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Alaska's Open Meetings Law One should be aware of the effect of these charges when reviewing court decisions based on the prior law
Gordon J Tans B.Ttw OMA Requires Meetings To Be Open To The Public
October 2002
3rd Edition Alaska's"Open Meetings Act"("OMA"),AS 44.62.310-.312,requires meetings of most legislative or administrative slate and
local governmental bodies to be open to the pudic.The essence of the OMA is stated in its first sentence'
I.INTRODUCTION TO ALASKA'S OPEN MEETINGS ACT
II,WHO IS COVERED BY THE ACT? All meetings of a governmental body of a public adity of the state are open to the public except
III.WHAT 1$A MEETING?
as otherwise provided by this section or another provision of law.?
IV.PUBLIC PARTICIPATION RIGHTS
V.WHAT NOTICE IS REQUIRED? The OMA,generally applicable to the slate government.is specifically made applicable to all municipalities by AS 29.20.020
VI.EXECUTIVE SESSIONS and AS 44.62.310.School distncts are also subject to the OMA according to AS 44 62 310(M131.
VII.REMEDIES AND PENALTIES FOR VIOLATIONS
APPENDIX
The complete Open Meetings Act,as in effect on the date of this paper,is reprinted in the Appeeder at the end of this paper.
PREFACE
C.State Policy Regarding Open Meetings
The first edition of this publication appeared in 1992 under the title'Alaska's Open Meetings Act:A Guido For local
Governments And School Districts.'In 1994 the Alask8 State Legislature passed significant amendments to AS 44.62.31P Slate law expresses a strong policy in favor of opening governmental meetings tome public.The statement of policy says
.312.popularly known as the etiras Act,which is reprinted in the Appendix.Among other changes,the legislation government exists to aid in the conduct of the people's business;government actions should be taken openly and
Open Me
clarified the definitions of'governmental body and'meeting"coming within tho coverage of the act Sweeping charges deliberations conducted openly:the people do not yield their sovereignty to government agencies:the people do not give
were made to the law of remedies available for violation of the act.The second edition of this publication was published in public servants the right to decide what is good for the people to know and not goal for them to know,and the right of the
1996 to incorporate these legislative changes.This third edition broadens the scope of the publication and provides people to remain Wormed alias be protected so the people may retain control over the govemmenl.3 Further.the OMA is to
additional analysis.It also refers to all court decisions discussing the Open Meetings Act that have been issued since 1996. be narrowly construed to avoid unnecessary executive sessions and exemptions from coverage of the act.4
This publication refers to court decisions horn several different courts.Generally,only those opinions from the Alaska This statement of policy is quoted often by the courts when interpreting the OMA It provides a strong impetus for cord
Supreme Court(cited as Alaska)would be considered binding precedents.Cases cited from other states,or from the interpretations of the OMA in favor of openness.
Superior Court(cited as Alaska Super.Ci.)or the U.S.District Court for Alaska(cited as D.Alaska)are cited for illustrative i!.WHO IS COVERED BY THE ACT?
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.
The Open Meetings Act requires that many governmental meetings be property noticed and open to the public.To whom do
these requirements apply?
This publication is intended to provide accurate and authoritative information in regard to the subject matter covered.II is
made available with the understanding that the author and publisher are not engaged in rendering legal or other professional
A.Public Entitlesservice.If legal advice Of professional other expert assistance is required.the services of a competent professnal should be sought.
I.INTRODUCTION TO ALASKA'S OPEN MEETINGS ACT The OMA applies to every"governmental body"of a"public entity.' Public entity rs defined to include entities of the state.
the University of Alaska.and all political subdivisions.including boards.commissions,agencies munncipaMres.school
districts,public authorities and corporations,and other governmental units of the state and political subdivisions of the
A.Background stato5
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 B.Governmental Bodies
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 For OMA purposes a"governmental Body means an assembly,council,board,commission,committee,and any other
1990s,the law was substantively applied in ten reported cases and mentioned in another four decisions. similar body of any public entity.¢Both hone rule and general law municipalities are covered equally.?By its terms,the act
also applies to members of a subcommittee or other subordinate unit of a governmental body if the subordinate unit consists
In 1994 the law.popularly known as the Open Meetings Act,was significantly amended by the Alaska Legislature Among of two or more members.
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 ad.
The OMA draws a distinction between two types of governmental bodies those with authority to establish polices or make Staff meetings and other gatherings of employees of the public entity are expressly exempt horn coverage luster the
decisions for the public entity.and those with authority only to advise or make recommendations to the public entity.Both of OMA.188 Thus,a weekly staff meeting of department heads and the mayor or municipal manager.lor example.is not a
those types of bodies are covered by the OMA.but the distinction arsing from the way a"meeting"is defineda affects the governmental body covered by the act.The Alaska Supreme Court also held that everyday dealings of public employees
remedies that will be available for violations of the OMA.9 with each other and with members of the public in day-to-day conduct of government business are not*meetings'of
-bodies'and that such employees are not'governmental units"t9
C.Some Examples
However,sometimes an employee may he appointed to a board or committee that has either decision-making aullardy or
It is important to note That a body does not have to have any decision-making power to be subject to the OMA.A body is advisory authority for the public entity.In such cases the board or committee is covered by the OMA The more presence of
subject to the OMA even if its only power is to give advice or make recommendations on mailers of public concern. one or more employees on such a body will not exempt It from the act
Certain bodies aro easy to categorize as policy-making or decision-making bodies.Obviously included in this category are 3.Quasi-judicial bodies solely when making decisions
the Local Boundary Commission,a reapportionment board,borough assemblies.city councils,school boards,boards of
adjustment.and boards of equalization.Each of these is easily characterized as a"governmental body'with decision- State agencies.municipalles.and school districts may.Iron time to time.convene m0etings of quasi-judicial bodies to
making aidhonty. make decisiorrs in adjudicatory proceedings.Examples of quasi-judicial bodies include the Local Boundary Commission,the
Walker's Compensation Board.boards of adjustment.hoards of equalization.boards of appeals,and disciplinary boards.
