HomeMy WebLinkAboutAIC 2021 Transparent and Ethical GovernmentTRANSPARENT &
ETHICAL GOVERNMENT
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A S S O C I A T I O N O F I D A H O C I T I E S
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Idaho Transparent and Ethical Government
Manual
2021
Association of Idaho Cities
3100 S. Vista Ave. Ste. 201
Boise, ID 83705
Tel. (208) 344-8594 or (800) 344-8594
Fax (208) 344-8677
www.idahocities.org
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Table of Contents
INTRODUCTION ............................................................................................................................... 3
PUBLIC RECORDS ACT INTRODUCTION .................................................................................... 3
EXEMPT RECORDS .......................................................................................................................... 6
PENALTIES FOR VIOLATION ........................................................................................................ 9
GOOD FAITH PROTECTION ........................................................................................................... 9
QUESTIONS & ANSWERS ............................................................................................................... 9
OPEN MEETNGS INTRODUCTION .............................................................................................. 12
UNDERSTANDING MEETING BASICS ....................................................................................... 12
REGULAR MEETINGS ................................................................................................................... 14
SPECIAL MEETINGS ...................................................................................................................... 15
VOTING ............................................................................................................................................ 16
EXECUTIVE SESSIONS .................................................................................................................. 18
MINUTES .......................................................................................................................................... 19
PENALTIES FOR VIOLATION & CURE PROCESS .................................................................... 19
QUESTIONS & ANSWERS ............................................................................................................. 20
IDAHO ETHICS IN GOVERNMENT ACT INTRODUCTION ..................................................... 21
PROHIBITIONS ON CONTRACTS WITH OFFICERS ................................................................. 22
BRIBERY & CORRUPT PRACTICES ACT ................................................................................... 24
PLANNING & ZONING CONFLICTS OF INTEREST .................................................................. 26
CONFLICTS OF INTEREST & LOCAL IMPROVEMENT DISTRICTS ...................................... 27
URBAN RENEWAL CONFLICTS OF INTEREST ........................................................................ 27
INCOMPATIBILITY OF OFFICE ................................................................................................... 28
MISCELLANEOUS LAWS DEALING WITH CONFLICTS OF INTEREST ............................... 28
QUESTIONS & ANSWERS ............................................................................................................. 29
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INTRODUCTION
The actions, writings and decisions of elected officials are in the public eye. This guide will discuss
the laws regarding public records, open meetings, and ethics, which set the minimum bar for ethical
standards and transparency for the public. This document is an overview and is not a substitute for
reading the statutes pertaining to these topics or for consulting with legal counsel. Also, just
because something may be legally permissible, it may not reflect well on a leader so, asking how an
action or document would appear on the front page of the paper can also help leaders avoid issues.
Transparent and ethical government is a cornerstone of democracy and Idaho’s laws governing
these can be found in Title 74 and include:
Chapter 1: Public Records Act
Chapter 2: Open Meetings Law
Chapter 4: Ethics in Government
Chapter 5: Prohibitions Against Contracts with Officers
Chapter 6: Public Integrity in Elections Act
The Idaho Office of the Attorney General also provides guidance and helpful questions and answers
regarding common issues at:
Public Records: https://www.ag.idaho.gov/content/uploads/2018/04/PublicRecordsLaw.pdf
Open Meeting: https://www.ag.idaho.gov/content/uploads/2018/04/OpenMeeting.pdf
Ethics in Government: https://www.ag.idaho.gov/content/uploads/2018/04/EthicsInGovernment.pdf
PUBLIC RECORDS ACT INTRODUCTION
Idaho Code states that a city shall designate a custodian or custodians for all public records. How
the city goes about this will depend largely on its size and how it normally responds to public
records requests. In smaller cities, typically the city clerk/treasurer is the records custodian for the
entire city. Larger cities may have separate custodians for different city departments. Typically,
police or law enforcement will have their own records custodian. Cities should adopt resolutions
designating the custodian(s) by title and not name so the resolution doesn’t need to be revised each
time there is a change in personnel. Cities also need to designate alternate custodians to serve in the
case that the primary custodian is out of the office or otherwise not available to work on requests.
Records custodians often need to work with the city attorney in responding to public records
requests. The exemptions set forth in the Public Records Act are many and determining the scope
of these exemptions requires the assistance of legal counsel. The attorney must also be involved in
redacting nonpublic information from public records. A best practice is providing access to the
most-commonly requested public records (minutes, the comprehensive plan, etc.) on the city’s
website. This saves the city the work of responding to public records requests and allows this
important information to be accessed by citizens on demand.
Most written communication (including emails and texts) is public information, but public
information can include things like voicemails and other electronic communication as well. All
writings from emails to hand-written notes (unless only used for personal use and not shared) to
official documents may be public record and could become part of a court case, so always use
caution – even communication on a personal device can be public record.
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Right to Access & Receive Copy of Records
The Idaho Public Records Act 1 states every person has a right to examine and take a copy of any
public record. There is a presumption that all public records in Idaho are public.2 All records are
perceived to be open to the public unless exempted.
What State and Local Governments are Required to Comply with the Public Records Act?
The law applies to any public agency, including a city, school district, municipal, public health
district, political subdivision, or any commission or committee of a local agency.3 The law also
applies to independent public entities like housing authorities and urban renewal agencies.
What is a Public Record for the Purposes of the Public Records Act?
Public records include any writing relating to the conduct or administration of the public's business
prepared, owned, used, or retained regardless of physical form or characteristics.4 Public records
include paper documents, electronic files, emails, text messages, audio and video recordings, maps,
plats, building plans, etc., 5 even when sent using personal accounts and devices.
Public Record Requests to be in Writing: The public agency may, as part of its public records
policy, require that records requests be submitted in writing including the requester’s name, mailing
address, email address and telephone number.6
In-Person Examination of Public Records: Requesters can examine public records in-person at
the public agency office during regular working hours or pay reasonable compensation for an
employee to be present during the examination if not during regular hours.7 The custodian can and
should monitor the examination to ensure the records are not altered, damaged or stolen.8 The
custodian is prohibited from scrutinizing any notes, photographs, etc. made by the requester during
the examination.9
Using Public Records for Mailing or Telephone Lists Prohibited: The law prohibits using public
records for mailing and telephone lists. 10 However, a person can compile their own list by
examining or copying public records.11 The public records request form must include a
certification from the requester that the records will not be used for mailing or telephone lists.
Charges for Public Records Requests: The first two hours of labor in responding to a public
records request, as well as the first 100 pages of copies of paper records, must be provided free of
charge to the requester.12 The agency may charge to recover actual labor and copying costs
associated with locating and copying documents for requests:
1 Idaho Code Title 74, Chapter 1.
2 Idaho Code 74-102(1).
3 Idaho Code 74-101(8).
4 Idaho Code 74-101(13).
5 Idaho Code 74-101(16).
6 Idaho Code 74-102(4).
7 Idaho Code 74-102(8).
8 Idaho Code 74-102(7).
9 Idaho Code 74-102(6).
10 Idaho Code 74-120(1)(b).
11 Idaho Code 74-120(2).
12 Idaho Code 74-102(10).
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• Involving more than 100 pages of paper records,
• Where nonpublic information must be redacted from records, or
• Where the actual labor exceeds two hours.13
Cities should adopt a fee schedule, but fees may not exceed the actual cost of copying the record
including costs for converting and duplicating electronic records and labor involved.14 Charges to
recover costs for legal counsel to redact nonpublic information must meet certain requirements. 15
Fees must be waived when the requester shows they meet all elements of certain criteria.16 When
fees are charged, the public agency must provide an itemized statement to the requester showing the
per page costs for copies and the number of employees and hours worked. 17 The public agency may
require advance payment of fees.18
Responding to Public Records Requests: The public agency must either grant or deny a person’s
request to examine or receive copies of public records within three working days.19 If the public
agency determines that a longer period is needed, the public agency must notify the requester in
writing (email or mail), and the records must be provided within 10 working days of the date that
the request was received by the public agency. If the public agency does not respond, the request is
deemed to be denied within 10 working days.20
If the public agency denies part or all of the request for records, the person legally responsible for
administering the public agency (mayor or city manager) or their designee (city clerk or other
records custodian) must notify the requester in writing of the denial or partial denial.21
The notice of denial or partial denial must include the following information.22
• That the legal counsel for the public agency has reviewed the request or that the public
agency has had an opportunity to consult with its legal counsel concerning the request and
has chosen not to do so.
