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05082017 City Council Work Session Notes - Packet - executive sessions
WORK SESSION NOTES ON Tvw-hVe, 5tsii4())1) procoots Purpose: Council Members Present: yai( r6e inPresent: ntoh in iHs oart)F� hart , rUh n r o a vrt otia Called by: CQik k ( Time: 5 : ?() ow, Date: 5/8/1 ****************************************************** ft-corm( w S Pam -fee/ 1i �va,nCe, 016 They Or/Qu)> °'' Y2 U��v� CC- Pa c,Prat a c-{fir hOW 1 � , ro t CUM uc, add ov Corspan P V * bc Ovicui \ -op p Com wof tp,rk iv) focluf) ' a dei{► 0g, tWit 1 Seward City Council Work Session Packet Review and discuss Executive Session Procedures May 8, 2017 5:30 p.m. City Council Chambers Seward City Council Work Session Review and discuss Executive Session Procedures May 8, 2017 5:30 p.m. City Council Chambers OpenMeetingsAct, AS 44.62.310-312…………………………..Pg. 1. 2. Robert’s Rules of OrderRE: Executive Sessions……………Pg. StateofAlaska Local Government Online ………………Pg. 3. Executive Session Information from Department of Commerce, Community, and Economic Development Excerptsfrom“Alaska’sOpenMeetings Law”………………Pg. 4. rd By Gordon Tans, October 2002, 3Edition Excerptsfrom“AlaskaOpenMeetingsAct” …………Pg. 5. By Wohlforth, Brecht & Cartledge, 2015 6. “OverviewofOpenMeetingsofGovernmentalBodies”…………..Pg. By Michael Gatti, Jermain, Dunnagan & Owens, 2016 7. Email and articles from City Attorney Earnhart……………..Pg. 8.Seward City Charterand Code onExecutiveSessions ………………..Pg. 9. Examplesofothermunicipalcodes……………….Pg. 1 AS 44.62.310. Government Meetings Public. (a)All meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by this section or another provision of law. Attendance and participation at meetings by members of the public or by members of a governmental body may be by teleconferencing. Agency materials that are to be considered at the meeting shall be made available at teleconference locations if practicable. Except when voice votes are authorized, the vote shall be conducted in such a manner thatthe public may know the vote of each person entitled to vote. The vote at a meeting held by teleconference shall be taken by roll call. This section does not apply to any votes required to be taken to organize a governmental body described in this subsection. (b)If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body. The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. 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. Action may not be taken at an executive session, except to give direction to an attorneyor labor negotiator regarding the handling of a specific legal matter or pending labor negotiations. (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. (d)This section does not apply to (1)a governmental body performing a judicial or quasi-judicial function 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; (5)meetingsof the governmental body or any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline; (6)staff meetings or other gatherings of the employees of a public entity, including meetings of an employee group established by policy of the Board of Regents of the University of Alaska or held while acting in an advisory capacity to the Board of Regents; or 2 (7)meetings held for the purpose of participating in or attending a gathering of a national, state, or regional organization of which the public entity, governmental body, or member of the governmental body is a member, but only if no action is taken and no business of the governmental body is conducted at the meetings. (e)Reasonablepublic notice shall be given for all meetings required to be open under this section. The notice must include the date, time, and place of the meeting and if, the meeting is by teleconference, the location of any teleconferencing facilities that will be used. Subject to posting notice of a meeting on the Alaska Online Public Notice System as required by AS 44.62.175(a), the notice may be given using print or broadcast media. The notice shall be posted at the principal office of the public entity or, if the public entity has no principal office, at a place designated by the governmental body. The governmental body shall provide notice in a consistent fashion for all its meetings. (f)Action taken contrary to this section is voidable. A lawsuit to void an action taken in violation of this section must be filed in superior court within 180 days after the date of the action. A member of a governmental body may notbe named in an action to enforce this section in the member's personal capacity. A governmental body that violates or is alleged to have violated this section may cure the violation or alleged violation by holding another meeting in compliance with noticeand other requirements of this section and conducting a substantial and public reconsideration of the matters considered at the original meeting. If the court finds that an action is void, the governmental body may discuss and act on the matter at anothermeeting held in compliance with this section. A court may hold that an action taken at a meeting held in violation of this section is void only if the court finds that, considering all of the circumstances, the public interest in compliance with this section outweighs the harm that would be caused to the public interest and to the public entity by voiding the action. In making this determination, the court shall consider at least the following: (1)the expense that may be incurred by the public entity, other governmental bodies, and individuals if the action is voided; (2)the disruption that may be caused to the affairs of the public entity, other governmental bodies, and individuals if the action is voided; (3)the degree to which the public entity, other governmental bodies, and individuals may be exposed to additional litigation if the action is voided; (4)the extent to which the governing body, in meetings held in compliance with this section, has previously considered the subject; (5)the amount of time that has passed since the action was taken; (6)the degree to which the public entity, other governmental bodies, or individuals have come to rely on the action; (7)whether and to what extent the governmental body has, before or after the lawsuit was filed to void the action, engaged in or attempted to engage in the public reconsideration of matters originally considered in violation of this section; (8)the degree to which violations of this section were wilful, flagrant, or obvious; (9)thedegree to which the governing body failed to adhere to the policy under AS 44.62.312(a). 3 (g)Subsection (f) of this section does not apply to a governmental body that has only authority to advise or make recommendations to a public entity and has no authority to establish policies or make decisions for the public entity. (h)In this section, (1)"governmental body" means an assembly, council, board, commission, committee, or other similar body of a public entity with the authority to establish policies or make decisions for the public entity or with the authority to advise or make recommendations to the public entity; "governmental body" includes the members of a subcommittee or other subordinate unit of a governmental body if the subordinate unit consists of two or more members; (2)"meeting" means a gathering of members of a governmental body when (A)more than three members or a majority of the members, whichever is less, are present, a matter upon which the governmental body is empowered to act is considered by the members collectively, and the governmental body has the authority to establishpolicies or make decisions for a public entity; or (B)the gathering is prearranged for the purpose of considering a matter upon which the governmental body is empowered to act and the governmental body has only authority to advise or make recommendationsfor a public entity but has no authority to establish policies or make decisions for the public entity; (3)"public entity" means an entity of the state or of a political subdivision of the state including an agency, a board or commission, the Universityof Alaska, a public authority or corporation, a municipality, a school district, and other governmental units of the state or a political subdivision of the state; it does not include the court system or the legislative branch of state government. AS 44.62.312. 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)thepeople of this state do not yield their sovereignty to the agencies that 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; (6)the use of teleconferencing under this chapter is for the convenience of the parties, the public, and the governmental units conducting the meetings. (b)AS 44.62.310(c) and (d) shall be construed narrowly in order to effectuate the policy stated in (a) of this section and to avoid exemptions from open meeting requirements and unnecessary executive sessions. 