Idaho's most important elections are won in the primaries. If you want to have a say in how Jerome County is run, you have to vote in the primary.
What happens behind closed doors is hurting Idaho.Using executive (closed) sessions and nondisclosure agreements to meet privately with economic development groups raises serious Open Meeting Law concerns. A commissioner who knows the law protects it.
Executive session is not a private lunch. NDAs are not a license to govern in secret. Both are narrow, statutorily-defined exceptions — and Idaho law is clear that the formation of public policy belongs to the public.
Idaho Code § 74-206 lists the specific grounds on which a public body may enter executive session — pending litigation, personnel matters, acquisition of real property, records exempt from disclosure. Meeting privately with economic development groups, developers, or lobbyists to discuss county policy is not a listed ground.
When a public body closes its doors for a conversation that does not fit a listed exemption:
Idaho Code § 74-206(1): “An executive session at which members of the public are excluded may be held, but only for the purposes and only in the manner set forth in this section.” The exemptions that follow are exhaustive. There is no “general business” exception.
In Jerome County, the person typically advising commissioners in executive session is the county attorney — also the person most residents would turn to in order to report a suspected Open Meeting Law violation. That conflict is the core problem. When the referee is on the field, the whistle rarely blows.
Under Idaho Code § 74-208, the Attorney General, county prosecutor, or any affected person may bring suit to enforce the Open Meeting Law. Knowing violations carry civil penalties; actions taken in violation can be voided by the court.
Idaho's Open Meeting Law begins with a simple declaration: the formation of public policy is public business and shall not be conducted in secret. (§ 74-201.) Yet across the state — including in Jerome County — commissions routinely close their doors to meet with local economic development organizations, citing the “trade or commerce” exception in § 74-206(1)(e). After the Idaho Supreme Court’s Labrador decision, that practice does not survive legal scrutiny.
The exception permits executive session only 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.” Every word matters. The negotiations must be preliminary. The subject must involve trade or commerce. And the governing body itself must be in competition with governing bodies in other states or nations.
A county commission is not a market participant. It does not buy, sell, bid, or compete in commerce. Its role in economic development is governmental: zoning, permitting, tax policy, infrastructure decisions — all exercised under established statutory criteria like the Local Land Use Planning Act, not through competitive negotiation.
Economic development organizations, by contrast, are separate entities. They recruit businesses, pitch incentive packages, and compete with similar organizations in other states. That is their function. It is not the function of a board of county commissioners.
When an economic development director briefs commissioners on a prospect, the commissioners are not entering a competitive transaction. They are being asked to exercise governmental authority. A conditional use permit has statutory criteria. A tax exemption has statutory criteria. The county applies its code equally to whoever comes through the door. Even if the prospect is also looking at other states, the competition exists between economic development organizations — not between governing bodies. The statute does not say “in competition with businesses in other states.” It says governing bodies.
If the closed session is to negotiate the county’s funding agreement or services contract with the local economic development organization, that also fails the (1)(e) test. The county is not in competition with another state’s governing body to hire its own local EDO. There is no interstate competitive interest to protect because there is no interstate competition. A taxpayer-funded service contract belongs in open session.
In Labrador v. Idaho State Board of Education, Docket No. 51580 (Idaho Supreme Court, Dec. 2024), the Court directly addressed § 74-206(1)(e). The State Board of Education had used closed sessions to negotiate a roughly $550 million acquisition of the University of Phoenix while the University of Arkansas system was also bidding — a head-to-head competition between two governing bodies for the same commercial asset. The trial court upheld the executive sessions under a broad reading.
The Supreme Court reversed. The Court held that “preliminary negotiations” and “is in competition with” are narrow exceptions to the general policy of open meetings. Most importantly: the statute requires an actual state of competition between governing bodies, not merely a belief that competition exists.
If the State Board of Education could not sustain a (1)(e) executive session while engaged in a direct bidding war with another state’s governing body over a half-billion-dollar acquisition, a county commission receiving an economic development briefing has no legitimate basis for closing its doors under this subsection.
