They Have Rules for That

Note: This story was updated at 2:50 on Nov. 1 to reflect new information about the October commission meeting. 

 

By Seth Ogilvie, Idaho Reports 

 

In August, one of the most influential lobbyists in Idaho and the mayor’s pick for Boise City Council walked into the Salmon River Room for an airport commission meeting at the Boise airport. At the meeting, they discussed Frank Walker’s run for city council.

They did not break the law, and they did not violate any election rules. That is primarily because of geography. If either Russell Westerberg, the current airport commission chairman, or city council candidate Walker, who is also a Boise airport council member, worked 55 miles west in Oregon, they would have violated state election rules. If they worked for the federal government, they would have broken the Hatch Act. However, they work for the city of Boise, and the city and the state of Idaho have few regulations on what is acceptable electioneering in this state.

The official minutes from the meeting read like this: “Mr. Walker announce(d) he would be running for City Council. Mr. Westerberg backed Mr. Walker for council.”

In an October e-mail to Idaho Reports, Walker said he didn’t ask for the endorsement. “I did state that I was a candidate for office at the meeting. It was informational, and I was not seeking anything more,” he said.

The Oregon law instructs public employees to “not engage in political advocacy themselves while on the job or acting in their official capacity.” Similarly, the federal Hatch Act states “an employee may not engage in political activity—while the employee is on duty; in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof.”

Neither Idaho nor Boise city code address the issue.

The event didn’t end with Walker’s proclamation. Commissioner Westerberg announced his support for Walker and then handed him a campaign check in the public meeting. “I had no idea that Russ Westerberg was going to announce his support, give me a check or ask others to do the same,” Walker said. “It took me by surprise and I was not comfortable with the matter.”

Westerberg saw it differently, telling Idaho Reports there was “nothing untoward whatsoever.”

“Walker announced he was running for city council, which was totally appropriate,” Westerberg said. “I used the occasion to take a check out of my pocket that I’d already prepared…. I wanted to be the first to support Frank.”

Under Idaho law, Westerberg is correct. The closest I could find to a prohibition on actions like this is the Idaho BRIBERY AND CORRUPTION code:

“No public servant shall:

(a) Without the specific authorization of the governmental entity for which he serves, use public funds or property to obtain a pecuniary benefit for himself.

(b)  Solicit, accept or receive a pecuniary benefit as payment for services, advice, assistance or conduct customarily exercised in the course of his official duties.”

The code doesn’t deal directly with donations and endorsements within a public meeting while representing the city in an official capacity, nor does any other piece of the city or Idaho code.

“This is a good reminder of why work of the legislative working group on campaign finance and ethics reform is so important,” said Ada County Chief Deputy Clerk Phil McGrane. “Situations arise where people engage in activities that the legislature and our laws haven’t anticipated.”

The Campaign Finance Reform Legislative Work Group has worked over the summer to modify the current campaign finance laws. The group, however, has focused on campaign contributions and disclosures, not electioneering.

The rules on electioneering for public employees and officials in Idaho are murky, or nonexistent. No piece of Idaho code prevents what happened at the airport commission meeting. No section of Idaho code expressly forbids council members, commissioners or even lawmakers from receiving contributions in committee meetings, or on the floor of the Idaho House or Senate. The line where campaigning stops and the public work begins is not clearly defined by law.

Lauren McLean, Boise City Council President Pro Tem, was also at the meeting. “I immediately contacted the commission’s attorney and asked that a briefing on electioneering be presented at the next meeting,” McLean said in an interview with Idaho Reports.

In the October commission meeting, the issue of ethics did come up. The minutes haven’t yet been posted, but Sean Briggs, the marketing manager for the Boise Airport, says commissioners received a presentation about the roles and responsibilities of the commission. “This included a slide at the end that talked about ethics, focused on conflict of interest,” Briggs said.

In an e-mail to Idaho Reports, Walker said “an attorney from the City spoke to me about the matter, and I assured her that I understood the impropriety of such a display and that it was certainly not my intent to have that happen.”

That leaves Boise voters with “impropriety,” as Walker put it, but nothing illegal.

As for the state, a more substantial issue is at hand: Should Idaho have rules about electioneering for public employees and elected officials? McGrane thinks so. “Clearer guidance on what is and isn’t appropriate would benefit everyone,” he said.

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