4 Executive Session th Robert’s Rules of Order, Newly Revised, 11Edition Chapter 9, page 95-96 An executive session in general parliamentary usage has come to mean any meeting of a deliberative assembly, or a portion of a meeting, at which the proceedings are secret. Thisterm originally referred to the consideration of executive business –that is, presidential nominations to appointive offices, and treaties –behind closed doors in the United States Senate. The practice of organizations operating under the lodge system is equivalent to holding all regular meetings in executive session. In any society, certain matters relating to discipline (61,63), such as trials, must be handled only in executive session. A meeting enters into executive session only when required by rule or established custom, or upon the adoption of a motion to do so. A motion to go into executive session is a question of privilege (19), and therefore is adopted by a majority vote. Whenever a meeting is being held in executive session, only members of the body that is meeting, special invitees, and such employees of staff members as the body or its rules may determine to be necessary are allowed to remain in the hall. Thus, in the case of a board or committee meeting being held in executive session, all persons –whether or not they are members of the organization –who are not members of the board or committee (and who are not otherwise specifically invited or entitled to attend) are excluded from the meeting. A member of society can be punished under disciplinary procedure if he violated the secrecy of an executive session. Anyone else permitted to be present is honor-bound not to divulge anything that occurred. The minutes, or record of proceedings, of an executive session, unless that which would be reported in the minutes –that is, the action taken, as distinct from that which was said in debate –was not secret, or secrecy has been lifted by the assembly. When the minutes of an executive session must be considered for approval at an executive session held solely for that purpose, the brief minutes of the latter meeting are, or assumed to be, approved by that meeting. 5 Executive Session Complete Idiot’s Guide to Robert’s Rules, Second Edition Chapter 2, page 18 Executive Session. A meeting or portion of a meeting in which the proceedings are secret and the only attendees are members and invited guests. All or part of any of the other meetings in this list may be held in executive session. Deliberations of an executive session are secret, and all attendees are honor bound to maintain confidentiality. Meetings of boards of directors are usually held in executive session. Some bodies are limited in when they can go into executive session. They are limited by state laws, frequently referred to as the open meetings act or sunshine laws. Those laws only apply to public bodies. Therefore, most nonprofit entities have no requirements regarding when they can go into executive session or what they can discuss or decide in executive session. Chapter 11, page 130 Point of Information Sometimes the issue before the assembly is so sensitive or private that it should be discussed only in front of members – for example, the discipline of a member or the review and pay of staff members. While the motion is pending, a member may rise to a Question of Privilegeand “move that we immediately go into executive session.”* If that motion passes, the nonmembers are asked to leave, and the meeting proceeds. It is important to remember that when meeting in executive session, everything that is discussed is confidential. Members may not share with anyone outside of the meeting what was discussed. If they do so, they may be subject to discipline. *Clerk’s note: it is advisable to go into executive session only when thatmotion or topic is already on the agenda in some fashion, so the public is properly advised. It is always better to inform the public ahead of time if the body intends to go behind closed doors and meet privately. If this cannot be done, the matter should be at least on the agenda in some way, as a discussion item, an action item, etc. 6 Meetings Held in Executive Session, Local Government Online, Division of Community ...Page 1 of 3 Department of Commerce, Community, and Economic Development Division of Community and Regional Affairs State of Alaska>Commerce>Community & Regional Affairs>Local Government Online>Local Government & Elected Officials>Meetings Held in Executive Session L OCAL G OVERNMENT O NLINE (LOGON) E LECTED O FFICIALS Executive Session Introduction An executive session is not a stand-alone, or secret meeting; it is a part of a public meeting in which the public may be temporarily excluded for certain purposes. Actions are not taken during executive sessions. A decision by a governing body, such as a city council, to conduct any step in the deliberation process outside of the public forum must weigh the public interest in the right-to-know against any potential harm that could result from open deliberation. The governing body may, at its discretion, invite others into its executive session. Narrative Remember that the intent of public meetings is to hear all opinions on all the issues and ensure public control over the government that the public created. Public meetings are the means by which a person or group can be informed, express opinions, exercise choice, and affect outcomes. In order for this to occur, the governing body must provide reasonable notice of its meetings, the governing body must hold the meetings as provided in the notice, and the public must be given an opportunity to provide input. The State's Open Meetings Act (AS 44.62.310) and the State's Policy Regarding Meetings (AS 44.62.312) both favor maximizing the public's right-to-know, as well as limiting the subject matter that may be discussed in closed portions of meetings. The Open Meetings Act (OMA) lists the particular subjects that may be discussed in closed-door portions of meetings (executive session) and spells out the process that must be followed to legally hold an executive session. Only those certain topics can be considered in executive session, and State policy found in AS 44.62.312 backs up the provision that the OMA is to be narrowly interpreted to avoid unnecessary executive sessions. Frequently Asked Questions What is an executive session? An executive session is a portion of a public meeting that is conducted in private with only members of the governing body and any person(s) invited in by the governing body present. AS 44.62.310(b)authorizes a public body to meet in executive session to discuss only those items that fall into one of the categories listed in the law. This is not an exception to the Open Meetings Act, but rather an authorization to conduct a step in the decision-making process in an appropriate way. What subjects may be addressed in executive session? An executive session may only be called if the subject under consideration falls into one of the categories listed in state law, AS 44.62.310(c). The allowable subjects are: (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. There must be a real and legitimate need for the executive session, and the reason must be spelled out in the motion called to go into executive session. The motion must state specifically the nature of what will be discussed and must be approved by a majority vote. The motion must contain enough detail that the public (and, if necessary, a court) will be informed of exactly why the executive session is appropriate, without defeating the purpose of going into executive session. Only the item(s) identified in the motion may be discussed in the executive session. Following is a list of a few examples of situations that would likely be appropriate to discuss in executive session: ¤contract negotiations; ¤legal strategy for a pending lawsuit; ¤discussion of a matter that could affect an individual's reputation; ¤matters involving a juvenile; ¤certain crime victim information; and ¤issues involving violation of a reasonable expectation of privacy. What is the process for conducting business in executive session? All executive sessions must first be convened as a legal public meeting and a motion must pass that clearly describes the subject to be discussed before the governing body may go into executive session. No action may be taken in the meeting, except the action authorized in the 7 https://www.commerce.alaska.gov/web/dcra/LocalGovernmentOnline/LocalGovernmentEle...5/4/2017 Meetings Held in Executive Session, Local Government Online, Division of Community ...Page 2 of 3 Open Meetings Act (give direction to an attorney or labor negotiator). Any member may make a motion to meet in executive session. The motion must be seconded and must pass by a majority vote. Once the motion has passed, the governing body may move the meeting to another location away from the public or may ask members of the public to leave the area until the executive session ends. If the executive session is being called to discuss a matter that may prejudice the reputation and character of a person, the individual that is the subject of the