Other bodies may sometimes have policy-making and decision-making autho0ly and at other times have only advisory Sometimes other bodies may also sit as quasi-judicial bodies,such as the assembly,council.planning and zoning
authority.The functions assigned to each board.committee,or commission should be examined to determine it it has some commission.and school hoard.Such bodies are exempt from the OMA when meeting solely to make a decision in an
authority to make policy or decisions binding on the government.Examples of bodies that sometimes have policy or adjudicatory proceeding. An'adjudecatory proceeding-is generally one in which the rights of specific,identified individuals
decision-making authority might include planning and zoning commissions.port authority boards,service area boards and are being determined.such as a request for a zoning variance.an appeal of a tax assessment.or corxclderatlon of a contract
similar bodies. teenmation
An example of a body that does not have authority to make policy or decisions for the governmental entity would be an To be exempt from the OMA means that such bodies.in such cases.may meet in executive session to deliberate and make
advisory neighborhood council.like the community councils in the Municipality of Anchorage a decision in the pending case.If the meeting is convened solely for that purpose.public notice is not even required(such a
meeting is entirely exempt from the OMA)However,if other pubhc matters are also addressed at such a meeting,then
Alaska Supreme Court decisions have held that some not so obvious groups are governmental bodies covered by the OMA public notice is required and the other requirements of the OMA must be met as to the other matters to be addressed.
For instance.the following are or may be covered:a local tenure committee formed to advise the administration of the
University of Alaska,t O a gathering of municipal assembly members ate developer's office for en informal discussion of a Pie exemption from the OMA also means that a quasi-judicial body,when meeting to make a decision in an adjudicatory
proposed dnvolopment,]1 and a joint federal/state advisory task force(including both agency and non-agency members) proceeding.is also further exempt from AS 29.20.020(a),meaning it does not have to give the public an opportunity to he
formed to give advice to administrative agencies about the terms of proposed leases.12 heard dining the deliberation session.21
The very first reported case interpreting Alaska's OMA was an attempt to apply It to the Alaska Bar Association to void Iho 4.Organizational votes
results of a 1978 meeting of the board of governors refit in Hawaii.jj The court held that the statulel4 governing the bar
association,as in effect at that time,exempted the association from the OMA.At the very next legislative session the law The OMA does not apply to voles requned to organize a governmental boiy.a2 Organizing votes are those that elect the
was amended to make the OMA expressly applicable to the Alaska Bar Association,with specific requirements that 30 days' leaders or officers 0f the body.such as the mayor.mayor pro temper0,chair,ride-chair.secretary.paibamentanan.and the
notice be given of all meetings and that all board meetings be held within Alaska.l5 • Inks.
D.Who Is Not Covered? 5.Meetings of membership organizations
1.Individuals Public entities are frequently members of other organizations.like the Alaska Municipal League,Alaska Assocation of
School Districts.National League of C4ios.and soon.Sometimes the body,e.g..council,board.or commission,a the
One assembly member,council member,board member.or other individual membei of a body may meet alone with members of those bodies will themselves be members of other organizations.These membership organizations may he
members of the public or lobbyists to discuss matters of public business without violating the OMA.18 It has also been national,slate.or local in scope.
decided that the Commissioner of the Department of Fish and Game,acting under authority delegated to him by the Board
of Game,did not fall within the coverage of the current OMA when.acting alone.he deliberated and adopted subsistence The OMA does not apply to meetings held for the purpose of participating in or attending galhenwgs of such meniborshep
hunting tegulations.17 organizations if the public entity,the body,or the member of the body us a member.,}However.this exception only apples if
no action is taken and no business of the governmental body is conducted at the meeting of the membership organization.
2.Employees and staff
6.Hospital staff 1.A meeting may take any form
Also exempt from the OMA are meetings of a hospital medical staff and meetings of the governing body or any committee of There is no particular format required for a gathering of members of a decision-making body to become a meeting under the
a hospital when meeting solely to act upon matters of professional qualifications.pnvrleges or dlsciplme.24 OMA.In fact,if a sufficient number of members are present.any gathering where public business is considered may
become a meeting subject to the act,including dinner before or coffee after a formally scheduled meeting.Informal
7.Alaska Legislature gatherings are treated Me same as formally celled meetings.Work sessions are treated the same as regular meetings.
Furthermore,it does not matter whether the government called the meeting,an individual or a private business called the
As applied to the Alaska Legislature,the OMA.like the legislature's Uniform Rule 22.is viewed by the court merely as a rule meeting.or nobody called the meeting.No matter where.when.or how it occurs.it is a meriting if a sufficient number of
of procedure concerning how the legislature has detemrined to do business.While by its literal terms the OMA is applicable members of a covered body get together and collectively consider a subject upon which the body is empowered to act.In
to the legislature.a violation of the OMA by the legislature will not be considered by the courts,absent infringement of the this context.transacting public business is broadly construed.Includes ovary step of the deliberative and decision-making
rights of a third person or violation of constitutional restraints or a persons fundamental rights. process,including work sessions.investigations.fact-gathering,lobbying and simple discussions of matters of public
business.33
in 1994 the legislature enacted a law requiring itself to adopt guidelines applying open meetings act principles to the
legislature.7y¢This was to have been done dung the 1995 legislative session,bid it has still not happened as o1 this w rihig. 2.Four members or a majority make a meeting
8.Alaska Railroad Before the 1994 amendments to the OMA there was uncertainty about how many members of a body could meet without
violating the DMA.The amendmonts have clarified this Issue.
