Conducting Public Meetings

How to run meetings that serve the people while protecting constitutional rights and maintaining order

Last updated: April 2, 2026 · By Jeff A. Pierson

The Right of the People to Observe Their Government

The foundation of all public meeting law rests on a fundamental principle: the people have a right to know what their government is doing, and to be present when decisions are made that affect their lives and property. This principle flows from the structure of constitutional government itself.

The Idaho Constitution, Article I, Section 2, declares that "All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary."^[1] This right to alter government requires knowledge of what government is doing. Secrecy is incompatible with popular sovereignty.

The U.S. Constitution, First Amendment, protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."^[2] Idaho's Constitution, Article I, Section 10, likewise protects the right of the people "to assemble in a peaceable manner, to consult for their common good; to instruct their representatives, and to petition the legislature for the redress of grievances." The U.S. Supreme Court has recognized a qualified First Amendment right of the public to attend criminal trials.^[3] The Court has not held that this right extends to every meeting of a local governing body. In Idaho, the public's right to attend and observe county business comes from statute: Idaho Code § 74-203(1) and § 31-710(4).

These constitutional principles are not mere ideals. They are functional necessities. Public observation of government operates as a check on corruption, a deterrent to abuse, and a guarantee that elected officials remain accountable to the people they serve. When officials meet in secret, accountability disappears.

Your role as an elected official is not to control information about government business. Your role is to conduct that business openly, subject to the scrutiny of the people. Transparency is not an inconvenience to your work, it is the condition on which your authority rests.

Idaho Open Meeting Law Overview

Idaho Code § 74-201 et seq. is the Idaho Open Meeting Law. Section 74-201 declares that "the formation of public policy is public business and shall not be conducted in secret." The chapter provides the procedural framework for conducting public meetings and establishes the requirements that elected officials must follow. A thorough understanding of this law is not optional for county commissioners, it is a professional and legal obligation.^[4]

Notice and Agenda. Idaho Code § 74-204 sets the notice rules. For a regular meeting, the law requires no less than a five calendar day meeting notice and a 48-hour agenda notice, unless another statute provides otherwise. A body that meets at regular intervals of at least once per calendar month, on a schedule set in advance, may satisfy the meeting notice by giving notice of its regular meeting schedule at least once each year. A special meeting needs at least 24 hours of meeting and agenda notice unless an emergency exists, and a meeting held only for an executive session also needs 24 hours of notice, stating the reason and the specific provision of law authorizing the executive session. A special meeting notice must include at least the date, time, place and name of the public agency calling the meeting. An agenda is required for every meeting, and an agenda item that requires a vote must be identified as an "action item." This requirement serves a critical function: it gives the public, and public interest organizations, actual notice that a meeting is occurring and an opportunity to plan attendance.

Notice and agenda are satisfied by posting them "in a prominent place at the principal office of the public agency or, if no such office exists, at the building where the meeting is to be held," and also electronically if the body maintains a website or social media page. For county commissioners, the principal office is typically the courthouse or county administrative office. Modern practice also includes sending notice to media outlets and listing meetings on public calendar platforms, and for special meetings the statute requires a good faith effort to notify the news media that have asked to be notified.^[5]

Quorum and Voting. The open meeting law applies when a quorum of a governing body convenes to make a decision or deliberate toward one. The statute does not define "quorum." Under Idaho Code § 73-112, authority given jointly to three or more officers is construed as given to a majority of them unless the act says otherwise. A quorum is therefore a majority of the members of the body: three of five members, for example, and two of the three county commissioners. A body cannot take official action without a quorum. On votes, the minutes must record the results of all votes and, upon the request of a member, the vote of each member by name (§ 74-205(1)(c)). No decision may be made by secret ballot (§ 74-203(1)). In county government, the clerk must also record the vote of each member on any question on which there is a division, or at the request of any member present (Idaho Code § 31-708(3)). The open meeting law does not address abstentions. The conflict-of-interest rules in chapter 4, title 74, Idaho Code, govern when a member should step aside.^[6]

Minutes. Idaho Code § 74-205 requires the governing body to provide for written minutes of all its meetings. At a minimum the minutes must show all members present, all motions, resolutions, orders or ordinances proposed and their disposition, and the results of all votes (with each member's vote by name on a member's request). Minutes must be made available to the public within a reasonable time after the meeting. (We cover minutes in more detail below.)