• The provision(s) of Idaho Code authorizing the denial of the records request.
• The requester’s right to appeal the denial and the time frames for appealing.23
Appealing the Denial of a Public Records Request: Any requester who wishes to appeal the
denial of a public records request must file a lawsuit in the District Court of the county where the
records are located within 180 calendar days from the date the public agency mailed the notice of
denial or partial denial.24 The public agency must keep all documents or records in question until
the expiration of the appeal period, until a decision has been rendered on the petition, or as
otherwise statutorily provided, whichever is longer.25
13 Idaho Code 74-102(10)(b).
14 Idaho Code 74-102(10).
15 Idaho Code 74-102(10)(e).
16 Idaho Code 74-102(10)(f).
17 Idaho Code 74-102(10)(g).
18 Idaho Code 74-102(12).
19 Idaho Code 74-103(1).
20 Idaho Code 74-103(2).
21 Idaho Code 74-103(3).
22 Idaho Code 74-103(4).
23 Idaho Code 74-115(1).
24 Idaho Code 74-115(1).
25 Idaho Code 74-115(2).
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EXEMPT RECORDS
Some examples of public agency records exempt from public disclosure are summarized below.
This list is not complete and is not intended to be a substitute for reviewing the exemptions in the
Public Records Law with your city attorney.
• Archeological Sites Maps and other records identifying the location of archaeological or
geophysical sites or endangered species, if not already known to the general public.26
• Buildings & Facilities Records other than public expenditure records, related to proposed
or existing critical infrastructure held by or in the custody of any public agency only when
the disclosure of such information is reasonably likely to jeopardize the safety of persons,
property or the public safety. Such records may include emergency evacuation, escape or
other emergency response plans, vulnerability assessments, operation and security manuals,
plans, blueprints or security codes.27
• Business & Trade Secrets Trade secrets provided by businesses in response to public
agency requests for proposal, requests for information, etc.28 Production records, housing
production, rental and financing records, sale or purchase records, mortgage portfolio loan
documents, or similar business records of a private concern or enterprise required by law to
be submitted to or inspected by a public agency.29
• Corrections & Jails
o Records of a prisoner or former prisoner in the custody of any state or local
correctional facility, when the request is made by another prisoner in the custody of
any state or local correctional facility.30
o Voting records of the Sexual Offender Classification Board.31
o Records of the financial status of prisoners provided pursuant to section 20-607,
Idaho Code, concerning prisoner reimbursement to the county.32
• Courts Certain records in court files of judicial proceedings where disclosure is prohibited
by or under rules adopted by the Idaho Supreme Court.33
• Economic Development Records gathered by a local agency or the Idaho Department of
Commerce, for the specific purpose of assisting a business to locate, maintain, invest in, or
expand operations in the State of Idaho.34
• Employment & Personnel Records of a current or former public official are exempt from
disclosure with the exception of the following information, which is public record: the
public official's public service or employment history, classification, pay grade and step,
longevity, gross salary and salary history, status, workplace and employing agency.35 Items
that shall not be disclosed to the public without the employee’s or applicant’s written
consent are: names of applicants to classified or merit system positions (except as part of a
background check). Names of the five (5) final applicants to all other positions shall be
available to the public. If such group is less than five (5) finalists, then the entire list of
26 Idaho Code 74-108(1).
27 Idaho Code 74-105(4)(b).
28 Idaho Code 74-107(1).
29 Idaho Code 74-107(2).
30 Idaho Code 74-105(14).
31 Idaho Code 74-105(5).
32 Idaho Code 74-106(16).
33 Idaho Code 74-104(2).
34 Idaho Code 74-107(6).
35 Idaho Code 74-106(1).
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applicants shall be available to the public. A public official or authorized representative may
inspect and copy his personnel records, except for material used to screen and test for
employment.
• Financial
o Records of personal debt filed with a public agency pursuant to law.36
o Personal bank records compiled by a public depositor for the purpose of public funds
transactions.37
o Records of ownership of financial obligations and instruments of a public agency.38
o Records regarding the ownership of, or security interests in, registered public
obligations.39
• General Any public record exempt from disclosure by federal or state law or federal
regulations to the extent specifically provided for by such law or regulation.40
• Idaho Counties Risk Management Program Records of any risk retention or self-
insurance program (such as the Idaho Counties Risk Management Program—ICRMP)
prepared in anticipation of litigation or for analysis of or settlement of potential or actual
money damage claims against a public entity and its employees except as otherwise
discoverable under the Idaho or federal rules of civil procedure. These records include
claims evaluations, investigatory records, computerized reports of losses, case reserves,
internal documents and correspondence. At the time a claim is concluded, statistical data
and actual amounts paid in settlement shall be deemed a public record.41
• Juvenile Corrections Records of juveniles under the Juvenile Corrections Act 42 and records
of the Custody Review Board of the Idaho Department of Juvenile Corrections.43
• Law Enforcement
o Records of the sheriff relating to applicants or licensees for concealed weapons
permitting, carrying of concealed firearms by qualified retired law enforcement
officers, and enhanced concealed weapons licenses.44
o Criminal history records and fingerprints compiled by the Idaho State Police.45
o Records relating to DNA databases and databanks.46
o Residential street addresses and telephone numbers of law enforcement officers.47
o Investigatory records compiled by law enforcement for law enforcement purposes if
records would:
Interfere with enforcement proceedings;
Deprive a person of a right to a fair trial or an impartial adjudication;
Constitute an unwarranted invasion of personal privacy;
Disclose the identity of a confidential source and, confidential information
furnished only by the confidential source;
Disclose investigative techniques and procedures; or
Endanger the life or physical safety of law enforcement personnel.48
36 Idaho Code 74-106(4)(a).
37 Idaho Code 74-106(4)(b).
38 Idaho Code 74-106(4)(c).
39 Idaho Code 74-106(4)(d).
40 Idaho Code 74-104(1).
41 Idaho Code 74-107(11).
42 Idaho Code 74-105(2).
43 Idaho Code 74-105(3).
44 Idaho Code 74-105(6).
45 Idaho Code 74-105(12).
46 Idaho Code 74-106(17).
47 Idaho Code 74-106(30).
48 Idaho Code 74-124(1).
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o Inactive investigatory records must be disclosed unless the disclosure would violate
any of the provisions of Idaho Code 74-124(1)(a) through (f) (see list above).49
o Investigatory record.50
• Libraries & Museums
o The records of a library which, when examined alone, or when examined with other
public records, would reveal the identity of the library patron checking out,
requesting, or using an item from a library.51
o The material of a library, museum or archive that has been contributed by a private
person, to the extent of any limitation that is a condition of the contribution.52
• Licensing & Certification
o Any personal records, other than names, business addresses and business phone
numbers, submitted to any public agency pursuant to a statutory requirement for
licensing, certification, permit or bonding.53
o Unless otherwise provided by agency rule, information obtained as part of an inquiry
into a person's fitness to be granted or retain a license, certificate, permit, privilege,
commission or position, private association peer review committee records.54
• Medical Records, including prescriptions, and drug orders, that specifically identifies an
individual patient and records of psychiatric care or treatment and professional counseling
records relating to an individual's condition, diagnosis, care or treatment.55
• Personal
o Vital statistics records of a personal nature.56
o Military records as described in and pursuant to section 65-301, Idaho Code.57
o Records pertaining to the Confidentiality for Victims of Violence Program.58
• Procurement & Purchasing
o Records relating to the appraisal of real property, timber or mineral rights prior to its
acquisition, sale or lease by a public agency.59
o An estimate of the cost of a project until such time as disclosed or bids are opened,
or upon award of the contract for construction of the project.60
• Public Employee Retirement System of Idaho Certain information maintained by the
Public Employee Retirement System of Idaho, including retired employees' and retired
public officials' home addresses and telephone numbers.61
• Taxation Information in an income or other tax return measured by items of income or
sales, which is gathered by a public agency for the purpose of administering the tax.62
• Technology Computer programs developed or purchased by an agency for its own use and
associated documentation and source material that explain how to operate the program.63
• Transportation
49 Idaho Code 74-124(3).
50 Idaho Code 74-124(3).
51 Idaho Code 74-108(3).
52 Idaho Code 74-108(4).
53 Idaho Code 74-106(8).
54 Idaho Code 74-106(9).
55 Idaho Code 74-106(13).
56 Idaho Code 74-106(4)(e).
57 Idaho Code 74-106(4)(f).
58 Idaho Code 74-106(27).
59 Idaho Code 74-107(3).
60 Idaho Code 74-107(4).
61 Idaho Code 74-106(2).
62 Idaho Code 74-106(5).
63 Idaho Code 74-107(15).
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o Personal information contained in motor vehicle and driver records.64
o Information between the Idaho Transportation Department and insurance
companies.65
• Unclaimed Property Personal information including property values, personal and business
addresses, phone numbers, dates of birth, social security and driver's license numbers.66
PENALTIES FOR VIOLATION
Any public official who is found by the court to have “deliberately and in bad faith improperly
refused a legitimate” public records request may be fined up to $1,000. This fine is payable by the
official personally, not the public agency.67
GOOD FAITH PROTECTION
The law provides immunity for custodians, public officials and public agencies from liability for
“any loss or damage based upon the release of a public record” if the custodian, public official or
public agency acted in good faith in attempting to comply with the law.68 Consulting the city
attorney is a key aspect of demonstrating good faith under this provision.
