Alaska Redistricting Board Chooses The Easy Contracting Process For Hiring Its Attorney

 The Redistricting Board met Tuesday, December 29, 2020, to take two actions:

1. Determine whether to use the Legislative or Administrative procurement process.  
2. Start the process for hiring an independent counsel for the Board

It appeared that the Board members were connected via zoom (someone talked about not being able to turn off the hand raised icon), but people like me using the phone line provided were only listening by phone.

But there was an agenda posted and links to the documents in the Board Members' packets.  Those present were: 

• Peter Torkelson as Executive Director 
• TJ Presley as Deputy Director. 
• John Binkley, Fairbanks, Chair of the Alaska Redistricting Board. 
• Melanie Bahnke of Nome, 
• Nicole Borromeo of Anchorage, 
• Bethany Marcum of Anchorage  
• Budd Simpson of Juneau.   

I'd note that the documents include the 2010 RFP for an attorney and the winning bid by attorney Michael White.

Which Process?  Below is a chart prepared by staff comparing procurement constraints of using the Administrative Code versus the Legislative Code.  

The brief discussion focused on:

• Minimum and Maximum bids
• Who could protest the decision
• How long each process would take

Procurement Code Features

State Procurement Statute is found at AS 36.60

Feature                              Administrative Code              Legislative    Code
No Bid Maximum	$50,000	$35,000
No Bid Max with documented justification	$100,000	No fixed ceiling
No Bid Direct Procurement Exception for State Agencies (UAA/Dept. Labor)	No	Yes
No Bid Direct Hire of Legal Counsel Allowed	No	Yes
RFP Time on the Street	20 days	20 days
RFP total time to complete once published	60 days	45-60 days
Protest Allowed	Yes, bidders only within 10 days	Yes, “interested parties” within 10 days
– Protest freezes contract execution	No	No
– Protest Step 1	Procurement Officer documents findings may implement remedy	Procurement Officer documents findings may implement remedy
– Protest Step 2	Commissioner of Administration who may refer case to an Administrative Law Judge	Appeal to Legislative Council
– Right of Appeal	Superior Court	Superior Court
Inter-branch payment coding required	Yes	No

They had several people available for questions:

• Emily Nauman, Attorney with Legislative Legal Services
• Rachel Witty, Attorney with Department of Law
• JC Kestel, Procurement Officer, Legislative Affairs Agency

The memo to the board discussing the options in more detail (and available as one of the links) was written by Legislative Legal staff member Emily Nauman and is dated December 23, 2019.   It concluded: 

"It is advisable that the Committee abide by competitive procurement rules.  However, the statutes establishing the Committee are silent as to what procurement rules apply.  Therefore, the committee can likely choose which procurement rules to abide by.  There are three options, the state procurement code (AS 36.30), the Legislative Procurement Procedures, or the Court System Procurement Guidelines.  Whatever set of procurement rules the Committee choses, it should abide by them consistently for all of its procurements.:

 In the discussion they also talked about the difference between using an RFP or an RFI.  Here, a key differences was that the RFP had to be "on the street" for 30 days and the RFI only 10 days, plus the RFI was much less 'formal.'  That is it has fewer checks in the process.  Some may see those checks as red-tape, but they were originally put there to make bodies more accountable.  But as long as the Board puts all their documents online, that should compensate for a faster process.  

Board member Budd Simpson of Juneau said that in any case he wanted the bid out on the street the full 30 days to make sure anyone interested had time to find out about and respond to it.  

He and Nicole Borromeo of Anchorage volunteered to work on the draft Request with Executive Director Peter Torkelson.  

Melanie Bahnke larified that the Board would be the evaluation and selection committee.  

Below are my rough notes as the meeting moved to the end:

Melanie Bahnke:  Move Board begins RFI process for Legal Counsel, board needs to approve.

John Binkley:  Discussion?  If no objection, the motion is adopted.  

I think that’s the only two items on the agenda

Let’s get this done as fast as possible.  

John Binkley:  Maybe we can get a time next week when we can all get together.

Budd:  I’ll send out an email notice.

?? - Going to have to be a weekend If next week.  We have other meetings.  

John:  Anything else?

Budd Simpson:  Peter and PJ could you run thru the Request for last time (ten years ago) and make necessary edits for dates and names to give us a first cut at what Nicole and I would take a look at.  When you make changes, do it with red lines so we can see changes easily.  Continue to use that so everyone can see changes.

Peter Torkelson:  OK, you guys should have in your head, how the RFI is going to deal with the Voting Rights Act changes.  Old one has clear language about pre-clearance and Voting Rights Act, not as important as last time since requirements no longer apply.

Melanie Bahnke - that was the main thing I saw about Voting Rights Act and pre-clearance.  Something else, these meetings are being recorded and made available.  Requirements of minutes, are these required?  Court reporter.

Peter:  On our agenda.  Chasing them down.  They are being recorded and posted on website within a week and stay there.  

John Binkley?:  I have name of court reporter and haven’t followed up with them.

JP:  Open meetings and public notice, we’ll have to adopt how we’re going to do that, voted on and all agreed on.  

John:  Anything else?

??:  Thank Peter and PJ for getting documents out well in advance.  

John Binkley:  Motion for adjournment?  Made and seconded.  Adjourned.  

