The legal battle over an open meeting of the Idaho State Board of Education continues

BOISE, Idaho – This story originally appeared in the Idaho Press.

The protracted conflict between the state and the University of Idaho and the State Board of Education, which serves as the UI’s board of regents, over an attempt to buy the online University of Phoenix continued Thursday with a new court decision.

The Idaho Supreme Court has ruled that the district court erred when it dismissed an open sessions lawsuit against the Idaho State Board of Education brought by Attorney General Raúl Labrador over confidential negotiations related to the university’s efforts to expand online to buy a school was submitted.

“Contrary to the Open Meetings Law’s penchant for sunshine, the District Court’s reading of the Preliminary Negotiations Clause obscures all negotiations and actions taken before a final public vote by expanding the very exceptions that the Legislature narrowly construes had to,” Justice Gregory Moeller wrote in the majority opinion.

The 4-1 decision ruled that the district court had improperly interpreted Idaho’s open meetings law, that it should have accepted an amended motion and sent the case back to the lower court to proceed based on its interpretation a new decision could be made by the higher court. The court also reversed the earlier decision ordering the attorney general’s office to pay attorneys’ fees to the state agency.

The court did not rule on whether the state board had violated the open meetings law; The case was sent back to go through the investigative process and further review.

Justice Colleen Zahn dissented from the majority.

The State Council’s 2023 decision to take steps to buy the online university for $685 million through bail has drawn scrutiny from state officials, including Labrador, and lawmakers. UI President C. Scott Green has argued that the purchase would provide another source of revenue for the university as it faces a potential “enrollment cliff” due to population decline. Opponents have questioned the secrecy of the three closed executive sessions before the public decision, and lawmakers have questioned the authority of the board and the university to move forward with such a large purchase without legislative approval.

Ada County District Court Judge Jason Scott in January dismissed Labrador’s lawsuit, in which the attorney general argued that the closed-door meetings preceded the state board’s public vote to approve the creation of a nonprofit organization to purchase the university of Phoenix (UoPx) were held illegally. . He also ordered the firm to pay legal fees.

Writing for the court majority, Moeller said Scott’s previous ruling misinterpreted the Open Meeting Law’s narrow exception for “preliminary negotiations” in contracts where the state competes with other public entities.

Scott’s earlier decision was consistent with the state board’s argument that the negotiations that took place in executive session on May 15 – three days before the unanimous vote – were still “preliminary” because they took place before the final decision. The Supreme Court majority disagreed with Scott’s interpretation, arguing that the previous ruling “essentially strips the word ‘provisional’ from the law.”

In her dissent, Zahn wrote that the majority’s interpretation of “provisional” would defeat the legislative intent behind the statute’s exemption, which is to “provide the state with a competitive advantage when competing with other states or nations.”

She also wrote that the majority opinion “does not provide clear guidance as to when state agencies may use the preliminary hearing exception.”

Moeller also wrote that the previous decision misinterpreted the exception’s requirement that negotiations take place in “competition with governing bodies in other states and nations.” The lower court ruled that state board members had a “reasonable belief” that the university was in competition with other states and that this was sufficient to satisfy the statutory requirement.

The Supreme Court disagreed, writing that “the clear and unequivocal conclusion is clear: This law requires that a governing body actually ‘compete’ with other governing bodies and not simply believe that it is or might be so.” “

Additionally, the court reversed the lower court’s decision denying Labrador’s motion to amend the complaint with new allegations of violation of the Open Meetings Act. The new filings alleged the board inadequately publicized the agenda for its May 18 meeting and included new allegations about the April 25 closed meeting.

The district court judge had rejected these changes because they were outside the 30-day deadline for filing an open meetings complaint and were unrelated to the original complaint.

The Supreme Court sided with Labrador’s office, agreeing that the additional claims were reasonable and should have been allowed.

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

“We contended that the lower court’s decision undermined Idaho’s open meetings law and set a dangerous new precedent for relying on subjective belief rather than objective fact in determining whether a meeting should be open to the public,” Labrador said. “The Idaho Supreme Court agreed with my office on all three key issues raised and protected the people’s right to know exactly what their government officials are doing.”

Mike Keckler, spokesman for the Idaho State Board of Education, was asked for comment on the decision and reiterated that the court did not conclude that the board violated the law.

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

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

As for the possibility of purchasing the University of Phoenix, discussions continue between the institutions, Walker said.

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

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