Closed Meetings and Executive Sessions. While the default rule is that all meetings must be open to the public, Idaho law permits certain closed meetings, called "executive sessions", for specific purposes. These are limited to the ten grounds, lettered (a) through (j), in Idaho Code § 74-206(1), and the statute is strict about what can be discussed in closed session. (We discuss executive sessions in detail below.)

The open meeting law is not negotiable. It cannot be suspended by the commission. When commissioners decide to hold a meeting, they must follow the procedural requirements of § 74-201 et seq., regardless of inconvenience or custom. Action taken at a meeting that does not comply is subject to being declared null and void if challenged within 30 days (§ 74-208), and each member who participates in a violating meeting faces a civil penalty of up to $250, with higher caps for knowing violations.

Parliamentary Procedure and the Chair's Role

Parliamentary procedure is the set of rules by which deliberative bodies, city councils, county commissions, boards, conduct their meetings and make decisions. The open meeting law does not name a parliamentary authority. Many Idaho bodies adopt Robert's Rules of Order Newly Revised as their rules of order, and a body that has not adopted any rules commonly follows it by custom.^[7]

The Purpose of Parliamentary Procedure. Many elected officials view parliamentary procedure as tedious or obstructionist. In fact, parliamentary procedure serves a vital function: it protects minority rights within the body while ensuring that the majority can act. Without parliamentary procedure, meetings devolve into chaos, and the loudest voices dominate. Parliamentary procedure ensures that every member gets to speak, that motions are considered fairly, and that decisions are recorded.

The basic structure of parliamentary procedure is simple:

1. A member makes a motion: proposes a specific action
2. Another member seconds the motion: indicates that at least one other member is interested in discussing it
3. The chair opens debate: members discuss the motion
4. The chair puts the question to a vote: the motion is approved or rejected
5. The result is recorded: the minutes reflect the motion, who moved it, who seconded it, and the vote count

This structure ensures transparency and prevents any member from being surprised or blindsided. Every proposed action is stated clearly before the vote. Every member knows what is being voted on, and how each member votes.

The Chair's Authority and Responsibility. As chair (or as chair pro tempore when the chair is absent), you hold significant authority, and correspondingly heavy responsibility. The chair:

• Preserves order and decorum^[8]
• Recognizes members who wish to speak
• Enforces parliamentary rules
• Puts motions to a vote and announces results
• Decides questions of order (whether a motion is in order under the rules)
• Rules on points of order raised by members

The chair's power is significant, but it is not unlimited. The chair cannot:

• Refuse to put a motion to a vote if it is properly made and seconded
• Unilaterally change the meeting agenda
• Silence a member based on disagreement with the content of their speech
• Refuse to record votes as they occur
• Hold a meeting without notice or without a quorum

The chair's authority is delegated from the body as a whole. If the body disagrees with the chair's ruling on a point of order, the members can overrule the chair by majority vote. This check ensures that the chair cannot abuse authority.

Common Motions and How They Work. Not every comment needs to be a motion. But when a member wants to propose an action, to approve a budget, hire an employee, award a contract, amend a policy, that proposal must be made as a motion. Motions follow a hierarchy in parliamentary procedure. Some motions are "main" motions (which start new business), while others are "incidental" motions (which address procedural issues raised by the main motion).

For example:

• A main motion might be: "I move that the commission approve the Middleton Road improvement project."
• A substitute motion could be: "I move to substitute $150,000 for the proposed $200,000 budget for this project."
• A point of order (an incidental motion) might be: "Mr. Chair, I rise to a point of order: I believe the previous motion has not been seconded."

