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  Kovacs and KC's Kangaroo Court

  Jan 7, 2024

  This article discusses the recordings that Kootenai County Assessor Bela Kovacs made of his meetings
  with other County employees.   For a more thorough review of Kovacs’ activities as Assessor,
  see the accompanying article, Kovac's Gift of Transparency.

  Kootenai County Board of Commissioners recently convened a meeting to discuss the fact that KC Assessor Bela Kovacs had made recordings of some of his interactions with Treasurer Steve Matheson without his knowledge. 

  The meeting was called by Matheson in order to inform the public of what had occurred, and also to raise questions regarding the legal status of these recordings.   But instead of providing answers and clarity, the effect of the meeting was to alarm, confuse, and mislead the public.  

  The point of confusion had to do with the problem of whether or not private audio recordings should be considered “personal notes”, since, according to public records laws, personal notes are not considered public records.   There appeared to be a difference of opinion on this matter and as a result of this confusion, many of the accusations directed at Kovacs were entirely inappropriate and misleading.

  It would have been much more helpful if the Commissioners had sought clear answers to questions regarding the status of these recordings, and cooperation from Kovacs before disclosing anything to the public.   So why didn’t they?

  Why, instead of consulting with attorneys privately, (including Kovacs' attorney) about this very important matter, did county officials choose to make a spectacle out of the fact that Kovacs made private recordings and excoriate him publicly, when no evidence was presented that he had done anything illegal or unethical?

  And why is the county demanding that Kovacs hand over his private recordings, when they cannot even prove that such records exist, and they do not have a plan for what to do with said recordings, and they admit that entering them into the public record will create enormous problems?   

  These are disturbing questions and the deeper we look into Public Records laws and the behavior of certain county officials, the more the whole drama looks like a rank political stunt. 

  Private Recordings are not Public Records

  We are not lawyers and have no knowledge of what the contents of these recordings might be. But we are able to read statutes and draw logical, common-sense conclusions.   And from an initial reading of Public Record statutes, it is not at all clear that Kovacs' recordings should be considered public records.   At the very least, this is debatable. 

  The following slides are from a training program for county employees on Public Records law.  We have included the complete slide show here, as well as a link to Idaho Title 74 Chap 1, Public Records Act.  

  From our reading, the following facts stand out.

  1. Idaho is a single party consent state.   This means that Kovacs, or anyone else is legally entitled to make recordings of any meeting in which he is present.  
  2. “Personal notes created by a public official for their own use shall not be a public record unless notes are shared with other persons or entities.”   Kovacs claims to have made the recordings as personal notes, and he believed that they should not be considered public records unless they were shared.
  3. At Matheson’s request, Kovacs provided access to 15 recordings.  So as of Dec 21, fifteen of these recordings became public records, subject to FOIA requests.  There is no dispute about this. 
  4. It would also appear that, based on Kovac's intention to keep the rest of these recordings private, all additional recordings are still the private property of Kovacs.

   

  It seems perfectly reasonable for Kovacs to have assumed that it was legal for him to record these conversations, and that until he released some of them to Matheson, all were his personal property.   

  But that is not the impression that anyone watching the BOCC meeting would arrive at.   The grandstanding and theatrics were over-the-top.  

  The overall impression the average person would get from watching this charade is that Kovacs created an enormous number of problems for the county through ignorance and malice.  It was even implied that he may be criminally liable for “destroying public records”,  “recording an executive session,” and “targeting” other elected officials.   None of these accusations were justified.   

  The misleading questions that were put to Kovacs should not have been asked by anyone familiar with Idaho Public Records, especially when Kovacs did not have an attorney present.    

  One can certainly make the case that all Kovacs' recordings,—including those that have not been released or even identified,—should be considered public records.   And in fact, Prosecuting Attorney Mortensen inferred this, without explaining his legal reasoning.   But this is a contestable interpretation, and one that opens up an enormous can of worms for both Kovacs and the county.  

  Electronic notebooks, audio-to-text converters, and ubiquitous recording devices have blurred the distinction between written notes and audio recordings, and it is not clear from an initial reading of Idaho Public Records law whether any such distinction between electronic and hand-written notes exists.   

