or more of you who have been assigned to this issue support a policy that differs from the existing Senate and House rules, we will encourage our legislators to change their rules accordingly. Otherwise, we will not pursue the issue further.
II. Legislative Committee Meetings
There is wide consensus that a great deal of the important work of the legislature is conducted within legislative committees. The legislature considers hundreds of bills each year. Idaho legislators are “citizen legislators,” meaning that their position as a legislator is not their full-time job. They come to Boise for three or four months each year for the legislative session and have only very limited staff to assist them. Consequently, it is necessary for legislators to divide up their work through the committee system. Any proposed legislation is assigned by legislative leadership to the relevant committee for that issue. The members of that committee are expected to investigate and consider the matter in depth and then vote on whether to send it to the full House or Senate, respectively, with a “do pass” recommendation.
Many regard public access to legislative committee meetings as a crucial issue. One reason is that legislative committee hearings are the only part of the legislative process in which the public can participate. The public is allowed to observe, but not participate in, debate on the floor of the House and Senate. A second reason is that, although the full House or Senate can vote differently from a committee recommendation, it is rare for this to happen. The decisions of committees are almost always the decisions of the Legislature.
III. Policies Regarding Open Legislative Committee Meetings
There are three categories of legal authority governing open meetings in the Legislature. The current controversy, including a lawsuit that will likely be heard this January before the Idaho Supreme Court, revolves to a large extent around differing interpretations of these legal authorities. In this section, we simply report what those legal authorities say. As we do this, the fact that controversies have emerged—controversies that we explore at length in the following section—will become understandable.
First, the Idaho Constitution addresses the question of the openness of the legislative process. The title of Article Three, Section 12, of the Constitution reads, “SECRET SESSIONS PROHIBITED.” That article states: “The business of each house, and of the committee of the whole shall be transacted openly and not in secret session.”
Idaho State Law
Second, the legislature has enacted a law requiring most government meetings to be open. Idaho Code, Section 67-2340 is entitled, “FORMATION OF PUBLIC POLICY AT OPEN MEETINGS.” This provision states that:
The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created. Therefore, 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 law also specifically addresses legislative committee meetings. Section 67-2346 is entitled, “OPEN LEGISLATIVE MEETINGS REQUIRED.” It states that:
All meetings of any standing, special or select committee of either house of the legislature of the state of Idaho shall be open to the public at all times, and any person may attend any meeting of a standing, special or select committee, but may participate in the committee only with the approval of the committee itself.
Internal Legislative Rules
Third, the House and Senate establish rules to govern their own internal affairs. These rules also comprise a category of legal authority regarding open legislative committee meetings. The House and Senate are expressly given the authority to determine their own rules by the Idaho Constitution. For the moment, we will focus on the relevant Senate rule. Senate Rule 20 establishes various provisions for committees. Senate Rule 20 (D) is entitled “Committee Hearings.” It states, in part:
All proceedings of the Senate and the Committee of the Whole shall be open. Hearings held by any standing, select, or special committee shall be open to the public at all times, and any person may attend any hearing of such committee, but may participate in the committee only with the approval of the committee itself.
On the basis of these passages, it seems obvious that the Idaho Constitution, Idaho law, and internal legislative rules all require legislative committee meetings to be open to the public, right? If one only read the provisions above, the answer would seem to be yes. However, other provisions within these laws and rules complicate the matter considerably.
We will now describe some of those complicating provisions. If you find this discussion difficult to follow, as many do, you may want to proceed to the next section of the briefing materials, Section IV, and then refer back as you think necessary. Keep in mind that we are reviewing these issues not to decide what we think is legal, but what we think is good policy.
One of the complicating provisions on this question is from the internal legislative rules: another section of Senate Rule 20 that is titled “Committee Meetings Attendance.” Until last year, it stated:
All persons may attend any meeting of any standing, select, or special committee, but may participate in deliberations or discussions only with the approval of the committee. Nothing contained in this rule shall be construed to prevent, upon a two-thirds vote recorded in the minutes of the meeting of the committee, the committee from holding an executive session during any meeting after the chairman has identified the authorization under the provisions of Section 67-2345, Idaho Code, for holding executive session. An executive session may be held as provided in Section 67-2345, Idaho Code.
The provision to which this rule refers, Idaho Code 67-2345, is another section of the state’s open meetings law. It provides that governing bodies of public agencies, which include government entities such as county commissions and city councils, can go into “executive sessions.” This means that they can close their meetings to the public. The law requires that an executive session only be held to consider certain specified topics deemed to require confidential discussion such as personnel matters or litigation. In effect, then, the “Committee Meetings Attendance” section of Rule 20 would seem to give legislative committees the same authority to exclude the public from its meetings for the same reasons that county commissions and city councils can.
Still, this seems to contradict the section of the open meetings law that says specifically that legislative committees, “shall be open to the public at all times, and any person may attend any hearing of such committee.” And what about the section of Rule 20 that says that “All meetings of any standing, special or select committee of either house of the legislature of the state of Idaho shall be open to the public at all times, and any person may attend any meeting of a standing, special or select committee”? Now you start to see where the confusion and controversy come in.