Parliamentary procedure can become complex, and most bodies do not need to master every technical detail. But the chair should be familiar with:

• How to state a motion clearly
• How to recognize members in order
• How to permit debate while preventing filibuster or disruption
• How to put the question to a vote
• How to announce the result clearly and record it in the minutes

A good chair keeps meetings moving, ensures fairness, and never manipulates procedure to predetermine outcomes.

Public Comment: Rights and Limitations

The people's right to assemble and petition their government is a constitutional right, not a gift from elected officials. However, public comment in county commission meetings is not unregulated. The key distinction is between what the law requires and what best practices suggest.

Public Hearings vs. Public Comment Periods. Idaho law distinguishes between two concepts:

Public hearings are legally required for certain decisions. For example, a county must hold a hearing before granting a special use permit, before the planning and zoning commission recommends adopting or amending the local land use plan, and before adopting its final budget, where "any taxpayer may appear and be heard."^[9] For these, the law gives affected members of the public notice and an opportunity to be heard, and the commission cannot deny that opportunity.

Public comment periods are different. The Open Meeting Law itself does not require a governing body to take public comment at its regular meetings (Idaho Attorney General, Open Meeting Law Manual, Question No. 20). Many bodies offer it anyway. A body that does can set reasonable procedural limits, such as:

• Time limits per speaker (e.g., three minutes)
• Overall time limits for public comment (e.g., 30 minutes for all speakers combined on a single topic)
• Designated times for comment (e.g., at the beginning of the meeting, or after each agenda item)
• Requirements to sign up in advance
• Rules against personal attacks or disruptive behavior

These procedural limits are constitutional and appropriate. They serve the government's interest in moving business along, and they ensure that all speakers get a fair chance to be heard rather than one speaker monopolizing the time.

Viewpoint-Based Restrictions on Speech Are Unconstitutional. However, the commission cannot limit public comment based on the viewpoint of the speaker. This is the critical line. A body may confine comment to subjects within its jurisdiction or on the agenda, so long as the limit is reasonable and applied without regard to viewpoint.

For example, the commission can say: "Public comment is limited to three minutes per speaker." This is a time-and-place restriction, and it is valid.

But the commission cannot say: "Public comment is allowed, except that you cannot criticize county spending," or "You cannot mention the commission's decision on the Smith contract," or "You cannot support the proposed development." These restrictions single out a viewpoint, and they violate the First Amendment.^[10]

The difference between these two categories is subtle but crucial. Time limits, sign-up requirements, and decorum rules are process-based and apply equally to all speakers. Viewpoint-based restrictions favor one side over another and are almost always unconstitutional.

Denying Public Comment on an Agenda Item. A commission cannot hold a public hearing on an agenda item and then refuse to allow public comment. The purpose of a hearing is to hear from the public. If an item is listed on the agenda, and notice of the meeting was given, members of the public have a reasonable expectation that they will be heard.

That said, the commission can reasonably limit the number of speakers, the time per speaker, and the number of times the same person can speak on the same issue. These are procedural limits, not content-based restrictions.

People Should Not Be Required to Waive Their Right to Comment. Some boards have tried to require public speakers to sign forms agreeing not to sue the county, or to waive legal rights, as a condition of speaking. Conditioning the right to petition the government on waiving legal recourse would raise serious constitutional problems and is a practice no board should adopt.

Decorum and the Chair's Authority

Maintaining order in a meeting is a legitimate responsibility of the chair. An orderly meeting allows all business to be conducted and all voices to be heard. A chaotic meeting serves no one. However, the authority to enforce decorum is often abused. "Decorum" can become a cover for silencing unpopular speech.