The Idaho Association of Counties (IAC) trains county officials on the Open Meeting Law. IAC training materials emphasize that executive session exceptions “shall be narrowly construed” and that commissioners may be “penalized personally” for violations. IAC Executive Director Seth Grigg has presented to county officials that a public meeting is the convening of a governing body to make a decision or deliberate toward a decision. If commissioners are deliberating toward any decision related to economic development — support, incentives, zoning, infrastructure — that deliberation is a public meeting.
IAC’s own best-practices materials previously noted there was “no case law guidance” on the trade or commerce exception. After Labrador, that is no longer true. The Idaho Supreme Court has now spoken, and it has drawn the lines narrowly.
The Idaho Attorney General’s Open Meeting Law Manual warns that exceptions must be narrowly construed and that no entity should try to “shoehorn” an issue into an executive session exception. The manual further confirms that even where an executive session is authorized, no final action or decision may be taken behind closed doors.
There is no legitimate prima facie basis for a county commission to enter executive session to meet with an economic development organization under § 74-206(1)(e). The governing body is not a competitive party in matters of trade or commerce. The EDO may be, but its competitive activity does not transfer to the county commission. County commissions should adopt a clear policy: all economic development briefings and deliberations are conducted in open session unless the county’s own legal counsel certifies in writing that every element of § 74-206(1)(e) is satisfied under the narrow construction standard set in Labrador. Absent that certification, the doors stay open.
The people of Idaho did not yield their sovereignty to the agencies they created. The formation of public policy is public business. Economic development decisions that affect land use, water, power, infrastructure, and the character of a community are among the most consequential policy decisions a county commission makes. They belong to the public.
Why secrecy agreements fail under Idaho law.
Economic development groups and large business interests routinely ask county commissioners to sign nondisclosure agreements before sharing information about business prospects. It sounds reasonable. A company doesn’t want competitors to know where it’s looking. The economic development organization treats confidentiality as standard practice. The commissioners sign.
But the moment they do, they’ve created a problem. They now have a private contract that says they can’t talk about something publicly — while Idaho law says they must.
An NDA cannot override any of these statutes. A county commission cannot sign away the public’s right to know what its government is doing.
University of Idaho President C. Scott Green signed an NDA with the University of Phoenix and testified that it prevented him from discussing the $550 million acquisition publicly. The deal was negotiated in three secret meetings under a code name. The public got one day’s notice before the vote, and the notice didn’t even name the University of Phoenix.
Attorney General Labrador sued. The Idaho Supreme Court reversed the lower court and held that the executive session exception for trade or commerce must be read narrowly — not broadly enough to cover what the Board of Education did. The NDA didn’t save those secret meetings. It was part of the problem.
The NDA says the commissioners can’t discuss the prospect publicly. So they enter executive session under § 74-206(1)(e), claiming “trade or commerce.” The NDA forces the secrecy, and the executive session gives it a legal-sounding label. The two work together to keep the public in the dark about decisions that will affect their land, water, power, and community.
But that exception requires the governing body itself to be “in competition with governing bodies in other states or nations.” A county commission does not compete. It governs. It processes permits, applies zoning codes, and sets tax policy under established criteria. The economic development organization may compete with groups in other states to recruit businesses, but that competition does not transfer to the commissioners. The Idaho Supreme Court confirmed this standard in December 2024, and the Idaho Association of Counties has long trained commissioners that these exceptions must be “narrowly construed.”
If a company wants to do business in the county, any discussion involving county action — permits, zoning, tax treatment, infrastructure — belongs in open session. The county can protect genuinely proprietary business information like manufacturing processes under the trade secret exemption in § 74-107(1). But the fact that a company exists, that it wants to build here, and that it is asking for government action is not a trade secret. It is public business.
County commissioners who sign NDAs that prevent them from conducting public business in public are not protecting economic development. They are undermining the foundation of open government that Idaho law requires.
Every executive session motion names the exact § 74-206 subsection. No generic motions.
Two-thirds roll-call vote in open session, in the minutes, before the door closes.
Discussion in executive session stays strictly within the purpose stated in the motion.
Votes, decisions, and commitments return to open session. Executive session is not for deciding.
Every claim on this page is grounded in public law, public records, or directly observable public conduct.
"The law is not a suggestion. When you close a door the statute says should be open, you are not governing — you are hiding."— Jerry Holton