There’s more. Senate Rule 47, until last year, had a section that stated:
If any laws or constitutional provisions of the State of Idaho are inconsistent with these rules, the conflicting rule shall defer to the law or constitutional provision.
This rule seems to provide a way to resolve the apparent contradictions: when state law and Senate rules contradict each other, state law prevails. Since the Senate rule that says that committee meetings may sometimes by closed contradicts the state law that says that committee meetings must always be open (not to mention the other section of the Senate rule that says the same thing), the state law provision requiring committee meetings always be open should trump, right? Maybe, at least until the Senate eliminated this section of Rule 47 last year.
Well, one might reason, open legislative meetings must still be required since the Idaho Constitution says, “The business of each house, and of the committee of the whole shall be transacted openly and not in secret session” and the Constitution must trump Senate rules, right? Everyone agrees that the Constitution trumps Senate rules. However, there is a disagreement about whether the language of the Constitution applies specifically to legislative committees. Having described the existing relevant legal authorities on the matter, we now move to a discussion of the present controversy over closed committee hearings.
IV. The Present Controversy Over Closed Committee Meetings
While the confusing combination of constitutional, statutory, and internal rule provisions just discussed has existed for decades, the controversy over them came to a head in 2003, when the legislature held five closed committee meetings, and in 2004, when it held two closed committee meetings. In the preceding decades, closed committee meetings had been much rarer even though in the very early history of the Legislature closed committee meetings appear to have been the norm. In 2003 and 2004, four of the seven total closed meetings were meetings of the Senate and/or House Resources Committees in which possible settlement of the Nez Perce Tribe’s claim to water in the Snake River was discussed. The matter was being mediated and the judge had issued a gag order requiring all parties not to talk about the discussions publicly. Of the other three closed committee meetings, one was held by the House Revenue and Taxation Committee. The second was held by the Senate Health and Welfare Committee to discuss vulnerability of the state’s water supplies to terrorist actions. The third was held by the Senate Agricultural Affairs Committee to discuss field burning and related litigation.
In response to the controversy over these closed committee meetings, the Legislature took three steps. They asked the Attorney General’s office for an opinion letter on the legality of the closed meetings in 2003. They also invited the director of the Legislative Services Office to draft a new rule regarding closed committee meetings for consideration by the Legislative Council of both the House and the Senate. Third, the Senate changed its existing rules, but not along the lines of the draft they had solicited from the Legislative Services Office. Instead, the Senate changed its rules to allow committees to close their meetings for any reason if two-thirds of the members voted to close it. This made the Senate rule the same as the House rule that had existed for many years.
While the Legislature was approaching the controversy in those ways, the Idaho Press Club, a nonprofit organization comprised of over 200 Idaho newspaper, television, and radio journalists that objected to the closed meetings, filed a lawsuit asking the court to enforce the constitutional and statutory provisions for open meetings that we discussed above.
In this section, we review the status of these four responses to the closed meeting controversy: the opinion letter, the Legislative Council draft rule, the new Senate rule, and the lawsuit.
The Opinion Letter
The Legislature asked the Attorney General’s office for an opinion letter in response to the controversy over closed meetings during the 2003 session. In a letter dated April 23, 2003, Deputy Attorney General Brian Kane said that when legislative rules and statutes conflict on legislative procedural matters, the legislative rules govern. In support of this opinion, Mr. Kane cited Article 3, Section 9 of the Idaho Constitution, which gives the House and the Senate the authority to establish their own rules.
The Legislative Council Draft Rule
In response to both the controversy surrounding closed committee meetings and the Attorney General’s opinion letter, the Legislative Council decided to consider possible changes to the Senate and House internal rules on open committee meetings. The Legislative Council is a group of seven senators and seven representatives that oversees the management responsibilities and permanent staff of the Legislature. Eight of the Council members are Republicans and six are Democrats.
In October 2003, the Legislative Council asked Carl Bianchi, the director of the Legislative Services Office, to draft a new rule for the Legislative Council to consider for both the House and the Senate. The Council instructed Mr. Bianchi to draft a rule that would clear up the contradictions and would permit closed legislative committee meetings, but only under specific, extraordinary circumstances. The motion to request Mr. Bianchi to do this passed unanimously. Council members also agreed that once Mr. Bianchi’s draft had been refined and passed by the House and Senate, the Legislature would seek to repeal Idaho Code, Section 67-2346, the provision that says that all legislative committee meetings shall be open at all times.
The press coverage of this effort by the Legislative Council was decidedly negative. Many members of the press argued that the inconsistencies should be resolved in favor of having all legislative committee meetings open all the time. This was the policy, many in the press argued, that was rightly established in the Constitution and various statutory and internal rule provisions.