What the Chair Can Enforce. The chair can require speakers to:

• Speak to the point at issue
• Refrain from personal attacks, insults, or verbal abuse toward individual commissioners or staff
• Comply with time limits and sign-up procedures
• Refrain from threatening, harassing, or intimidating behavior
• Not interrupt other speakers
• Comply with reasonable orders to keep their voice at a normal volume

These rules apply equally to all speakers. They are content-neutral. They preserve the ability of the meeting to function while protecting free speech.

What the Chair Cannot Do. The chair cannot enforce "decorum" by silencing a speaker based on the viewpoint or content of their speech. For example:

• The chair cannot cut off a speaker who is criticizing the commission's handling of a contract, on the grounds that the criticism is "disruptive to decorum."
• The chair cannot refuse to hear from someone who is speaking in support of a controversial development project, on the grounds that their "tone" is aggressive.
• The chair cannot mute or eject a speaker because their speech is critical, pointed, or makes commissioners uncomfortable.

The question is not whether the chair likes what is being said, or whether it is critical. The question is whether the speaker is being disorderly in a content-neutral sense (shouting, threatening, refusing to yield time, interrupting).

Removing a Disruptive Speaker. If a speaker genuinely becomes disruptive, refusing to yield time, shouting, making threats, or becoming physically aggressive, the chair can direct the speaker to leave. However, the chair should:

• Give clear warning first, stating what behavior must cease
• Allow the speaker a brief opportunity to comply
• Act in a content-neutral way (not targeting one viewpoint)
• Request law enforcement assistance if needed; do not attempt to use physical force
• Document the reason for removal in the meeting minutes

A speaker who simply voices criticism, even harsh criticism, is not "disruptive" and cannot be removed. The line is crossed only when the speaker's conduct, not the content, prevents the meeting from functioning.

Executive Sessions: The Ten Permitted Grounds

Executive sessions are closed meetings from which the public is excluded. They are the exception to the open meeting requirement, and the statute directs that the exceptions "shall be narrowly construed" (§ 74-206(2)). Idaho Code § 74-206(1) permits an executive session "only for the purposes and only in the manner set forth in this section," and it lists ten purposes, lettered (a) through (j).^[11] No executive session can be held for any other reason.

The Ten Permitted Grounds under Idaho Code § 74-206(1):

(a) Hiring. To consider hiring a public officer, employee, staff member or individual agent, "wherein the respective qualities of individuals are to be evaluated in order to fill a particular vacancy or need." The paragraph "does not apply to filling a vacancy in an elective office or deliberations about staffing needs in general."

(b) Evaluation, discipline, dismissal and complaints. To consider the evaluation, dismissal or disciplining of, or to hear complaints or charges brought against, a public officer, employee, staff member or individual agent, or public school student. An employee's performance record and personnel history are private matters, and discussing an employee's fitness for duty in public can be unfair to the employee.

However, these two grounds do not permit the commission to discuss every personnel issue in secret. The Attorney General's opinion is that an agency cannot hold an executive session to consider general personnel matters, only the specific matters listed in (a) and (b). Once an employee is hired, fired, or disciplined, that action must be taken in open session. For example, the commission cannot hold an executive session to discuss whether to increase salaries in general or whether to reduce staffing levels, that is a policy decision and must be made in open session.^[12]

(c) Acquiring an interest in real property. To acquire an interest in real property not owned by a public agency. The purpose is to prevent a seller from raising the price if the county's interest becomes known before the deal is made.

This is a narrow ground. It covers acquiring an interest in real property that the agency does not already own. It does not list the sale or disposition of county property, and it does not cover discussions about how property will be used or about county projects that may require property acquisition. Once the county has acquired property, or has announced its intention to do so, the transaction becomes public, and the decision to buy must be made in open session.

(d) Records exempt from disclosure. To consider records that are exempt from disclosure as provided in chapter 1, title 74, Idaho Code (the Public Records Act). Examples of exempt records include certain personnel and medical records and attorney-client privileged communications.

