Monday, March 18, 2013

Did The Redistricting Board Violate Alaska Public Meetings Law?

I was writing Part 2 of this post on the Redistricting Board, when, I got sidetracked on the Supreme Court decision the Anchorage Daily News relied on to challenge the Board's decision to withhold the names of the applicants.  Maybe this should be called Part 1.5. 

While reading the case, I began to believe that the Board did not comply fully with the decision's interpretation of the Public Meetings Act.  I'm not a lawyer, but I know that the law is not always straightforward and that there might be other cases that have modified the original decision, though it is regularly cited in situations like this.  But as a blogger I can raise the issue. And if I'm right, it points out a reason why the Board needs a competent Executive Director who knows the Alaska Public Meeting laws. 

City of Kenai v. Kenai Peninsula Newspapers, Inc.  is the 1982 Supreme Court decision referred to in the Anchorage Daily News article about the Alaska Redistricting Board's decision to NOT hire an Executive Director.  This is probably a good time to pull out some of the decision and remind people just how public our government is supposed to be.   And also to consider whether the Redistricting Board fully complied with the law.

The case consolidates a case from Kenai and a case from Anchorage where high level public officials' names and resumes were requested by news agencies and the cities refused to furnish the information.  In both cases the courts favored the media.  

The court summarized the Kenai case this way:
During June of 1979, the City of Kenai began soliciting applications for city manager. Subsequently, the City Council met, without notice to the public and without keeping minutes, to review applications and interview applicants. Max Swearingen, the publisher of the Peninsula Clarion, a daily publication of Kenai Peninsula Newspapers, Inc., asked the City to release a list of names and a summary of credentials of the applicants. This request was considered by the City Council on August 2, 1979, and rejected. In a letter written to Swearingen, the mayor voiced a concern that such disclosures would jeopardize the applicants' personal privacy, deter future applications from qualified people concerned about public exposure, and compromise the council's moral obligation to respect the privacy interests of individual applicants.

Kenai Peninsula Newspapers filed suit to require the City to allow inspection of the applications and to enjoin the City Council from further review and action upon the applications except at a public meeting.
The Court summarized the Anchorage case this way:
In February of 1980, the Municipality of Anchorage began soliciting applications for police chief. The nationwide search was conducted through written advertisements which promised that applications would be held in confidence.

From June 1, 1980, through July 8, 1980, Don G. Hunter, a reporter for the Anchorage Daily News, sought access to the names and qualifications of the applicants. The Municipality refused to honor these requests on the grounds that disclosure was prohibited by municipal ordinance, and because confidentiality had been promised to all applicants. The Anchorage Daily News filed suit on July 9, 1980 alleging that the applications and resumes were public documents subject to disclosure and requesting injunctive relief and a temporary restraining order restraining the Municipality from appointing a police chief until a hearing on the merits. Mayor Sullivan appointed a new police chief the next day before the hearing on the temporary restraining order. After the hearing, the court ordered the Municipality to refrain from any action confirming the appointment until a hearing on the merits. The appointee subsequently declined the appointment after disclosures reflecting adversely on his qualifications were made.  (As I recall, the Anchorage Times discovered that the new appointee had been let go from his previous position for sexual harassment.)

The Court focused on the balance between the public's right to know and the applicants' right to privacy.

They determined that for important policy positions, the public's right to know trumped the applicants' right to privacy.   They noted that since the resumes requested had been submitted by the applicants, there wasn't likely to be any information prejudicial to the candidates.  But they also recognized that some applicants might not want their current employers to know they had applied for a job elsewhere.   So they allowed for the jurisdictions to notify applicants they could withdraw their applications if they didn't want them disclosed. The court also noted
Of the 89 original [Anchorage] applicants, 8 withdrew their names. An additional 19 could not be reached within the time frame prescribed by the stipulation and their names were also considered to have been withdrawn.

