By ART CHANCE
I went to a fundraiser for a citizens group dedicated to challenging the Municipal Assembly’s decision to close Assembly meetings to in person testimony for a period.
They have re-opened them, but Mayor Berkowitz still has the dictatorial power to close them at his whim.
The group is going to sue, and the objective is to nullify all decisions the Assembly made while meetings were closed to in-person testimony. I support the endeavor and will help them as I can, including reaching for my checkbook.
I was in a discussion with some attendees of some influence, including a sitting legislator, and there was some interest expressed in revisiting the Open Meetings Act statute and using the original “Sunshine Law,” introduced by then-Alaska House member Ted Stevens back in the Sixties as the starting point.
Uncle Ted’s version didn’t pass and one of its features that didn’t make the final version was a proposed misdemeanor criminal penalty for public officers who violated the Open Meetings Act.
Most of the early statutes addressing the ministerial authority of the State included penalties, usually misdemeanors, for State officers and employees who violated them. In my time with the State I never saw criminal charges preferred against a State employee for violating some State act, but we all knew they were there. By the Seventies and Eighties criminal penalties for State employees had become unfashionable and most of the later statutes don’t include them.
As I have argued in other writing, it is a fundamental problem with the organizational culture of the State that it is nobody’s job to make sure the State follows its own rules and laws. In my observation the retirement of longtime members of the workforce has left an organizational culture whose only guiding principle is “we’ve always done it this way,” and few State employees have a clue as to their actual statutory powers and duties; they could plow right over laws and not know it.
The Commissioner of Administration has made some noises about an inspector general function and a fraud, waste, and abuse investigation unit, but to my knowledge nothing has come of it, and it is getting a bit late in the administration to do something and have it survive the next election.
The most difficult task in writing an open meetings law is defining a “meeting.” This caused a lot of controversy in Alaska and around the Country in the early days of sunshine laws and open meetings laws. It settled down to a grudging consensus that gatherings of public officers that could produce an action that had the force of law were meetings for the purposes of the laws. But there can still be controversy, especially in the executive branch.
It is pretty straightforward in the legislative branch; a gathering that can result in a decision on the passage or failure to pass of a bill, a repeal, a confirmation of an appointment or rejection of an appointee are clearly subject to open meetings laws.
Legislative caucus meetings held as deliberative meetings that do not result in a decision with the force of law, are not public meetings. This gets some grousing but it is generally accepted.
It gets to be an interesting question if posed regarding a majority caucus that has the votes to pass the law or take the action. If the decision is made in caucus, taking it to the floor and just voting your majority makes the minority’s votes a mere formality. Fortunately, nobody has ever put that question to the courts to my knowledge.
It becomes more complicated with the executive branch. Executive branch officers don’t make laws but they do interpret them and they also promulgate and implement regulations.
Is a division director, a commissioner, and a lobbyist discussing a policy decision over drinks and dinner at the Baranof Hotel in Juneau a meeting for purposes of the Open Meetings Act? Is a meeting of a commissioner and his directors behind a closed door in the department conference room that results in a decision to take an action, a meeting for purposes of an Open Meetings Act? Is a cabinet meeting that results in a decision a meeting for purposes of an Open Meetings Act? These questions have never been seriously asked, although they have been threatened, and I lived in fear of the answer that our liberal and generally hostile-to-Republicans judiciary might give.
I always took the position that formal contract negotiations with the unions were public meetings, and the unions hated it. I knew that once the Legislature, public, and press saw how boring it was, you’d never see them again. That said, I believe all those cozy agreements to keep negotiations closed, limit press contacts to joint releases, and the like are illegal.
The biggest driver of the cost of government is the cost of labor, and that cost is largely dictated by the labor agreements; the public should be able to see it done. That said, I’ve negotiated the general terms of a whole labor agreement with just the union’s negotiator out on my boat or on a cocktail napkin in a bar. So, I don’t know how you do business if all the business has to be in a formal public meeting. I think the right answer is much like the answer for the Legislature; the only thing that should be public is something that results in a final product.
In sum, I believe we should revisit the aging Open Meetings Act which dates to a time when the only means to appear other than in person was by telephone on a shaky phone system. The attitude toward that was something like the one-time attitude about voting absentee; you needed a good reason to vote absentee.
As soon as we got a functional phone system throughout Alaska, the Legislature made telephonic participation from the LIOs so that people in the remote areas didn’t have to make a $1,000 or more trip to Juneau to give five minutes of testimony.
I believe the closing of Assembly meetings in Anchorage was a product of a combination of arrogant elitism and ideology. The very last thing they wanted was to have a “horde of deplorables” descend on them and question their enlightened views.
We need to fix that.
Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.
Concur with Arthur that the public’s meeting should take place in the open, absent extraordinary circumstances like discussion of pending litigation or obvious personnel topics, both of which are covered by current statutory law and settled.
Do the business of the public in transparent way or don’t do it all.
It’s our government, not some closed clubhouse gang proceeding.
Well-stated, Joe. Great commentary, Art.