The Alaska Railroad Corporation is a public corporation and an instrumentality of the state within the Department of
Community and Economic Development.As such it would be ordinarily be subject to the OMA,but the law grants the Alaska Fora decision-making or policy-making body.four members or a majority of the body.whichever Is less.will comprise a
Railroad an express exemption from the ad.27 However,the railroad corporation act requires the board of governors to greeting.A gathering of less than that number is not a meeting according to the definition.
provide reasonable notice to the public of its ineetings2B This is identical to the OMA's requirement of giving reasonable
notice to the public,so the discussion below concerning the meaning of'reasonable public notice'under the OMA Is The typical city council has six or seven members.depending on whether the mayor is a member of the council.In either
relevant to the Alaska Railroad board of govenars.a The list of topics that may be discussed in executive session by the case,a typical quorum is tour.Therefore,a meeting will occur when four members of a typical city council are present sod
Alaska Railroad board of governors Is considerably broader than that found in the OMA.1Q Because of the similarities collediveN consoler a matter of city business
between the laws,the discussion below concerning executive sessions will have considerable relevance to the Alaska
Railroad.31 For any larger body.like a borough assembly or school board vnth eight or more members.the number of members that
could constitute a meeting is always four
9.Others
For a smaller body.like a subcommittee or board with loss than six members.any gathering of a majority of the body will
The U S government.corporations.including non-profits.and Native entities aro not covered by the OMA.A clause of AS constitute a meeting if the members collectively consider any matter upon which the body has the newer to ad.
44.62.310(a)extending the OMA to"organizations...supported in whole or m part by public money-was removed from the
law in 1994. 1.Teleconference meetings
III.WHAT IS A MEETING? Telephone conference meetings are allowed by the OMA.34 Both members of the body and the public are authorized to
participate from remote locations.Presumably.speaker phones or their equivalent must be used so all persons present in
The OMA has two definitions of"meeting'that differ significantly.One definition is applied to decision-making or policy- every location may hear the proceedings and participate.Materials to be considered must be made available at
making bodies.and the other definition applies to advisory-only bodies.The differences between these two kinds of bodies teleconference locations,if practicable.Votes at a teleconference meeting must be taken by roll call so all will know how
Is discussed in Section II.C.The different definitions require each kind of body to be discussed separately each member votes.Public notice of teleconference meetings must include notice of the location of the teleconference
facilities that will be used.
A.Meeting-Decision-Making Or Policy-Making Body
The Supreme Court has approved.if somewhat reluctantly.the practice of allowing citizens to phone in comments to a
For a dedaon-making or policy making body.the OMA defines a meeting to be. public meeting that is held at a single site.The court did not consider this to be a teleconference meeting,and agreed that it
had the effect of expanding public access consistent with the inteet of the OMA.5
a gathering of members of a governmental body when...mole than three members or a majority
of the members.whichever is less.are present,(and)a matter upon which the governmental body 4.Issue:Telephone polling,serial communications,and e-mail
Is empowered to act is considered by the members collectively....32
•
•
•
Occasionally,someone vial"poll'the members of a governmental body,usually by telephone,but it may done by other appears to have been that the question of where to hold constitutionally mandated public hearings was a substantive matter
means as well.One member.or a staff person for the public entity.may speak to all the members of the body.one at a time. of redistricting'board business."while mere procedural and administrative matters were not.
to discuss an issue.The caller may either determine how the individual feels about the issue,or attempt to influence the way
the individual feels about the issue.In this manner the outcome of the issue may be predetermined.without discussing data The OMA also authorizes group discussions of substantive business,it limited to less than four members or a majority of a
public meeting.This is sometimes called a'serial meeting"because a involves a series of consecutive communications decision-making body.Because by definition a physical gathering of three or fewer members of a body of six or more do not
closely related in time. constitute a"meeting'in violation of the OMA.then it seems quite logical to conclude such a number may also communicate
by telephone or e-mad without violating the act If the members are doing nothing more than exchanging views on an issue,
If there are not more than three members present at any one time for a collective discussion.such serial communications do then it seems their activity does not circumvent the OMA.and no violation occurs.However.when the private discussions
not come within the OMA's 1994 definition of'meeting"Nevertheless,there is still some risk that serial communications have the purpose and effect of eliminating public discussion of the same esues and predetermining the outcome of a vote.
might be considered an illegal meeting in violation of the OMA.The reason for this risk is that the series of telephone calls then the public policy behind the OMA is frustrated.In this purposeful situation the possibility seems greatest that a court
could be viewer!bye court to have the effect of circumventing the OMA by determining the outcome of a vote before(or may conclude a violation has occurred when a related series of telephone or e-mail communication cumulatively involves
without)a meeting and without a public discussion the participation of four or more members,even though no single communication involved four or more.
Applying the law in effect before the 1994 OMA amendments,two courts have concluded a series of consecutive individual It is settled that a member of the public may privately coned each member of the body without violating the OMA 44 Thus,
conversations may amount to en illegal meeting.A Superior Court judge in Juneau concluded that a series of telephone a constituent may use the telephone to lobby each member of the body,one at a time,and attempt to count the number of
calls about nominees for appointment to advisory committees was an illegal neeting.36 The Supreme Court in Rickel v. votes for and against the issue In question.As long es that individual is not acting as the agent for the public entity or a
Southeast Conferonce37 upheld a trial court finding that several one-on-one conversations by reapportionment board member of the body there should be no problem.An individual has a night to petition the government and attempt to
members,coupled with a lack of substantive discussion In a public meeting.was sufficient evidence to affirm the trial court influence the outcome of decisions.On the other hand.it the individual is in reality.acting as an agent of the public entity
finding that business was being conducted outside scheduled meetings in violation of the OMA. and serving as a go-between among the members of the body,then it appears there is an attempt to circumvent the OMA.