  So it appears that denying Kovacs' right to keep private records private is extremely problematic, and could result in legal action against the county.   Under such circumstances, discretion, and the presumption of innocence is called for, not political theatre.  

  Matheson’s Questions about Recordings

  Whether or not one agrees with Mortensen's view that Kovac's recordings are public records, it is clear than none of these problems arose until Kovacs shared certain recordings with Matheson.   So it was Matheson who caused Kovacs' recordings to become “Public Records” and it was Matheson who called the ill-advised December 28^th public meeting.

  Matheson claimed that he called the meeting to clarify the legal status of Kovacs' recordings, but this cannot be true because the exact opposite was done.   The legal status of Kovacs' recordings is now more muddled than ever, and the real purpose of the meeting appeared to be a to put Kovacs in a difficult position legally, and also to give his political enemies an opportunity to act indignant, muddy the waters, and to create the public perception that Kovacs was to blame for  the County's problems.  In other words, a political hit job.  

  Matheson asked the following questions, rhetorically, and we have answered them based on a common sense reading of the Public Records act that respects Kovac's right to maintain private notes from his meetings, and if requested, to release them as public records in an orderly fashion.   

  However, as an elected official who has access to legal counsel, Matheson should have been able to determine the answers for himself instead of using a public forum to sow confusion.  Obvious grandstanding. 

  1. How many other records exist and where are they stored?   Besides the fifteen recordings that have been released, all other recordings are currently Kovacs' private property.
  2. Have any taxpayers been recorded?  It is legal to record anyone.   If personal information about a private citizen is part of any public record, it is exempt from public disclosure.   (74-109(3)).
  3. How can we facilitate the immediate and unedited release of these public records?  All fifteen public recordings have been given to the Prosecuting Attorney for review.
  4. What steps has Bela taken to comply with Kootenai County’s Document Retention Policy to assure that these audio recordings are available for public record requests, discovery, subpoena, or other lawful investigation.  (See previous questions).   And Why is Matheson so concerned about “Discovery” and “Subpoena”?  
  5. Did Bela provide an executive session recording to his personal outside legal council who is suing the county?  Any such action would be protected by Attorney Client privilege.  And even if a recording of an executive session was made a public record, most of it would be exempt from public disclosure.  

   

  The fact is, Matheson’s entire line of questioning is misleading and unhelpful.   He intentionally raises seemingly controversial issues, such as recording taxpayers and executive sessions, when in fact, any personal information from taxpayers, or compromising information from executive sessions is already exempted from Public disclosure, and Matheson knows this. 

  The dramatic reading of all these pointed questions, without any serious attempt to provide answers was kabuki theatre, intended to discredit Kovacs.   But it got even worse.  Matheson's sixth and final point was not a question at all, but a call to arms.  

  1. "As anyone who has worked with Bela knows, he often inaccurately memorializes his personal interactions through email.   Any employee who has been reprimanded or terminated based on these emails may want to review these newly discovered public records."   

   

  This is crazy!  Who benefits from chaos and confusion?    We have already seen the attempt to sow confusion, and undermine Kovacs' credibility.  Now we see an overt attempt to encourage residents, and especially disgruntled employees, to flood the county with public records requests for records that may or may not even exist.   

  This is an utter circus, and it is the opposite of what needs to happen.

  It is beyond obvious that Mattheson and Kovacs are not on good terms and it appears that Kovacs has other political enemies.  But why the absurd antics?  Why the over-the-top pearl clutching?  

  What was the purpose of this ridiculous spectacle that accomplished nothing and discredited everyone involved?  

  Perhaps Kovacs' explanation of why he created these recordings may provide some clues.   

  An Outside Investigation?

  “I have made it known that I have made a request for an investigation. . and am cooperating with an outside agency . . .I have sought guidance as to what I ought to share . . . My intentions are to make this (the recordings already released to Matheson) a part of that investigation."—Kovacs, 2:30 

  AHA! So Kovacs is unhappy with the transparency of the Treasurer's office as it relates to the Assessor's office, and he is pinning his hopes on an outside investigation.  The Idaho Tax Commission is involved, and it may or may not be willing to investigate matters in the Treasurer's office that are of concern to him.   What's the problem with a little cooperation on matters of mutual concern?  Perhaps not everyone loves transparency.  

