My Guess Is That The Board Majority Torpedoed Their Case In Today's Meeting

[NOTE:  May 22, 2022 7:45pm:    I cleaned up the worst of my rough notes of the meetings - though there are still gaps that I didn't catch, and made a few changes to the post.  This fits within my blogger equivalent of the 2 second rule for eating food that falls on the floor.]

 Basically, the Board met.  It voted (3-2) to 

1. approve Board response to the Girdwood Appeal (which was already submitted the other day)
2. affirm that the litigation subcommittee, made up of John Binkley and Budd Simpson, were delegated authority to consult with the Board's attorney and approve all legal actions now and into the future

The meeting went from just after 3pm to 4:30

The two minority members repeatedly objected on the grounds that the original delegation of authority to the litigation committee was limited to 'routine decisions' but did not include the final decision whether the Board should file appeals and on what.  They also argued that the litigation committee was supposed to be open to all Board members and they had not been noticed about any meetings,  that essentially the Board decisions were now delegated to two Board members and the attorney.  

The two dissenting Board members said they had repeatedly asked to be included as observers in the litigation committee and had not been responded to.  

There were also allegations about what Simpson had told Bahnke after he voted with Borromeo and Bahnke on the House Districts back in November and things that Singer told Borromeo about his views on Marcum, which Chair Binkley worked hard but in vain to suppress and which Simpson strongly denied.  

My Take On This

If the Board had actually voted to delegate full authority to the litigation committee back in December, then this last minute, Sunday Board meeting wouldn't have been necessary.  They would have already had the authority.  There was no need to vote again first to approve the litigation (which was due Friday) and second to reauthorize the litigation committee's authority, which they seemed to have expanded indefinitely into the future.  If all their rhetoric about this already having been approved were true, there was no need for this meeting.

This subcommittee was given extraordinary power.  Two Board members, meeting in secret, were given the power to determine legal strategies and to approve whether the Board was going to appeal challenges and what aspect of the challenges they would appeal.  Two Board members complained they were blocked from all information from this committee.  And that all actual decisions needed to be made publicly - by the Board as a whole.  From the Governor's memo of the Open Meetings Act:

"Is secret ballot voting allowed under the act?

Almost always, no. In addition to requiring that deliberations of a governing body be open to the public, the act also requires that the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote, including meetings conducted by teleconference. The one exception is organizational meetings of a governing body to elect members to various offices, which are exempted from the requirement that the vote of each member be made public (AS 44.62. 310(a))."

Subcommittees in the State legislature and on the Anchorage Assembly are required to notice their meetings and make them public.  While this issue didn't explicitly come up, I suspect that these were all illegal meetings.  They can argue that they were discussing litigation and that that can be covered in Executive Session.  But these subcommittee meetings were, de facto Executive Session meetings without any notice to the public, as required, on why they were going into ES.  And the final vote is required to be taken in public.  

I'm guessing that the Board majority members got together and decided that they did not want to share their discussions about legal strategy with the minority members.  They strongly disagree with the minority members.  Minority members have publicly disagreed with the Board and charged them on several occasions with partisan political gerrymandering.  I'm guessing the majority Board members were afraid the minority members would spill their strategies to opposing counsel and hurt the Board's case - I understand the logic, but there are some problems this action would have created.  They didn't declare this publicly.  They didn't confront the minority members with their concerns.  But it goes beyond that.  

The exemptions for Executive Session for legal discussions are not open ended.  They are quite limited.  

From the Governor's Guide to the Public Meetings Acy [page 3]:

"(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."  [page 6]

Only option 1 here is a possibility.  But exactly how would the Board majority show that what they discuss would "clearly have an adverse effect upon the finances of the public entity"?  In this situation the minority Board members pointed out that the Board has already spent about $1 million in attorney fees.  The Superior Court has twice concluded that the Board had engaged in partisan gerrymandering. The Supreme Court has already determined that once and will decide on that allegation a second time soon. The Board minority could argue that the majority  decisions have already had an adverse effect on the finances of a public entity.  Had they followed the minority's recommendations, this would have all been over already.  But there is really no cost to the Board majority to push their cause.  The Board pays the attorney fees, and there is no personal cost to the members for going in this direction.  Even if the court finds against them again.  