In this context the activity stands the same risk of being found to be an illegal serial meeting as the telephone poll conducted
A judge who gives great weight to the OMA's strong public policy favoring open meetings might reach the same result even by a member of the body or a staff member.
though the current definition of a'meeting'seems to Rile out that conclusion.In the context of the question of whether a
quorum or less than a quorum could constitute a meeting,the Alaska Supreme Court said in a pre-1994 opinion: S.Issue:Lobbying by the mayor
Given the strong statement of public policy in AS 44.62.312,the question is not whether a quorum of a governmental unit What about the mayor of a city or borough lobbying the council or assembly?Is the mayor a member of the body such that it
was present at a private meeting.Rather,the question is whether activities of public officials have the effect of circumventing is improper to call all the members of the council or assembly to lobby for a particular matter?In second class cities and
the OMA.38 some home rule municipalities it is clear the mayor is member of the governing body.4¢In these municipalities the mayors
activity presents some risk of being found to be an improper serial meeting if a sufficient number of other members of the
Thus.if a court is persuaded that public business is being conducted outside the public scrutiny with the effect of body are contacted,
circumventing the OMA.then It Is possible a court will be tempted to overlook the fact that there ie no"gathering...when
more than three members...are presenl'39 at any one time and nevertheless conclude the OMA is being violated. The reautt of the mayor's lobbying activity is not so deat,however,in boroughs,first Bass cities.and those home rule
municipalities where the mayor is by law not a member of the governing body.44i Although not a member of the governing
Indeed,without even commenting on the fact that there were no members of the redistricting board present at a gathering, body.the mayor is nevertheless often the presiding officer of the body or the chief executive officer of the municipality.or
the superior court in lore 2001 Redistricting Cases concluded that the redistricting board violated the OMA by using e-mail bolh.47 and will sometimes vote with the council or assembly in the case of a beta In these circumstances,some
for communications among three members of the five member board.40 The offending e-mail communications concerned municipalities.especially those without a manager plan of government,consider the mayors office more like a separate
the important'board business'of loosing the locations for holding constitutionally-required public heatitgs on proposed administrative branch of government rather than part of the goveming body.There is some justification for this point of view.
redistncting plans.From all appearances.the 1994 OMA definition of"meeting-was never addressed by the superior court given the mayor's veto power and other distinctions between the office of mayor and the office of assembly or council
when making these findings.On appeal.the Supreme Court expressly declined to say whether the e-mail exchanges member.Asa non-member of the goveming body,and perhaps a distinct branch of governnent,may a mayor be allowed to
actually violated the OMA,and based on an assumed violation of coo OMA,concluded the trial cowl was correct in deciding privately contact all members of the governing body and attempt to influence the outcome of governing body decisions?Just
that there should be no remedy in any event.41 Therefore.while one superior court judge hen Implicitly held that serial a how the Alaska Supreme Court will respond to this question is not known.It might conclude the mayor is allowed to do so
malls can constitute an improper'meeting'under the post-1994 law.the Supreme Court expressly left the issue open. because the mayor rs not a member of the body,but It rs also possible the court might view the mayor as simply an agent of
the governing body serving as a go-between facilitating an improper serial meeting.49 Such activity by the mayor might have
Such questioned serial communications should be distinguished.however.from other simAar communications that are the effect of circumventing the policy that governmental units should conduct deliberations and take actions openly,so thero
proper.The same superior court decision found that other amass relating to procedural and administrative topics and not is some risk that a mayors private lobbying of four or more members ore quorum of the governing body wilt be found to be
involving discussion of actual redistricting did not violate the OMA.4?This finding was affirmed by the Supreme Court.43 a violation of the OMA.
Although the Supreme Court offered no explanation for its conclusion.the distinguishing feature for the superior court
6.Issue:Social gatherings
The OMA does not apply to purely social gatherings of menders of a decision-making body.A meeting only occurs when a act.Assuming that a gathering can occur when no members are actually present together in one location,then every time
sufficient number of the members collectively considers mailer of government concern on which they are empowered to one member Intentionally makes a telephone call,email,or other communication to another member to discuss business.it
act.However,experience suggests it is very difficult to have a purely social gathering of politicians.If the talk toms to public can be said to be prearranged and a"meeting'occurs.However.the issue still seems open as to whether such
business of the body,the OMA will come into effect if a sufficient number of members are present and engage in collective communications Can constitute a"meeting"when no members are present at a gathering In one Vacation.See the discussion
consideration.The key point to remember is that every step of the body's decision making process must be open to the in Section III.A,4 above.particularly concerning the e-mads in In re 200t Redistricting Cases.
public and,if a discussion by a sufficient number at a social gathering tends to circumvent that policy,it is possible a
violation has occurred.Even if the social gathering Is public,a violation can occur when public business is collectively S.leerie:Social gatherings
discussed if reasonable public notice and an opportunity to be heard are not given.
A social gathering that includes members of an advisory body will not be considered a meeting.even if the members discuss
B.Meeting-Advisory-Only Body matters about which the body has authority to give advice.This is so because a social gathering,by common understanding
of that term,would be for social purposes and not prearranged for the purpose of conducting the bodys business.
As noted above.the definition of a"meeting"for a body that only gives advice and recommendations differs from the
definition for a decision-making body.Fora body that only hes authority to advise or make recommendatione but has no However,convening a"social"gathering for the hidden purpose of conducting the bodys business earl be viewed as a
authority to establish policies or make decisions,a meeting is defined to be subterfuge.and a court may conclude that such a"sociar gathering is.in fact,a prearranged meeting hell in violation of the
OMA.
a gathering of members of a governmental body when the gathering is prearranged for the
purpose of considering a matter upon which the governmental body is empowered to act....SLQ IV.PUBLIC PARTICIPATION RIGHTS
I.A meeting must be prearranged A.In General-Public Rights Under OMA
For an advisoryonty body a meeting occurs when the members gather by prearrangement for the purpose of considering a The only rights of public participation in an open meeting expressly granted by the OMA are the rights to be present and to
matter upon which the body is empowered to act.Chance encounters by members of the body do not constitute meetings, listen and,if the meeting's by teleconference,the right to have available for review any agency materials(e.g.,the agenda
even if the members discuss a matter about which the body has authority to give advice or make recommendations, packet)to he considered at the meeting.Surely the public's right to review the agency materials under consideration at live
Gatherings for some purpose other than the business of the body are likewise not meetings as defined by the OMA,even if meetings win also be implied.
substantive discussions take place.