QUESTIONS & ANSWERS
Can public agencies respond to public records requests via email?
Yes. The records can be emailed to the requester.
What is the process for denying a public records request?
The agency must notify the requester in writing of the denial or partial denial and include:69
• That the legal counsel for the public agency has reviewed the request or that the public
agency had an opportunity to consult with legal counsel and chose not to do so.
• The provision(s) of Idaho Code authorizing the denial of the records request.
• The requester’s right to appeal the denial and the time frames for appealing. Any requester
who wishes to appeal the denial of a public records request must file a lawsuit in the District
Court of the county where the records are located within 180 calendar days from the date the
public agency mailed the notice of denial or partial denial.
Are personnel records exempt from public disclosure?
Personnel records of a current or former public official are exempt from disclosure with the
exception of: the public official's public service or employment history, classification, pay grade
and step, longevity, gross salary and salary history, status, workplace and employing agency.70
64 Idaho Code 74-106(15).
65 Idaho Code 74-106(31).
66 Idaho Code 74-106(33).
67 Idaho Code 74-117.
68 Idaho Code 74-118.
69 Idaho Code 74-103(3) and (4).
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What are the penalties for violating the Public Records Law?
Any public official who is found by the court to have “deliberately and in bad faith improperly
refused a legitimate” public records request may be fined up to $1,000. This fine is payable by the
official personally, not the public agency.71
Are emails and text messages of city elected officials and staff considered public record?
Yes. Emails and text messages are considered public record when they deal with the business of
city government, even if the elected officials or staff use their personal cell phone or email account.
It’s the content that matters, not the medium used to transmit or record the information.
Are draft council meeting minutes public record?
Yes. A 1990 Idaho Supreme Court case 72 held that handwritten notes by the county clerk taken as
draft minutes of commission meetings were public record, despite the fact that the minutes had not
yet been officially approved by the county commissioners. If a public record request is made for
draft meeting minutes, the city clerk should indicate that the minutes are in draft form and must still
be approved by the city council.
Who is the public records custodian for the city and what are their responsibilities?
The city council is required to designate by resolution public records custodians and alternates
(usually the city clerk, deputy city clerk, and police records custodian) to respond to public records
requests and answer questions from the public and media about records. Typically, the resolution
designates the custodians by job titles rather than listing persons by name since that would have to
be updated when there is turnover in city staff.
When a document includes nonpublic as well as public information, can the document be
disclosed in a public records request?
When a public records request includes a record that has both nonpublic and public information, the
public agency may redact the nonpublic portions of the record and make the public portions
available.73 It is critical for the city attorney to be involved whenever nonpublic information must
be redacted from records.
What rights does a person have to inspect and copy records of the public agency that pertain
to that person? Can the person request that such records be corrected?
A person may inspect and copy records of an agency pertaining to that person, even if the record is
exempt from public disclosure.74 The person may make a written request for an amendment to any
record pertaining to them. Within 10 days of receipt of the request, the agency must:
70 Idaho Code 74-106(1).
71 Idaho Code 74-117.
72 Fox v. Estep, 118 Idaho 454 (1990).
73 Idaho Code 74-112.
74 Idaho Code 74-113.
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• Make the correction of any portion of the record that the person establishes is not accurate,
relevant or complete, or
• Inform the person in writing that the public agency refuses to amend the record, setting forth
the reasons for the refusal and noting that the person has the right to appeal the refusal and
the time period for doing so. Any person who wishes to appeal the denial of a request to
amend records pertaining to that person must file a lawsuit in the District Court of the
county where the records are located within 180 calendar days from the date the public
agency mailed the notice of denial.
The right to inspect and amend records pertaining to oneself does not include the right to review the
following.
• Otherwise exempt investigatory records of a public agency if the investigation is ongoing.
• Information that is compiled in reasonable anticipation of a civil action or proceeding that is
not otherwise discoverable.
• Information relating to adoption records.
• Information that is otherwise exempt from disclosure by statute or court rule.
• Records of a prisoner maintained by the state or local agency having custody of the prisoner,
or formerly having custody of the prisoner, or by the Commission of Pardons and Parole.
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OPEN MEETNGS INTRODUCTION
The Idaho Open Meetings Law sets forth basic requirements concerning public accessibility of
meetings, advance posting of the meeting notice and agenda, and drafting of meeting minutes.
Aside from the legal considerations, meetings represent an important opportunity to inform and
engage the public.
Open meetings of the city council and city boards, commissions and committees increase the
public’s confidence in government by allowing them to see the deliberations and decision making
of these governing bodies. Open meetings also promote accountability on the part of local officials
by ensuring that their decisions are made in the light of day.
UNDERSTANDING MEETING BASICS
Meetings Open to the Public: The Idaho Open Meetings Law requires that all meetings of a
governmental entity be open to the public.75 The sole exception to the requirement for open
meetings involves executive sessions, which have specific and narrow requirements.76
Meeting Location: The Open Meetings Law prohibits holding of meetings at any place where
discrimination is practiced.77
What is a Public Agency for the Purposes of the Open Meetings Law? The Open Meetings
Law applies not only to the city council, but also to city boards, commissions and committees
created by city ordinance or resolution, and to independent entities such as housing authorities and
urban renewal agencies. 78
What is a Governing Body for the Purposes of the Open Meetings Law? The Open Meetings
Law defines a governing body as “the members of any public agency which consists of two (2) or
more members, with the authority to make decisions for or recommendations to a public agency
regarding any matter.”79
What is a Meeting for the Purposes of the Open Meetings Law? The requirements of the Open
Meetings Law apply when a quorum of the council or a city board, commission or committee meets
for the purpose of deliberating and/or making decisions on issues related to city government.80
Questions often arise as to whether workshops, work sessions, study sessions or public input
sessions constitute meetings under the Open Meetings Law. Regardless of what the meeting is
called, if a quorum is present to discuss issues relating to city government, the city must comply
with the requirements of the Open Meetings Law.
75 Idaho Code 74-203(1).
76 Idaho Code 74-206.
77 Idaho Code 74-203(4).
78 Idaho Code 74-202(4).
79 Idaho Code 74-202(5).
80 Idaho Code 74-202(6); 74-202(1) & (2).
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Advance Posting of Meeting Notice & Agenda: The Law requires that notice of an upcoming
meeting and an agenda must be physically posted in a prominent place at the principal office of the
city or, if the city does not have an office, it is posted at the place where the meeting will be held, as
well as electronically posted on the city’s website or social media if the city has an online presence.
Assembling the Agenda: Normally, the mayor coordinates drafting the agenda, collecting
suggestions from councilors, city department heads, appointed officers, and staff. Once the agenda
is set, the city clerk posts the paper copy on the bulletin board for city hall and on the city's website
and/or social media (if the city has a website and/or social media). Idaho law states that the mayor
presides at council meetings and determines the order of business “subject to such rules as the
council may prescribe...”81 Setting the agenda is a shared responsibility and takes cooperation
between the mayor and councilors.
The agenda must include the following:
• The name of the city.
• The name of the governing body that is convening the meeting.
• The date, time, and place (street address) of the meeting.
• All issues that are expected to be discussed summarized in sufficient detail to allow a citizen
to understand what will be discussed.
• If an executive session will be held, the authorization under Idaho Code 74-206(1) for
holding the executive session.
• All agenda items that need a decision must be clearly marked as action items.82 See the
example below:
Resolution 2018-36: A Resolution Supporting Enhanced State Transportation Funding
for Local Highway Jurisdictions. ACTION ITEM.