I would note that I have pointed out several times on this blog that I didn't think the Board had gone into Executive Session properly and that the Superior Court also cited that as a problem.  

My sense is that this meeting clearly shows that two Board members held regular secret meetings with the Board attorney to decide how to proceed with the legal case.  These meetings were not noticed to the public or to all the Board members.  They were essentially meeting in Executive Session without ever explaining why they were in ES (and it would be hard for them to demonstrate any legitimate reason to be in ES), AND they then voted outside the public view.  Even outside the view of other Board members.  

This meeting seems to be an attempt to:

1. Get a majority vote in public to proceed with litigation, though the Court could, potentially find that the decision to respond was not properly voted on, but I'm guessing they'll overlook that and simply vote against the Board on the merits, not on a technicality.  
2. To delegate authority to the Litigation Subcommittee so that it clearly allows them to meet and vote in secret.  

I don't see how the members of the Supreme Court can't see this as more evidence of political gerrymandering through secret meetings of the Board.  This time the meetings were even secret from two of the Board members.  

If the Board had a chance of winning their case before the Supreme Court before today, I'm pretty sure they've completely ruined it with today's actions.  They demonstrated in plain sight, to everyone, that they are willing to ignore the law to continue fighting for two Senate seats for Eagle River.  And to spend $1 million of public money to do that.  

I would note that Board Chair John Binkley said that the previous Board spent over $3 million in legal fees.  (Though they were still in court in 2014, and we're only in the first round this time.)  Further, Board member Borromeo said at the meeting that her and member Bahnke' legal fees are NOT being paid by the state.  The two are paying for it and hoping to raise money to cover it all.  Just that alone - their willingness to spend their own money on this - should give some evidence of their sincerity.  

I realize this post reveals that I've made a judgment on this issue.  I usually try to articulate the various sides of any situation objectively and fairly.  I've been covering the Redistricting Board since December 2020.  I do believe that I am still covering it objectively.  I've been an eyewitness to all this.  I'm just telling you what I've seen publicly and what I see as the reasonable conclusions about what happened behind the scenes.  And the Supreme Court decision will determine if I was right or wrong.  

My Rough Meeting Notes

Below are my rough notes of the meeting.  I haven't gone through to edit them yet.  But I'll put them up now - this time there is no video of the meeting. There will probably be an audio recording.  I'll try to go through and clean up the typos.  BUT REMEMBER these are my amateur attempts to record what I heard and there are gaps, typos, missing moments, but it's as reasonable a written record as is probably available now.  [I have since edited some of this.]

ARB Meeting May 22, 2022 

3pm Board Meeting to approve appeal to Supreme Court.  

John Binkley, Nicole Borromeo, Bethany Marcum,  Melanie Bahnke, 

Peter Torkelson, staff, working to get Budd Simpson

Apparently they are all just dialing in - no Zoom, no video??

Talking to each other with exaggerated politeness - at least Binkley and Borromeo are.  Bahnke is recovering from COVID.

3:06pm still waiting for Simpson to be hooked in

3:07 - Budd’s on

Binkley:  calling to order 3:06 pm 

Calling roll - all present

Binkley:  move to adopt agenda.

So moved

Borromeo:  point 

Marcum:  Second

Borromeo:  I would like to add public testimony to the agenda  We have long standing custom of accepting public testimony at meetings.  

Bahnke also has another amendment.

Binkley:  Motion to amend:  Nicole?  

Bahnke:  Can’t video or let public testify because a last minute meeting, even though we’ve been calling for a meeting since appeals.  We have always had public testimony.  Support

Simpson:  I agree there’s a role for public testimony, but probably not at this meeting.  But we have rulings from the court that gives us guidance but don’t need start this meeting.

Marcum:  I see this as procedural matter.  We haven’t taken public testimony at all meetings, if we were mapping, different.  Meeting is open to the public and have not given public notice about testimony, so not fair.  