B.The Right To Be Heard
However,a prearranged gathering for the purpose of any step of the deliberative process will be considered a meeting.As is
the case with decision-making bodies,a meeting of an advisory-only body will include every step of the deliberative and The light of the public to speak and bo heard at an open meeting does net come directly from the OMA.The right to speak.
decision-making process,including a work session.investigation.fact-gathering,and simple discussion of matters of public if it exists,must come from another source.In the case of municipal governments,that right originates in AS 29.20.020(a),
business,¢],if the gathering is prearranged for one of those purposes which says."The gevemirg body shall provide reasonable opportunity for the public to be heard at regular and special
meetings."
2.Any number of members can constitute a meeting
The right of the public to speak at school board and committee meetings in munrcipsl school districts comes from the same
Unlike a decision-making or policy-making body,there is no exception for a gathering of a small number of members of an statute.The council or assembly.as the governing body,is required to provide an opportunity for the public to be heard at
advisory-only body.A gathering of two or more members of an advisory-only body will boa meeting under the OMA when it meetings of all municipal bodies,which would include municipal school boards,and commlttees.52 As to non-municipal
is prearranged for the purpose of considering the business of the body. school districts,the right of the public to speak can only be implied:there is no statute that expressly requires it.
3.Teleconference meetings The right of the prbbe to speak at public state agency meetings will depend on specific statutes or regulations affecting the
action or agency involved.For example.the general statutory provisions concerning public comments about proposed state
Teleconference meetings are authorized for advisory bodies.The discussion in Section IIIA.3 about teleconference regulations require the acceptance of written comments,but it is optional whether to accept oral comments.5 In contrast.
meetings also applies to advsory-only bodes the procedures for Local Boundary Commission hearings on local boundary changes require one or more public hearings
where the commission must receive public comments from all interested persons rid
d,Issue:Telephone polling,serial communications,and a-mails
A reasonable opportunity to be heard,however.does not mean a speaker has a right to disrupt a meeting or to speak
Because of the way"meeting"is defined,telephone polling,sent communications,and a-mails raise greater concerns for endlessly.The body may certainly put reasonable limns on the right to speak.Public speaking may be limited to public
advisory-only bodies than for decision-making bodies.A"meeting"for purposes of an advisory-only body occurs whenever a hearings and other limited opportundies listed on the agenda.Efficiently run meetings often limit public testimony on agenda
gathering of any number of members is prearranged for the purpose of corsldeng a matter on which it is empowered to items to one slot early in the agenda,after which the governing body may proceed through the agenda without public
interruption.Limiting debate to members of the body only.The length of time that any individual or group may speak may emergency exists,which would make little or no notice reasonable,is a question that will depend on the facts of each case.
also be limlted.55 The manner in which a person may speak may also be controlled in order to preserve the decorum of the In the absence of compelling facts,a court will be inclined to find no emergency exists and require advance notice.However,
meeting.Limitations on the content of speech.however,may implicate First Amendment free speech issues.so caution is it would seem possible and reasonable.even under the most dire true emergency circumstances,to at least post the
advised in this area required notice and to call the local news media to notify them of the pending meeting.
C.Implied Reasonable Opportunity to Attend No specific guidelines can be given to lest how much notice is reasonable.but certain general guidelines may be suggested.
For Instance,If an Item is controversial or complicated.more public notice must be given.If an kern is likely to be contested
The right to attend is not often discussed.but it m a significant component implied In the public's right to have a reasonable (like the granting of a permit or a lease where there are competitors for the same right).then more,rather than less.public
opportunity to be heard.For example,how reasonable is the pubic's opportunity to be heard if the meeting is held at a notice should be given.Matters that are truly simple or unimportant may be taken up with less public notice,but never
remote location that is difficult or expensive for the public to reach?Telephone conferences for remote public access may be without at least advance public notice of the meeting.Emergency matters may be taken up with less notice,depending on
practical and reasonable in some circumstances,such as borough or state-wide meetings hut not practical in other the severity of the need to take prompt action.
circumstances.A body covered by the OMA does not have the luxury of'getting away to a remote retreat for'peace and
quiet"in order to get its work done.The right of a reasonable opportunity to be heard implies that reasonable access and B.Reasonable Notice-Statutory Minimums
reasonable accommodations will be made for the public to attend and participate.
In addition to meeting the general reasonableness standard.the public notice must meet a number of specific statutory
V.WHAT NOTICE IS REQUIRED'? requirements.6 t The notice must always include the date,time.and place of the meeting.If the meriting will be by
teleconference.the location of the teleconference facilities must also be stated.
A.Reasonable Notice-Timeliness
The notice must be posted at the principal office of the public entity or.if the public entity hair no principal office.at a place
Generally,the OMA requires that'reasonable public notice'be given for all meetings to which it applies.56 An important designated by the governmental body.In addition,notice may be given by pnnt and broadcast media.State agencies are
element of reasonable public notice is its timeliness.Municipal officials sometimes assume that 24 hours'notice of a meeting also required to post notice of agency meetings on the Alaska Online Public Notice Syslem.g2
is sufficient because AS 29.20.160,and many municipal charters and codes.authorize special meetings on 24 hours'notice
to the members.Often this assumption will be wrong.I is entirely possible to comply with this members'notice requirement The OMA requires that notice should be provided in a consistent fashion for all meetings.Presumably.If notice is provided in
and still violate the OMA public notice requirement.To determine what public notice is reasonable,all of the arcunwtances en inconsistent manner.the public may become confused about how to find out about meetings of the body.and the court
must be considered. may find such notice to be unreasonable.