discussion must be provided notice of the meeting and provided the opportunity to request that the discussion take place during the public meeting, rather than in executive session. After the executive session ends, the public meeting is reconvened. No action may be taken in executive session, except to give direction to an attorney on a specific legal matter or a labor negotiator on a pending labor negotiation. Action on matters discussed in executive session can be presented and acted on once the public meeting has reconvened. What action may be taken in executive session? Only the items identified in the motion calling for the executive session may be discussed. The motion should contain enough detail that any interested party knows the details and justification for the session, without defeating the purpose for going into executive session. The motion and items that are auxiliary to the motion may be discussed. No action may be taken in the meeting, except the actions authorized in the Open Meetings Act. These are to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending litigation or labor negotiation. Any other action by the governing body must be taken after the public meeting is reconvened (see AS 44.62.310(b)). All of the legal requirements for conducting a public meeting must occur before, during, and after the executive session. There must be proper notice, there must be a public record of that part of the meeting that is open to the public (some organizations create a record of the executive session also), and there must be reasonable opportunity for the public to be heard. Who enforces the Open Meetings Act? It is the responsibility of the administration and governing body to assure that the provisions of the Open Meetings Act are enforced. Any individual may contest an action that they think was done in violation of the Open Meetings Act administratively through local channels and ultimately may, within 180 days, file a court action if the issue isn't remedied locally (see AS 44.62.310(f)). There are several court cases that have ruled in favor of the Open Meetings Act. When deciding these cases, the court doesn't just consider whether a violation has occurred, but also considers whether the action has interfered with the public process that the act was intended to protect. Can a governing body enter into executive session to discuss potential problem issues or receive general legal advice from their attorney? No. Executive session procedures require that the reason for calling the executive session be clearly stated; it is not enough to state "personnel issues" or "legal advice" as the reason for going into executive session. The decision to go into executive session must also weigh the potential harm of open discussion against the public interest and benefit of open public discussion and the public's right to know. Decisions based on generalities do not identify the harm that could result. Attorney-client privilege in general cannot be used as a reason for calling an executive session. Attorney-client privilege is limited to matters where public interest may be injured. This would include how to avoid legal liability, litigation strategies and candid discussion of facts, settlement conference, and a conference on a decision to appeal What is the cure for conducting an executive session that violates the Open Meetings Act? The governing body can attempt an informal cure by holding another meeting in compliance with the Open Meetings Act. This meeting must have substantial and public reconsideration of the matter. If a lawsuit is filed, the court may void any action taken by the governing body. Additional Resources Publications: ¤Perkins Coie, Alaska's Open Meetings Law, by Gordon Tans, October 2002, 3rd Edition ¤A Primer for City Council Members ¤The Mayor's Handbook: A Primer for Small City Mayors ¤Executive Session Procedural Guide ¤Executive Session Notification Letter Recommended web site search topics: ¤Alaska Executive Session ¤Alaska's Open Meetings Act Applicable Laws and Regulations Alaska Constitution ¤Article I, Section 1 Inherent rights ¤Article I, Section 2 Source of government 8 https://www.commerce.alaska.gov/web/dcra/LocalGovernmentOnline/LocalGovernmentEle...5/4/2017 Meetings Held in Executive Session, Local Government Online, Division of Community ...Page 3 of 3 ¤Article I, Section 22 Right of privacy Alaska Statutes ¤AS 29.20.020 Public meetings, opportunity to be heard. ¤AS 29.20.160 Procedures of governing bodies. ¤AS 29.20.250 Mayor powers and duties. ¤AS 29.20.300 Boards, commissions, mayor presiding officer. ¤AS 29.20.380 Municipal clerk duties, official journal. ¤AS 29.20.500 Mayor powers and duties. ¤AS 40.25.110-.120 Public records open to inspection, exceptions. ¤AS 44.62.310 Government meetings public. ¤AS 44.62.312 State policy regarding meetings. Revised 12/30/2014 Contact Us / Staff Directory State of Alaska© 2017 9 https://www.commerce.alaska.gov/web/dcra/LocalGovernmentOnline/LocalGovernmentEle...5/4/2017 Alaska’s Open Meetings Law Gordon J Tans October 2002 3rd Edition I.INTRODUCTION TO ALASKA'S OPEN MEETINGS ACT II.WHO IS COVERED BY THE ACT? III.WHAT IS A MEETING? IV.PUBLIC PARTICIPATION RIGHTS V.WHAT NOTICE IS REQUIRED? VI.EXECUTIVE SESSIONS VII.REMEDIES AND PENALTIES FOR VIOLATIONS APPENDIX PREFACE The first edition of this publication appeared in 1992 under the title "Alaska's Open Meetings Act: A Guide For Local Governments And School Districts." In 1994 the Alaska State Legislature passed significant amendments to AS 44.62.310- .312, popularly known as the Open Meetings Act, which is reprinted in the Appendix. Among other changes, the legislation clarified the definitions of "governmental body" and "meeting" coming within the coverage of the act. Sweeping changes were made to the law of remedies available for violation of the act. The second edition of this publication was published in 1996 to incorporate these legislative changes. This third edition broadens the scope of the publication and provides additional analysis. It also refers to all court decisions discussing the Open Meetings Act that have been issued since 1996. This publication refers to court decisions from several different courts. Generally, only those opinions from the Alaska Supreme Court (cited as Alaska) would be considered binding precedents. Cases cited from other states, or from the Superior Court (cited as Alaska Super. Ct.) or the U.S. District Court for Alaska (cited as D. Alaska) are cited for illustrative purposes. Although those cases show how courts interpret the Open Meetings Act, they are not precedents binding on any other court's interpretation of the act. This publication is intended to provide accurate and authoritative information in regard to the subject matter covered. It is made available with the understanding that the author and publisher are not engaged in rendering legal or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought. I.INTRODUCTION TO ALASKA'S OPEN MEETINGS ACT A. Background Alaska's open meetings law has been in the statute books since the earliest days of statehood. For the first twenty years since statehood in 1959, no reported Alaska court decision even mentioned the open meetings law. The first decision to do so appeared in 1980,1 and since then there have been many. In the 1980s there were eleven reported decisions in which the law played a substantive role and another eight where the law was mentioned, but played an insignificant part. In the 1990s, the law was substantively applied in ten reported cases and mentioned in another four decisions. In 1994 the law, popularly known as the Open Meetings Act, was significantly amended by the Alaska Legislature. Among other changes, the legislation clarified the definitions of "governmental body" and "meeting" within the coverage of the act. Sweeping changes were made to the legislated remedies for violation of the act. 10 therefore, the meeting violated the OMA. The advertisements were not clear about whether a "meeting" or a "hearing" was going to occur.66 The important point here is that under some circumstances the reasonable notice requirement may be violated by the consideration of complex or important items not specifically and clearly listed on the public notice or the agenda of an otherwise properly called and noticed meeting. Amending the agenda at the beginning of a meeting will not cure a defect of this nature because it will do nothing to provide reasonable and timely advance notice to the public. D.Notice To Specific Individuals Although not an OMA requirement, in some matters notice should be provided to specific persons whose individual rights are at stake in the issue to be considered. For example, participants in a quasi-judicial hearing on a zoning application or an appeal of any kind must receive reasonable notice of the meeting. To satisfy constitutional due process requirements, advance notice must be given to one whose rights stand to be terminated or revoked (e.g., an employment