When drafting the agenda, avoid using acronyms, jargon and other language that is impossible for
the general public to understand.
Quorum: The quorum required for the transaction of business at a regular or special council
meeting is a majority of the members of the full council.83 It is important to note that council
vacancies do not reduce the number required for a quorum.84 The mayor is not counted for the
quorum. If the council president or another councilor is chairing the meeting they are counted for
quorum purposes. Non-participation of a councilor by reason of conflict of interest does not
disqualify the councilor for quorum purposes.
Presiding Officer: The mayor presides over city council meetings.85 In the mayor’s absence, the
council president presides over the meeting. If both the mayor and council president are absent, the
81 Idaho Code 50-602.
82 If the city uses a consent agenda or consent calendar to approve a number of routine items in one motion, the agenda
description should note that all of the following items are action items (each consent agenda item does not have to be
listed as an action item individually since they normally handled as a single action).
83 Idaho Code 50-705.
84 McQuillin, Eugene. The Law of Municipal Corporations. Volume 4, 3rd Edition Revised, Clark Boardman
Callaghan, 2001, p. 818. “In determining the legal quorum of a municipal governing body, ordinarily the whole
membership of the body is to be counted. Where vacancies occur, the whole number entitled to membership must be
counted and not merely the remaining members.”
85 Idaho Code 50-602.
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council may designate one of the members in attendance as temporary chair (some cities select a
council vice president or president pro tempore to serve as the backup if the council president is
unavailable). When the council president or other councilor presides over the meeting, they retain
their rights and responsibilities as a councilor: they can vote as a councilor and are counted for the
quorum (but cannot break tie votes of the council, which is reserved exclusively for the mayor).
Duties of the Clerk: The city clerk is required by law to keep a journal of proceedings of the
council.86 The journal consists of the city council minutes, as well as ordinances and resolutions
passed by the council.
Remote Participation: Councilors and members of other governing bodies may participate and be
part of the quorum in meetings remotely by speakerphone or video conferencing.87 The mayor, city
manager, or a member of the governing body must be present in person at the meeting location to
ensure the meeting is open to members of the public.
Who Gets to Speak? The public has the right to attend meetings, but opportunities for the public
to speak are generally limited to designated public comment periods and to public hearings. Many
cities provide a public comment period on the agenda of regular council meetings. This provides an
important opportunity to hear from the public, but there should be reasonable sideboards: issues
must be relevant to city government, no repetitive or abusive comments, complaints about city staff
should be made in private, time should be limited to 3-5 minutes per speaker, and any issue
requiring council action must be put on the agenda of a future council meeting. No person has the
right to disrupt a meeting; the presiding officer can order the removal of any person who is
disruptive. Declaring a temporary recess can be an effective way to establish order.
REGULAR MEETINGS
Meeting Day, Time & Location: Regular council meetings “shall be held each month at such
place and times as the council may establish by ordinance.”88 For city boards, commissions and
committees, the regular meeting day, time and location may be set by resolution or motion of the
board/commission/committee.
Meeting Notice: A city can satisfy the meeting notice requirement by.89
• Notice may be posted at least five calendar days before the meeting in a prominent
place at the city’s principal office, or if the city has no principal office at the place
where the meeting will be held, as well as on the city’s website or social media
account (if the city has an online presence).
• The regular meeting day(s) may be posted in a prominent place at the city’s principal
office, or if the city has no principal office at the place where the meeting will be
held, as well as on the city’s website or social media account (if the city has an
online presence).
86 Idaho Code 50-207.
87 Idaho Code 74-203(5).
88 Idaho Code 50-705.
89 Idaho Code 74-204(1).
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Agenda: The agenda for a regular meeting must be posted at least 48 hours prior to the meeting in a
prominent place at the city’s principal office, or if the city has no principal office, at the place
where the meeting will be held, as well as on the city’s website or social media.90
All agenda items that need a decision must be clearly identified as action items on the agenda.91
Identifying an agenda item as an action item does not require the governing board to vote on the
item at that meeting.
The agenda may be amended to add unanticipated issues arising after the original agenda is posted,
but a good faith effort must be made to ensure the original agenda includes all issues that will likely
be discussed.92 The revised agenda must be posted as soon as possible, if the change is made prior
to the meeting. If the change is made less than 48 hours before a regular meeting, or at the meeting,
the governing body must pass a motion to amend the agenda stating the purpose and the good faith
reason why the item was not listed on the original agenda. Final action may not be taken on an
agenda item added after the start of a meeting unless there is an emergency situation that is reflected
in the motion to add the item to the agenda and the minutes. Amending the agenda should be used
sparingly and only when the issue can’t wait until the next meeting. The process for amending the
agenda only applies to items added to the agenda—items can be removed from the agenda as
determined appropriate by the governing board.
SPECIAL MEETINGS
Meeting Day, Time & Location: Special meetings are held on dates and times other than
prescribed by city ordinance for regular council meetings.
Business Specified in Written Call: Special meetings are held for the conduct of business
specified in a written meeting call, to deal with certain issues that generally need to be resolved
before the next regular meeting, or when a regular meeting is rescheduled due to lack of quorum.
There is no restriction on the number of items that can be on the agenda for a special meeting.
Method of Call: Special council meetings can be held at the call of the mayor or by a majority of
the full council. The bylaws or policies governing city boards, commissions and committees
establish the method for calling special meetings.
Written Notice to Council: Regardless of whether the special council meeting is called by the
mayor or the council, the councilors must be notified of the date, time, place and issue(s) to be
considered at the special meeting in writing, and the written meeting notice and the disposition of
the issues must be entered in the council minutes.93
Meeting Notice & Agenda: Meeting notice and agenda for special meetings must be posted at least
24 hours prior to the meeting (except in emergencies, see below) in a prominent place at the city’s
principal office, or if the city has no principal office at the place where the meeting will be held, as
well as on the city’s website or social media account (if the city has an online presence).94 The city
90 Idaho Code 74-204(1).
91 Idaho Code 74-204(4).
92 Idaho Code 74-204(4).
93 Idaho Code 50-604; 50-706.
94 Idaho Code 74-204(2).
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clerk or other city staff are required to maintain a list of news media requesting notice of meetings
and must make a good faith effort to provide advance notice of the time and place of each special
meeting. The procedures are the same for agendas as for regular meetings.95
Emergency Meetings: The Open Meetings Law provides that “No special meeting shall be held
without at least a twenty-four (24) hour meeting and agenda notice, unless an emergency exists.”96
In the case of emergency meetings, the city must post notice and the agenda as soon as possible and
the city clerk must make a good faith effort to notify members of the news media who have
requested notification of meetings. The law defines an emergency as “a situation involving injury
or damage to persons or property, or immediate financial loss, or the likelihood of such injury,
damage or loss, when the notice requirements of this section would make such notice impracticable,
or increase the likelihood or severity of such injury, damage or loss, and the reason for the
emergency is stated at the outset of the meeting.”
VOTING
Who Gets to Vote? Councilors vote on issues. The mayor does not vote except in the case of
breaking tie votes of the council.97 Rules on voting by members of city boards, commissions and
committees can be found in the bylaws and other city policies governing these bodies.
Methods of Voting: Two methods of voting may be used in meetings. In a voice vote, the
presiding officer asks all those in favor of the motion to say “aye,” and all those opposed to say
“no.” Voice voting is often the default method of voting unless a roll call vote is requested by a
member of the governing body or required by state law or local policy. The disposition of a voice
vote is recorded in the minutes (i.e., motion carried, or motion failed) along with any members who
wish to have their vote recorded in the minutes.
In a roll call vote, the clerk announces the name of each member of the governing body, who replies
by saying “yes” or “no” on the motion. The roll call vote is recorded in the minutes (i.e., motion
carried, or motion failed) with the vote of each member listed separately. A roll call vote may be
requested by a single member of the governing body.98 Idaho law requires a roll call vote for
specific issues, including:
The motion to go into executive session.99
Approving ordinances.100
Approving contracts.101
Some city councils have a policy to have all matters decided by roll call vote, which is more
convenient than having to remember all the specific items for which a roll call vote is required and
effectively prevents accidentally voting by the wrong method.
