Opinion 85-9

JIM JONES ATTORNEY GENERAL S T A T E O F I D A H O OFFICE OF THE ATTORNEY GENERAL BOISE 8 3 7 2 0 TELEPHONE 12081 334-2400 '85-9 ATTORNEY GENERAL OPINION NO. TO: Mr. A. I. Kurphy Director Idaho State Board of Corrections Per Request for Attorney General Opinion - QUESTIONS PRESENTED 1. Are the meetings of the Connission of Pardons and Parole s~bject to the Open Meeti~g Law, Idaho CoZe S 67-2341, et seq. ? 2. What records are exernpt by lav from public inspection and may be considered ir. executive session pursuent to Idaho Code S 67-2345 (d)? 3. M2.y a vote of the Commission of Pardons an6 Parole be taken in private? COKCLUSION: 1. As a statutory entity with authority to make decisions concerning paroles, pardons and comrxtations, the Conn.ission of Pardons and Parole is subject to the Open Meeting Law and is required to open all meetings to the public except those conducted in executive session. - - - Director Idaho State Board of Corrections Page 2 (' 2. Only documents which are excluded from public inspection by statute are to be considered in executive session. Idaho Code §§ 67-2342 (1) and 67-2345 (3) . 3. The Commission of Pardons and Parole may not vote in private. - ANALYSIS Question No. 1 The Idaho Commission of Pardons and Parole is appointed by the Bcard of Corrections under authority of Idaho Code § 20- 210. The Commission has the power to establish rules, regulations, policies an6 procedures under which parole may be granted. Idaho Code § 20-233. A quorum of three comxissioners holds regular parole hearings. Izaho Co2e § 20-210. The Commission also has the authority to grant comxutations - and parsons. Idaho Co6e § 20-210, Idaho Const. , art. 4, S 7. The Cominisslon meets at least four times a year to consider - applications for pardon and cormutation of sentence.. Idaho Coze § 20-213. Under the Idaho O ~ e n bleeti~g Law, governing bodies of public agencies created by statute, as well as those created by the Idaho Cor~stitution, are required to open their meetings to the public. Idaho Code S 67-2341(3)(a); Idaho Attly Gen. Op. No. 77-30 (1977). "Governing body" is defined iis "the members of any public agency which cocsists of two or more members with the authority to make decisions for or recommendations to a pubiic agency regarding ar,y matter. " Idaho Code § 67-2341 (4) . "Public agency" incluzes any state board or ccmnission. Idaho Code 67-2341 (3) (a) . Thus, the Commission of Pardons and Parole, a statutorily createz public agency, having both statutory end constitutional pov:ers to make decisions concerning pzroles, parzcns and ccrautations, is subject to the provisions of the Open Meeting Law. All of the Comission's meetings, except those conducted in an executive sessicn, must be open to the public. Similar conclusions have been reached in other states. See, Missouri Att'y Gen. Op. KO. 32-83 (1983) (Board of Pardons a x p a r o l e subject to btissouri ' s Open PLeeting Law) ; and Sanders v. Benton, 579 P.22 815 (0kl.a. 1978) (Board of -- - - - - -- - .' Plr. A. I. Elurphy Director Idaho State Board of Corrections Page 3 Corrections, by reason of its statutory origin, comes within the purview of the Oklahoma Open Meeting Law). Furthermore, "meeting" is defined in Idaho Code 67- 2341(5) as "the convening of a governing body of a public agency to make a decision or to deliberate towards a decision on any matter" (emphasis added) . Therefore, deliberations by the Commission must be conducte? publicly. - See, Idaho Att'y Gen. Op. No. 77-13 (1977). It could be argue? that as to the deliberative processes by which the Coinmission arrives at its decisions, its function is judicial or quasi-judicial, and as to that phase of its activities, the Open Meeting Law should not apply u ~ d e r Idaho Code 67-2341 (1) (a) ~ihich excludes "court and their agencies and divisions, and the judicial council, and the district magistrates cormission." Such an argunent fails, for the reasons that follow. In Idaho, quasi-judicial functions have been defined as those acts which entail the ap?licati.cn of "general rules or ~olicies to s~ecifi-c individuals, interests, or situations," i - Cooper v. Board of Cocnty Co1i7~issioners of Co., 101 Idaho 407, 416, 614 P.26 947, 950 (1980), an6 those acts involving "investigation, judqnent an2 discretion," Raaf v. State Board of Medical Examiners, 11 Idaho 767, 717 (1906) , (quoting, People v. Dental Examiners, 110 Ill. 180) . When these de" ~lnitions are applied to the Ccrimission of Pardons ar?6 Parole, many of the A .. Commission's functio~s are quasi-judicial: The Commission conducts hearings, considers