This ground is often misused. Commissioners sometimes claim that an entire policy decision must be discussed in executive session because some small portion of the discussion might involve exempt information. For example, a commission might claim that discussion of a proposed development must be in executive session because the developer has provided some financial information that might be confidential. That is improper. The fact that some information is exempt does not make the entire discussion confidential. The commission should identify the specific exempt record, address it in executive session if necessary, and conduct the remainder of the discussion in open session.

(e) Competition with other states or nations. To consider preliminary negotiations involving matters of trade or commerce in which the governing body is in competition with governing bodies in other states or nations. This ground applies to economic competition with governments in other states or nations, such as competing to attract a business. It does not apply to ordinary negotiations with a private vendor.

(f) Legal counsel on pending or imminent litigation. To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. "The mere presence of legal counsel at an executive session does not satisfy this requirement." The purpose is to allow the county to discuss legal strategy candidly with its counsel without disclosing the strategy to opposing parties. The Attorney General states that an executive session under this paragraph is solely for communicating with legal counsel on pending or probable litigation.

(g) and (h) Parole and juvenile corrections. Paragraph (g) is for the commission of pardons and parole, as provided by law. Paragraph (h) is for the custody review board of the Idaho department of juvenile corrections, as provided by law. These two grounds belong to those bodies and are not available to county commissions.

(i) Risk manager or insurance provider. To engage in communications with a representative of the public agency's risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. As with litigation, "the mere presence of a representative of the public agency's risk manager or insurance provider at an executive session does not satisfy this requirement."

(j) Labor contract matters. To consider labor contract matters authorized under section 74-206A (1)(a) and (b), Idaho Code. Under § 74-206A, negotiations with a labor organization must be held in open session. A governing body may hold an executive session only to deliberate on a labor contract offer or formulate a counteroffer, or to receive information about a specific employee when the information has a direct bearing on the issues being negotiated and a reasonable person would conclude that its release would violate the employee's right to privacy. Documents exchanged between the parties, including offers, counteroffers and meeting minutes, are subject to public records disclosure.

Note what is not on the list. The statute has no separate ground for security vulnerabilities, general personnel policy, or sale of public property, and a commission cannot create one. A commission cannot hide capital improvement plans or facility use decisions under the pretense of "security." If a discussion involves a specific record that is exempt from disclosure under chapter 1, title 74, ground (d) may apply. Otherwise, it belongs in open session. The Open Meeting Law authorizes closed sessions but never requires them.

The Most Common Executive Session Abuse: Decisions Made in Secret. The most frequent violation of the open meeting law is commissioners discussing and deciding matters in executive session, then returning to open session to announce the decision without any real discussion.

Procedural Requirements for Executive Sessions. Idaho Code § 74-206(1) requires that, before closing a meeting, the commission must:

1. Hold the meeting in open session first
2. Make a motion that identifies the specific subsections of § 74-206 that authorize the executive session, and vote on it by roll call, with the executive session authorized by a two-thirds vote of the governing body
3. Record the roll call vote in the minutes, and state on the record the specific statutory basis for closing the meeting (which of the lettered grounds applies)
4. Include in the executive session minutes a reference to the specific statutory subsection and enough detail to identify the purpose and topic, without compromising the purpose of the session (§ 74-205(2))

Simply announcing "We're going into executive session" is not sufficient. The motion must name the statutory subsection. For example: "I move that the commission go into executive session under Idaho Code § 74-206(1)(b) to consider the evaluation of a department head." This specificity ensures that the public can later determine whether the executive session was legally justified. Changing the subject within the executive session to one not named in the motion is itself a violation (§ 74-206(2)). If only an executive session will be held, the 24-hour notice must also state the reason and the specific provision of law authorizing it (§ 74-204(3)).

After the executive session, the commission must return to open session to finish any remaining business. "No executive session may be held for the purpose of taking any final action or making any final decision" (§ 74-206(3)). If a decision follows the executive session, that decision must be announced, voted on, and recorded in open session.