The Open Meetings Law expressly prohibits voting by secret ballot.102
95 Idaho Code 74-204(4).
96 Idaho Code 74-204(2).
97 Idaho Code 50-602.
98 Idaho Code 74-205(1)(c).
99 Idaho Code 74-206(1).
100 Idaho Code 50-902.
101 Idaho Code 50-902.
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Threshold for Approval: Most issues can be decided by a simple majority.103 However, some
issues specifically require other votes to pass. The following actions require approval by:
Majority of the Full Council (50% +1)
• Adopting a franchise ordinance.104
• Confirming the mayor’s nomination for an appointed office, such as the city clerk, treasurer,
attorney or other appointed positions established by local policy.105
• Confirming the mayor’s removal of an appointed officer, such as the city clerk, treasurer,
attorney or other appointed positions established by local policy.106
• Adopting an ordinance providing for leasing of mineral rights.107
• Overriding the mayor’s veto of an ordinance.108
• Calling special meetings of the city council.109
• Calling a special election on adopting the council-manager form of government.110
• Dispensing with the requirement for ordinances to be read on three separate days.111
• Declaring an emergency after the appropriation ordinance for the year has been approved
and authorizing short-term borrowing to pay for the costs of repairs or improvements.112
• Authorizing the use of portions of public parks, playgrounds or other grounds for athletic
contests, golf links, agricultural exhibits, ball parks, fairs, rodeos, swimming pools and other
amusements, and for military units of the state of Idaho or the United States and making and
entering contracts with the appropriate organizations and associations.113
• Initiation of a local improvement district by council resolution.114
• Creation of a local improvement district when the owners of more than two-thirds of the
property to be assessed have protested.115
• Sale of property deeded to the city because of unpaid local improvement district
assessments.116
Two-Thirds of the Council
• Approving a motion to go into executive session.117
• Council override of the term limits provision limiting planning and zoning commissioners to
no more than two full, consecutive terms.118
102 Idaho Code 74-203(1).
103 Idaho Code 50-705.
104 Idaho Code 50-329.
105 Idaho Code 50-205.
106 Idaho Code 50-206.
107 Idaho Code 50-234.
108 Idaho Code 50-611.
109 Idaho Code 50-706.
110 Idaho Code 50-802.
111 Idaho Code 50-902.
112 Idaho Code 50-1006.
113 Idaho Code 50-1409.
114 Idaho Code 50-1706.
115 Idaho Code 50-1709.
116 Idaho Code 50-1751.
117 Idaho Code 74-206.
118 Idaho Code 67-6504(a)(3).
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Three-Fourths of the Full Council
• Passing an ordinance providing for disposition of excess revenues in a Local Improvement
Guarantee Fund.119
EXECUTIVE SESSIONS
The Open Meetings Law provides that specific topics may be considered in closed executive
session at regular or special council meetings.120 The motion to go into executive session must be
decided by roll call vote recorded in the minutes by individual vote, and the motion must be
approved by two-thirds vote to pass. Cities should consult their attorney to be sure they are
discussing items allowed in executive session. The motion must state the specific subsection(s) of
Idaho Code 74-206(1) that authorize(s) the executive session summarized below:
(a) To make hiring decisions
(b) To evaluate employee performance, hear complaints, and discipline employees
(c) To acquire an interest in real property not owned by a public agency
(d) To consider records that are exempt from disclosure as provided in chapter 1,
title 74, Idaho Code;
(e) To negotiate matters of trade or commerce
(f) To communicate with legal counsel regarding litigation
(i) To communicate with a representative of the public agency's risk manager or
insurance provider
(j) To consider labor contract matters.
Who Can Attend Executive Sessions? The mayor and council have discretion to determine who
needs to attend the executive session and can summon and excuse these individuals as necessary.
The city clerk does not need to attend the executive session unless requested by the council. A
mayor or councilor with a declared conflict of interest can be excluded.
Minutes: Minutes are not kept in executive session, but the minutes of the council meeting must
reflect: the motion to go into executive session citing the specific subsection(s) of Idaho Code 74-
206(1) authorizing the executive session; the roll call vote on the motion with every councilor’s
vote recorded individually. If notes do need to be taken, they should be taken by your city attorney,
so they are protected by attorney-client privilege and are protected from public disclosure.
Prohibited Conduct: No executive session may be held for the purpose of taking any final action
or making any final decision.121 Changing the subject within executive session to one not identified
in the motion to enter or to any topic for which executive sessions are not allowed constitutes a
violation of the Open Meetings Law.122
Open Collective Bargaining Legislation: All negotiations between a governing body and a labor
organization must occur in meetings open to the public preceded by notice.123 Open meetings are
119 Idaho Code 50-1769.
120 Idaho Code 74-206.
121 Idaho Code 74-206(3)
122 Idaho Code 74-206(2)
123 Idaho Code 74-206A.
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also required for any meetings with any labor negotiation arbitrators, mediators or other facilitators.
The city council may hold an executive session to consider labor contract offers or formulate
counteroffers, as well as receive information about a specific employee, when the information has a
direct bearing on the issues being negotiated and the release of the information would violate the
employee’s right to privacy.
All documentation exchanged between the parties during negotiations, including offers,
counteroffers, and meeting minutes is public record. The city must post notice of the negotiation
sessions “at the earliest possible time practicable” by putting the notice on the front page of the
city’s website and posting notice within 24 hours on the bulletin board at city hall. If public
testimony will be allowed at the meeting, it must be posted as an agenda item.
MINUTES
The city clerk is responsible for ensuring that accurate minutes are taken of every meeting of the
city council.124 Minutes must also be prepared for meetings of city boards, commissions, and
committees. The council or governing body should approve the minutes by motion. After
approval, the minutes should be signed by the city clerk.
What Must be Included in Minutes? The Open Meetings Law provides that minutes must be
“available to the public within a reasonable time after the meeting” and must include, at a
minimum, the following information:125
The date, time and place of the meeting;
The members of the governing body in attendance;
All motions, resolutions, orders, or ordinances proposed and their disposition; and
The results of all votes.
Executive Session: Minutes are not taken in executive session, but the meeting minutes
must include the motion to enter executive session with the specific subsection(s) of Idaho
Code authorizing the executive session and roll call vote on the motion.126
What Level of Detail is Required for Minutes? The level of detail in the minutes involves
tradeoffs. More detail provides a more useful account of the meeting for future generations, but the
minutes should be a summary and do not have to reflect what a person says word for word. A
recording or verbatim transcript of the meeting is not required; however, cities are required to have
audio recordings of public hearings, deliberation and decisions on site-specific land use issues that
are retained for at least six months after the final decision.127
PENALTIES FOR VIOLATION & CURE PROCESS
Many public entities have found themselves on the front page of the paper recently for Open
Meeting violations. Many of the violations were inadvertent and most can generally be cured, but
124 Idaho Code 50-207.
125 Idaho Code 74-205.
126 Idaho Code 74-205(2).
127 Idaho Code 67-6536.
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public trust may be hurt in the process. Still, going through the curing process goes further to
restore the public trust than ignoring the violation.
QUESTIONS & ANSWERS
What are the Most Common Open Meeting Law Violations?
♦ Late posting of notice/agenda
♦ Discussing a topic not on the agenda or voting on an item not marked as an action item
♦ Improperly adding a topic to the meeting agenda
♦ Communication between governing board members outside of public meeting – for example
replying to all on emails
♦ Discussing a topic in executive session that must be discussed in public meeting
What is penalty for Violations and How can they be Fixed? The most significant penalty for
violating the Open Meetings Law is that any action occurring at a meeting held in violation of the
Open Meetings Law is void.128
The law also sets forth fines for members of the governing body for violating the Open Meetings
Law. These fines are paid personally by the members of the governing body, not the city.
• A $250 civil fine for a member of the governing body who conducts or participates in a
meeting that violates the Open Meetings Law.129
• A $1,500 civil fine for knowing violation of the Open Meetings Law.130
• A $2,500 civil fine for repeated knowing violations of the Open Meetings Law within 12
months.131
The Open Meetings Law allows the governing body to “cure” 132a violation and avoid penalties by
acknowledging the procedural defect and re-doing the action in compliance with the law.133 After
acknowledgement that a violation has occurred, the governing body has 14 days to declare the
action occurring at or resulting from the unlawful meeting void. The governing body may proceed
to reconsider the decision in compliance with the Open Meetings Law.