If the public entity or governmental body has set its own reasonable notice requirements that are more specific than the C.Reasonable Notice-Agenda Specificity and Clarity
OMA requirements.they should be followed.Failure to meet notice requirements established by internal guidelines or
regulations will be evidence of failure to give reasonable notice,and has led at least one court to a finding the OMA was The question of whether a matter to be considered oust be listed specifically on a published or posted agenda presents
violated.57 another facet of tho requirement of reasonable public notice.Apparently the corer's reasonable notice standard requires that
some important,complex.or controversial issues must be specifically identified in the advance notice of the meeting and
One important case for understanding the timeliness component of reasonable notice is Turley v.Municipality cl Anchorage listed on the agenda.
School District. In Tun ley the court Interpreted the phrase"maximum reasonable public notice contained in the
Anchorage Municipal Chatter.The Anchorage School Board gave five days'notice,published in the local newspaper,of a In Anchorage Independent Longshore Union Local 1 v.Municipality of Anch rege,§3 the court again addressed Anchorage's
meeting at which I intended to decide to close two specific elementary schools.There had already been much news "maximum reasonable public notice'requirement.In this case,the question was whether the municipal port commission's
coverage of the Board's consideration of school closures.including reference to the two schools in question.However,the consideration of a temainal use permit application had to be specifically mentioned on the official agenda posted in advance
court said that in light of the impact the decision would have on the children's and the parents'interest in the maintenance of of the meeting.The issue was taken up by the commission under the agenda category described as'demos not on the
neighborhood schools,'Five days is not sufficient time for appropriate preparation of oppoeitroo concerning an issue of this agenda.'The Supreme Court noted That the Anchorage public notice requirement is similar to the OMA's'reasonable public
complexity and importance.'S9 notice'standard and stated."The timing and spodflcity of'reasonable notice'is necessarily dependent upon the complexity
and importance of the issue rnvoNed.'64 The court declined to decide whether the notice was reasonable in that case and
Therefore.the more complex and important an issue is,the more public notice must be given re order to meet the instead remanded the matter to the trial court to make factual findings about how complex and Important the issuance of that
reasonableness standard.Unless a very long period is chosen(three months?).it is impossible to say that any given time particular permit was.In other words•if the court found the matter was too important or complex to be considered without
period will provide adequate public notice in all circumstances.The circumstances surrounding each issue must be judged specifically mentioning it on the agenda,then presumably the court would find that a violation of the OMA had occurred.
independently and an appropriate period for reasonable notice chosen.
It is also important that public notice be given dearly.In Nickel v.Southeast Conlerence65 confusing public notices and
Applying this standard,under true emergency circumstances the period of reasonable notice may be very short,possibly display adveNsements were a factor tootling the court to conclude that notice of 8 meeting was not reasonable and,
even no advance public notice.depending on the circumstances and the need for immediate adion.60 Whether a true
therefore,the meeting violated the OMA.The advertisements were not clear about whether a"meeting'or a'heariig'was It seems that no other facet of the OMA generates more questions than the subject of executive sessions.An executive
going to occucee session is a portion of a pudic 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
The important point here is that under some circumstances the reasonable notice requirement may be violated by the danger of harm to public or private interests That may result from public discussion of such subjects outweighs the public
consideration of complex or important items not specifically and clearly listed on the public notice or the agenda of an benefits of a public discussion.
otherwise property 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 pubic. 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.
D.Notice To Specific Individuals The body itself will determine who,if anyone,will be invited into the executive session along with the members of the body.
Although not an OMA requirement,in some matters notice should be provided to specific persons whose individual rights A.What Subjects Qualify For Executive Session?
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 kart must receive reasonable notice of the meeting.To satisfy constitutional due process requirements. 1.In general
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.) AS 44.62.310(cl(1)describes the subjects that may be discussed in executive session as follows:
E.Notice To Certain Individuals Who Are Subjects Of Executive Sessions (a)matters,the immediate knowledge of which would clearly have an adverse effect upon the
finances of the government unit.
The topic of executive sessions is discussed in more detail in Section V(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 (b)sutjects that tend to prejudice the reputation and character of any person.provided the
character of a person.67 A body's right to told an executive session on such a matter is subject to the superior right of the person may request a public discussion:
person in question to demand public consideration instead of an executive session.In University of Alaska v.Geislouts68
the court found the OMA implies an obligation to provide adequate notice of the meeting tc the individual whose reputation lcl matters which by law,municipal charter.or ordinance am required to be confidential:
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 (d)matters involving consideration of government records that by taw are not subject to public
right,the individual must be specifically advised of the right to request that the meeting be open to the public.If the poison disclosure.
requests an open meeting,an executive session may not be held
Tho court has also held that some attorney-client communications qualify for executive session treatment.0
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 It is very interesting to note that a municipality cannot by ordinance or charter narrow the list of exceptions that qualify for
the executive session but chose not to.and he stated he did not want the matter discussed publicly.Ramsey v.Gay of Send executive session.Waaeri v.City of Fai.rbanks7j held that the effect of AS 29.20.020("meetings of all municipal bodies shall
Poml.69 be public as provided in AS 44.62.3101 was to preempt municipal enactments that provide fora narrower tot of executive
session subjects than as provided in the OMA.The ranuticetrpns of the court's condusan that the OMA preempts
F.Notice Of Teleconference Meetings Inconsistent municipal ordinances ate yet to be discovered.
If a meeting will be held by teleconference,the meeting notice must state the location of any teleconferencing facilities that 2.Adverse financial Impact
will be used.Of course,this means that it a remote location is being used at which the public may gather and participate,
notice of such a location must be given. 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 govemment
The Alaska Supreme Court has recognized a distinction between a true teleconference meeting and the situation in which finances.A mere possibility of adverse effect on government finances does not suffice.
