The Board Gets Advice From Legislative Attorney And Decides To Proceed With The Interview In Executive Session

When I worked at the Municipality of Anchorage long ago, I had to write some policy.  I wanted to be sure I wouldn't run afoul of the law, so I went to the legal department and asked what the law was regarding the topic.  

The attorney said what do you want to do?  I said I want to write the policy so it's legal.  He repeated, what exactly do you want to do?  I said I wasn't exactly sure until I understood the law.  He said, tell me what you want to do and I'll find the law that allows you do what you want to do.  

That's my sense of today's decision to go into Executive Session.    

I had suggested that the Board interview with the law office that will represent the Board be public and offered reasons why in the last post. 

Here are the reasons a body can go into Executive Session:

(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. 

 I cited the Alaska Supreme Court which has ruled that the only likely reason in interviewing an applicant for Police Chief or City Manager in Executive Session was possibly number (2),  The Supreme Court ruled:

"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."

The Supreme Court allowed that it is possible when talking about the personal characteristics of applicants.  But the remedy is to stay public and only go into Executive Session when discussing the allowed exemptions.  

Well, today the Peter Torkelson reported the advice of Legislative Legal.  I didn't catch all the details, but he didn't really talk that long either.  But basically he said that Leg Legal said that they could potentially discuss things that fall under exemption 1, 2, and 4. 

1.  matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;

What I understood here was that they might talk about legal strategies to use should the Board be sued.  I agree that legal strategies for pending lawsuits are generally exempted.  

2.  subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;

I already cited the Supreme Court's decision on this - that yes, it could happen, but for the most part people selling their services are not likely to do this.  

4.  matters involving consideration of government records that by law are not subject to public disclosure.  

It wasn't clear to me what records they were talking about.  Possibly they were again talking about legal strategies.  

OK, so these are items that might come up ("prejudice the reputation...") or are likely to come up (legal strategies).  However, the public meetings statute also says:

"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."

Which means that everything else must be considered in public.  So, they should begin the interview in public.  And when they get near either of those issues, they can go into Executive Session and then come back out of Executive Session.  

Different people can interpret the law differently.  I also understand that it's much more convenient to simply go into Executive Session.  And I suspect that most public bodies in Alaska invoke Executive Session so without seriously considering the intent of the law, or on advice of attorneys who don't tell them what the law is, but how to do what they want legally.  

Further, nothing is technically illegal until ruled so by a judge.  So unless a member of the body objects, or a member of the public sues, various bodies in the state will take the easy way out and just go into Executive Session.  

Today's meeting took about ten minutes to discuss the attorney's advice and then vote to go into Executive Session. (I'd note the attorney did point out that that office does not represent the Board.)

The Board has also not told the public who they are interviewing.  Surely the names of the two law firms is not going to prejudice the reputation of either of them.  Unless we are now at the stage where someone argues that not winning the contract will prejudice their reputation.  

Rich Mauer, then an Anchorage Daily News reporter, challenged the previous Board over this issue in 2013 when they were interviewing applicants for the new Executive Director and the Board agreed to conduct the interviews openly.  Given that the Anchorage Daily News is now owned by part of the Binkley family, and the Board Chair is part of that family, I don't think the ADN is likely to challenge, let alone sue, the Board over this sort of thing.

Below are my rough notes from the meeting:

2:58   Folks chatting   

3:01 John:  We got a little pushback about Executive Session - talked to Legislative attorney because of this.  

Hi Melanie, Hi Budd

Melanie:  How you doing?

Lots of snow in Fairbanks

Think we're all here.  Nicole , Melanie Banke, Budd Simpson, Bethany, John Binkley, Peter Torkelson

John:  One agenda item - legal services  Agenda adopted unanimously

Only item:  Interview for RFI legal services, plan to take care of this in Executive Session.  Ask chair to discuss this

Peter:  Talked to the Legislative counsel if this is the correct form.  Leg attorney said 195 of code.  Open in confidential matter until decision made   Open Meetings act C4  may be used for govt records by law requires it to be confidential.  Two other exceptions - Matters of immediate knowledge - since discussing legal strategy if sued, so it's important someone who might sue us won't know 

If prejudice reputation - we could.  Leg attorney said she doesn't represent us.  Feels we're on solid ground.  

Comments by Board members about doing this in Executive Session.  

Budd:  Moves to go into ES Open meeting act - records not subject to public disclosure.  

Nicole:  Seconded

John:  Opposition?  Passes by unanimous consent.  

3:10  You will now be disconnected.