128 Idaho Code 74-208(1).
129 Idaho Code 74-208(2).
130 Idaho Code 74-208(3).
131 Idaho Code 74-208(4).
132 Idaho Code 74-208(7)(d).
133 Idaho Code 74-208(7).
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IDAHO ETHICS IN GOVERNMENT ACT INTRODUCTION
The public’s confidence in government is only as strong as the integrity displayed by government
officials. When the public and media judge the legacy of a public official, a single lapse in
judgment can outweigh years or even decades of faithful public service.
Idaho has several statutes governing ethics and conflict of interest that apply to city officials: the
Ethics in Government Act; prohibitions on contracts with officers; the Bribery and Corrupt
Influence Act; and specific laws relative to conflicts of interest for planning and zoning, urban
renewal agencies and local improvement districts. It is critical to work with your city attorney to
determine the appropriate course of action when conflicts arise.
The Idaho Ethics in Government Act provides that “the position of a public official at all levels of
government is a public trust” and this public trust requires the law to:
• Protect the integrity of government throughout the state of Idaho while at the same time
facilitating recruitment and retention of personnel needed within government;
• Assure independence, impartiality and honesty of public officials;
• Inform citizens of the existence of personal interests which may present a conflict of
interest between an official's public trust and private concerns;
• Prevent public office from being used for personal gain contrary to the public interest;
• Prevent special interests from unduly influencing governmental action; and
• Assure that governmental functions and policies reflect the public interest.134
The Ethics in Government Act applies to cities and state and local boards and commissions
(including planning and zoning commissions).135 The act applies to public officials, including
mayors and councilors, individuals appointed to public office (appointed city officers include the city
clerk, treasurer, attorney and any others designated by local policy); and employees or consultants of
state or local government.136 The law prohibits public officials from taking any official action or
making a formal decision or recommendation on any matter where the official has a conflict of
interest and has failed to disclose the conflict of interest as required by law.137
Conflict of interest is defined as:
“Any official action138 or any decision or recommendation by a person acting in a
capacity as a public official, the effect of which would be to the private pecuniary
benefit 139 of the person or a member of the person’s household,140 or a business 141
with which the person or a member of the person’s household is associated.”142
134 Idaho Code 74-402.
135 Idaho Code 74-403(6).
136 Idaho Code 74-403(10).
137 Idaho Code 74-404.
138 Idaho Code 74-403(1).
139 Pecuniary benefit means financial or monetary benefit.
140 Idaho Code 74-403(7).
141 Idaho Code 74-403(3).
142 Idaho Code 74-403(4).
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In order to determine if a conflict of interest exists and what steps to take if one does, the public
official should seek advice from the city attorney. If the city attorney advises that a real or potential
conflict of interest may exist, then the official must disclose the conflict.
• An elected city official must disclose the nature of the conflict on the record at a council
meeting prior to acting on the matter and is subject to any city rules governing conflicts of
interest. The Act mandates disclosure of conflicts of interest but does not require elected
officials to abstain from debating and voting (other provisions of Idaho law, such as the
ethics provisions for planning and zoning, require elected officials to recuse themselves
from participating in, debating and voting once a conflict of interest has been declared). A
councilor who decides to abstain is still counted for quorum purposes.143 If a councilor asks
to be excused from voting on an issue that involves a conflict or potential conflict of
interest, and the council does not excuse the individual from participating, the councilor is
exempt from civil or criminal liability.144
• An appointed or employed city official must prepare a written statement to the mayor and
council describing the matter and the nature of the conflict. The official is entitled to act on
the legal advice of the city attorney.145
Cities may establish rules concerning whether a councilor may be permitted to debate and vote or
whether other city officials may act where there is a conflict of interest, and if so, under what
circumstances (e.g., subject to the advice of counsel). The policy of the Ethics in Government Act
is to require disclosure and allow each city’s policy to determine whether an official may act where
there is a conflict.
Cities may establish their own Ethics Commission to perform the duties and responsibilities
prescribed under the Ethics in Government Act, including:
• Issuing advisory opinions upon the request of a city official.
• Investigating possible unethical conduct of city officials and conducting hearings, issuing
findings, and making recommendations for disciplinary action to the mayor and council.
• Accepting complaints of unethical conduct from the public and taking appropriate action.
Any public official who intentionally fails to disclose a conflict of interest is guilty of a civil
offense, with a fine not to exceed $500. Cities may establish additional penalties at the council’s
discretion (such penalties cannot include removal from office). Violations of the Ethics Act do not
preclude additional prosecution and conviction for criminal violations (see below for information
on the Bribery and Corrupt Influence Act and prohibitions on contracts with officers).
PROHIBITIONS ON CONTRACTS WITH OFFICERS
Idaho’s laws prohibiting self-interested contracts date back to before statehood. The current law,
found in Idaho Code Title 74, Chapter 5, states that city officials must not be interested in any
contract made by them in their official capacity.
143 Idaho Code 74-404(4).
144 Idaho Code 74-404(4).
145 Idaho Code 74-404(5).
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Violation of the prohibition on contracts with city officers is a criminal misdemeanor with a fine of
up to $1,000 and up to 1 year in jail.146 Disclosure of a conflict of interest does not protect a city
official from conviction and criminal penalties. Furthermore, any contract made with an officer in
violation of the law may be declared void by the courts at the insistence of any party except the
officer interested in the contract.147 If the city official has a remote interest and violates the
prohibition on influencing or attempting to influence the decision, the contract is void.148
Contracts prohibited by law include any compensation for goods or services from a city official
over and above their city salary. This includes:
• A city that pays a mayor or councilor extra compensation to run the snowplow.
• A city that buys parts or has a vehicle repaired at a shop owned by a mayor or
councilor.
As Idaho is a community property state, the prohibition on contracts with officers also prohibits a
city from contracting with the spouse of a city elected official for goods or services.149
A public officer is not deemed to be interested in a contract if he/she has a remote interest, if the
existence and extent of the interest is disclosed on the record at a council meeting and reflected in
the meeting minutes, and the council proceeds to authorize the contract by majority vote (without
counting the vote of the officer with the remote interest).150 An official with a remote interest is
prohibited from influencing any other official to enter into the contract.
Another exception exists allowing non-compensated public officials to contract with the city.151
The process is outlined in the bullets below:
• The contract is competitively bid, and the public official must submit the low bid.
• The public official may not take any part in the preparation of the contract or bid
specifications and must recuse him/herself from debating and voting on the contract
or bid specifications.
• The public official must provide full disclosure in writing to the city council of
his/her interest in the contract and their intention to bid.
• The public official must not have violated any provision of Idaho law pertaining to
competitive bidding or improper solicitation of business.
In addition to the prohibition on self-interested contracts, city officers must not be purchasers at any
sale nor vendors at any purchase made by them in their official capacity. A common issue that
comes up regarding this section involves purchase of surplus property by city officials. The law
clearly prohibits councilors, the city clerk and city employees from purchasing city surplus
property. A city official found guilty of violating this section is guilty of a criminal misdemeanor
and may be punished by a fine of up to $1,000 and up to a year in the county jail.152
146 Idaho Code 74-509.
147 Idaho Code 74-504.
148 Idaho Code 74-502(2).
149 Nuckols v. Lyle, 8 Idaho 589, (1902).
150 Idaho Code 74-502.
151 Idaho Code 74-510.
152 Idaho Code 74-509.
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BRIBERY & CORRUPT PRACTICES ACT
The Bribery & Corrupt Practices Act applies to counties, cities, school and other special districts,
and state and local boards and commissions (including planning and zoning commissions).153
Public servants covered by the act include elected officials, appointed city officers and employees
(including consultants).154 The act prohibits the following:
• Bribery:
Any pecuniary benefit as consideration for the recipient's decision, opinion,
recommendation, vote or other exercise of discretion as a public servant, party
official or voter; or
Any benefit as consideration for the recipient's decision, vote, recommendation
or other exercise of official discretion in a judicial or administrative proceeding;
Any benefit as consideration for a violation of a known legal duty as public
servant or party official.”155
• Threats and Improper Influence:
Threatens unlawful harm to any person with purpose to influence his decision,
opinion, recommendation, vote or other exercise of discretion as a public
servant, party official or voter; or
Threatens harm to any public servant with purpose to influence his decision,
opinion, recommendation, vote or other exercise of discretion in a judicial or
administrative proceeding; or
Threatens harm to any public servant or party official with purpose to influence
him to violate his known legal duty; or
Privately addresses to any public servant who has or will have an official
discretion in a judicial or administrative proceeding with purpose to influence
the outcome based on considerations other than those authorized by law.”156
• Compensation for Past Official Behavior: “A person commits a misdemeanor if he solicits,
accepts, or agrees to accept any pecuniary benefit as compensation for having as public servant,
given a decision, opinion, recommendation or vote favorable to another, or for having
otherwise exercised a discretion in his favor, or for having violated his duty. A person commits
a misdemeanor if he offers, confers, or agrees to confer, compensation, acceptance of which is
prohibited by this section.”157
• Retaliation for Past Official Action: “A person commits a misdemeanor if he harms another
by any unlawful acts in retaliation for anything lawfully done by the latter in the capacity of
public servant.”158
153 Idaho Code 18-1351(3).
154 Idaho Code 18-1351(8).
155 Idaho Code 18-1352.
156 Idaho Code 18-1353.
157 Idaho Code 18-1354.
158 Idaho Code 18-1355.
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• Gifts to Public Servants: The following public servants are prohibited from soliciting,
accepting, or agreeing to accept pecuniary benefits from persons or entities subject to their
authority or interested in any transaction:
Public servants working in departments or agencies that exercise regulatory,
inspection or investigatory authority, or responsible for litigation.
