Executive Session Decision Questioned

I went to the  Joint Committee on Administrative Regulation Review because they were going to talk about (9 AAC 52) Proposed Regulations Relating to Executive Branch Ethics.  They also covered Regulations Relating to Oil and Gas Tax.  [AAC = Alaska Administrative Code.]


There's a lot that happened in both of these, but what I'd like to spotlight here happened at the end of the meeting.  Or, to be more precise, when they went into Executive Session.  As everyone was leaving, Lisa Demer, a reporter for the Anchorage Daily News came rushing in.  I know Lisa from when I blogged the political corruption trials in Anchorage.  She did spot-on reports that summarized the day's events managing to get in all the key points - at least as I saw them - in the strict space limits and deadline pressure she had.   I ran into her yesterday;  she'd just arrived to cover for the ADN for three weeks, replacing Sean Cockerham. 


She rushed right up to the chair of the committee (I found out later, she'd been in the Press Room, across the hall, watching the hearing on the tv monitor) and introduced herself as the new ADN reporter and then politely, but firmly, asked why the meeting was going into executive session.  The chair, Rep. Wes Keller, who I thought had run the meeting with a nice balance of good humor and respect, clearly wasn't expecting this challenge to the decision to go into executive session and from what I heard, didn't really give a very substantive response.  Lisa had her little tape recording going, so she has the exact exchange somewhere. 

[Photo:  Reporter Lisa Demer asking Chair Rep. Wes Keller why the meeting was going into executive session.  Rep. David Guttenberg looks on.]


I was impressed.  It hadn't occurred to me to question why they were going into executive session.  In any case, I checked with someone afterward about the basis for going into executive session.  The Uniform Rules*, specifically Rule 22 Open and Executive Sessions, says:

(a) All meetings of a legislative body are open to all legislators, whether or not they are members of the particular legislative body that is meeting, and to the general public except as provided in (b) of this rule.

(b) A legislative body may call an executive session at which members of the general public may be excluded for the following reasons:

(1) discussion of matters, the immediate knowledge of which would adversely affect the finances of a government unit;

(2) discussion of subjects that tend to prejudice the reputation and character of a person;

(3) discussion of a matter that may, by law, be required to be confidential;
(4) discussion of a matter the public knowledge of which would adversely affect the security of the state or nation, or adversely affect the security of a governmental unit or agency.
(c) When a legislative body desires to call an executive session in accordance with (b) of this rule, the body shall first convene as a public meeting and the question of holding an executive session shall be determined by a majority vote of the members present.
(d) The provisions of this rule may not be interpreted as permitting the exclusion of a legislator from an executive session, whether or not the legislator is a member of the body that is meeting. A legislator not a member of the body holding an executive session shall, however, be subject to the same rules of confidentiality and decorum as pertain to regular members of the body. [Emphasis added]

So, are any of these reasons for executive session applicable to today's meeting?

(1) discussion of matters, the immediate knowledge of which would adversely affect the finances of a government unit;

It's hard to imagine this was the case.  They were, as I understand it, going to talk about regulations for  implementing ACES.  They had already gotten testimony from Marcia Davis (I didn't catch her title at the meeting, but there is a Marcia Davis listed as Deputy Commissioner for the Department of Revenue, which would be completely appropriate to what she was reporting on)  with a lot of detail.  This doesn't seem a likely reason.

(2) discussion of subjects that tend to prejudice the reputation and character of a person;

There was nothing to indicate they were going to talk about a person or that the discussion might prejudice someone's reputation.  Also not likely.

(3) discussion of a matter that may, by law, be required to be confidential; 

Possibly, but there was nothing to indicate this, and no law that would require it was cited. 

(4) discussion of a matter the public knowledge of which would adversely affect the security of the state or nation, or adversely affect the security of a governmental unit or agency.

I know that our national security is connected in some ways to oil, but this hardly seems a possible reason.

None of these seems a likely reason, but if one was, it would seem to me that the Chair should know which it is and should have been able to cite the reason directly in response to Lisa Demer's question. 

One more issue is raised by reading these rules.  

(c) When a legislative body desires to call an executive session in accordance with (b) of this rule, the body shall first convene as a public meeting and the question of holding an executive session shall be determined by a majority vote of the members present. [Emphasis added]

The executive session was preceded by a public meeting, but there was no vote.  There wasn't even a discussion of whether they should go into executive session.  

Now, my contact also suggested another possible reason for an Executive Session, since they were discussing proposed regulations.

AS 24.20.100. Research and Drafting Services For Legislators.

Members of the legislature may utilize the research and bill drafting services of the Legislative Affairs Agency. Requests by members of the legislature are confidential. Staff services for members of the legislature shall be accomplished subject only to the priority of assignments determined by the council.

I know that legislators can request the Legislative Affairs Agency to do research and to draft bills and I understand that their requests are confidential unless they sign off to allowing them to be public.  But this was not about drafting legislation or about research.  This was about setting up the regulations to implement the new laws affecting Oil and Gas Taxes.

There may well be a good reason for going into executive session, but if there was, it clearly wasn't on the tip of the Chair's tongue when he was asked why it was happening.  Since the Uniform Rules specifically state that meetings should be open to the public unless certain expections occur, it seems reasonable that the Chair should be able to specifically identify the reason.  There aren't that many.  And the rules call for a vote before going into executive session.

I would note that the Legislative Council also went into Executive Session last week, and I don't recall any discussion or vote about that decision.  And in both cases, the Executive Session was actually part of the printed agenda.


Here's Lisa in the ADN spot in the press room during the Executive Session. 



*I explained the uniform rules in an earlier post.  They govern how the House and Senate rule themselves.