Minutes and Records

Idaho Code § 74-205 requires that written minutes be kept of every meeting. Minutes are not a recording of every word spoken. Rather, minutes are an official record of the actions taken, the business conducted, and the results of the votes.

What Minutes Must Include. Under § 74-205, minutes must include:

• All members of the governing body present
• All motions, resolutions, orders or ordinances proposed and their disposition
• The results of all votes and, upon the request of a member, the vote of each member by name
• For any executive session, a reference to the specific statutory subsection authorizing it and enough detail to identify its purpose and topic, without compromising its purpose
• Good practice beyond the statutory minimum: the date, time and place, the names of absent members, the vote of each member (yes or no) on every action, and who moved and seconded

Minutes do not need to include a verbatim transcript of discussion. However, they should be detailed enough that someone reading them can understand what was discussed and what decision was reached. If a commissioner raises a concern, or if there is significant disagreement, it is good practice to reflect that in the minutes. If a commissioner votes "no," the minutes should indicate that, and may briefly note why.

Minutes and the Public Records Act. Minutes are public records under Idaho Code § 74-101 et seq. The statute requires minutes to be available to the public within a reasonable time after the meeting (§ 74-205(1)). A custodian must grant or deny a resident's records request within three working days (§ 74-103). Under § 74-102(10), no fee may be charged to a resident for the first two hours of labor or the first 100 pages of copies, and fees for residents may not exceed the actual cost of copying where no other fee is provided by law. The county may redact information from the minutes only if it falls within a specific exemption.

Some commissioners have tried to keep discussions confidential by refusing to include them in the minutes, or by recording only sparse information. This is a poor practice. If a discussion occurred in open session, it is a public meeting and the minutes should reflect the substance of what was decided. Minimal or vague minutes do not make a public discussion private.

Approval of Minutes. The statute does not prescribe an approval procedure, but common practice is to prepare minutes after each meeting (typically drafted within a few days) and approve them at the next meeting. The commission reviews the draft minutes, corrects any errors, and approves them by motion and vote. Once approved, the minutes become the official record of the meeting and are public documents.

Recording and Transcription. Some counties now audio or video record their commission meetings and make the recording available to the public. This is an excellent practice and exceeds the statutory minimum. A recording provides a complete and objective record of what was discussed. However, a recording does not eliminate the need for written minutes. The minutes provide an index and summary that the public can use to locate information in the recording.

A few counties have attempted to substitute recordings for written minutes, arguing that the recording provides all the information required by § 74-205. That does not meet the statute. Section 74-205(1) says the governing body shall provide for "written minutes," and that a full transcript or recording is not required. The written minutes are the official record that the public can search, copy, and reference.

Recording Meetings

The Open Meeting Law itself addresses recording. Idaho Code § 74-203(6) provides that, except as otherwise provided in that subsection, no person attending an open public meeting "shall be prevented or prohibited from recording such meetings," and that "no person shall be removed or excluded from meetings for recording." Recording means capturing audio, video or photographs by electronic, digital or other means. The right does not apply to executive sessions, or to certain meetings or hearings in Department of Correction or Department of Juvenile Corrections facilities or conducted by the commission of pardons and parole.^[13] Separately, Idaho's wiretap statute allows a person to intercept a communication when one of the parties to it has given prior consent (Idaho Code § 18-6702(2)(d)), but the open meeting statute is the more specific rule for open public meetings.

The Public's Right to Record. Because county commission meetings are public meetings held in public buildings, the public has a statutory right to audio or video record the meeting. Some commissioners have attempted to prohibit recording or to require that members of the public sign consent forms before recording. Those restrictions conflict with § 74-203(6), which says a governing body "shall not prohibit or unreasonably restrict recording."