Borromeo:  Checked with Peter yesterday because couldn’t get the streaming.  This is the only time we haven’t had public testimony.  

Bahnke:  Decision we make here could be important to final map.  That this will have consequences for the state for the next ten years.  Could impact state elections for ten years.

Simpson:  As I understand it, the website remains open for written public testimony all along and can continue to take that 24/7 and people can use that.

Bahnke:  Roll call vote please

Binkley:  We can have a roll call vote.  Motion to amend agenda to add public participation.

Peter:  Bahnke: yes  Borromeo:  yes, Marcum, Simpson, Binkley all three no

Bahnke:  Add, add Board member comments and 

Marcum:  Two or one amendment?

Bahnke:  Something about legislation committee.  Want opportunity to make closing comment as you’ve allowed.  Scope of litigation committee’s authority.  Need to discuss before 

Binkley:  I thought we would talk about litigation committee in #4, and no problem with comments at the end.

Objections:  

Simpson:  Assumed it was covered in number 4, so no problem.

Marcum:  same

Bahnke:  

Binkley:  I see there is only one issue, member comment.  

Unanimous consent.

 Item one - ok, adopt the agenda which has been amended

Add litigation committee authority in 4 and add member comments at end

Matt, I assume you’re on the line.

Singer:  There were two more recent legal challenges 

 East Anchorage said violated Superior court’s prior order

Girdwood moved to intervene, said violated VI and Equal Rep.

Judge dealt with that quickly 

Found Senate District E violated Equal Protection clause.  All aware of filing deadline for candidates.  Board appointed a litigation committee in December and has been supervision Board council and directed me to file a petition for review which we did, May 17, one day after Court decision and then at SC direction submitted a substantive brief on the 18th.  Girdwood Plaintiffs filed opposition 20th.  That matter is probably fully briefed.  This weekend the SC is probably working hard.

Two Board members argued that Board acted without authority.  I want to address that and make recommendation.

December committee gave the committee full authority, but changes to maps was held for whole Board.  Acknowledged that courts would be fast moving and that was the case.  Fastest pace of my career.  

I understood if settlement to be made or day to day made by the Board, management were decisions delegated to the committee.

Constitution requires 3 votes, but aware of Alaska case that would preclude a delegation of authority to staff.  We hired an Ex Dir, he’s performing an action of the Board.  Been a public entity attorney my entire career.  I find no problem.  10 years ago a single member was responsible.  

Understand the litigation committee only set up for a prior lawsuit, but now we are doing a different case.  But incorrect.  Girdwood moved to intervene, same case, judge, same case number.  

No respect to alternative points of view.  One Board member said they would not abide by the litigation committee.  But just as one member cannot adopt a new district without the colleagues.  As your lawyer.  I have to follow directions to me by the Board.  Any collection of at least three of you.  And if three of you delegate authority to a committee, then I do that.

Two Board members disagreed and hired a separate lawyer.  It’s appropriate the Board met today in respect to those concerns and to address them.

Consider and vote and ratify the decision and that the litigation committee will continue with authority.  While I disagree the committee acted inappropriate , I have no issue with raising this today.  

Also institutional issues.  Constitution gives us very little guidance about Senate district.  I have looked at past SC decisions for guidance.  We may not like this process, but final direction and clarity for people sitting in my seat ten years from now.

Judge Matthews also telegraphing it would help him too.  He’s asking for guidance from the SC.  

Last note, everyone involved is mindful of June 1 candidate filing deadline.  By all indicators the SC appreciates that deadline.  I think they are working over the weekend so I guess they are working today too.  I expect that will decide.  Either we are done or more work.  

Thank all the Board.  I know you are all very good people.  May need another public meeting if Court directs.

Marcum:  Note for the record, I’m prepared to make a motion.