evidence, makes a determination affecting only a specific individual, and cones to a decision in much the same mancer as a court of law. (a, Missouri Att'y Gen. Op. No. 32-G3 (1963), which states that the biissouri Board of Probation and Parole has rulenaking an2 quasi-judicial power s . ) Unlike Idaho, the statutes of several states address the issue of whether their Oper! Meeting Laws apply to quasi-judicial functions, and/or beards of pardons and paroles. Such statutes may be grouped into the following three categories: (1) B-q - specifically excluding quasi-judicial bodies from the scope of the Open Meetincj Lax. (See, Ky.Rev.Stat.Ann. § S 61.805 (2) (Supp. 1984) ; Wash.Rev.C.A * Mr. A. I. Murphy . L Director ' Idaho State Board of Corrections Page 4 1986); N.Y.Pub.0ff.L. § 108 (Supp. 19851, or by permitting such bodies to deliberate in private, (See, Alaska St. § 44.62.310 (d) (1) (Supp. 1984) ; V?is.~tat.?,nn. § 19.85 (1) (a) - - (Supp. 1985) ; Kans.Stat.Ann. § 75-4318 (a) (1985) ; (2) Bv specifically including quasi- judicial bodies within the scope of the Open Meeting Law, (See, - Tex .Rev. Civ. Stat. Ann. , art. 6252-17 (c) (Supp. 1985) ; Ariz .Rev.Stat.Ann. 5 38-4-31 (6) (1985) ; No.Ann.Sta. 5 610.010 (2) (Supp. 1384) ; or (3) Bv specifically excluding parole and/or pardon bcards from the scope of the Open Neeting Law, (See, - N.J.Stat.Ann. S 1O:d-8 (a) (Supp. 1985) ; Ohio Rev.C.Ann. § 121.22 (D) (1984) ; Alaska Stat. §-24.62.310 (6) (3) (Supp. 1984) . Hovever, Idaho's Open Meeting Lav, lilke the open meetin9 laxs of many other states, does not specifically address quasi- - judicial functions or quasi-judicial bodies. In a few of these states like Idaho, courts have been asked to deternine whether o_uasi-judicizl functions come within the Open Meeting Law. The leading case on this issue is Cannev v. Eoard of Public Instruction of Alachua Co., 278 So.26 260 (Fla. 1973). In " Cannev, the Flori2a Su~reme Court held that the quasi-judicial proceedings of a school board pielre not excluded frorn Florida's open meeting law: Once the legislature transforms a portion of a board's respcnsibilities and duties into that of a juiiicial character so that the board may exercise quasi-judicial functions, the prerogatives of the legislature in the matter do not cease. . . . If the legislature nay delegate these quesi-judicial powers to A' ~r?e School Board and regulate the procedure to be followe? in hezrings before the boar<, i L - L folloil;~ as a matter of conTon logic that the legislature may further require all meetings of the board zt which official acts are to be taken to be public rwetings open to the public. - Id. at 263. The reasoning of Canney v . Board of Public Instruction has been followec! in court opinions froin other states (See, - City of .*Mr. A. I. Murphy . . Director . Idaho State Board of Corrections Page 5 Harrisburg v. Pickles, 492 A.2d 90, 96 (Pa. 1985) ; Citizen Action Coalition of Indiana, Inc. , v. Public Service ~ o ~ m i s s i o n of Indiana, 425 N.E.2d 178 (Ind. 1981); I1l.Attly Gen.0~. 83-004 (1983), and is harmonious with the statutory and constitutional provisFons of Idaho. Of special significance is Idaho's constitutional provision that, "the legislature shall by law prescribe the sessions of said board i . e., Board of Pardons] and the manner in which application shall be made, and regulate proceedings thereon." Article 4, 5 7, Idaho Constitution. Until the Idaho legislature provides to the contrary, this public agency is bound by the Open Meeting Law like all other public agencies. To hold otherwise would be to ignore the express words of the statute, " [a] 11 meetings of a governing body of a public acJency shall be open to the public and all persons shall. be permitted to attend any meeting escept as otherwise provided by this act." Idaho Code 5 67-2342 (1). Where a statute is neither ambiguous nor uncertain, the clearly e P expressez intent of the legislature must be given errect an2 - there 'is no occasion for interpretive construction. Sxensen v. Buildings, Lnc., 93 Ic?.aho 466, 468, 463 P.2d 932, 934 (1970). Furthernore, failure to conduct its business pursuilnt to the Open Meeting Law may be a source of great and untoward --- mischief: action taken at any meeting which fails to comply with the provisions of [this law] shall be null an2 void." Idaho Code S 67-2347. . , Therefore, it is our opinion that, except for those meetings properly conducted in executive session, Idaho's statutes require that the Co~mission of Pardons and Parole deliberate in public. Ouestion No. 2 Idaho Code 67-2305(1) ((2) of the