  Evidently, now that Kovac has cleaned up many of the problems in the Assessors office, (it's true, see for yourself), he wants to see that the same types of problems with "undocumented procedures," and outdated computer systems that he has tried to correct in his own office are fixed throughout the county government.  And to do this he needs to bring in an outside agency.  But trying to convince a recalcitrant bureaucracy to reform itself is a extremely dangerous task.  No wonder Kovacs has so many enemies!!!     

  It is unclear what Matheson thinks of the idea of an "independent investigation".  He has said in the past that he would "welcome" such an audit, but in a  Dec 7 email, Kovacs accused Matheson of attempting to "intervene, narrow, direct, and control the investigation."  And it was likely concern over the prospect of an independent review, that caused Matheson to demand access to Kovacs' recordings in the first place.   

  So it is hard to know whether the proposed investigation, or Kovacs' intention to refer to the recordings as part of the investigation is the source of such contention.   But it may very well be the dangerous combination of "independent" audits and possibly incriminating recordings that have given Kootenai County's government a nervous breakdown.

  To what lengths will our leaders go to, to sabotage and discredit a pesky, but competent County Assessor?  What exactly is at stake?  

  What is Matheson so Worried About?

  By "incriminating" we do not mean felonious, but it is easy to imagine that something on Kovacs recordings may cause certain legal problems for county officials, or at least embarrassment. 

  As we have already pointed out, Matheson inquired specifically about the availability of Kovacs' recordings for “discovery” and “subpoena”.   And when Kovacs explained why he had made the recordings, suspicion of misconduct by other Kootenai officials was one of the reasons:   “Certain actions of the commissioners and other elected officials have given me cause for concern as to whether or not the conduct and the actions have all been narrowly legal. (15:00)”. YIKES. 

  Another indication that there may have been some drama going on behind the scenes was when the Prosecuting Attorney was asked if he had  found anything "prosecutable" in the recordings.  He responded: “I don’t know the answer to that question yet. . . I have begun an analysis to answer that question in the future. . . (3:35)”    

  On first impression, most people would assume that Mortensen was referring to illegal recordings made by Kovacs, but that is unlikely,  since all Kovacs' recordings made legally.   It is  more likely that he was considering the contents of the recordings themselves. 

  And this is unfortunate because If there is incriminating information on these recordings, it would almost certainly poison relations between County officials to such an extent that the "outside investigation" that Kovacs has proposed will be sabotaged by recriminations and threats of criminal prosecution.  And at that point, all hope of any positive outcome for the investigation or for any other county business requiring mutual cooperation among officials, would be lost.

  What is the End Game? 

  It seems as though our county officials are in a game of mortal combat, while the only good outcome for the People of Kootenai County, is one where Kovacs and Matheson work together in good faith, "to find out where the systematic problems are" and cooperate on fixing them.  But that would involve political enemies coming together for the good of the public.  What are the odds?  

  We don't know if any reconciliation could possibly come about, or if it is even desired.   It is impossible to impose amity and cooperation on people who prefer acrimony and blame-throwing.  

  Maybe the whole Board of Commissioners should lock themselves up in an executive session with Matheson, Kovac, a bunch of lawyers, and no tape recorders, and stay put until they can figure out a way to work together, and avoid such ridiculous and embarrassing spectacles in the future.   

  This is, in fact, exactly what should have been done in the first place, but now it may be too late.   

  There may be no hope for any form of reconciliation, or any good outcome from an "outside investigation", and we might have to continue to put up with ridiculous levels of finger pointing, outdated records systems, lack of transparency, and public records mayhem.  What fun!

  But there is always a silver lining. 

  At least those politicians that were responsible for this travesty have exposed their true colors, and there is always hope that they will live to regret it, and eventually go down in flames.   

  And if Kootenai County residents are never again exposed to such a ridiculous and insincere shame-a-thon as the BOCC meeting on Kovacs secret recordings, that would be a huge bonus.   

  But best of all, Kovacs has done an enormous service, by reminding all Kootenai leaders that they may be being recorded at any time, and they should act accordingly.   

   

   

   

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