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 One example that appears to qualify under this lest is the consideration of offers to settle litigation.A government body
with the goats of the OMA.70 No particular notice can be given of the locations from which such calls can be made because cannot candidly discuss settlement offers and potential counter offers publicly without great risk of letting opposing litigants
they may be made from anywhere However,If such call-ins are going to be accepted,it would seem reasonable that public know how much the government is willing to pay or accept in settlement.All opportunities to bargain fora more favorable
notice should be given of that fad.with instruction on how a person may property place such a call. 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.
VI.EXECUTIVE SESSIONS
However.it is not enough to qualify for an executive session to merely say the matter is one of'pending litigation'or a In addition to federal and state constitutions and laws.this exception specifically recognizes municipal charters and
'financial matter,'as is often heard.As a practical matter,for an adverse financial impact executive session to withstand a ordinances as valid sources of law requiring confidentiality.However.many muMdpakties have few,if any,charter
court challenge.there must be facts in the record to enable the court to conclude it was clear that immediate public provisions or ordinances rogueing confidentiality,even though there are some subjects that would easily qualify for required
knowledge of the particular issue to be discussed would harm the government's financial interests.A court is directed to confidential treatment.such as juvenile and individual student matters,collective bargaining and similar negotiations.
construe the law narrowly to avoid unnecessary executive sessions,j$so an informative on-the-record statement of the settlement negotiations.and certain attorney advice(discussed further below).82
facts justifying an executive session seems necessary.
There has not been any Supreme Court decision in which the validity of a local ordinance requiring confidentiality has been
3.Reputation and character 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
Subjects that tend to prejudice the reputation and character of any person may be discussed in executive session.The successful If the count concludes the local government does not"need'the confdentialdy when the interest of the public in
person in question does not have to be a government employee or job applicant,but often It is. 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 Real exemptions from the state law requiring disclosure of
In City of Kenai v Kenai Peninsula Newspapers,Inc.,74 the court reviewed a legal challenge to an executive session held to records.0 Because of this possibility,ordinances requiring confidentiality should be based on a legitimate need for
discuss the applicants for a city manager position.The court said,'Ordinarily an applicant's reputation will not be damaged confidentiality that outweighs the public's interest in knowing what is going on with the government
bye public discussion of his or her qualifications relating to experience,education and background or by a comparison of
them with those of other carddates.'75 The court recognized an exception,however,for the discussion of personal The confidential-by-law category was the basis for the Alaska Supreme Court holding that the common law attorney-client
chwrectoristics.especially in the context of comparing several applicants.acknowledging that such discussion would%ally a privilege justifies executive session treatment of some attorney-diets conrmunicalons.84 This attemey-client privilege
risk that the applicant's reputation will be compromised'76 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.
Our court shed nixes light on the meaning of this exception in University of Alaska v Geistaufs77 where a university tenure
committee held executive sessions to consider whether a professor should be granted tenure status.The court recognized There s also the consirtrrtonal right of privacy,85 another'taw"that requires confidential treatment of a subject when the
such meetings are appropriate for executive sessions.Such a meeting was'likely to focus on perceived deficiencies in the individual in question has an expectation of privacy that society recognizes as reasonable.The full extent of the
candidate's qualifications.Tenure committee members may raise concerns for the purpose of discussion which would constitutional right of personal privacy is not well defined,and a complete discussion of the issue is beyond the scope of this
damage the applicant's reputation if aired publicly.'j§This statement shows not only a concern to protect the individual from paper
damages.but also a realization that an executive session well encourage a full end candid discussion of important concerns
that should be addressed. 5.Confidential records
Ina footnote to the Go/stares decision,the court discussed this exception in a general employment context,observing that Matters involving government records that are protected from public disclosure by law may also be discussed in executive
AS 44.82.310(c)(2)was designed to serve the same function as other states'exemption of employment matters from open session.As a general rule.records of public agencies(which include municipalities and school districts86)are subject to
meeting law requirements. The reasoning behind the'personnel matters'exception in other jurisdictions appears to be the public disclosure unless the law provides an exception.87
avoidance of embarrassment to employees whose strengths and weaknesses will be evaluated
A number of confidential records are listed in AS 40.25.120(a),including records pertaining to juveniles(unless disclosure is
In the context of considering whether the stated grounds for recall of a school board member sufficiently described authorized by law).medical and related public health records.records required to be kept confidential by s federal law or
misconduct in office or failure to perform prescdbed duties.the court stated in Von Stauffenberg v.Committee For An regulation or by state law,and certain records compiled for law enforcement
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 Our court has been willing to consider whether municipal ordinances concerning confidential records quality for common law
(i.e..nonstatutory)exceptions from disclosure.The coud's analysis focuses on the need for the exception.which requires
It should be remembered.however,that the person whose reputation or character is en issue is entitled to specific notice of weighing the public interest in favor of disclosure against the governmental interests and individual pmacy interests favoring
the executive session and of the right to demand that the discussion be public.If a demand for a public discussion is made nondisclosure.88 However.the government vnll bear the burden of justifying the exception,and public policy fevers public
by that person,then an executive session may not be held on that ground.87 access.e0 Under these constraints.new exceptions to the general rule of public diedosure may be approved by the court.
but probably not frequently.
4.Matters required to be kept confidential
An interesting case now pending in the Alaska Supreme Could.Fuller v.City of Homer,90 should answer the question of
The third exception is a catch-all for other subjects that are required by law,municipal charter,or ordinance to be kept whether a city manager is entitled to the same deliberative process privilege for documents that is granted to the
confidential.Note that this language leaves open the question of whether laws.charters.or ordinances authorizing,but tel govemor.Ql If so.this wilt establish another category of documents that are required by law to be confidential and,therefore,
requiring.confidentiality will satisfy this exception may be discussed in executive session under this exception.