On November 19, 2003, Mr. Bianchi forwarded a draft of the proposed rule along with a cover memo. The draft rule explicitly states that executive sessions “shall be limited and undertaken only under extraordinary circumstances.” Mr. Bianchi’s memo explained that the draft rule significantly reduces the lengthy list of circumstances under which entities such as county commissions can close their meetings, as provided in Idaho Code, Section 67-2345. The draft rule identifies four reasons that legislative committees can be closed to the public:
- To discuss records that are exempt from public disclosure
- To consider and advise its legal representatives in pending litigation, mediation, or arbitration
- To consider discipline or dismissal of a member or employee
- To discuss acquiring real estate for the state
Mr. Bianchi further explained in his cover memo that even the provision to discuss pending litigation is more restrictive than a similar provision in Idaho Code for other government entities. Idaho Code, Section 67-2345 allows entities such as a county commission to close its meetings to the public to discuss, “pending litigation or where there is a general public awareness of probable litigation.” The Bianchi draft rule only includes the more restrictive “pending” litigation, and strikes the more general and vague “where there is a general public awareness of probable litigation.”
The draft rule also requires a committee to give public notice 24 hours in advance of any closed meeting and to state who requested the closed meeting and which of the four reasons justified the closure. As in the statutory provision and the existing rules, under the draft rule committees can only go into executive session when two-thirds of the members of the committee vote to do so. And, as also in the statute and internal rules, under the draft rule no formal action can be taken or decision made in executive committee.
As the media criticism of provisions that would allow committee meetings to be closed under these circumstances continued, the bi-partisan support for moving in the direction of the draft rule waned. Little happened to clarify or change the policy during the 2004 session, although two closed committee meetings were held.
In advance of the 2005 legislative session, Republican leadership in the Senate indicated that they would pursue a change in Senate rules on this issue. Early in that session, The Common Interest announced that it had chosen closed committee meetings as one of its three issues to brief and poll its members on. Shortly after that and before we had developed our briefing materials on the matter, the Senate approved, in a vote along party lines, a new rule that allows its committees to be closed for any reason if two-thirds of the members vote to close it. The rule prohibits a committee from taking formal action or making any formal decisions while in executive session. The new Senate rule matches a House rule that has existed for many years.
The Lawsuit: Are Closed Committee Meetings Constitutional?
During the debate among legislators and the press, the press decided to pursue their claims legally. On May 27, 2004, the Idaho Press Club filed a lawsuit in Idaho district court in which it argued that the Legislature’s use of closed committee meetings violated Article III, Section 12, of the Idaho Constitution. The lawsuit asked the court to issue a permanent injunction against further closed committee meetings. The Legislature responded with a motion that asked the court to dismiss the Press Club’s case. On October 29, 2004 District Court Judge Kathryn Sticklen granted the Legislature’s motion to dismiss. The Idaho Press Club has appealed that decision to Idaho Supreme Court and each side has filed its briefs in the appeal. The Supreme Court is expected to hear oral arguments in January and issue a decision shortly after that.
We will review the main legal arguments each side is making in the case, as well as Judge Sticklen’s decision. Our discussion will describe rather technical legal arguments about the definitions of the terms used in the Constitution. As you review the complicated legal arguments, it is important, again, to remember that we are briefing this issue not to determine what is legally permissible but what is good policy. We think the legal arguments are relevant to the policy question, but if you find yourself getting bogged down in the legal arguments, you may—once again—want to skip ahead to the next section of the briefing materials—Section V—which focuses on policy arguments for and against closed committee meetings.
The legal argument turns primarily on whether Article III, Section 12, of the Constitution applies to legislative committees. Since we will be reviewing competing interpretations of that section, it is worth repeating the language in that section. It is entitled “SECRET SESSIONS PROHIBITED.” The entire section reads:
The business of each house, and of the committee of the whole shall be transacted openly and not in secret session.
The phrase “committee of the whole” refers to a procedural provision in which the entire Senate or entire House can resolve itself into such a committee in order to facilitate easier and more informal discussion and action as a body. At this stage in the lawsuit, the Press Club and the Legislature agree that the “committee of the whole” does not pertain to the legislative committees at issue.
The dispute now focuses primarily over the meaning of the phrase “the business of each house.” The Press Club argues that this includes the work done in legislative committees, while the Legislature argues that it does not. We now review each side’s rationale.
Press Club: The “Business of Each House” Includes Committee Meetings
The Press Club argues, and the Legislature does not dispute, that legislative committees are a significant part of the legislative process. The Press Club argues, therefore, that the natural and ordinary meaning of the phrase “business of each house” must include committee work. Otherwise, much of the business, or work, of the legislature would be excluded.
