Schools chief Sherri Ybarra made an unsuccessful move to block the transfer of IT and data management staff away from her office during a special State Board of Education meeting Monday afternoon.

But the live video stream of the virtual meeting failed completely, which could raise questions about the openness and legality of the meeting.

As it has for the past several Mondays, the State Board met at 3 p.m. for a special, remote meeting to consider Idaho’s response to the coronavirus pandemic and conduct other business. In the past, these remote meetings have been streamed live via the State Board’s Facebook page.

In a statement issued Monday night by spokesman Mike Keckler, the State Board said it believed it was following Gov. Brad Little’s March 18 proclamation regarding open meeting law, but that access to Facebook was prevented by technical difficulties.

“We are awaiting legal guidance from the Attorney General’s office,” Keckler wrote. “If required, votes on the three action items will be repeated as soon as possible.”

State Board staff were aware the stream failed Monday, posting a note to Facebook about 10 minutes after the meeting began.

“Due to technical difficulties with Facebook Live, today’s Special Board Meeting will not be streamed. The meeting will be recorded and the recording will be posted to our page later this evening. Thank you for your patience!”

Board members continued the meeting and conducted business rather than rescheduling it until the stream was working.

Idaho law requires governing agencies, such as the State Board, to conduct the people’s business in public via open meetings.

“The people of the state of Idaho in creating the instruments of government that serve them, do not yield their sovereignty to the agencies so created,” Idaho law states. “Therefore, the Legislature finds and declares that it is the policy of this state that the formation of public policy is public business and shall not be conducted in secret.”

A State Board spokesman provided Idaho Education News reporters with a call-in code to listen to Monday’s meeting 14 minutes after it started. It was not clear whether the call-in code was available to the general public. The meeting agenda listed the failed Facebook stream as the only method for public participation, and did not provide a call-in number or an alternative way for the public to listen to or view the meeting.

Generally, if governing agencies are found to have broken Idaho open meeting law, any action taken during the illegal meeting is null and void. Agencies then generally “cure” the violation by posting notice of the violation and rescheduling a new meeting to conduct a public do-over of all action nullified during the illegal meeting.

As for the meeting itself, it included updates about the state’s response to coronavirus pandemic and effects on higher education and K-12.

It also included the latest flare up in a tug-of-war over IT and data management staffers and funding involving Ybarra and the State Department of Education, the Legislature and the State Board that dates back to the recent 2020 legislative session.

When it set the public school budget, the Joint Finance-Appropriations Committee and the Legislature stripped 18 full-time positions and $2.7 million away from Ybarra, saying it wanted to consolidate all data management under the State Board.

Ybarra resisted and said she was caught off guard. But the Legislature moved ahead.

That set the stage for Monday, when Ybarra brought a memorandum of understanding to the State Board for consideration.

A draft of the document read, in part:

• “The current personnel of the technology group shall be retained in their respective posts at their present location to operate the Idaho System for Educational Excellence.”
• “It shall remain the duty of the superintendent to provide day-to-day direction and supervision of said group to discharge her constitutional function and existing statutory duties.”

Ybarra said the change, due to occur July 1, would interfere with her ability to do her job.

“The disruption to my staff will be significant and immediately impact our ability to support schools and students and the loss of those 18 FTP further illegally prevents me as the superintendent from discharging my duties and it will disrupt my ability to serve,” Ybarra said. “I have to avoid this impairment as an executive elected official with constitutional responsibilities.”

Several State Board members said they were in an awkward spot, but felt compelled to follow the Legislature’s action, which was signed into law via a budget bill.

“I don’t believe we’ve ever been in position, or ever will be in in a position, to pick and choose what appropriations bills we’re going to support,” Linda Clark said. “There is no precedent for that.”

Ybarra’s motion failed on a 2-5 vote, with only board member Shawn Keough backing her.

Critchfield said the State Board staff will work together between now and July 1 to ease the transition.

But Ybarra may not be finished with the issue. The State Board of Examiners has posted notice that former lieutenant governor and Attorney General David Leroy has been appointed as special deputy attorney general for the purposes of representing Ybarra in analyzing her 2021 budget, which is where the transfer takes place. Leroy ran for Congress unsuccessfully in 2018.