Bahnke:  Request that we discuss this before motions made

Bahnke:  Thank you Matt for the update.  Unfortunately we had to go that route because we have been continually ignored when requested meeting to review the claims.  No chance to review.  Didn’t even vote. Back in February we did that process.  We were outvoted then.  And probably will again today.  We did not abrogate our authority to litigation committee.  When ordered to make final map, that map was voided.  Any action we take that can impact the final map needs to be voted on by the whole Board.  Thought we could discuss those final.  I asked to be able to observe litigation committee.  That was ignored.  Never notified about litigation meetings.  Appeal pretty weak.  Doesn’t address superior court findings.  It did not allow litigation committee to usurp the Board decision.  We may be outvoted again, but process matters.  Sounds like we won’t even vote on whether there was an appeal.  Filings unauthorized.  CAn’t retroactively do it today. 

Marcum:  Roberts Rules - no notion so far.

Bahnke:  It’s part of the issue

Binkley:  That’s ok, no further discussion?

Borromeo:  Address Matt’s comments, but first back to Matt’s motion.  I’m talking about the Dec. 15 motion.  I’ll read it:  Came from Matt Singer:  reading:  In coordination with staff will be responsible for day to day, but any final decisions that affect our proclamation plan will be voted on by the whole Board.  Just the pending litigation.  Qualifier here.  “routine, day to day strategy”  nothing 

Hardly any decisions came before the whole Board.  As the drafter, Matt should have known that litigation committee usurps the whole Board’s authority.  

As really as 11 April, I started messaging you about concerns about the Board abdicating to committee.  I challenged you at least ten times.  It wasn’t just something out of the blue.  I asked who gave this authority.  You said you see nothing about delegation.  If go that way, what would have prevented us from a mapping subcommittee.

3.  Factually incorrect that this is not a new lawsuit.  Girdwood was not involved in early part.  You yourself say “  Any party agreed by a new, should be entitled to judicial review.  Your assertion that you are the Board’s lawyer, that needed when you became the litigation committee’s lawyer.  

You have exercised your duty to litigation committee.  Thank you very much.

Simpson:  I’ll keep short.  I agree with Mr. Singer’s analysis and interpretation of powers delegated to litigation committee.

Marcum:  can I make a motion?

Binkley:  go ahead

Marcum:  I move to approve and ratify the decision of the litigation committee to appeal theGirdwood appeal and affirm the delegation to the litigation committee until all appeals are final.  

Simpson:  Second

Marcum:  

Borromeo:  ???  

Marcum:  I believe the committee had full power for litigation, not map making.  We should ask for court’s guidance for this and important for future Boards.  Agree with what the committee has done and their authority to do so.

Bahnke:  If that were the case we wouldn’t have had the February meeting.  In Feb we took a vote to appeal to supreme court.  We haven’t had a chance to review the court’s findings and whether we should proceed.  

He told me his wife was angry and would go to the Governor when he voted for the House map.

We don’t have the power to delegate authority to member committee of the Board that will make decisions that will impact the elections for the set of Alaska

Simpson:  Once again, my wife has been brought into the discussion.  Melanie made a factual comment that is inaccurate.  My wife was not angry.  No one in the governor’s office never said anything.  However I voted was based on my own judge.  No one tried to change that.  No other Republican spoke to me angry about it or objected to it.  ONly negative comments have been the other party that has been extremely angry, personal, that upset the Democrats who are watching this process.  I reject the assertion my wife had any impact or pressured me in any way.

Bahnke:  Caution members to be professional and not question motives

Bahnke:  You told me that I don’t make stuff up.  I have no idea about the governor’s office.  I’m repeating what you told me.  When findings of secretive messages.  I’m not brining up party issues.  

Binkley:  Let’s keep it to the issue before us.  Not relevant

Borromeo:  Friendly amendment.  I would like to amend the motion in one of two ways.  If majority feels so strongly about this appeal that they should pay for it or that Matt’s team does it pro bono.  We are over $1million.  

Binkley:  If you want to make a motion and get a second.  

Your motion is an amendment to the motion on the floor.

Melanie:  I second the motion to amend.