agreement, lease, contract, permit or license.) E.Notice To Certain Individuals Who Are Subjects Of Executive Sessions The topic of executive sessions is discussed in more detail in Section VI below, but, on the issue of notice, there is a special requirement that applies only to executive sessions called to discuss subjects that may tend to prejudice the reputation and character of a person.67 A body's right to hold an executive session on such a matter is subject to the superior right of the person in question to demand public consideration instead of an executive session. In University of Alaska v. Geistauts68 the court found the OMA implies an obligation to provide adequate notice of the meeting to the individual whose reputation and character are to be the subject of the executive session. The purpose of the notice is to afford that person the opportunity to demand a public discussion instead of an executive session. Furthermore, in order to adequately protect that right, the individual must be specifically advised of the right to request that the meeting be open to the public. If the person requests an open meeting, an executive session may not be held. On the other hand, the failure to notify a person of his right to demand that the discussion about him be held publicly was harmless when he had actual notice that his employment would be discussed by the city council, he was invited to attend the executive session but chose not to, and he stated he did not want the matter discussed publicly, Ramsey v. City of Sand Point.69 F.Notice Of Teleconference Meetings If a meeting will be held by teleconference, the meeting notice must state the location of any teleconferencing facilities that will be used. Of course, this means that if a remote location is being used at which the public may gather and participate, notice of such a location must be given. The Alaska Supreme Court has recognized a distinction between a true teleconference meeting and the situation in which one person, i.e., a citizen, participates in the meeting by telephone. The practice of allowing a citizen to phone in comments to a meeting held at a single location was approved because it had the effect of expanding public participation consistent with the goals of the OMA.70 No particular notice can be given of the locations from which such calls can be made because they may be made from anywhere. However, if such call-ins are going to be accepted, it would seem reasonable that public notice should be given of that fact, with instructions on how a person may properly place such a call. VI.EXECUTIVE SESSIONSVI.EXECUTIVE SESSIONS 11 It seems that no other facet of the OMA generates more questions than the subject of executive sessions. An executive session is a portion of a public meeting from which the public is excluded because of the nature of the subject matter to be discussed. Implicit in the legislative conclusion that certain subjects qualify for executive session is the judgment that the danger of harm to public or private interests that may result from public discussion of such subjects outweighs the public benefits of a public discussion. It is important to distinguish an executive session from a private or secret meeting. An executive session must begin and end in a public meeting. The public will be excluded only from the executive session portion of an otherwise public meeting. The body itself will determine who, if anyone, will be invited into the executive session along with the members of the body. A.What Subjects Qualify For Executive Session? 1.In general AS 44.62.310(c)(1) describes the subjects that may be discussed in executive session as follows: (a)matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit; (b)subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (c)matters which by law, municipal charter, or ordinance are required to be confidential; (d)matters involving consideration of government records that by law are not subject to public disclosure. The court has also held that some attorney-client communications qualify for executive session treatment.71 It is very interesting to note that a municipality cannot by ordinance or charter narrow the list of exceptions that qualify for executive session. Walleri v. City of Fairbanks72 held that the effect of AS 29.20.020 ("meetings of all municipal bodies shall be public as provided in AS 44.62.310") was to preempt municipal enactments that provide for a narrower list of executive session subjects than as provided in the OMA. The ramifications of the court's conclusion that the OMA preempts inconsistent municipal ordinances are yet to be discovered. 2.Adverse financial impact The first category of eligible subjects, matters having an adverse financial impact, has several limiting qualifiers attached. The statue requires that it be clear that immediate public knowledge of the discussion will adversely affect government finances. A mere possibility of adverse effect on government finances does not suffice. One example that appears to qualify under this test is the consideration of offers to settle litigation. A government body cannot candidly discuss settlement offers and potential counter offers publicly without great risk of letting opposing litigants know how much the government is willing to pay or accept in settlement. All opportunities to bargain for a more favorable settlement will be lost when everyone knows what the government's bargaining position and points of weakness are. The only way to discuss settlement offers without harming the public financial interest is in executive session. 12 However, it is not enough to qualify for an executive session to merely say the matter is one of "pending litigation" or a "financial matter," as is often heard. As a practical matter, for an adverse financial impact executive session to withstand a court challenge, there must be facts in the record to enable the court to conclude it was clear that immediate public knowledge of the particular issue to be discussed would harm the government's financial interests. A court is directed to construe the law narrowly to avoid unnecessary executive sessions,73 so an informative on-the-record statement of the facts justifying an executive session seems necessary. 3.Reputation and character Subjects that tend to prejudice the reputation and character of any person may be discussed in executive session. The person in question does not have to be a government employee or job applicant, but often it is. InCity of Kenai v Kenai Peninsula Newspapers, Inc.,74 the court reviewed a legal challenge to an executive session held to discuss the applicants for a city manager position. The court said, "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."75 The court recognized an exception, however, for the discussion of personal characteristics, especially in the context of comparing several applicants, acknowledging that such discussion would "carry a risk that the applicant's reputation will be compromised."76 Our court shed more light on the meaning of this exception in University of Alaska v. Geistauts77 where a university tenure committee held executive sessions to consider whether a professor should be granted tenure status. The court recognized such meetings are appropriate for executive sessions. Such a meeting was "likely to focus on perceived deficiencies in the candidate's qualifications. Tenure committee members may raise concerns for the purpose of discussion which would damage the applicant's reputation if aired publicly."78 This statement shows not only a concern to protect the individual from damages, but also a realization that an executive session will encourage a full and candid discussion of important concerns that should be addressed. In a footnote to the Geistauts decision, the court discussed this exception in a general employment context, observing that AS 44.62.310(c)(2) was designed to serve the same function as other states' exemption of employment matters from open meeting law requirements. "The reasoning behind the 'personnel matters' exception in other jurisdictions appears to be the avoidance of embarrassment to employees whose strengths and weaknesses will be evaluated."79 In the context of considering whether the stated grounds for recall of a school board member sufficiently described misconduct in office or failure to perform prescribed duties, the court stated in Von Stauffenberg v. Committee For An Honest And Ethical School Board that "there is no law which precludes public officials from discussing sensitive personnel matters in closed door executive sessions."80 It should be remembered, however, that the person whose reputation or character is in issue is entitled to specific notice of the executive session and of the right to demand that the discussion be public. If a demand for a public discussion is made by that person, then an executive session may not be held on that ground.81 4.Matters required to be kept confidential The third exception is a catch-all for other subjects that are required by law, municipal charter, or ordinance to be kept confidential. Note that this language leaves open the question of whether laws, charters, or ordinances authorizing, but not requiring, confidentiality will satisfy this exception. 