Well, considering that the Kate Vogel, the muni attorney, has the unilateral power to deny the midtown electorate’s recall petition of Meg Zaletel by redefining what is “reasonable” access to a meeting (rather than having the public actually vote on it), I’d say that in addition to that lawsuit, the recall language needs to be rewritten. The Anchorage Assembly exceeded the mayor’s emergency mandate in July by closing the entirety of the chambers when they had more than enough room to allow at least some of the 70 + people outside the halls in with minimal disruption and still be “safe”. But since the majority of the Assembly are cowardly idealogues, they didn’t bother.
Is your sitting legislator buddy going to push for the State Legislature to be subject to the open meetings act or just cast stones at local government?
AS 44.62.310(h)(3) explicitly exempts the State Legislature from the open meeting requirements. The rest of the Act is quite weak compared to other states where serial meetings, majority caucuses, and other procedural loopholes that hide process from the public have been closed up. Although even in those states (Washington is a good example), the state legislature is largely or completely exempt.
No, certainly not on my recommendation just because ignorant people are clueless about how the government works. The Legislature should be bound to have any meeting that results in a final action open to the public. Meetings that are deliberative should be closed to the public in both the Legislature and the Excutive Branch. You can run a government in which any yahoo with nothing better to do or lefty bloggers, or for that matter righty bloggers, can demand to be in staff meetings and other decisional meetings. Only meetings that can produce a product with the force of law or which produce a final administrative determination as that phrase as meaning in the Administrative Procedures Act should be open to the public.
Thank you Art for another informative article.
During a short stint as a State of Alaska appointee, a rare fellow kept a copy of the Alaska Statutes and Alaska Administrative Code on his desk. When a bureaucrat breathlessly ran into the office with a document and pen claiming a sure end to civilization without signing, the fellow simply pointed and said: “Sure, just show me where I have statutory and regulatory authority, and we can proceed.” More than 75% of the time it ended the conversation. God save us from “the way we have always done it.”
I came from the USBIA to the State in April of ’87. The BIA then nor now enjoys a stellar reputation for bureaucratic efficiency, but at least back then it was pretty well-ordered and rule driven. I was far enough up the org chart to make or effectively recommend decisions. Decisional documents I produced for my or a superior’s signature almost always began with something like: “Pursuant to the authority conferred upon me by nn CFR nnn.nn, I have concluded ….” I could pretty much quote the Indian Self-determination Act and its regulations like a Baptist minister can quote the New Testament. There is almost none of that sort of culture in State government. It was the rarest State employee who had a clue what their statutory and regulatory authority stemmed from.
I went to work in State labor relations when the State was entering pretty much uncharted waters. Gov. Cowper had said; “All bets are off.” All of our contracts were expired or expiring and we had no money, not even enough money to maintain status quo. We needed concessions from the unions and we needed meaningful impasse strategies and not only had anyone with the State at the time ever gone there, there were almost no instances of other public employers having gone there. The State had taken strikes from the Supervisors and the marine unions in the late ‘Seventies, but there were almost no records from that time and nobody left in State government who was far enough up the org chart at the time to have any meaningful information. We had to learn fast because our largest unit’s contract, the 8000 member general government unit, was at or near impasse.
The people who were there had with the Department of Law concocted a strategy of getting them to impasse and unilaterally implementing concessionary contract terms on them. I was the new guy and new to State service in an organization that only values State service; I wasn’t the teacher’s pet. My boss assigned me to write an assessment of our rights and duties at impasse as something of a training assignment, but I took it, rightly I think, as giving me an opportunity to fail, and I failed spectacularly.
I opined that the strategy they’d been pursuing and had sold the Governor on was destined to fail because it was illegal. I had committed the mortal sin of contradicting a Range 22 Supervisor and a Range 26 Director and questioned the revealed wisdom of an Assistant Attorney General. Law was demanding my head for practicing law without a license. I was probationary and getting some really owly looks from my director and commissioner as they went on with it and declared impasse and announced their intention to unilaterally implement terms.
The union sued in the Superior Court and asked for a TRO. That was met with shrugs and snickers by Law and Admin management. At about 4:15 pm on the Friday before we were to implement on Monday, the TRO came down restraining the State from acting and doing so in words remarkably like those of my memo a few weeks before. Can you say sheepish?
Those of us with brains set out to try to figure out what the law would let us do and spent the next several years before the labor relations agency and in the courts setting out the contours and limits of the State’s rights and duties beyond “the way we’ve always done it.” Few of those who’d been there before survived the Cowper Administration and none survived the first year of Hickel, and we built a whole new workforce and work process NOT based on the way we’ve always done it. We made it work well enough that our heads were on the auction block in the ’94 Gubernatorial Election.
Knowles’ first Commissioner of Administration waddled into our office and announced that he’d campaigned for the job and had promised the unions to replace us all, all merit system employees, with people acceptable to the unions. He didn’t get to fire us, but all of us rather quickly left; it’s hard to work for people you hate. We all went elsewhere in government, I to the Legislature, and their misery was my mission.
They hired a couple of us back to Admin in the last couple of years of Knowles to repair the mess they’d made and we tried to salvage the wreck. We rebuilt the staff and got the wreck of labor relations and personnel floating but you don’t rebuild an organizational culture in five or six years. I was the last of the old Cowper/Hickel Era group to retire in 2006. With my retirement labor relations lost its separate identity and was folded into Division of Personnel and the Division of Personnel and Labor Relations began its slide back into being the “we can work around it” and “this is the way we’ve always done it” division.
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