Borromeo:  Back in Dec.  we were incurring a legal debt of $80,000.  Now we are near $1million.   We are abusing  the public trust and treasury.  If you don’t want to pay for it then Schawbe [Singer’s law firm] should do it pro bono.

Roll all:  Bahnke Borromeo:  yes  Marcum, Simpson, Binkley: no

Binkley:  We have the original message before.

Bahnke:  Clarity from Matt.  Read aloud about the Board having to vote to take action of the whole Board.

Singer:  Let me find it.  Section 9 concurrence of 3 members is required for actions of the Board, but 2 to conduct hearings.  

Simpson:  Any member who thinks it’s unconstitutional should vote against it.  There’s a filing about this from dissenting Board members.  The court can decide on that.  I think we should continue to vote on the motion.

Marcum:  Appeal and delegate to the litigation committee until there is final court approval.  

Borromeo:  I thought the motion had to be one topic only in Robert’s Rules of Order.  Would she be amenable to first vote to approve the appeal,  

Binkley:  I understand that.  Legitimate motion and the chair accepts it as such.  

Bahnke:  Seems we are taking several actions on one motion.  Just as Simpson wanted to separate SE issues into two motions.  And I think we separate them into two motions.  

Marcum:  I would note that it was mischaracterized.  Not treading new allowances for the litigation committee.  It’s just confirming what we already gave the committee.  Nothing has changed and they can continue operating.  So I’ll  vote against.

Simpson:  My understanding that this is affirmation.

Borromeo:  Then why are we holding this meeting?  If the majority’s opinion is right, there is no need for this meeting.  

Binkley:  The filing by the dissenters caused some confusion and hope this clarifies it for the SC.

Bahnke:  Yes, Borromeo Yes - Others all no

Motion to amend fails.

Discussion on main motion.

Borromeo:  Want to know what litigation committee is being advised.  It was agreed back then  that others could listen in and we have never been noticed of meetings.  Singer has characterized Marcum as nuts but goes along with the splitting of ER.

Binkley:  Not relevant

Borromeo:  It is relevant

Bahnke:  I think we’re asking something new.  Expanding it to allow for continued secrecy that excludes member of the Board from being privy to strategy.  Creating a mechanism to cloak the secrecy and outcome based work Board was accused of.  Hiding it by keeping it secret and exclude other Board members.

Binkley:  Call the roll

Bahnke no Borromeo no  Marcum  yes  Simpson yes   Binkley yes.  

3-2 motion carries

4:19  Board member comments

Bahnke:  Glad we are finally having a meeting.  Even if outvoted, it at least happened open to the public.  We took proper procedural actions in February to appeal the case.  That didn’t happen this time.  Appeal not properly sanctioned, we missed the deadline.  The Courts will maki a decision we will have to abide by.  Board process has silenced those of us against the Supreme Court.  Baffled by lack of respect of the process.  Probably last time.  $1million later.  

We did not have a vote to appeal.  The appeal is not valid.

Borromeo:  I do want to thank the Board for noticing and holding a board.  While we don’t have the votes to stop the appeal,  But not about that, about having our meetings in public.  If we could have met as a Board, two of us wouldn’t have had to hire counsel to have a public meeting.  Hopefully the next Board will do it better.

I noticed the Board two days before filing, but Board ignored us.  We filed - we are paying for that attorney ourselves, not the public.  I’m ready to work with the Board, but won’t rubber stamp the Board and wait to find out the decisions when the public does.

Marcum:  Note for the record we are not silencing the public.  They can still use the portal and I welcome comments the public and encourage them to comment.  

Bahnke:  Once again request that we be kept informed of the litigation committee.  We’ve been completely cut out by the litigation committee is going to happen and I have the same info shared with me as with the rest of the board.  

Binkley:  There has been about $1million in litigation so far.  Previous Board spent about $3.5 million.  That went over a number of years.  That went over a couple of years.  This may too.  Not unusual.  Sometimes adversarial.  No secrete that two Board members differed and that’s the situation we find ourselves in.  It makes sense to confirm the authority of the litigation committee.

4:28  -  Adjourned