The Press Club contends that two additional considerations make clear that not including committee work in the meaning of the “business of each house” would yield an absurd result at odds with the clear and natural meaning of the constitutional provision. First, legislative committee hearings are the only part of the legislative process in which the public can participate. The public is allowed to observe, but not participate in, debate on an issue on the floor of the House and Senate. Second, although the full House or Senate can vote differently from the committee recommendation, it is rare for this to happen. The decisions of committees are almost always the decisions of the legislature. The Press Club concludes that to read the constitutional provision that requires an open legislative process and prohibits a secretive one to exclude committee meetings is to say that it is constitutional to exclude the public from the only phase in the process in which they can participate and the only phase in which participation is likely to matter. Such a result, the Press Club argues, seems to be clearly at odds with the obvious intent of the constitutional provision to prohibit such a result.
The Press Club further argues that interpreting the “business of each house” to exclude committee meetings is contrary to the intent of the framers of the Constitution, as evidenced in the debate about this provision. Aaron F. Parker, a delegate to the constitutional convention from Idaho County, stated during the debate on this provision that, “I want the electric light of publicity turned upon everything the legislature has to do in our halls.” Parker further argued:
This constitution has much to answer for, Mr. President. We have given all our powers and rights to the legislature, and if you give the legislature power to transact its business in secret, the last vestige of representative government has departed from the people. Mr. President, I am opposed to dark lantern matters, I am opposed to star chambers or Jack Shepard methods of doing business at all. I am in favor of turning the electric light of publicity upon every act of the legislature, and when I vote for a senator or a representative to come here and make laws for me, I have a right to know every word that he utters and every official act of his when he is transacting his business in the manner contemplated by this article [Article III, establishing the powers of the legislature].
James M. Shoup, a delegate from Custer County, argued:
When a member is elected to the legislature or to the United States Senate, either one, he should say nothing nor cast any vote but what everybody and especially all of his constituents should know just how he voted, and every word he said. He is a public officer, and everything he does in his official duties should be public.
Legislature: The “Business of Each House” Does Not Include Committee Meetings
The Idaho Legislature argues that committee meetings are not mentioned in Article III, Section 12 of the Constitution and that courts should not “read those words into” the Constitution when the framers did not put them there. If the framers had meant to include committee meetings, the Legislature argues, they could have added the words “all committee meetings,” but they did not. The inclusion of one specific type of committee, the “committee of the whole,” in the provision further evidences, the Legislature argues, that they did not intend the provision to apply to all committees. Otherwise, why would the framers specify one type of committee and not simply include all committees? The Legislature notes that Montana’s Constitution, which is similar to Idaho’s, had to be amended to include the words “all committee meetings” to bring committee meetings within the scope of its requirement for open legislative meetings.
The Legislature argues that a preceding section of Article III in the Idaho Constitution, specifically Section 10, gives a particular meaning to the word “business” that should be applied when the same word in used in Section 12 that says “the business of each house.” Section 10 is entitled “Quorum, adjournments and organization.” The relevant part says that, “A majority of each house shall constitute a quorum to do business…” [Emphasis added]. Since Section 10 says that a majority must be present to do “business” then, the Legislature argues, the term must be understood this way when it is used in Section 12. Accordingly, the Legislature contends, the requirement that the “business of each house” be open to the public does not apply to committee meetings in which a majority of the House and Senate, and therefore a quorum, is not present.
District Judge: The “Business of Each House” Does Not Include Committee Meetings
On October 29, 2004, Idaho District Court Judge Kathryn Sticklen agreed with the Legislature that Section 10 of Article III defined the term “business” in such a way that meant the term, when used in Section 12, did not apply to committees. Consequently, the judge granted the Legislature’s request to dismiss the Press Club’s case.
The Idaho Press Club has appealed the District Court decision. The Idaho Supreme Court will hear oral arguments in January and presumably rule on the case shortly after that. If the Press Club wins, then all committee meetings will likely be required to be open to the public. If the Legislature wins, then it will continue to have the authority to close committee meetings for any reason. Even if the Supreme Court determines that the Legislature can constitutionally close committee meetings, that doesn’t mean that it should. The question remains whether this is good public policy. That is the question—the core question before us—to which we now turn.
V. What Should the Policy be Regarding Closed Committee Meetings?
There is little disagreement that closed committee meetings should not be common and should not be used under ordinary circumstances. The very real differences are about whether they should ever be used, and, if so, how best to ensure that they are only used appropriately and only under extraordinary circumstances.
In the discussion so far, we have seen three distinct answers to the question of what state policy should be. First, the Idaho Press Club and others argue that committee meetings should always be open. Second, some leaders in the Legislature suggest that it is appropriate for committees to be able to close their meetings for any reason, but indicate that this power will be used with discretion and only under extraordinary circumstances. Third, some have suggested that it is appropriate for the Legislature to have the power to close committee meetings, but that rules should explicitly require that they only be able to exercise this power under extraordinary, specified circumstances.
Below, we elaborate on the policy reasoning for each of these positions.