13 In addition to federal and state constitutions and laws, this exception specifically recognizes municipal charters and ordinances as valid sources of law requiring confidentiality. However, many municipalities have few, if any, charter provisions or ordinances requiring confidentiality, even though there are some subjects that would easily qualify for required confidential treatment, such as juvenile and individual student matters, collective bargaining and similar negotiations, settlement negotiations, and certain attorney advice (discussed further below).82 There has not been any Supreme Court decision in which the validity of a local ordinance requiring confidentiality has been challenged in the Open Meetings Act context. It is possible such an ordinance might be challenged on the basis that the ordinance unduly restricts the public's right to know about the affairs of the government. Such a challenge might be successful if the court concludes the local government does not "need" the confidentiality when the interest of the public in knowing outweighs the governmental interest in keeping confidentiality. The Supreme Court already uses that balancing test in the public records context to determine the validity of local exemptions from the state law requiring disclosure of records.83 Because of this possibility, ordinances requiring confidentiality should be based on a legitimate need for confidentiality that outweighs the public's interest in knowing what is going on with the government. The confidential-by-law category was the basis for the Alaska Supreme Court holding that the common law attorney-client privilege justifies executive session treatment of some attorney-client communications.84 This attorney-client privilege exception is discussed below in Section VI.A.6. Other common law privileges might also provide a basis for additional executive session treatment under the court's analysis. There is also the constitutional right of privacy,85 another "law" that requires confidential treatment of a subject when the individual in question has an expectation of privacy that society recognizes as reasonable. The full extent of the constitutional right of personal privacy is not well defined, and a complete discussion of the issue is beyond the scope of this paper. 5.Confidential records Matters involving government records that are protected from public disclosure by law may also be discussed in executive session. As a general rule, records of public agencies (which include municipalities and school districts86) are subject to public disclosure unless the law provides an exception.87 A number of confidential records are listed in AS 40.25.120(a), including records pertaining to juveniles (unless disclosure is authorized by law), medical and related public health records, records required to be kept confidential by a federal law or regulation or by state law, and certain records compiled for law enforcement. Our court has been willing to consider whether municipal ordinances concerning confidential records qualify for common law (i.e., nonstatutory) exceptions from disclosure. The court's analysis focuses on the need for the exception, which requires weighing the public interest in favor of disclosure against the governmental interests and individual privacy interests favoring nondisclosure.88 However, the government will bear the burden of justifying the exception, and public policy favors public access.89 Under these constraints, new exceptions to the general rule of public disclosure may be approved by the court, but probably not frequently. An interesting case now pending in the Alaska Supreme Court, Fuller v. City of Homer,90 should answer the question of whether a city manager is entitled to the same deliberative process privilege for documents that is granted to the governor.91 If so, this will establish another category of documents that are required by law to be confidential and, therefore, may be discussed in executive session under this exception. 14 6.Attorney-client privilege Under limited circumstances communications between a governmental body and its attorney qualify for executive session treatment, according to Cool Homes, Inc. v. Fairbanks North Star Borough.92 This exception is based on the attorney-client privilege, but for Open Meetings Act purposes, the privilege is defined narrowly. This executive session exception is not available for general legal advice or opinion. It applies only when the revelation of the communication will injure the public interest or there is some other recognized purpose in keeping the communication confidential. It is not even enough that the public body is involved in pending litigation.93 Rather, the specific communication must be one that the confidentiality rationale for the privilege deems worthy of protection. The court cited a number of examples of attorney-client communications that might qualify for executive sessions: candid discussions of facts and litigation strategies; a conference on a decision to appeal; a conference about settlement; and advice about how a body and its members might avoid legal liability. A discussion generally about the "ins and outs and status" of litigation, and "what has happened in the year . . . as to court findings" did not qualify for executive session.94 B.Procedure For Executive Sessions An executive session cannot be an unannounced, secret meeting. Except in very limited circumstances,95 an executive session is only a part of a public meeting. Several steps must be followed in calling an executive session. 1.Public meeting Before an executive session may be held, the meeting must first be convened as a public meeting. In the public meeting, a motion to hold an executive session must be considered and decided by a majority vote of the body. As at any public meeting, the public has a right to attend and, to a certain extent, participate. At least at municipal public meetings, this includes a reasonable opportunity to be heard under AS 29.20.020 during the public portion, but not during the confidential portion of the meeting.96 2.Notice Because an executive session occurs at a public meeting, reasonable notice of the meeting must be given to the public according to the same requirements for any public meeting.97 This applies whether the executive session is to be held at a regular or a special meeting. That does not mean, in this author's view, that the public notice must specifically state that an executive session will be held. It is enough if reasonable public notice of the meeting has been given, including any reasonable subject matter notice that might be required. Even if the meeting notice and agenda do not mention the words "executive session," an executive session may be held if the body deems it necessary and the public has sufficient reasonable notice of the meeting and the subject matter. However, specific advance notice of the executive session is required in at least one circumstance. If it is anticipated in advance that an executive session will be required to discuss a topic that might prejudice the reputation and character of a person, that person must be personally notified of the meeting and the contemplated executive session so the individual may exercise the right to demand a public discussion.98 If it is not known in advance that such a discussion will occur, it will be necessary to postpone that discussion until the individual in question has been advised of his or her rights. 