Friday, June 17, 2011

Making Policy Behind Closed Doors - Port and Planning

KSKA had a report on the Mayor's State of the City speech and developments with Title 21 at the Building Operators and Managers Association luncheon last week and today's ADN has a story on the Port Authority.  The common factor - as I see it - is that both represent policy development by the Mayor behind closed doors.

The Port 

Lisa Demer at the Anchorage Daily News writes, 
Mayor Dan Sullivan, trying to find a solution to the troubled Port of Anchorage expansion project, brought shippers, government officials, and other interested parties to a closed-door port summit Tuesday at City Hall.
"This is a project that's too big to fail, too important to fail," Sullivan said.
City officials said ahead of time that the meeting was closed to the public so that parties could speak freely. The mayor said restricting access would also allow proprietary business information to be discussed.   (emphasis added)

Title 21

This one's a little more complicated.  The Municipality of Anchorage went through a long, eight year process to develop a long term plan for city development including changes to Title 21 - the Muni's land use planning code.  A local citizens group - Anchorage Community Council has a timeline of the process (from their point of view, of course):

  • The Title 21 Rewrite Project was started in 2002 to implement the city’s adopted comprehensive plans.
  • There have been five drafts, each of which has been reviewed by the public. Thousands of staff hours and volunteer hours have gone into reviewing
    and amending the various drafts.  The extensive public process has been open to anyone who desired to participate.
  • There have been multiple public hearings at the Planning & Zoning Commission and the Assembly. 
  • With each draft, input from the public, including the development community, has led to changes and improvements.
  •  By the summer of 2010, all but one of the fourteen chapters had been provisionally adopted by the Assembly. (Not counting the separate Chugiak-Eagle River chapter.)
  • “Provisionally Adopted” means that the Assembly Title 21 Committee had thoroughly reviewed, discussed, and frequently amended at least two different drafts of the code, and the final draft was found to be generally acceptable by the Assembly. 
  • Dan Coffey was a member of the Assembly’s Title 21 committee and he voted FOR every single provisionally adopted chapter.
But then,

  • On July 25, 2010, the Mayor entered into a sole-source contract with Mr. Coffey (who was no longer on the Assembly) to review the provisionally adopted chapters with an assignment to select the top ten most controversial issues in the rewrite and work with interest groups and municipal staff to resolve the identified issues.  In a political letter in late 2010 urging support for certain Assembly candidates, Mr. Coffey wrote that the mayor asked him to “re-work” Title 21.
  • In the Fall of 2010, Mr. Coffey held private meetings (planning staff was not allowed to attend and they were closed to the public) with various interest groups.  Instead of identifying and working on the top ten issues, Mr. Coffey submitted to the Planning Department redlined drafts of chapters 1 and 2 of the rewrite. [emphasis added]
  • At a meeting with Anchorage Citizens Coalition representatives in November of 2010, Mr. Coffey showed redlined drafts of chapters 1 and 2 of the rewrite.  He made it clear he is rewriting the code following his own personal opinions and biases.  He expressed disdain for planners and discounted studies that did not fit his opinions.
  • In November 2010, the Assembly Title 21 Committee stopped meeting after Mr. Coffey convinced the chair to discontinue the meetings until he finished his work.

When are closed door meetings justified?

There is always a tension between transparency and confidentiality/privacy.  The federal Freedom of Information statute identifies specific exemptions.  The basic exemptions listed are there to protect information, which if made public, could compromise
  • National Security
  • Personal Privacy
  • Trade Secrets
  • Criminal Investigations and Litigation and 
  • Physical Safety
The list has more specific items, but they tend to fall in these categories.  You can see the detailed list here.

A less legitimate reason for closed door meetings is to get things done without tipping off people who might object.  

The mayor listed two reasons for the port discussions being closed: 

  1. parties could speak freely.  
  2. allow proprietary business information to be discussed.

Yes, it's easier to say what you're really thinking in private where others can't hear you.  But people with opposing views don't get the chance to hear what you're saying and rebut it if necessary. 

There are situations where one might talk about underlying issues and personalities that people wouldn't say in public, but ultimately, I personally feel the danger of too much being hidden is greater than of too much being public.  As much as we've heard, for instance, about the danger of the wikileaks, so far the main fallout we've heard about is embarrassment and attitude realignment based on the new public understandings - such as the Arab support against Iran's nuclear projects. 

Proprietary business information is a legitimate reason for going into a closed session.  Companies do not want their competitors knowing their costs and plans.  But who is in on these discussions? 

Just one of the companies involved?  Then are enough voices at the table?  If more than one, how do they deal with one of them disclosing proprietary information?  It is, after all, the competitors, not the general public they are concerned about here. 

In any case, if there is proprietary information being disclosed, they can do what the Alaska Redistricting Board did when they talked about litigation - go into temporary executive session.  There's no reason to close the whole discussion to public observation. 

Unless they don't want the public to know what's going on.  It's much easier if no one is privy to what you're doing, because they don't ask pesky questions and point out inconsistencies or inaccuracies.  But it doesn't make for good long-term public policy. 

What the Anchorage Citizens' Coalition is saying is that after the whole process was essentially completed, and all parties had a chance to say their piece, and a great deal of negotiating and compromising had been done,  BOMA (Building Operators and Managers Association) gets to  step into the process and work privately with Coffey to make suggested changes that they would like to see. 

Not in open meetings like everyone else during long and exhaustive public process, but in private meetings. out of the spotlight, where people can't hear what is said and challenge inaccuracies. 

Yes, it will still go to the Assembly for final approval, but will the original, provisionally approved document be the starting point and will the Assembly vote on each of the newly proposed changes? 

