Idaho high court overturns dismissal of Open Meetings challenge to ed board

The drawn-out conflict between the state and University of Idaho and the State Board of Education, which acts as UI’s Board of Regents, over an effort to purchase the online University of Phoenix continued Thursday with a new court decision.

The Idaho Supreme Court has decided the district court erred in tossing out an open meetings challenge against the Idaho State Board of Education, brought by Attorney General Raúl Labrador over negotiations held in private related to the university’s effort to purchase the online school.

“Contrary to the Open Meetings Law’s preference for sunshine, the district court’s reading of the preliminary negotiation clause effectively cloaks all negotiations and actions taken prior to a final public vote in shadow by broadening the very exceptions that the legislature required be narrowly construed,” Justice Gregory Moeller wrote in the majority opinion.

The 4-1 decision ruled that the district court did not properly interpret Idaho’s Open Meetings Law, that it should have accepted an amended filing, and returned the case to the lower court for a new decision based on the higher court’s interpretation. The court also overturned the previous decision ordering the Attorney General’s Office to pay attorneys fees to the state board.

The court did not rule on whether the state board violated the Open Meetings law; the case was sent back to go through the process of discovery and further consideration.

Justice Colleen Zahn dissented with the majority.

The state board’s 2023 decision to take steps toward purchasing the online university for $685 million through bonding has been met with scrutiny by state officials, including Labrador and lawmakers. UI President C. Scott Green has argued the purchase would provide another revenue stream to the university as it faces a potential “enrollment cliff” due to declining population. Opponents have questioned the secrecy of the three closed-door executive sessions ahead of the public decision, and lawmakers have questioned the board and university’s authority to move forward with such a large purchase without legislative approval.

Ada County District Court Judge Jason Scott in January dismissed Labrador’s challenge, in which the attorney general argued that the closed-door sessions were improperly held prior to the state board’s public vote to approve creating a nonprofit entity to purchase the University of Phoenix. He also ordered the office to pay attorneys fees.

Moeller wrote for the court majority that Scott’s previous ruling misinterpreted the Open Meeting Law’s narrow exception for “preliminary negotiations” in contracts where the state is in competition with other public entities.

Scott’s prior ruling agreed with the State Board’s argument that the negotiations taking place in the executive session on May 15 — three days before the unanimous vote — were still “preliminary,” because they were before the final action. The Supreme Court majority disagreed with Scott’s interpretation, arguing that the previous ruling, “essentially reads the word ‘preliminary’ out of the statute.”

In her dissent, Zahn wrote that the majority interpretation of “preliminary” would negate the legislative intention behind the law’s exception, which is “to provide the State with a competitive advantage when it is in competition with other states or nations.”

She also wrote that the majority opinion “provides no clear guidance for when state agencies may utilize the preliminary negotiations exception.”

Moeller wrote that the previous decision also misinterpreted the exception’s requirement that the negotiations be taking place amid “competition with governing bodies in other states and nations.” The lower court held that the members of the state board had a “reasonable belief” that the university was in competition with other states, and that was enough to satisfy the requirement under the law.

The Supreme Court disagreed, writing that the “the plain and unambiguous conclusion is straightforward: this statute requires that a governing body actually be ‘in competition with’ other governing bodies, not simply believe that they are or might be.”

The court additionally reversed the lower court’s decision to deny Labrador’s motion to amend the complaint with new allegations of violating the Open Meetings Law. The new filings alleged the board inadequately published the agenda for its May 18 meeting and included new assertions about the April 25 closed-door meeting.

The district court judge had denied these amendments because they were outside a 30-day window to file an open meetings complaint and did “not relate” back to the original complaint.

The Supreme Court sided with Labrador’s office and agreed that the additional claims adequately related back and should have been allowed.

Labrador said in an emailed statement that Thursday’s opinion was a “comprehensive win for the people of Idaho and the principles of open government.”

“We maintained that the lower court’s ruling undermined Idaho’s Open Meetings Law and set a dangerous new precedent for subjective belief instead of objective fact when determining if a meeting should be accessible to the public,” Labrador said. “The Idaho Supreme Court agreed with my office on all three of the major issues raised and protected the right of the people to know exactly what their government officials are doing.”

Asked for comment on the decision, Idaho State Board of Education spokesperson Mike Keckler reiterated that the court did not conclude the board had violated the law.

“The case has been remanded back to the district court,” Keckler wrote in an email. “The Board does not comment on pending litigation.”

UI spokesperson Jodi Walker said in an email the university is “reviewing the ruling and will work with our Board of Regents on next steps. It remains pending litigation and we do not comment on pending litigation.”

As for the potential to purchase the University of Phoenix, there are continued conversations between the institutions, Walker said.

“Both leadership teams see the benefit in this affiliation and the importance of thinking outside the box when it comes to higher education in today’s landscape,” Walker said. “Our Board of Regents continues to support the conversations and the prospect of affiliation.”

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on Twitter @EyeOnBoiseGuido.