Printed on: January 22, 2013

Lawyer: D55 used a 'legal loophole'

By Nate Sunderland
nsunderland@postregister.com

The Blackfoot School District 55 school board used a "legal loophole" to reaffirm and validate the separation agreement of former Superintendent Scott Crane on Thursday, Post Register attorney Steve Wright said.

"The fact (the board) voided their actions in December and then tried to rewrite history and claim that didn't happen in January leaves, frankly, a mess," Wright said.

"The loophole appears to be, even if you breach the open meeting act -- which automatically voids all actions -- if no one catches you in 30 days (the action) really wasn't void after all," he said.

On Dec. 11, the board admitted violating Idaho open meeting laws on March 13 and April 24 by discussing Crane's separation agreement during executive sessions not called for that purpose.

The loophole stems from seeming contradictions in Idaho's Open Meeting Law, brought up by Amy White, the district's interim attorney, at a board meeting Thursday.

White did not return calls seeking comment Friday or Monday.

During the meeting, White used Idaho Code 67-2347(6), which states:

"Any suit brought for the purpose of having an action declared or determined null and void ... shall be commenced within 30 days of the time of the decision or action that results ... from a meeting that failed to comply (with the Open Meeting Law)."

White's argument is that since no one challenged the validity of the separation agreement within 30 days of its creation, it cannot be voided even if it occurred during a meeting in violation of Idaho's sunshine laws.

"The Idaho Supreme Court and the Idaho Attorney General have held that unless an action, which is in violation of an open meeting act, is challenged in 30 days, the action is valid and stands," White said Thursday. "My interpretation is that (the separation agreement) is valid and enforceable."

The separation agreement was challenged by former Blackfoot schoolteacher Joyce Bingham; however, she didn't sue District 55 to release the contract until August, several months after it was approved by the school board April 24.

The board also hid Crane's identity by referring to him as employee B-2012, making it harder for Bingham or anyone else to know who was involved in the contract.

By White's contention, Bingham's lawsuit also may not have met the necessary criterion, since she sued for the release of documents and not for a violation of Idaho's Open Meeting Law.

Wright called White's argument problematic.

"That's a very troubling interpretation of the Open Meeting Law because private citizens may not even know about (violations of the laws) within 30 days -- as occurred in this case," he said.

White's findings included one exception. The separation agreement is still valid, she said, except for its fifth paragraph, a nondisclosure agreement that was struck down by 6th District Judge David Nye, when he ruled in Bingham's favor Dec 7.

The board actions Thursday are in direct contradiction of earlier actions.

On Dec. 24, on the advice of former legal counsel Dale Storer, District 55 officially voided all actions taken during previous closed sessions, including presumably, the separation agreement with Crane. (The board fired Storer on Dec. 20.)

The action was an attempt to "cure the open meeting violations," based on the recommendation of Storer after the Post Register in November challenged the validity of the executive sessions.

Curing the violation includes voiding all actions taken during illegal closed sessions as per Idaho Code 67-2342(1) which states:

"If an action or deliberation or decision-making that leads to an action occurs at any meeting which fails to comply with the provisions of (Idaho's Open Meeting Law) such action shall be null and void."

But the "30-day" loophole means the public may be out of luck to challenge Crane's separation agreement, Wright said.

"I don't think there is any question the board's conduct was in violation of the open meeting act," Wright said. "But their resolution appears to be that we got away with it because no one sued us within (the time allotted)."

Nate Sunderland can be reached at 542-6763. Comment on this story on Post Talk at www.postregister.com/posttalk/.