??:  Someone is going to have to figure out who made the motions etc.  plus time adjourned etc.  3:10pm Adjourned.

Here are a few thoughts I have after following most of this process starting in March or so 2011:

Voting Rights Act (VRA) - 1964 law pushed through by President Lyndon Johnson after Kennedy was shot.  It recognized that a number of states had traditionally discriminated against minorities in voting and it identified 16 (I think) that needed to get pre-clearance from the Department of Justice before their redistricting plans could be approved.  Alaska was one of those states because of treatment of Native Alaskan voters. Many of the others were Southern states.  

Last time round the Board had to make sure that they didn't diminish, through redistricting, the voting power of Alaska Natives.  There could not be fewer districts than before in which Alaska Natives were a key block of voters.  Thus, the first plan was carefully worked on to be sure Alaska Native districts would not be diminished in order to get pre-clearance.  This involved a lot of terms like "Minority/Majority district":  Here's a post I wrote on the issue in April 2011.

After the Board got its pre-clearance (which included testimony by a VRA expert who helped the Board,  the first plan was successfully challenged and a second plan had to be undertaken.  Somewhere in this process the US Supreme Court, in Shelby v Holder in 2013  ruled that the section of the VRA that required the pre-clearance was out of date and no longer applied.  But the Board here pretty much kept the Native districts in compliance anyway.  However, since then many of the states that were required to get their plans pre-cleared have done everything they could to suppress black and other minority voters.  

We'll see to what extent Alaska Native districts are preserved this time round.  It isn't easy because in rural Alaska where Natives have a majority, the population is very sparse, resulting in some huge districts geographically.  And while there are enough Alaska Natives to have their own district in Anchorage, they aren' living just on one or two areas.  

Timing -  You may have noticed that the memo I quoted above was dated Dec. 23, 2019.  At the meeting they mentioned that the previous board had gotten their RFP for the independent counsel in October 2010 and so they were a bit behind and thus can't wait the long time period needed for an RFP.   I realize that we're in the middle of a pandemic, but we've all gotten better at distanced meetings and I'm not sure why the Board didn't start this process earlier.  On the other hand, the Bureau of the Census isn't going to be handing over the census data on time and it may arrive later than it did in 2011.  

Virtual Board Meetings -  There were a few times during the last board's tenure that I had to listen in online or by phone.  But by then I'd been to many, many meetings and I could recognize the voices of all the Board members and staff.  Listening in this time was trickier.  If someone didn't call on someone by name, I had to guess at who was speaking.  It appeared that the Board was connected by Zoom.  There's no technical reason why people who want to 'attend' the Board meetings can't do that via Zoom as well.  I've been on a couple of national zoom meetings where the key speakers had their video and sound on and everyone else just listened in, no video, no sound.  

I'd also note that the transcripts of the prior board were many months behind.  I later learned that one of the problems was the stenographers, who were getting audio tapes of the meetings, couldn't figure out who was talking and they needed to have that info on their transcripts.  

The Board has posted  video of three of the six meetings listed at the AKLeg website, including the December 29 meeting I'm reporting here.  And transcripts are so much easier to scroll through and search.  The the video that the Municipality puts up of the Assembly meetings does allow for searches.  

Transparency and Openness - I got to listen in to the last meeting because someone sent me a link to the site.  I'm still looking for the Board's website.  There are a couple of 'redistricting' sites for Alaska, but they look like someone has just bought the names.  They don't have anything to do with the actual Board that I can tell.  

And when the Board does get its website up, I'd like to request that they plan where it is going to be preserved.  There are lots of important Alaska documents there and they shouldn't disappear after the Board closes.  The various links to documents and maps shouldn't just go missing.  Perhaps the legislature needs to require the preservation of the website and all the linked documents.  One of the Alaska history related libraries in the state could be given the funds to maintain the site after the Board concludes its business.  

For those looking for transcripts of what happened ten years ago, the best resource I know are my own posts which are indexed here in chronological order starting March 15, 2011.  I'm hoping that the increase in local and state reporters at the ADN and at Alaska Public Media means that paid journalists will be covering this decade's redistricting board.  And I can just drop in now and then.   

Potential Conflict of Interest

When the Binkley family bought the Alaska Dispatch (formerly and presently the Anchorage Daily News) the ADN noted:"

"The buyer is the Binkley Co. LLC made up of siblings Ryan Binkley, Wade Binkley, James Binkley and Kai Binkley Sims. The group is working with Jason Evans, owner of Alaska Media LLC, though the proposed sale agreement lists only the Binkley Co. as buyer."

From what I can figure out - sorry, I haven't kept close tabs on Fairbanks personalities - these are John Binkley's children.  So there is at least the appearance of a potential conflict-of-interest in how the ADN might cover the Board.  Though it's also possible they allow the editor to run the newspaper independently.  

KTOO reported  that John Binkley took over the opposition to the recall of Governor Dunleavy last March.  Since then that campaign has gotten a huge assist from the Corona Virus.  But it means that Binkley is the third Board member with ties to Dunleavy, who appointed Bethany Marcum of Anchorage and E. Budd Simpson of Juneau to the Board.   I'm merely pointing these things out.  The Board has been pretty partisan in the past and as long as the members are appointed by politicians it will continue that way.