Public servants having any discretionary function to perform in connection with
contracts, purchases, payments, claims or other pecuniary transactions of the
city.
Judicial or administrative officials, or employees of a court or other tribunal
having such authority or participating in the enforcement of its decisions.159
There are a few exceptions:
Fees prescribed by law to be received by a public servant, or any other benefit
for which the recipient to which he is otherwise legally entitled; or
Gifts or other benefits given by family or based on personal, professional, or
business relationships independent of the official status of the receiver; or
Trivial benefits not to exceed a value of fifty dollars ($50.00) incidental to
personal, professional, or business contacts and involving no risk of
undermining official impartiality.
• Compensating Public Servant: “A public servant commits a misdemeanor if he solicits,
accepts or agrees to accept compensation for advice or other assistance in preparing or
promoting a bill, contract, claim, or other transaction or proposal as to which he knows that
he has or is likely to have an official discretion to exercise.”160
• Selling Political Endorsement: A person commits a misdemeanor if he solicits,
receives, agrees to receive, or agrees that any political party or other person shall
receive any pecuniary benefit as consideration for approval or disapproval of an
appointment or advancement in public service, or for approval or disapproval of any
person or transaction for any benefit conferred by an official or agency of the
government.161
• Other Trading in Special Influence: “A person commits a misdemeanor if he
solicits, receives, or agrees to receive any pecuniary benefit as consideration for
exerting special influence upon a public servant or procuring another to do so.
‘Special influence’ means power to influence through kinship, friendship or other
relationship apart from the merits of the transaction.”162
• Paying for Endorsement or Special Influence: “A person commits a misdemeanor
if he offers, confers or agrees to confer any pecuniary benefit, receipt of which is
prohibited by this section.”163
159 Idaho Code 18-1356.
160 Idaho Code 18-1357(1).
161 Idaho Code 18-1358(1).
162 Idaho Code 18-1358(2).
163 Idaho Code 18-1358(3).
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• Using Public Position for Personal Gain: Public servants are prohibited from:
Using public funds or property to obtain a pecuniary benefit.164
Soliciting, accepting, or receiving a pecuniary benefit as payment for services,
advice, assistance or conduct customarily exercised in the course of their official
duties (excludes gifts valued under $50 incidental to personal, professional, or
business contacts and with no substantial risk of undermining impartiality).165
Using or disclosing confidential information gained during, or by reason of, the
official’s position or activities, with the intent to obtain a pecuniary benefit for
himself or any other person or entity in whose welfare he is interested, or with
the intent to harm the city.166
Being interested in any contract made by him in his official capacity or by any
body or board of which he is a member.167
Hiring, appointing or contracting with any relative of a mayor or councilor by
blood or marriage within the second degree168 to any paid city job, appointed
office or employment.169 However, a person employed by a city prior to the
election of a relative within the second degree is entitled to retain his/her position
and receive general pay increases, step increases, cost of living increases, and/or
other across the board increases in salary or merit increases, benefits and bonuses
or promotions.170 Other public officials such as the Chief of Police are also
prohibited from hiring relatives within the second degree.
• No Defense: The act precludes public officials from defending any illegal behavior
by claiming they weren’t in office yet, or they lacked jurisdiction.
• Penalties: Any public servant found guilty of violating the provisions of the Bribery &
Corrupt Practices Act is guilty of a misdemeanor and may be punished by a fine not
exceeding one thousand dollars ($1,000) and incarceration in the county jail for up to one
(1) year. Additionally, any person found guilty of violating the act may be required to
forfeit their office and may be ordered to make restitution to the city.171
PLANNING & ZONING CONFLICTS OF INTEREST
The Local Land Use Planning Act provides specific requirements concerning conflicts of interest in
planning and zoning matters. Idaho Code 67-6506 strictly prohibits participation 172 by city
councilors, planning and zoning commissioners or staff “in any proceeding or action when the
164 Idaho Code 18-1359(1)(a).
165 Idaho Code 18-1359(1)(b).
166 Idaho Code 18-1359(1)(c).
167 Idaho Code 18-1359(1)(d).
168 Relatives by blood or marriage within the second degree include: spouses, parents, siblings, children, grandparents,
grandchildren, cousins, aunts and uncles, nieces and nephews.
169 Idaho Code 18-1359(3).
170 Idaho Code 18-1359(5).
171 Idaho Code 18-1360.
172 Participation is defined by Idaho Code 67-6506 as “engaging in activities which constitute deliberations pursuant to
the Open Meeting Act.” The Open Meeting Law defines deliberation as: “the receipt or exchange of information or
opinion relating to a decision, but shall not include informal or impromptu discussions of a general nature which do not
specifically relate to a matter then pending before the public agency for decision.” Idaho Code 74-202(2).
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[person] or his employer, business partner, business associate, or any person related to him by affinity
or consanguinity within the second degree 173 has an economic interest in the procedure or action.”
A knowing violation of this section is a misdemeanor, punishable by a fine of up to $1,000 and six-
months imprisonment in the county jail.
Any actual or potential conflict of interest involving a planning and zoning matter must be disclosed at
a meeting on the record before the proceedings begin. The decision as to whether a conflict of interest
exists is made by the person with the assistance of the city attorney. The potential conflict must be
disclosed in open meeting before the proceedings begin. If it is determined that a conflict of interest
exists, the person must recuse him/herself from any participation in the proceedings or voting at the
outset of the process.
CONFLICTS OF INTEREST & LOCAL IMPROVEMENT DISTRICTS
Many city elected officials in Idaho are business owners and an elected official’s business interests
can lead to potential conflicts of interest. In the case of local improvement districts (LIDs), the
Idaho Supreme Court has held that ownership of property in an LID does not disqualify a councilor
from participating in proceedings to form the district or levy assessments on properties.174 The
Court cited three reasons for this rule.
• To the extent that any benefit accrues to property within an LID, there is a special
assessment imposed to pay the cost. Councilors benefitting from LID improvements
pay assessments to fund the project, just like other property owners.
• The councilor is not the sole beneficiary of the improvements; the project benefits
other property owners in the district.
• Disqualification of public officials who own property in a proposed LID “…would
often have the effect of prohibiting a governing body from performing its statutory
functions because of the absence of a necessary quorum or majority.”
City officials owning property within the boundaries of a proposed local improvement
district should follow the disclosure requirements of Idaho Code 74-404.
URBAN RENEWAL CONFLICTS OF INTEREST
Idaho’s urban renewal law specifically prohibits city and urban renewal agency officials (including
elected officials, urban renewal commissioners, and staff of the city and urban renewal agency)
from voluntarily acquiring any direct or indirect personal interest in an urban renewal project or
property included or planned to be included in an urban renewal project, or in any contract or
proposed contract in connection with an urban renewal project.175
The law requires city officials to disclose conflicts of interest relating to urban renewal projects.
• Where the person involuntarily acquires an interest in property that would be
affected by an urban renewal project, the person must disclose the interest in writing
173 Relatives “by affinity or consanguinity within the second degree” includes relatives by blood or marriage, including:
spouses, parents, siblings, children, grandparents, grandchildren, cousins, aunts and uncles, nieces and nephews.
174 Simmons v. City of Moscow, 111 Idaho 14, 720 P.2d 197 (1986).
175 Idaho Code 50-2017.
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to the urban renewal agency board and the disclosure is entered in the meeting
minutes.