Committee Meetings Should Always be Open
The primary reasoning offered for the position that committee meetings always be open is simple. Members of the Press Club and others argue that this is the only position that genuinely honors the fundamental and important principle that in a system of government by, for, and of the people, the people should never be excluded. The only business that can be discussed in committee meetings, they argue, is the people’s business and the people always have a right to know how their own business is being conducted by their popularly elected representatives. The statements of this principle found in the Idaho Constitution and Idaho’s Open Meetings Law are perhaps among the most compelling. The profound introductory section of the Open Meetings Law, in particular, is worth quoting again. Idaho Code, Section 67-2340 states:
“FORMATION OF PUBLIC POLICY AT OPEN MEETINGS.”—The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created. Therefore, 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.
In an official statement by the Idaho Press Club, the President of the Press Club, Spokesman-Review reporter Betsy Russell, said:
Everyone in the state of Idaho has an interest in how the public policies and laws of our state are formed, and how those actions affect them. It is in the official committees of the Legislature that citizens are given an opportunity to have input into that process, through testifying on pending legislation in public hearings.
In reaction to the closed committee meetings held during the 2003 session of the Legislature, the Idaho Press Club, together with the Idaho Allied Daily Newspaper Publishers, and the Idaho State Broadcasters Association wrote a letter to the legislative leadership. It said, in part:
Closed meetings violate state law, but just as importantly, they violate the public trust. Secrecy in government arouses suspicion. Transparency in government fosters trust.
Those arguing that legislative committee meetings should always be open suggest that committee meetings are a particularly important aspect of government to keep open for the reasons we have already noted. First, much of the policy-making work of the state takes place in committee meetings. Second, committee meetings are the only part of the legislative process in which citizens can actually participate and give testimony. Third, the decisions of committees are almost always the decisions of the legislature. Although the full House or Senate can vote differently from the committee recommendation, it is rare for this to happen. Because Idaho legislators are citizen legislators with little staff support and must vote on hundreds of issues each session, as a practical matter, they have to rely heavily on the recommendations of committees.
Those who support committee meetings that are always open also argue that legislative committees are different from city councils and county commissions where closed meetings are allowed for certain circumstances. In an official statement, the Idaho Press Club said:
Legislative committees perform a different function from city councils and county commissions—legislative committees don’t hire and fire public employees, purchase property, or negotiate labor contracts. Instead, they enact legislation—broad matters of public policy, which become the law of the land.
Finally, those who support committee meetings that are always open argue that the two-thirds vote requirement means that the majority party can impose the decision to close a meeting on the minority party when the majority is two-thirds or more of the committee. The principle that the people not be excluded from the people’s business should not be overturned, they argue, along purely partisan lines. Currently, Republicans hold more than a two-thirds majority on legislative committees. These individuals also argue that the prohibition against formal action does not prevent members from making an informal or implied agreement. In these circumstances, they argue, the “formal” action that is taken in an open committee meetings is just that, a formality, when, for all intents and purposes, the decision has already been made.
Committees Should be Able to Close Their Meetings for Any Reason
Many leaders and members of the Legislature believe that it is constructive and appropriate to have the ability to close meetings for any reason. While they agree that open meetings should be the norm because the people should generally not be excluded from their own business, they do believe there are rare, extraordinary circumstances in which the public interest can best be served with closed committee meetings.
Perhaps the most compelling historic illustration of the basic idea that excluding the public can, in rare circumstances, promote the public interest is the secret deliberations of the Continental Congress and the Constitutional Convention. These secret deliberations on behalf of the American people produced the two founding documents of our system of government by the people—the Declaration of Independence and the Constitution. Ironic as it is, most historians agree that we would not have the system of government by the people that we have had “the people” not been excluded from those deliberations. The measures taken to assure secrecy were striking. In November, 1775, the Second Continental Congress passed a secrecy resolution that required that members of Congress not divulge anything that Congress determined by a majority vote should be kept secret. The resolution stated that any member who violated it would be expelled from Congress and “deemed an enemy of the liberties of America.”
Of course, the secrecy of the deliberations was controversial at the time. Thomas Jefferson was not present at the Constitutional Convention because he was serving as the ambassador to France. He wrote to John Adams at the time: “I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members.”
Some point to the closed committee meetings regarding settlement of the Nez Perce Tribe’s legal claim to the water in the Snake River as a contemporary Idaho example of the idea that secret deliberations promote the public good in rare circumstances. Accordingly, that example warrants some discussion.
In the interest of full disclosure, we should first note that the Chairmen of the Senate and House Resources Committees, former Senator Laird Noh and former Representative Cameron Wheeler, respectively, presided over these closed committee meetings. Cameron Wheeler has recently joined the board of directors for “The Common Interest,” the legal entity responsible for producing and distributing briefing materials such as these. Laird Noh is on the board of directors for “The Common Interest of Idaho,” the legal entity responsible for communicating our official positions to the Legislature. (These two distinct legal entities are necessary given federal law regarding non-profit organizations involved in political matters.)
The Nez Perce Tribe asserted a legal claim to all water that flows in the Snake River based on the 1855 treaty that it signed with the federal government protecting the Tribe’s fishing rights. The Tribe made this claim in the Snake River Basin Adjudication, a state litigation process for identifying and verifying all legal claims to water in the Snake River Basin.