A commissioner might argue that recording is "disruptive" or that equipment might obstruct other observers. The statute allows a governing body to "take measures to ensure the orderly conduct of its open public meetings," so legitimate operational concerns can be addressed with content-neutral rules, provided they do not prohibit or unreasonably restrict recording. For example, the commission can require that:

• Recording equipment not obstruct views of other observers
• Recording equipment be attended by the person operating it
• Equipment not create a safety hazard or block aisles
• Recording be from the back of the room or a designated area

These rules preserve the public's right to record while protecting the orderly conduct of the meeting. But a blanket prohibition on recording, or a requirement that the public seek permission, conflicts with § 74-203(6).

Recordings and Public Records. If a county commission records its meetings, those recordings are likely public records under the Public Records Act, and members of the public can request copies. The fee rules in Idaho Code § 74-102(10) limit what the county may charge a resident to the actual cost of copying, with the exceptions stated there.

Use of Recordings. Members of the public sometimes record county commission meetings to document what was said, to use in appeals or litigation, or to hold commissioners accountable by sharing the recording with constituents. This is a legitimate use of the recording, and the statute bars removing a person from the meeting for recording it.

However, if a recording is edited, altered, or taken out of context in a way that misrepresents what was said, that can raise other legal issues. But the solution is not to prohibit recording, it is to ensure that complete, unedited recordings are also available so the public has the full context.

Consent Agendas and Rushed Decision-Making

Many commissions use "consent agendas", a list of items that commissioners approve in a single motion, without individual discussion of each item. Consent agendas can be an efficient way to handle routine matters, such as approval of routine warrants, adoption of standard resolutions, or approval of applications that meet all criteria.

However, consent agendas are also frequently abused. Some commissioners place significant decisions on the consent agenda, approvals of contracts, hiring of personnel, or approval of policies, and rush them through without individual discussion. This defeats the purpose of public meetings.

Serial Meetings and Predecision

Another common circumvention of the open meeting law is the "serial meeting": commissioners discuss an issue informally, one-on-one or in small groups, outside of the official meeting setting. Once a consensus has been reached through these informal discussions, the formal meeting becomes mere theater: the commissioners make a motion, vote, and announce the decision that has already been made.

Whether this violates the open meeting law depends on the numbers. A county board has three commissioners, and two of them are a quorum. A conversation in which two commissioners deliberate on a matter pending before the board is therefore a meeting that must be noticed and open. The Idaho Attorney General reads the law to apply whenever a quorum meets to decide or deliberate on official business, whether the gathering is formal, informal or social, and says the requirement should not be evaded by holding smaller meetings or by having a go-between contact each member to learn his or her sentiment. At the same time, the Attorney General does not read the law as a bar to all communication between individual county commissioners outside open meetings. Even where no quorum is involved, serial private discussions defeat the purpose of the law and destroy accountability. The public sees the final vote but never sees the reasoning or the discussion that led to it.^[14]

Email Chains and Text Message Decisions. Modern versions of serial meetings occur via email, text message, or private social media groups. Commissioners exchange messages about an issue, a consensus emerges through these private communications, and then the official meeting is held to ratify the pre-decided outcome.

The Attorney General's manual states that board members may not use computers or texting to conduct private conversations among themselves about board business. A two-way exchange among a quorum about a matter that will come before the board is a meeting. A one-way email or text from one member to another that produces no exchange of responses is not a meeting, but it is a public record that must be kept for public inspection and copying. As a matter of professional ethics and legal responsibility, commissioners should ensure that significant decisions are made through public discussion, not predetermined through private communications. If commissioners have already decided how to vote through email chains, there is no meaningful public discussion.

The solution is for commissioners to refrain from discussing substantive issues about pending agenda items in private communications. If a commissioner wants to talk with another commissioner before the meeting, the contact should be brief and general ("I want to hear your thoughts on the road project") and should not become an exchange of views on a pending decision. Once the meeting begins, the substantive discussion should occur in open session, with full public visibility.