3.Motion calling for executive session 15 The motion calling for an executive session must "clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private."99 A well-stated motion will also identify the legal grounds being relied upon. A mere recitation of the statutory language (e.g., "a matter that would prejudice a person's reputation") may not satisfy the "clearly and with specificity" standard. In the case where an individual's reputation or character may be at issue, it may be appropriate to name the individual in some cases but not in other cases. For example, when a city council is about to discuss the personal characteristics of a short list of candidates for city manager, there is no likelihood that stating the names of these individuals would cause any harm at all. On the other hand, if the purpose of the executive session is to consider confidential information concerning allegations about a dishonest police officer, it would not be appropriate to say that the purpose of the executive session is "to consider allegations of dishonesty involving Officer Smith." Identifying the individual in these circumstances would entirely defeat the purpose of holding the discussion in private by causing damage to his reputation before the discussion even starts. Clearly identifying the specific topic and, where possible without causing harm, naming the specific individual under consideration is important for several reasons. If an executive session is challenged, the court will need to know what subject was to be discussed and why it qualified for executive session treatment. Furthermore, it is important to properly describe the subject matter to be discussed in the motion because anything not mentioned in the motion cannot be discussed in the executive session, unless it is auxiliary to the main question.100 Finally, even though the public may not have a right to hear what is said in executive session, the state's public policy indicates that the public does have a right to know what the session is about and why it is justified. Because both the public and the court have an interest in knowing why an executive session is warranted, either the motion or the debate preceding the vote on the motion should explain how the matter legally qualifies as a legitimate executive session subject. For example, during debate on the motion for the executive session a member of the body should describe how knowledge of the matter will clearly have an immediate adverse effect on the government finances, or mention the particular law that requires confidentiality. A proper discussion on the record will minimize the chances of a successful legal challenge. It is inadequate when the motion contains only short-hand phrases, such as "pending litigation" or "attorney-client privilege" or "personnel matter." None of these phrases describes the subject matter "clearly and with specificity," nor do they accurately describe subjects that are within the lawfully allowable executive session categories. Further, they fail to give adequate notice to the public or to the courts about what is to be discussed and why it qualifies. The courts are compelled to give a narrow construction to the executive session exceptions so unnecessary executive sessions may be avoided,101 and such short-hand phrases fail to show that an executive session is necessary. 4.Recording and minutes There is no statutory requirement to take minutes or make a recording of the discussions in executive session.102 However, at least one superior court judge has observed that one reason why he was unable to determine whether an executive session in question was legal was that no recording had been made of the session.103 Some public bodies do record executive sessions (the tapes are not released to the public) while others do not. Municipal attorneys and public officials in this state disagree about whether an executive session should be recorded. Until the law is clarified by the legislature or the Supreme Court, it seems likely there will continue to be inconsistency in the practices of various public entities on this issue. 16 C.Limitations On Executive Sessions 1.Only main and auxiliary issues may be discussed The discussion in executive session must be limited to those subjects described in the motion calling for the session and those subjects "auxiliary" to the main question.104 The OMA does not attempt to define "auxiliary," and the Supreme Court has not done so either. According to Webster's Third New International Dictionary (1981), "auxiliary" means "functioning in a subsidiary capacity." Given the strong public policy favoring open meetings and Webster's definition, it seems likely the court will require that any auxiliary issues discussed have a fairly close degree of subsidiary relationship to the main question. Thus, the OMA gives the public body only limited flexibility to address subsidiary issues. This still enables the public to have a fair idea about the subjects the governing body is discussing so the public may retain appropriate control over the government it created.105 Court interpretations of the OMA suggest that as much of the subject matter as possible should be discussed publicly. It may be that on a given subject some details should be discussed in executive session, while other facets of the same subject matter should be discussed in public session. The Supreme Court pointed to this result in City of Kenai v. Kenai Peninsula Newspapers, Inc.106 when it observed that public discussion of a city manager applicant's experience, education and background would not ordinarily endanger a reputation, while discussion of personal characteristics and habits might very well carry such a risk. The court's ruling authorized executive sessions only for "discussing the personal characteristics of the applicants."107 The same kind of direction was given in Cool Homes, Inc. v. Fairbanks North Star Borough108 (borough attorney's general status report about litigation does not qualify for executive session, but legal advice about avoiding liability does qualify.) So far, the court has not attempted to explain why these other matters are not "auxiliary to the main question," which would allow them to also be discussed in the executive session. 2.Generally, no action may be taken in executive session Generally, no action may be taken in executive session.109 Except as discussed below, the body may only discuss matters in executive session, and if any action must be taken on the subject, the body must reconvene in a public session to do so. The taking of "straw votes" in an executive session would probably be held to be a violation of this rule, as it tends to circumvent the policy of the OMA to require governmental body actions to be taken openly.110 Reconvening in public session to announce a decision made in executive session violates the OMA, unless one of the following exceptions or exemptions applies. 3.Exceptions: directions on legal matters and labor negotiations As exceptions to the rule that no action may be taken in executive session, the OMA authorizes a public body to give directions in executive session on two kinds of matters. First, the body may direct its attorney about the handling of a specific legal matter. This makes it clear that the attorney may be instructed in executive session about things like negotiating positions and legal strategies for a specific legal matter. Second, direction may be given to a labor negotiator about the handling of pending labor negotiations. This allows the body to instruct the negotiator in executive session about such things as bargaining positions and negotiating points. 4.Exemption: quasi-judicial decision-making When a governmental body acting quasi-judicially meets solely to make a decision in an adjudicatory proceeding, it is entirely exempt from the OMA.111 This means the decision-making may be done in private.112 Logically, this should mean 17 that it is also permissible to conduct such decision-making in an executive session convened during an otherwise public meeting. Surely it is proper to make a decision in executive session that could lawfully have been made in total privacy. Therefore, a court should approve using an executive session to make a final decision while functioning quasi-judicially in an adjudicatory matter. VII.REMEDIES AND PENALTIES FOR VIOLATIONS Prior to the 1994 amendments, the law declared simply that "action taken contrary to \[the Open Meetings Act\] is void." The effect of declaring an action void is to treat it as though it had never happened. From time to time, the court found that to be a harsh and impractical remedy,113 and it struggled to find a way to manipulate the inflexible law to mesh with practical realities.114 Major legislative revisions to the remedy portion of the OMA were adopted in 1994. The length of the remedy provisions was increased from one sentence to an entire page, and its complexity increased accordingly. Now the remedy portion of the act provides that an action in violation of the OMA is voidable only after a court carefully considers many factors and concludes the public interest in complying with the OMA outweighs the harm resulting to the public interest and the public entity that would flow from voiding the action. Procedural and other requirements were also introduced. There is a huge difference in the statutory remedy provisions for violations by decision-making bodies compared with violations by advisory-only bodies. These two types of bodies will be discussed separately. A.Decision-Making or Policy-Making Body-Remedies Not all governmental bodies have the authority to make decisions or policies for the public entity.115 This part of this paper addresses remedies available for violations of the OMA only when committed by those bodies that do have such authority. An action taken in violation of the OMA by a decision-making or policy-making body is voidable.116 In other words, a court might declare that the action had no legal effect, but such a declaration is by no means automatic. Many factors must be considered before the court may void the action. 