Many believed that the State of Idaho had solid legal arguments to defeat the Tribe’s claims. In fact, the State prevailed over the Tribe when the matter was first heard in the Snake River Basin Adjudication. Nevertheless, most people involved with the matter believed that the risk that the State would lose when the Tribe appealed was prohibitively high. Speaker of the House Bruce Newcomb expressed this view vividly when he said, “If you want to roll the dice legally on this, be prepared to pay the Nez Perce Tribe a nickel every time you flush the toilet.” Accordingly, the State of Idaho, the Nez Perce Tribe, and the United States entered into mediation aimed at settling the legal dispute. The mediation was under the direction of the court, and the judge in the case issued a “gag order” requiring that the parties not disclose the deliberations until a proposed agreement was reached and presented to each party for formal approval.
In these circumstances Laird Noh and Cameron Wheeler held closed committee meetings to receive updates from the State’s attorneys and give direction to them in this matter. They and others argued that this was not only necessary as a strictly legal matter, given the judge’s order, but as a practical matter. If these complex deliberations had any hope of success, they argue, the parties had to feel free to explore, at least provisionally, sensitive possible solutions without public scrutiny. A proposed settlement was, in fact, reached. Its terms were revealed to the public last year and discussed. The Legislature then held open committee meetings to deliberate whether to ratify the agreement. The relevant committees recommended the settlement be approved and the full House and Senate did, in fact, approve it. It was also approved by the Governor, by the Congress with the support of all four members of Idaho’s Congressional delegation, by President Bush, and by the Nez Perce Tribe. The agreement is now in effect.
Some leaders in the Legislature further argue that it is difficult to anticipate in advance all the circumstances in which it might be appropriate to hold closed committee meetings. As an example, they cite the closed committee meeting that was held in 2003 to inform committee members about vulnerabilities of the state’s water supplies to terrorist attacks. These legislative leaders suggest that prior to the September 11 terrorist attacks this need would not have been anticipated. They argue that for this reason it is better to give the Legislature latitude to close legislative committee meetings for any reason rather than to specify the circumstances in which committee meetings may be closed.
These leaders argue that two levels of protection prevent their current power to close committee meetings from being abused. First, they argue that the requirement that meetings can only be closed when two-thirds of the members of the committee agree to close them provides reasonable assurance that the power is used only when there is an appropriate and compelling reason to do so. They answer the critique that a party with a two-thirds majority can impose such a decision on the minority by noting that most majority members genuinely value the views of the minority, especially on sensitive issues. They also note that there is often a political price for closing a meeting along a party-line vote. Because the minority party in such an instance may reap political gains by publicly criticizing the majority’s decision to shut out the public, even majority parties with more than two-thirds of the committee members, some leaders argue, tend to be very hesitant to impose decisions to close meetings on the minority.
As evidence that the two-thirds vote requirement provides real protection they note that legislators have, in fact, only used this power very rarely and only with discretion. Hundreds of committee meetings are held each year. In the last three years, a total of seven committee meetings were closed to the public—five in 2003, two in 2004, and none in 2005. Four of those seven closed committee meetings were about the Nez Perce water claim mediation.
A second layer of protection against abuse, legislative leaders who support the rule argue, is the rule’s prohibition against taking any formal action or votes in closed committee meetings. This means that nothing can ultimately be done in a committee without the scrutiny of the public. The Nez Perce water dispute provides an example. While closed committee meetings were used to discuss possible routes toward settlement, the final proposed settlement was formally approved by the relevant House and Senate committees in open meetings. The terms of the ultimate settlement were fully publicized prior to those open committee meetings in which the committees voted to send the settlement to the floors of the House and Senate with “do pass” recommendations. Prior to those votes in committee, open committee hearings were also held in which citizens had an opportunity to testify on the settlement before any vote was taken. Accordingly, these legislative leaders argue, the requirement in the rule that no formal action is taken in closed meetings insured that the people were included when the committee considered and voted on the proposed settlement.
Committees Should be Able to Close Their Meetings Only Under Extraordinary, Specified Circumstances
Some argue that there is middle ground between the “always open” and the “closed for any reason” positions. These people argue that a wise balance between the principle that the people should not be excluded from the people’s business and a recognition that in rare circumstances the public’s interest is served in closed meetings is struck by formally specifying the extraordinary circumstances in which committee meetings can be closed. Formal specification of those extraordinary circumstances in the rules of the House and Senate would, they argue, prevent much of the abuse that may come with the power to close meetings for any reason. Even if that power is used rarely and appropriately now, that is no guarantee that it won’t be abused in the future. In a country that prizes being governed by laws and not men, it is better to have formal, explicit rules strictly limiting the power of the Legislature to close its meetings. This is particularly true, advocates of this position argue, since it is in those meetings that very laws that will govern us are deliberated.