The Court cited a couple of sections of AS 44.62.310 which give considerable weight to the presumption of openness:
FN28. AS 44.62.310 provides: Agency meetings public. (a) All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions or organizations, advisory or otherwise, of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except as otherwise provided by this section. 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. This section does not apply to any votes required to be taken to organize the afore-mentioned bodies.
(b) If excepted subjects are to be discussed at a meeting, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that come within the exceptions contained in (c) of this section shall be determined by a majority vote of the body. No subjects may be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question. No action may be taken at the executive session.
(c) The following excepted subjects may be discussed in an executive session:
(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit;
(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.
(d) This section does not apply to
(1) judicial or quasi-judicial bodies 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; or
(5) meetings of the governing body of any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline.
(e) Reasonable public notice shall be given for all meetings required to be open under this section.
(f) Action taken contrary to this section is void. [emphasis added]


AS 44.62.312 provides:
State policy regarding meetings. (a) It is the policy of the state that
(1) the governmental units mentioned in AS 44.62.310(a) exist to aid in the conduct of the people's business;
(2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted openly;
(3) the people of this state do not yield their sovereignty to the agencies which serve them;
(4) the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know;
(5) the people's right to remain informed shall be protected so that they may retain control over the instruments they have created.
(b) AS 44.62.310(c)(1) shall be construed narrowly in order to effectuate the policy stated in (a) of this section and avoid unnecessary executive sessions.
The Court also ruled that discussions of the applicants' qualifications should be held in public with one caveat.  Kenai argued that discussing applicants in executive session was necessary so they wouldn't "prejudice the reputation and character of any persons" (one of the exceptions allowed.)

But the Court found that discussing the applicants' qualifications relating to experience and education and background shouldn't prejudice people's reputation.  HOWEVER,  discussing personal characteristics or habits might be prejudicial.  So the Court ruled that when discussing personal characteristics or habits the body could go into executive session.    Here's the court's discussion:
In Kenai the court enjoined the City from “any deliberations toward appointment of a city manager unless those deliberations are held in compliance” with the public meetings law, AS 44.62.310-.312.[FN28] The court held that such deliberations “are not within any of the exemptions of AS 44.62.310(c)” relating to subjects which may be discussed in executive session. The City of Kenai appeals from this ruling, contending that s .310(c) (2) which permits the discussion in executive session of “subjects that tend to prejudice the reputation and character of any person” is applicable. . .
The appellee does not contend that the City Council may never go into executive session when discussing city manager applicants. It argues that generally such discussions do not have a tendency to damage the reputation of the applicants, and that the City erred in routinely convening executive sessions.

Appellee's reading of the statute is not without a degree of merit. Ordinarily an applicant's reputation will not be damaged by a public discussion of his or her qualifications relating to experience, education and background or by a comparison of them with those of other candidates. However, a discussion of personal characteristics and habits may well carry a risk that the applicant's reputation will be compromised. Such a risk is especially acute where the qualities of several applicants are being compared. We believe therefore that the City Council was authorized by s .310(c)(2) to meet in executive session while discussing the personal characteristics of the applicants.[FN29] To the extent that the order of the court prohibits this, it must be reversed.[FN30]    [Emphasis added.]

With that in mind, let's look at what the Board did.

When confronted with the ADN's challenge, they:
    • notified the applicants and allowed them to withdraw their applications rather than have them made public
    • made the remaining people's names and resumes public
    • held the interviews in public meetings
So far, so good.   But then they
    • held their deliberations on the candidates in private
    • made their decision to not fill the positions in private
    • did not respond to requests for information about why they made the decision and who voted for the decision
The deliberations, according to the Supreme Court decision, should have been in public to the extent that they were discussing education, background, and experience.  Just based on those topics, without having to discuss personality or habits (which didn't seem to come up in the interviews anyway), it would be clear that Dr. Hummel was the superior candidate.  (I can't imagine there was any debate on that.)

Then they made the decision to not hire anyone.  This was not a decision that should have been made in Executive Session.  The should have come out of Executive Session, had a motion to not hire anyone, had a discussion, and then publicly voted.  They didn't do this.

Finally, at the request of the media - this blog - they should have explained their reasons for not selecting anyone and should have told me how they voted.  


  1. thanks, Steve -- good work. keep it up

  2. I left a comment on the previous entry, your Sunday post, Steve, but this additional evidence you've highlighted here further validates the anonymous comment @11:30 in Sunday's comments about what the board has been up to.

    I believe he or she is on to something, and in conjunction with their desire to ignore and abuse the process, this board probably didn't want to hire anyone who could be viewed as more qualified or more competent than they are.

    Some folks, being put in a position of some type of power, can't hack having the hired hands being more competent than they are. It threatens their self image of seeing themselves being the ones 'in charge'. If the board intends to control the process as much as they've shown so far, they can't have anyone around who might upset the hierarchical status quo.


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