1.When a violation is alleged, a body may attempt an informal cure A governmental body that has violated or is alleged to have violated the OMA may attempt to cure the violation by holding another meeting that complies with the OMA.117 At that meeting the body must conduct a "substantial and public reconsideration" of the matters considered at the allegedly improper meeting. One of the factors a court must consider when it decides whether an action resulting from an improper meeting should be declared void is whether, and to what extent, the body engaged in such public reconsideration. Interestingly, even reconsideration that occurs after a lawsuit is filed will be taken into account by the court. Presumably, if the court determines that a reconsideration was not sufficiently substantial or public, then it may find the attempted cure was inadequate and proceed to consider the appropriate remedy for the violation. 2.Improper action is voidable by court action The OMA says that "action taken contrary to \[the OMA\] is voidable."118 Thus, the court has the power to declare the action void, but it is not required to do so in all cases. A lawsuit to void an action for violation of the OMA must be brought within 180 days after the date of the action. The purpose of this short statute of limitations is apparently to reduce delay and 18 W OHLFORTH|B RECHT|C ARTLEDGE A PROFESSIONAL CORPORATION Julius J. BrechtT ELEPHONE 907.276.6401 Cynthia L. Cartledge ATTORNEYS AT LAW William A. Earnhart F ACSIMILE 900 WEST 5TH AVENUE, SUITE 600 Michael Gatti907.276.5093 CHORAGE, ALASKA 99501-2048 AN Nathaniel Parr W EBSITE Eric E. Wohlforth WWW.AKATTY.COM ALASKA OPEN MEETINGS ACT Wohlforth, Brecht & Cartledge wearnhart@akatty.com 19 Wohlforth, Brecht & Cartledge A Professional Corporation 900 West 5th Avenue, Suite 600 Anchorage, Alaska 99501 Phone: 907.276.6401 Fax: 907.276.5093 ______________________________________________________________________ II.OPEN MEETINGS LAWS - EXCEPTIONS AND REMEDIES FOR VIOLATIONS A.Executive Sessions And Other Non-Public Meetings 1.Executive Sessions. As an exception to its general requirement that meetings of public bodies be open to the public, the Act permits (but does not require) certain subjects to be discussed privately in executive session. Provisions in the Act and in local ordinances for executive sessions act as exceptions to the general requirement that meetings of governmental bodies be open to the public. The attorney/client privilege, deliberative process privilege, and constitutional privacy rights require the content of executive sessions to remain confidential. Consideration of particular documents in an executive session does not make Consideration of particular documents in an executive session does not make those documents privileged or confidential indefinitely. those documents privileged or confidential indefinitely. Documents considered in an executive session remain subject to disclosure under state and local public records laws unless an exception to those laws permits them to be withheld from disclosure. There are specific requirements for entering executive session. An executive session can only convene after a public majority vote of the body. The body must first convene the meeting as a public meeting and then entertain a motion to hold an executive session to discuss a matter within the allowable subjects listed in AS 44.62.310(c) (discussed below). The motion to enter into an executive session must clearly and with specificity The motion to enter into an executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. addressing the subject in private. Simply make a motion to go into an executive session Simply make a motion to go into an executive session and list the statutorily-authorized reasons to do so without specifically describing the and list the statutorily-authorized reasons to do so without specifically describing the nature or the reason to go into the executive session is sometimes required to preserve nature or the reason to go into the executive session is sometimes required to preserve the purpose of the exceptionthe purpose of the exception..For instance, the privacy of personnel matters is often lost if the individual in question is named in public. However, to the extent general description can be used to describe the reason without undermining the purpose for the executive session, such discussions are helpful to a reviewing court should the executive session be challenged. The motion to convene an executive session should include a list of any necessary individuals outside of the body to be included (such as the manager, the attorney, or a consultant that may be giving specific advice on a financial matter the immediate knowledge of which could impact the finances of the municipality). Alaska Open Meetings Act - © 2015Page 8 of 18 20 Wohlforth, Brecht & Cartledge A Professional Corporation 900 West 5th Avenue, Suite 600 Anchorage, Alaska 99501 Phone: 907.276.6401 Fax: 907.276.5093 ______________________________________________________________________ Pursuant to AS 44.62.310(b), the governing body also may not take action at an executive session except "to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations."When a governing body enters executive session, subjects may not be considered in the session except those mentioned in the motion unless "auxiliary" to the main question. AS 44.62.310(c) sets out the subjects that may be considered in executive session. They are: (1)matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity; Emphasis must be placed on the words "immediate" and "clearly" in this exception, as all exceptions are to be narrowly construed. (2)subjects that tend to prejudice the reputation and character of any person, provided the person may request apublic discussion; This provision is qualified by the right of the person whose reputation or character is at This provision is qualified by the right of the person whose reputation or character is at issue to request a public discussion of the issue. The right to a public discussion can be issue to request a public discussion of the issue. The right to a public discussion can be and is generally waived. However, there is a duty to inform the individual and allow and is generally waived. However, there is a duty to inform the individual and allow and is generally waived. However, there is a duty to inform the individual and allow them the opportunity to invoke that right. them the opportunity to invoke that right. (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. Both of these exceptions are self-explanatory. Alaska Open Meetings Act - © 2015Page 9 of 18 21 22 23 Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 24 Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 25 Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 26 Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 27 28 Smith v. Jones 30 Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 31 substantial and public reconsideration Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 32 33 or gathering is prearranged Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 34 In Alaska Community Colleges Federation of Teachers Local 2404 v. University of Alaska et al. Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 35 Brookwood Area Homeowners Association Inc., et al. v. the Municipality of Anchorage Brookwood Id.Geistauts Sacramento Newspaper Guild Brown ActBrown Act Id. Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 36 Id. In Abood v. League of Women Voters of Alaska Municipality of Anchorage v. Anchorage Daily News City of Kenai Hickel v. Southeast Conference See alsoIn re 2001 Redistricting Cases In re 2001 Redistricting Cases Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 37 Cool Homes, Inc. v. Fairbanks North Star Borough Kila, Inc. v. State Department of Administration Fuller v. Homer Griswold v. City of Homer In Re 2001 Redistricting Cases Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 38 Walleri v. City of Fairbanks The superior court is correct. Alaska Statute 29.10.200 lists provisions that "apply to home rule municipalities as prohibitions on acting otherwise than as provided. These provisions supercede existing and prohibit future home rule enactments that provide otherwise." Ramsey v. City of Sand Point Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 39 Meiners v. Bering Strait School Board Von Stauffenberg v. Committee for Honest and Ethical School Board Meiners Von Stauffenberg Revelle v. Marston Mullins v. Local Boundary Com'n ACCFT Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 40 Gold Country Estates Preservation Group v. Fairbanks North Star Borough de novo Gold CountryBrookwood -- Gold Country Brookwood Brookwood Brookwood Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 41 Ethics andOMA - Michael Gatti and Renee Broker - 2016 AAMC 51st Annual Conference 42 Johanna Kinney From:Will Earnhart <wearnhart@BHB.com> Sent:Tuesday, May 02, 2017 9:39 AM To:Johanna Kinney Subject:distribution for work session on executive session Attachments: 20170502072846 (20170502092816x7AB6D).pdf; 20170502092824.pdf Follow Up Flag:Follow up Flag Status:Flagged