As previously described, this was the approach that the Legislative Council considered. The result of that consideration was the draft rule written by Carl Bianchi, director of the Legislative Services Office, at the unanimous behest of the Legislative Council. That draft rule serves as a useful concrete example of this position to consider. As described above, the Bianchi draft rule specifies four circumstances in which legislative committees can close their meetings:
- To discuss records that are exempt from public disclosure
- To consider and advise its legal representatives in pending litigation, mediation, or arbitration
- To consider discipline or dismissal of a member or employee
- To discuss acquiring real estate for the state
In recognition that legislative committees serve different functions from other government entities, the list of extraordinary circumstances is shorter and more narrowly drawn than the list in the state law governing, for example, city councils and county commissions. The provision allowing discussion of pending litigation is more restrictive than the similar provision for other government entities. Idaho Code, Section 67-2345 allows an entity such as a city council to close its meetings to the public to discuss, “pending litigation or where there is a general public awareness of probable litigation.” The Bianchi draft rule only includes the more restrictive “pending” litigation, and strikes the more general and vague “where there is a general public awareness of probable litigation.”
The draft rule provides additional protection against abuse by requiring a committee to give public notice 24 hours in advance of any closed meeting and to state who requested the closed meeting and which of the four reasons justified the closure. As in the statutory provision and the existing legislative rules, committees can only go into executive session when two-thirds of the members of the committee vote to do so and no formal action or vote can be taken in closed meetings.
In response to the argument that it may be difficult to anticipate all the circumstances in which it might be appropriate to close committee meetings, advocates of this approach argue that the protection against abuse of the principle that the people should not be excluded from their own business outweighs the benefit of being able to close meetings for unanticipated circumstances.
Nevertheless, the specification of the circumstances in which committee meetings can be closed becomes crucial in this approach. If the circumstances are drawn too broadly, the people can be unduly excluded from their own business. If the circumstances specified are too narrow, necessary and appropriate closed meetings may be prohibited. Accordingly, we examine each of the circumstances specified in the draft rule.
The first circumstance specified is to discuss records exempt from public disclosure. Specifically, the draft rule states committee meetings can be closed when “discussing records that are exempt from public disclosure by statute, court decision or court rule.” For example, the Legislature will likely consider changes to the laws regarding sex offenders in the coming session. If the relevant committee examining this issue concluded that it was important for them to understand a particular case better, they may decide to review the court record, including testimony, that was given in the case. To protect the victim in such a case, that court may have ruled that those records could not be publicly disclosed. This provision would allow a committee to review and discuss these records in a closed meeting.
In this example, some would argue, the same need can be reasonably served by allowing committee members to review the records individually. To the extent the committee finds it useful to discuss the implications of those records for how they might change the sex-offender statutes, they should be able to find ways to do so without disclosing the protected information.
The second circumstance specified is to discuss pending litigation. Specifically, the draft rule states that a committee can close its meetings when “considering and advising its legal representatives in pending litigation, mediation, or arbitration.” The Nez Perce Snake River water claim case is an example of when this provision would be used.
The third circumstance specified is to consider discipline of a member of the Legislature or an employee. Specifically, the draft rule would allow committees to close their meetings when “considering charges brought against or the discipline or dismissal of a member or employee.” This is perhaps the circumstance in the draft rule that is most controversial. In particular, some question whether it is appropriate to close a committee meeting when discussing whether to discipline or dismiss a legislator. Critics of this provision argue that if a popularly elected legislator has done something to warrant discussion of discipline or dismissal, those who elected him or her have a right to know fully what has happened and what is being discussed. Critics further contend that especially if dismissal is being considered, in which case the decision of the voters in an election might be overturned, those voters should have full access to the deliberations. It may be worth noting that U.S. Senate Rules provide for closed meetings during impeachment trials, several of which occurred in the impeachment trial of President Clinton.
The ethical controversy over Idaho Senator Jack Noble is a recent example relevant to this provision of the draft rule. During the legislative session last year, Senator Jack Noble promoted legislation that would have lessened restrictions on how close an establishment that sold liquor could be to a school. It was then discovered the Senator Noble owned a store seeking a liquor license that was allegedly too close to a neighboring school under the existing law but would be eligible under the new law he was promoting. It was further discovered that Senator Noble was considering selling the store, the value of which could be affected by whether it could sell liquor. An ethics committee was convened to investigate the matter. They found that his actions violated state ethics law and that he lied about the matter. They considered recommending dismissal from the Senate, but ultimately recommended censure. Just before the Senate vote on the matter, in which the Senate looked likely go beyond the committee recommendation and vote to dismiss Senator Noble, he resigned. The committee did not close any of its meetings in Senator Noble matter, but the possibility was discussed. The draft rule would have allowed the committee to close the meeting if it had chosen to.
With respect to discipline or dismissal of employees, as opposed to legislators, those who support this exception point out, that, while it is rare for a committee to be involved in such personnel matters, it does happen on occasion that committees do deal with such matters regarding people employed by the legislature. Typically, these are special or select committees rather than the standing committees that review most bills.