Or will they be offered Coffey's changed document as the starting point?  And how much time will Assembly members have to scrutinize and discuss the changes?  And how much time will the interested members of the public who participated in the original 8 year process have to identify issues and explain them to the public and the Assembly? 

And now that the Assembly balance has changed, does any of this matter?  Has Sullivan simply waited until he got a majority of the Assembly to summarily throw out an eight year public process and substitute what the industry wants instead? 

It's hard to know whether my fears are justified because we don't know, in either the Port situation or the Title 21 situation what is being done. 

But, I'm adding the State Public Meeting statute so people can consider it themselves.  Why do we have such a policy and is it really being followed?

AS 44.62.310. Government Meetings Public.

(a) All meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by this section or another provision of law. Attendance and participation at meetings by members of the public or by members of a governmental body may be by teleconferencing. Agency materials that are to be considered at the meeting shall be made available at teleconference locations if practicable. Except when voice votes are authorized, the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote. The vote at a meeting held by teleconference shall be taken by roll call. This section does not apply to any votes required to be taken to organize a governmental body described in this subsection.
(b) If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body. The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. Subjects may not be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question. Action may not be taken at an executive session, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations.
(c) The following subjects may be considered in an executive session:
(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;
(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;
(3) matters which by law, municipal charter, or ordinance are required to be confidential;
(4) matters involving consideration of government records that by law are not subject to public disclosure.
(d) This section does not apply to

(1) a governmental body performing a judicial or quasi-judicial function when holding a meeting solely to make a decision in an adjudicatory proceeding;
(2) juries;
(3) parole or pardon boards;
(4) meetings of a hospital medical staff;
(5) meetings of the governmental body or any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline;
(6) staff meetings or other gatherings of the employees of a public entity, including meetings of an employee group established by policy of the Board of Regents of the University of Alaska or held while acting in an advisory capacity to the Board of Regents; or
(7) meetings held for the purpose of participating in or attending a gathering of a national, state, or regional organization of which the public entity, governmental body, or member of the governmental body is a member, but only if no action is taken and no business of the governmental body is conducted at the meetings.
(e) Reasonable public notice shall be given for all meetings required to be open under this section. The notice must include the date, time, and place of the meeting and if, the meeting is by teleconference, the location of any teleconferencing facilities that will be used. Subject to posting notice of a meeting on the Alaska Online Public Notice System as required by AS 44.62.175 (a), the notice may be given using print or broadcast media. The notice shall be posted at the principal office of the public entity or, if the public entity has no principal office, at a place designated by the governmental body. The governmental body shall provide notice in a consistent fashion for all its meetings.

(f) Action taken contrary to this section is voidable. A lawsuit to void an action taken in violation of this section must be filed in superior court within 180 days after the date of the action. A member of a governmental body may not be named in an action to enforce this section in the member's personal capacity. A governmental body that violates or is alleged to have violated this section may cure the violation or alleged violation by holding another meeting in compliance with notice and other requirements of this section and conducting a substantial and public reconsideration of the matters considered at the original meeting. If the court finds that an action is void, the governmental body may discuss and act on the matter at another meeting held in compliance with this section. A court may hold that an action taken at a meeting held in violation of this section is void only if the court finds that, considering all of the circumstances, the public interest in compliance with this section outweighs the harm that would be caused to the public interest and to the public entity by voiding the action. In making this determination, the court shall consider at least the following:

(1) the expense that may be incurred by the public entity, other governmental bodies, and individuals if the action is voided;
(2) the disruption that may be caused to the affairs of the public entity, other governmental bodies, and individuals if the action is voided;
(3) the degree to which the public entity, other governmental bodies, and individuals may be exposed to additional litigation if the action is voided;
(4) the extent to which the governing body, in meetings held in compliance with this section, has previously considered the subject;
(5) the amount of time that has passed since the action was taken;
(6) the degree to which the public entity, other governmental bodies, or individuals have come to rely on the action;
(7) whether and to what extent the governmental body has, before or after the lawsuit was filed to void the action, engaged in or attempted to engage in the public reconsideration of matters originally considered in violation of this section;
(8) the degree to which violations of this section were wilful, flagrant, or obvious;
(9) the degree to which the governing body failed to adhere to the policy under AS 44.62.312 (a).
(g) Subsection (f) of this section does not apply to a governmental body that has only authority to advise or make recommendations to a public entity and has no authority to establish policies or make decisions for the public entity.

(h) In this section,

(1) "governmental body" means an assembly, council, board, commission, committee, or other similar body of a public entity with the authority to establish policies or make decisions for the public entity or with the authority to advise or make recommendations to the public entity; "governmental body" includes the members of a subcommittee or other subordinate unit of a governmental body if the subordinate unit consists of two or more members;
(2) "meeting" means a gathering of members of a governmental body when
(A) more than three members or a majority of the members, whichever is less, are present, a matter upon which the governmental body is empowered to act is considered by the members collectively, and the governmental body has the authority to establish policies or make decisions for a public entity; or
(B) the gathering is prearranged for the purpose of considering a matter upon which the governmental body is empowered to act and the governmental body has only authority to advise or make recommendations for a public entity but has no authority to establish policies or make decisions for the public entity;
(3) "public entity" means an entity of the state or of a political subdivision of the state including an agency, a board or commission, the University of Alaska, a public authority or corporation, a municipality, a school district, and other governmental units of the state or a political subdivision of the state; it does not include the court system or the legislative branch of state government.

1 comment:

  1. Methinks it's time for the peasants to storm the castle. Since we were kept out of the "process', 'tis the only avenue open to us.
    Probably should leave the pitchforks at home.
    We will be armed with only our righteous indignation.


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