Best Practices for Conducting Public Meetings

Beyond the legal minimums, certain practices strengthen public confidence in government and improve the quality of decision-making:

• Distribute agendas well in advance. More than the statutory five days, ideally at least two weeks. This gives interested parties time to prepare comments or analysis.
• Include sufficient detail in the agenda. Instead of "Discussion of Middleton Road Project," state "Discussion and possible approval of $250,000 project to widen Middleton Road from Main Street to Riverside Drive; staff recommendation is to proceed; public comment will be heard."
• Provide staff reports or background materials with the agenda. When commissioners and the public have the same information, better decisions result.
• Allow adequate time for public comment. Do not rush. If many people wish to comment, extend the comment period rather than cutting it short.
• Explain the reasoning for decisions. When a motion is made, the maker should state the reason. When a vote is recorded, commissioners who voted in the minority should be permitted to state briefly why they dissented.
• Prepare careful minutes. Include enough detail that the minutes serve as an accurate record of what was discussed and decided.
• Record meetings. These are excellent public service tools. Recordings permit people who cannot attend to observe the meeting later.
• Make recordings and minutes available promptly. Delay in making public records available diminishes their utility.

Pictures, Numbers and Infographics

Idaho's Open Meetings Law runs on clocks and counts: how many days of notice, how many hours for the agenda, what share of the board must vote to close the door, and what a violation costs the member who joined it. These are those numbers, straight from the statute.

By the numbers

• 5 calendar days: minimum notice for a regular meeting, with the agenda posted at least 48 hours ahead. A board that meets on a set schedule at least monthly can meet the notice rule with one yearly calendar. Idaho Code section 74-204
• 24 hours: minimum meeting and agenda notice for a special meeting, unless a real emergency exists and the reason is stated at the start of the meeting. Idaho Code section 74-204
• Two-thirds: roll call vote needed to go into executive session. The motion must name the specific subsection that allows it, and no final action may be taken behind the closed door. Idaho Code section 74-206
• 10: lettered grounds, (a) through (j), for an executive session. Two of them belong only to the pardons and parole commission and the juvenile custody review board. Idaho Code section 74-206
• $250, $1,500 and $2,500: civil penalty ceilings for a member who takes part in a violating meeting, who knowingly violates the law, and who knowingly does it again within 12 months. Idaho Code section 74-208
• 30 days: time to sue to void an action taken at a meeting that broke the law. Other suits under the chapter have 180 days. A board that is told of a violation has 14 days to respond, then 14 more to cure it. Idaho Code section 74-208
• 2nd Monday: of each month: the regular meeting of every board of county commissioners, at the county seat. All of its meetings must be public. Idaho Code section 31-710

Knowledge Check

Test your understanding. No scores are saved: this is for your own review.

1. According to Robert's Rules of Order, which of the following is required for a motion to be debated?

A motion requires approval from the chair before debate beginsA motion must be seconded by another member before debate can occurA motion becomes debatable only after a vote is calledThe chair can choose to allow debate on any motion

2. Under the First Amendment, can a county commission restrict public comment because of the viewpoint of the speaker?

Yes, if the restriction is announced in advanceYes, if the commission votes to restrict certain topicsNo, viewpoint-based restrictions on speech violate the First AmendmentYes, the commission can restrict any comments that are critical of commissioners

3. Under Idaho Code § 74-206, which of the following is NOT a permitted reason to hold an executive session?

To discuss a controversial development proposal that the public might object toTo discuss the discipline of a county employeeTo discuss legal strategy regarding a pending lawsuitTo discuss negotiating positions with a labor union

4. What must county commission minutes include according to Idaho Code § 74-205?

A verbatim transcript of all discussion and commentsOnly the final decisions, without details about how commissioners votedNames of members, general matters discussed, and a summary of reasoningMembers present, all motions and their disposition, and the results of all votes (with each member's vote by name on a member's request)

5. Under what circumstances can a commission chair remove a speaker from a public meeting?

When the speaker is criticizing the commission's decisionsWhen the speaker is engaging in disorderly conduct, shouting, threatening, or refusing to yield timeWhen the speaker's tone is disrespectful to commissionersWhen the commission votes that the speaker is no longer welcome

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