The fourth circumstance specified in the draft rule is discussion of acquiring real estate. Specifically, the draft rule would allow committees to close their meetings when discussing acquisition of “an interest in real property which in not owned by a public agency.” Part of the thinking behind this provision is that it would be a disservice to the people of the state to disclose that the state was considering acquiring a piece of property because that disclosure might drive up the price of the property.
A fifth circumstance not specified in the draft rule that is sometimes mentioned as a potential appropriate exception to open committee meetings are for matters of security. The closed committee meetings in 2003 to discuss the vulnerability of the state’s water supply to terrorists is one example cited by some in support of such an exception.
VI. Open Legislative Committee Policy in Other Western States
In every other state in the country the same interests are at play regarding the openness of legislative committee meetings. The web of legal authorities on this question is as complex in many other states as it is in Idaho, making it challenging to review the policies in all 50 states. We did, however, investigate the policies of the ten other western states. Not surprisingly, there are states who have adopted policies similar to each of the three positions expressed in Idaho. Three of the ten other western states—Montana, Oregon, and Washington—require that legislative committee meetings always be open. Two of the ten other western states—Nevada and Wyoming—allow legislative committees to close their meetings for any reason. Five of the ten other western states—Arizona, California, Colorado, New Mexico, and Utah—allow committees to close their meetings in specified, extraordinary circumstances.
Each of the four circumstances specified in the Idaho draft rule are identified by two or more of the western states that allow committee meetings to close under specified circumstances. Three of those states also allow committees to close their meetings to discuss security matters. Table 1 lists the circumstances under which each state allows committee meeting to be closed, from the most to the least frequently identified.
Table 1: Exceptions to Open Committee Meeting Requirements
Some elaboration of how these states handle the two most common exceptions—discussions of litigation and personnel matters—may be instructive for considering what Idaho’s policy should be. As seen in Table 1, litigation was the only circumstance that each of these five states identified. This exception is drafted more narrowly in some states and more broadly in others. The narrowest exception is probably Colorado’s, which allows committees to close their meetings to discuss “pending or imminent court action.” [Emphasis added] The broadest exception is probably Arizona’s which allows committees to close anytime they are receiving advice from legal counsel and to discuss “pending or contemplated litigation.” [Emphasis added] The draft rule for Idaho would probably be considered narrower than any of these, since it allows meetings to be closed only to discuss “pending” litigation, except that it also provides for closing to discuss “pending…mediation or arbitration” as well.
The next most common circumstance in which committees can close their meetings is to discuss personnel matters. The nature of this provision is similar in Arizona, California, and New Mexico. In each of these states, discipline or dismissal of a member of the legislature is included in this circumstance held to justify closing committee meetings. Colorado requires meetings in which personnel matters are discussed to be open unless the employee or official requests a closed meeting. However, Colorado requires that committee meetings remain open when discussing discipline or dismissal of a member of the legislature, even if the member asks for it to be closed. The Idaho draft rule thus appears to be similar to Arizona, California, and New Mexico’s provisions in this regard, but different from Colorado’s, since it would allow meetings to be closed when considering discipline of a member of the legislature.
Current Senate and House Rules on Open Committee Meetings
Click here to review the current Senate Rule 20
Click here to review House Rule 57
Bianchi Draft Rule and Related Materials
Click here to review the actual draft rule.
Click here to review Carl Bianchi’s cover memo to the Legislative Council explaining the draft rule
Click here to review the minutes from the Legislative Council meeting in which the members unanimously decided to ask Carl Bianchi to draft the rule
Idaho Press Club Statements and Related Links
Click here to review the Idaho Press Club’s statement
Click here to link to Idahoans for Open Government, a non-profit organization that promotes open government and freedom of information
Documents from the Lawsuit and Other Legal Documents
Click here to review the Attorney General opinion letter
Click here to review the District Court ruling dismissing the Idaho Press Club’s case against the Legislature
Click here to review the Idaho Press Club’s legal brief in support of its appeal before the Idaho Supreme Court
Click here to review the Legislature’s legal brief responding to the Idaho Press Club’s appeal
Click here to review the Idaho Press Club’s legal brief replying to the Legislature’s brief
Open Legislative Committee Meetings Policy in Other States and the Congress
Click here to connect to the Reporters Committee for Freedom of the Press website page for comparing open meetings policies in the 50 states
Click here to review Arizona policy on open legislative committees
Click here to review California policy on open legislative committees
Click here to review Colorado policy on open legislative committees
Click here to review New Mexico policy on open legislative committees
Click here to review Nevada’s constitutional provisions on open legislative committees
Click here to review Oregon’s constitutional provisions on open legislative committees (see Article IV, Section 14)
Click here to review Utah policy on open legislative committees
Federal Rules on Secret Sessions
Click here to review a report on Congress’s current rules on secret sessions
Click here to review the resolution of secrecy adopted by the Continental Congress