• If any person owns or controls, or owned or controlled within the preceding two
years, any direct or indirect interest in any property that is known to be included or
planned to be included in an urban renewal project, the interest must be disclosed in
writing to the urban renewal agency board and entered in the meeting minutes. The
law requires the person to not participate in any action by the city or urban renewal
agency affecting the property.
Any violation of the provisions of Idaho Code 50-2017 constitutes misconduct in office.
INCOMPATIBILITY OF OFFICE
The common law doctrine of incompatibility of office prevents a person from simultaneously
holding two inherently incompatible offices, for example where one office is subordinate to
another, or where the duties of the offices clash, or where one holds power of appointment or
removal over the other.
So, a mayor or councilor cannot simultaneously serve as city clerk, attorney, treasurer, city
administrator, or police chief. Likewise, a mayor or councilor could not serve simultaneously as a
member of the city or county planning and zoning commission 176 or on the board of county
commissioners.177 Examples where incompatibility has been found not to exist include city
attorney and state legislator, and mayor and state legislator.178
MISCELLANEOUS LAWS DEALING WITH CONFLICTS OF INTEREST
In addition to the laws outlined above Idaho Code includes several other conflict of interest
provisions of interest to city officials.
• Idaho Code 19-5109: The Peace Officer Standards & Training Council may
decertify any officer who violates the standards of conduct as established by the
POST Council’s code of ethics.
• Idaho Code 20-804: The city council may not contract with a private prison
contractor in which the mayor, a councilor, any appointed peace officer or other city
official has an interest pursuant to Idaho Code Title 74, Chapter 5. Any contract
made in violation of this section may be declared void by the courts.
• Idaho Code 39-7408B: A person nominated to represent a city on a site review
panel formed under the Idaho Solid Waste Facilities Act shall not have a conflict of
interest 179 or derive any economic gain 180 from the location or siting of the proposed
commercial solid waste facility.
176 Attorney General’s Opinion 6-18-1987(a) addresses the question of a county planning and zoning commission
member simultaneously serving on the city council.
177 Attorney General’s Opinion 8-28-2003.
178 Attorney General’s Opinion 4-30-1991.
179 The law provides the definition of conflict of interest mirrors that found in Idaho Code 74-403(4)
180 Economic gain is defined by Idaho Code 74-403(5): an “increase in pecuniary value from sources other than lawful
compensation as a public official.”
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• Idaho Code 39-7908: A person nominated to represent a city on a site review panel
formed under the Local Option Swine Facilities Siting Act shall not have a conflict
of interest 181 or derive any economic gain 182 from the location of the proposed or
expanding swine facility.
• Idaho Code 50-2705: A director, officer, agent, or employee of a municipal
industrial development corporation is prohibited from having any direct or indirect
financial interest in any property to be included in or any contract for property,
services, or materials to be furnished or used in connection with any industrial
development facility. Violation of this section is a misdemeanor.
QUESTIONS & ANSWERS
Why does Idaho have laws governing conflicts of interest, contracts with officers, bribery, etc.?
The purpose of these laws is to establish a baseline for conduct by public officials. However, questions
of ethics are often much more complicated. This is because public officials are tried in courts of public
opinion as well as courts of law. Courts of public opinion do not look kindly on public officials who
attempt to rationalize ethically questionable activity. Public office is a public trust, and the public has
the right to expect the highest ethical behavior from public servants.
Nepotism: Is an existing city employee’s job in jeopardy if a close family member is elected
mayor or councilor?
Under Idaho Code 18-1359(5), an existing employee is entitled to retain their position when a
relative within the second degree is elected to city office. The employee may also “receive general
pay increases, step increases, cost of living increases, and/or other across the board increases in
salary or merit increases, benefits and bonuses or promotions.”
Conflict of Interest: What action is required if a city official believes he/she has a conflict of
interest?
To determine if a conflict of interest exists, the public official should seek advice from the city
attorney. If the city attorney advises that no real or potential conflict of interest exists, the official
may proceed to act and is not subject to the provisions of the Ethics in Government Act. If the city
attorney advises that a real or potential conflict of interest may exist, then the official must disclose
the conflict.
• An elected city official must disclose the nature of the conflict on the record at a council
meeting prior to acting on the matter and is subject to any city rules governing conflicts of
interest. The Ethics in Government Act mandates disclosure of conflicts of interest but does
not require elected officials to abstain from debating and voting on the matter (other
provisions of Idaho law, such as the ethics provisions for planning and zoning, require
elected officials to recuse themselves from debating and voting once a conflict of interest
has been declared). A councilor who decides to abstain from debate and voting on a matter
is still counted for quorum purposes.183 If a councilor asks to be excused from voting on an
181 Idaho Code 74-403(4)
182 Idaho Code 74-403(5)
183 Idaho Code 74-404(4).
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issue that involves a conflict or potential conflict of interest, and the council does not excuse
the individual from participating, the councilor is exempt from civil or criminal liability.184
• An appointed or employed city official must prepare a written statement to the mayor and
council describing the matter and the nature of the conflict. The official is entitled to act on
the legal advice of the city attorney.185
Conflict of Interest: Are there exceptions to the definition of “conflict of interest” in the
Ethics in Government Act?
Yes. The act provides there is no conflict of interest if the pecuniary (financial or monetary) benefit
to a public official arises out of:
• An interest or membership in a particular business, industry, occupation, or class
required by law as a prerequisite to the holding by the person of the office or position
(e.g., a city attorney’s membership in the state bar);
• Any action in the person’s official capacity that affects the official, a member of the
official’s household, or a business with which the official is associated in the same
manner as others engaged in the industry or occupation (e.g., a councilor who is also a
building contractor could vote to raise building permit fees, if the fees apply to all
contractors across the board);
• Any interest that the person has by virtue of his profession, trade, or occupation where
his interest would be affected to the same degree as that of a substantial group or class
of others similarly engaged in the profession, trade, or occupation; or
• Any action by a public official upon any revenue measure, any appropriation measure
or any measure imposing a tax, when similarly situated members of the public are
affected by the outcome of the action in a substantially similar manner and degree.
Contracts: Are there any circumstances where a city official or a relative of a city official can
contract with the city for goods or services?
A city official—elected or staff―or a relative of a city official (within the second degree, by blood
or marriage) can contract with the city if the following conditions are met:
• The contract is reasonably necessary to respond to a disaster; or
• The contract is competitively bid, and the public official (or his/her relative) submits
the low bid. Neither the public official nor the relative may take any part in the
preparation of the contract or bid specifications, and the public official must recuse
him/herself from voting on the contract and bid specifications. The public official must
provide full disclosure in writing to the city council of his/her or his/her relative’s
interest in the contract and their intention to bid. The public official or relative must not
have violated any provision of Idaho law pertaining to competitive bidding or improper
solicitation of business.
Contracts: Can the employers of a city elected official contract with the city?
The answer is yes under certain circumstances, such as when the official’s interest is defined as
remote under Idaho Code 74-502, meaning the elected official is:
184 Idaho Code 74-404(4).
185 Idaho Code 74-404(5).
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• A nonsalaried officer of a nonprofit corporation.
• An employee or agent of a contracting party where the compensation of such
employee or agent consists entirely of fixed wages or salary.
• A landlord or tenant of a contracting party.
• A holder of less than one percent (1%) of the shares of a corporation or
cooperative that is a contracting party.
The remote interest must be disclosed to the mayor and city council at a council meeting
prior to any discussion of the matter, noted in the minutes of the meeting, and the official
with the remote interest must recuse himself from any participation or voting on the matter.
The council must approve the contract by a vote sufficient for it to pass without the vote of
the official with the remote interest. The official with the remote interest must not attempt
to lobby any decision maker concerning the contract.
Planning & Zoning: I currently serve as a councilor and am also employed by a
business that has a conditional use permit application that will be considered by the
city council on which I serve. Should I follow the provisions of the Ethics in
Government Act (disclose and then participate) or should I follow the conflict of
interest law specific to planning and zoning issues (that requires disclosure and
nonparticipation)?
The Ethics in Government Act covers many conflict of interest situations, but the major
exceptions are where state law provides specific conflict of interest provisions, most
commonly for planning and zoning issues and urban renewal. In this situation you need to
follow the provisions of Idaho Code 67-6506, which requires the conflict to be disclosed on
the record and the official with the conflict must recuse themselves from any participation or
voting on the matter at the outset of the proceedings.