Open Meeting Act states that executive sessions may be held for the purpose of considering records that are exempt by law from public inspection. This section must be read in conjunction with Idzho Code § 9-301, which states that " [elvery citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statutes." The wording of these two statutory provisions clearly indicates that only certain documents which have been excluded from public inspection by clear statutory provision may be considered in Mr. A. I. blurphy , , Director Idaho State '~oard' of Corrections Page 6 executive session. Furtherrnore, the Idaho Supreme Court has stated that it woult' not create an exception to the rule of disclosure where exception has not been explicitly provided by statute: "[sluch language clearly evidences an intent by the legislature to create a very broad scope of government records and information accessible -to the public. " - Dalton v. Idaho Dairy Products Ccnmission, 107 Idaho 6, 11, 684 P.2d 983 (1984). Records that are exempt by law from public inspection and would, therefore, be appropriately considered in executive session include: Criminal preliminary hearing transcripts, Idaho Code S 19-813; recorc? of grand jury proceedi~lgs, Idaho Code § 19-1112; special inquiry juGge proceedings, Idaho Code 5 19-1123; and presentence investigations, Idaho Code 19- -2515 (d) , Idaho Criminal Rules 32 (g) . Question No. 3 The Open Keeting Lax requires that all voting on a public agency's decisions must be conducted in pcblic. " No decision at a meeting of a governing body of a public agency shzill be made by secret ballot." . Idaho CcZe 5 67-2342(l). "Decision" is defined as "any determination, action, vote or final disposition upon a motion, propcsal, resolution, order, ordinance or measure on which a vote of a governing bodv is recuired, at any meeting at which a quorum is present. " idago Code S 67-2341 (1) . The requirement that v0tir.g must be cont'ucted in public cannot be circumvented by retizing into executive sessions. " [N]o executive session may be held for the purpose of taking any final action or making any final decision." Idaho Code S 67- 2345 (3) . - See, Atty.Gen.0~. 77-13. Thus, matters discussed in executive session must still be voted upon in public. Idaho Constitution art. 4, 5 7 Idaho Code § 9-301 Idaho Code S 19-813 Idaho Code § 20-210 ."~:r. A . I . N u r p h y D i r e c t o r Idaho S t a t e B o a r d of C o r r e c t i o n s P a g e 7 I d a h o C o d e § 2 0 - 2 1 3 Idaho C o d e § 2 0 - 2 3 3 Idaho C o d e § 6 7 - 2 3 4 1 (1) , ( 1 ) (a) , ( 3 ) ( a ) , ( 4 ) , ( 5 ) Idaho C o d e § 6 7 - 2 3 4 2 ( 1 ) Idaho C o d e § 6 7 - 2 3 4 5 ( 3 ) ( d ) I d a h o C r i m i n a l R u l e s 6 ( c ) Idaho C r i m i n a l R u l e s 3 2 (9) ( h ) C a ~ n e y v. B o a r d of P u b l i c I n s t r u c t i o n of A l a c h u a C o u n t y , 2 7 8 S o . 2 d 2 6 0 ( F l a . 1 9 7 3 ) C i t i z e n A c t i o n C o a l i t i o n of I n d i a n a , I n c . v. P u b l i c S e r v i c e C o r r ; m i s s i o n of I n d i a n e , 4 2 5 K.Pj.26 1 7 8 (Inc?. 1 9 8 1 ) C i t y of E a r r i s b u r g v . P i c k l e s , 4 9 2 A . 2 6 9 0 ( P a . 1 9 8 5 ) C o r z ~ o n C a u s e v . U t a h P u k l F c S e r v i c e C o m ~ i s s i o n , 5 9 8 P . 2 d 1 3 1 2 ( U t a h 1 9 7 9 ) C c c ~ e r v. B o a r d of Count;j C c m n i s s i o n e r s of A d a C o u r t y , 1 0 1 Idaho 4 0 7 , 6 1 4 P . 2 6 9 4 7 D a l t o n v. I d a h o D a i r y P r o d u c t s C ~ r ~ i s s i o n , 1 0 7 I d a h o 6 , 6 8 4 P . 2 6 9 8 3 ( 1 9 8 4 ) D e l l a S e r r a v . Boroucyh of M o u n t a i n s i d e , 4 8 1 A . 2 d 5 4 7 ( N . J . 1 9 8 4 ) J ~ r d e z v . D i s t r i c t o f C o l u r z b i a , 3 6 2 ~ . 2 d 1 1 4 (D.c. 1 9 7 6 ) O r r v. S t a t e B o a r d of E o u a l i z a t i o n , 3 Idaho 1 9 0 , 2 8 P . 4 1 6 ( 1 8 9 1 ) R a a f v. S t a t e B o a r 6 of K e d i c a l E x a m i n e r s , 11 I d a h o 7 0 7 , 7 1 7 ( 1 9 0 6 ) S i i e ~ s e n v . B u i l d i n g s , T R C . , 9 3 I d a h o 4 6 6 , 4 6 3 P . 2 d 9 3 2 ( 1 9 7 0 ) . .' Wr. A. I. Murphy Director ' Idaho State Board of Corrections < Page 8 Sanders v. Benton, 579 P.2d 515 (Okla. 1978) .Washington Water Power Co. v. Kootenai Environmental Alliance, 99 Idaho 875, 531 P.26 122 (1979) Idaho Att'y Gen.Op. 77-13 (1977) Idaho Att'y Gen.@p. 77-30 (1377) Ill. Att'y Gen.Op. 83-004 (1983) Mo. Att'y Gen.Op. 32-83 (1983) 0 DATED this 3 ' day of December, 1985. ATTORNEY GENERAL ite of Idaho ANALYSIS BY: D. PL7iP.C EAWS Deputy Attorney General Chief, Criminal Justice Division cc: Idaho Supreme Court Supreme Court Library Idaho State Library