HerearetwoarticlesfromtheWashingtonStateversionoftheAMLinregardtoexecutivesessionsecrecythatshould behelpfulfortheworksession. IwouldnotethatalthoughAlaskaalsohasseveralstatutesthattouchuponpenaltiesforpublicofficialsviolating bea secrecy,theyarespecificallydesignedtoguardagainstmisuseofpublicofficeortoprotectspecificdata.Itwould reachtoapplythemtoalocalexecutivesession,andwouldrequirecourtenforcementthroughtheofficeofthe attorneygeneral. William A. Earnhart Birch Horton Bittner & Cherot 510 L Street, Suite 700 | Anchorage AK 99501 Tel 907.263.7285 | Main 907.276.1550 wearnhart@bhb.com | www.birchhorton.com Bio |vCard EFFECTIVE APRIL 1ST, OUR NEW ADDRESS IS 510 L STREET SUITE 700 ANCHORAGE ALASKA 99501 This transmittal may be a confidential attorney-client communication or may otherwise be privileged or confidential. If you are not the intended recipient, you have received this transmittal in error. Any review, dissemination, distribution or copying of this transmittal is strictly prohibited. If you have received this communication in error, please notify us immediately by reply or by telephone (907) 276-1550 and immediately delete this message and all attachments. NOTE: This message was trained as non-spam. If this is wrong, please correct the training as soon as possible. Spam Phish/Fraud Not spam Forget previous vote 1 43 44 45 46 47 48 49 City of Seward 3.5 Meetings of Council (Charter) (h)The council may, after its agenda is otherwise completed, recess for the purpose of discussing, in a closed or executive session,any question permitted by law which is expressed in the motion calling for executive session. The public may be excluded from the session,but final action shall not be taken by the council on any matter discussed in executive sessionuntil the matter is placed on the agenda. 2.10.030Meetings (Code) \[9\] (b)Executive sessions.Council may, after its agenda is otherwise completed, recess for the purpose of discussing in closed or executive session, any question permitted by law which is expressed in a motion calling for the executive session. Those matters which may be discussed in an executive session are: (1)Matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the city; (2)Subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (3)Matters pertaining to threatened or pending litigation; (4)Strategy for the negotiation of labor and other contracts; and (5)Matters, which by law, municipal charter, or ordinance are required to be confidential. The public may be excluded from an executive session but final action shall not be taken by the council on any matter discussed in an executive session until the matter is placed on the agenda of a public meeting. 50 City of Wasilla 2.04.080 Executive session. A.If subjects excepted from public meetings are to be discussed, the meeting shall first be convened as a public meeting and the question of holding an executive session to discuss matters that come within the exceptions of subsection Bof this section shall be determined by an affirmative vote of the council. Subjects may not be considered while in an executive session, except those mentioned in the motion calling for the executive session, unless auxiliary to the main question. Action may not be taken at an executive session, except to give direction to an attorney regarding the handling of a specified legal matter. B.Upon adoption ofa motion stating the purpose for an executive session, the council in closed session may discuss: 1.Potential or pending litigation to which the city may become or is a party; 2.Matters, the immediate public knowledge of which would clearly have an adverse effect upon the finances of the city; 3.Subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; 4.Matters which by law, municipal charter, or ordinance are required to be confidential; 5.Confidential attorney-client communications made for the purpose of facilitating the rendition of professional legal services to the city; 6.Matters pertaining to personnel; or 7.Land acquisition or disposal. C.This section does not apply to quasi-judicial boards when holding a meeting solely to make a decision in an adjudicatory proceeding. (Prior code § 2.08.025) 51 City of Fairbanks Sec. 2.8. - Council: Meetings. The council shall meet regularly at such times as may be prescribed by its rules, but not less frequently than two (2) times each month. Provision may be made by ordinance for special meetings. All meetings of the council shall be open to the public; provided, however, that the council, after its agenda is otherwise completed, may recess for the purpose of discussing in a closed or executive session any question which would tend to defame or prejudice the reputation and character of any person or persons, provided that the general subject matter for consideration in executive session is expressed in the motion calling for said session. The public may be excluded from this session, but final action shall not be taken by the council until the matter is placed on the agenda. City and Borough of Juneau (d)All meetings of the assembly shall be public and the public shall have reasonable opportunity to be heard. The assembly may recess a meeting or proceeding for the purpose of discussing in a closed or executivesessionany matter the immediate knowledge of which would adversely affect the finances of the municipality or would defame or prejudice the character or reputation of any person, provided that the general subject matter for consideration is expressed inthe motion calling for such session,and that action thereon shall not be taken by the assembly in executive session. The mere discussion of persons or finances shall not be cause for an executive session. An assemblymember who calls for an executive session in violation of the provisions of this section shall be deemed to have acted in violation of this Charter. 52 City of Ketchikan 2.04.025 Private meetings. (a)AS 44.62.310(the Alaska Open Meetings Act), and subsequent amendments thereto are hereby adopted by reference and made applicable to meetings of the council and other city governmental bodies. In addition to any other exceptions provided in the Alaska Open Meetings Act, the following subjects may be considered in executive session: (1)Matters the immediate knowledge of which would clearly have an adverse effect upon the finances of the city, including but not limited to: (A)Negotiations with labor organizations representing city employees; and (B)Discussions of pending or threatened lawsuits in which the city has an interest; (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 Charter, ordinance or other law are required to be confidential; (4)Matters involving consideration of government records that by Charter, ordinance or other law are not subject to public disclosure. (b)Action taken contrary to this section is voidable. A lawsuit to void an action taken in violation of this section must be filed in superior court within 180 days after the date of this action. AS 44.62.310(f) and (g) shall apply to any such lawsuit. City of Valdez (g)After its agenda is otherwise completed, the council may recess to executivesessionfrom which the public may be excluded. No subjects may be considered at the executivesession except those mentioned in the motion calling for the executivesession, unless related to the main question, and no action may be taken on any matter discussed in the executivesessionuntil that matter is placed on the agenda unless otherwise provided for by law. Only those matters permissible under state law, or which are required by city Charter or ordinance to be confidential, may be considered in executivesession. 53 Matanuska Susitna Borough (C)If subjects excepted from public meetings are to be discussed, the meeting shall first be convened as a public meeting and the question of holding an executivesessionto discuss matters that come within the exceptions contained in subsection (D) of this section shall be determined by a majority vote of the assembly. Subjects may not be considered while in an executivesession except those mentioned in the motion calling for the executivesessionunless auxiliary to the main question. Action may not be taken at an executivesession, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations. (D)Upon adoption of a motion stating the purpose for an executivesession, the assembly in closed session may discuss: (1)\[Repealed by Ord. 01-187 § 2, 2001\] (2)matters, the immediate public knowledge of which would clearly have an adverse effect upon the finances of the borough; (3)subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (4)matters which by law, municipal charter, or ordinance are required to be confidential; (5)\[Repealed by Ord. 01-187 § 2, 2001\] (6)\[Repealed by Ord. 01-187 § 2, 2001\] (7)\[Repealed by Ord. 01-187 § 2, 2001\] (8)\[Repealed by Ord. 01-187 § 2, 2001\] (9)\[Repealed by Ord. 01-187 § 2, 2001\] (10)\[Repealed by Ord. 01-187 § 2, 2001\] (11)matters involving consideration of government records that by law are not subject to public disclosure. 54