For Immediate Release
Media Contact: Bob Cooper
(208) 334-4112

Date: February 22, 2008

Attorney General Completes Investigation of State Board of Education Executive Session

(Boise) – Attorney General Lawrence Wasden today released the report of his office’s investigation of an Open Meeting Law complaint against the Idaho State Board of Education. The Attorney General discussed his findings during a news conference in Boise this morning. The Attorney General is charged with enforcing the Open Meeting Law with regard to entities of state government.

On December 12, 2007, Betsy Russell, a reporter with The Spokesman-Review, filed a complaint with the Attorney General’s Office, alleging that the State Board of Education had violated the Idaho Open Meeting Law. The Idaho Allied Dailies submitted a companion complaint on December 19, 2007, incorporating Ms. Russell’s complaint by reference.

The complaint alleged that the Board violated the Open Meeting Law by:

  • discussing, during an executive session on December 6, 2007, budgetary issues and the elimination of Idaho Standards Achievement Test (“ISAT”) testing for the 9th grade;
  • reaching a decision regarding the elimination of 9th grade ISAT testing either in the December 6 executive session or in a non-public “serial meeting” following the December 6 executive session;
  • failing to specifically delineate in its agenda for the December 6 meeting the reasons it planned to go into executive session; and
  • failing to specifically delineate in the minutes of its October 11, 2007, meeting the reasons for going into executive session.

The investigation of this matter included, among other things, a review of the minutes, agendas, and audio recordings of the Board’s meetings, as well as personal interviews with all Board members.


The investigation found the following facts with regard to the Board’s meeting.

One of the first topics raised at the December 6, 2007, executive session was the need to fill several key staff vacancies at the Board, including the positions of Chief Fiscal Officer, Academic Officer, and Executive Director. Board President Milford Terrell noted that the Board was prevented from filling those vacancies due to a financial shortfall of approximately $800,000. Terrell and Mike Rush, the Interim Executive Director, informed the Board that the budget shortfall continued to stand in the way of filling key staff positions. In conjunction with that comment, Mr. Terrell and Mr. Rush noted that the Board would probably have to cut 9th grade ISAT testing to eliminate the budget shortfall, because this step would save approximately $850,000.

The discussion regarding the Board vacancies, budget shortfall, and 9th grade ISAT testing was very brief, lasting an estimated three to four minutes. The justification provided by the interviewed Board members for this discussion in the executive session was that the topic was directly related to the issue of hiring staff at OSBE and the ongoing critical need for key personnel.

The Board did not make any decision regarding these issues during the executive session and did not vote on these issues.

When interviewed by the Attorney General’s Office, Mr. Rush said that he unilaterally made the decision to direct the contractor to stop work on the 9th grade testing and that he believed he had the authority to make that decision. Mr. Rush and the Board’s communications officer decided to issue a press release announcing that the 9th grade testing had been eliminated.

The Board subsequently scheduled a special meeting with proper notice and agenda and, on December 20, 2007, voted in public session to eliminate 9th grade testing.


The Attorney General’s Office reached the following conclusions from the investigation:

  1. The Board’s actions may have constituted a non-knowing violation of the Open Meeting Law;
  2. Even if a violation did occur, it does not give rise to the penalties (nullification and a civil fine) provided for under the law, for these reasons:
    1. No decision was made in the December 6 executive session;
    2. Without exception, the evidence shows that the Board members believed the executive session was held in compliance with the Open Meeting Law;
    3. Although 9th grade ISAT testing was briefly discussed within the executive session, it was discussed in the context of revenue shortfalls that precluded the filling of staff vacancies;
    4. Since no decision was made during the executive session, the remedy under the law to void a Board action is inappropriate;
    5. In light of the “good faith exception” created by the case of State v. Yzaguirre, a knowing violation of the law cannot be proven;
    6. Absent a knowing violation, no fine can be imposed under the Open Meeting Law;
  3. The Board’s minutes setting forth the reasons for past executive sessions may have been too broad, and the Board should avoid including such broad provisions in their future minutes;
  4. The Board’s agenda for the December 6 executive session was appropriate;
  5. The December 10 press release, announcing that the Board had decided to eliminate 9th grade ISAT testing, was inaccurate;
  6. The Board would benefit from receiving training on the Open Meeting Law; and
  7. The Board has scheduled such training in the near future.

Consistent with these findings, the Attorney General’s Office considers this investigation and matter closed.

Listen to Attorney General Wasden's opening statement from the news conference.

Read the Attorney General’s news conference statement.

Read the report of the Attorney General’s investigation.

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