6.Attomeyellent privilege 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
Under limited circumstances communications between a governmental body and its attorney qualify for executive session grounds being relied upon.A mere recitation of the statutory language(e.g.,"a matter that would prejudice a person's
treatment.according to Cod Hanes.Inc.v.Fairbanks North Star Borough.92 This exception is based on the attorney-client reputation')may not satisfy the"dearly and with specificity'standard.
privilege,but for Open Meetings Ad purposes.the privilege is defined narrowly.
In the case where en indiv dual's reputation or character may be at issue,it may be appropriate to name the individual in
This executive session exception is not available for general legal advice or opinion.It applies only when the revelation of some cases but not in other cases.For example.when a city council is about to discuss the personal characteristics of a
the communication will injure the public interest or there is some other recognized purpose in keeping the communication short list of candidates for city manager,there is no likelihood that stating the names of these individuals would cause any
confidential.It is not even enough that the public body Is involved in pending litigation Rather,the specific communication harm at all.On the other hand.if the purpose of the executive session is to consider confidential information concerning
must be one that the confidentiality rationale for the privilege deems worthy of protection.The court cited a number of allegations about a dishonest police officer,it would not be appropriate to say that the purpose of the executive session is"to
examples of attorney-client communications that might qualify for executive sessions:candid discussions of fade and consider allegations of dishonesty involving Officer Smith."Identifying the individual in these circumstances would entirely
litigation strategies:a conference on a decision to appeal:a conference about settlement;and advice about how a body and defeat the purpose of holding the discussion in private by causing damage to his reputation before the discussion even
its members might avoid legal liability.A discussion generally about the"Ins and outs and status"of litigation,and"what hae starts
happened in the year as to court findings"did not qualify for executive sesaion.94
Clearly idenhfyirg the specific topic and,where possible without causing harm,naming the specific individual under
B.Procedure For Executive Sessions 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
An executive session cannot be an unannounced.secret meeting.Except in very limited dreumstences,9y an executive describe the subject matter to be discussed in the motion because anything not mentioned in the motion cannot be
session is only a pad of a public meeting.Several steps must be followed in calling an executive session. discussed in the executive session,unless it is auxiliary to the main question.j 9 Finafy,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
1.Public meeting know what the session is about and why it is justified.
Before an executive session may be held.the peeling must first be convened as a public meeting.In the public meeting.a Because both the public and the court have an interest in knowing why an executive session is warranted.either the motion
motion to hold an executive session must be considered end decided by a majority vote of the body.An at any public or the debate preceding the vote on the motion should explain how the matter legally qualifies as a legitimate executive
meeting.the public has a right to attend and,to a certain extent.participate.At least at municipal public meetings,this session subject.For example.during debate on the motion for the executive session a member of the body should describe
includes a reasonable opportunity to be heard under AS 29.20.020 during the public portion,but not during the confidential how knowledge of the matter will clearly have en immediate adverse effect on the government finances.or mention the
portion of the meeting.96 particular law that requires confidentiality.A proper discussion on the record will merrnnsze the chances of a successful legal
challenge.
2-Notice
It is inadequate when the motion contains only short-hand phrases.such as"porting litigation"of"attorney-chest privilege"
Because en executive session occurs at a public meeting.reasoned°notice of the meeting must be given to the pudic or-personnel matter."None of these phrases describes the suhjecl matter"steady and with specificity."nor do they
according to the same requirements for any public meeting.97 This applies whether the executrvo session*to be held at a accurately describe subjects that are within the lawfully allowable executive session categories.Further.they fail to give
regular or a special mooting.That does not mean,in this author's view,that the public notice must specifically state that on adequate notice to the public or to the courts about what*to be discussed and why if qualifies.The courts are compelled to
executive session will be held.It is enough If reasonable public notice of the meeting has been given,including any give a narrow contraction to the executive session exceptions so unnecessary executive sessions may be avoded.101 and
reasonable subject matter notice that might be required.Even if the meeting notice and agenda do not mention the words such short-hand phrases fad to show that an executive session s necessary.
"executive session,"an executive session may be held if the body deems it necessary end the public has sufficient
reasonable notice of the meeting and the subject matter. 4.Recording and minutes
However,specific advance notice of the executive session is required in at least one circumstance.If it is anticipated in There is no statutory requirement to take minutes or make a recording of the discussions in executive session,1 However.
advance that an executive session wig be required to discuss a topic that might prejudice the reputation and character of a al least one superior court judge has observed that one reason why he was unable to determine whether an executive
person.that person must be personally ratified of the meeting and the contemplated executive session so the individual session in question was legal was that no recording had been made of the session.103
may exercise the right to demand a public discussion.$$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. 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
3.Motion calling for executive session clanked by the legislature or the Supreme Court.it seems likely there win continue to be inconsistency In the practices of
various public entities on this issue.
C.Limitations On Executive Sessions 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.
1.Only main and auxiliary issues may be discussed Therefore.a court should approve using as executive session to make a final decision while functioning quasieudicietly in an
adjudicatory matter.
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 quostfon.104 The OMA does not attempt to define"twittery-and the Supreme Court VII.REMEDIES AND PENALTIES FOR VIOLATIONS
has not done so either.According to Webster's Third New International Dictionary(t981)."auxihary moans"functioning in a
subsidiary capacity.- Prior to the 1994 amendments,the law declared simpty 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
Given the strong public policy favoring open meetings and Websfer's definition,it seems likely the court will require that any a howls and impractical remedy,113 and it struggled to find a way to manipulate the inflexible law to mesh with practical
auxiliary issues discussed have a fairly close degree of subsidiary relationship to the main question.Thus,the OMA gives resfilies.114
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 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 entice page,and Its complexity increased accordtngy.Now the remedy portion of the Oct
Court Interpretations of the OMA suggest that as much of the subject matter as possible should be discussed publicly.It may provides that an action in violation of the OMA is voidable only after a court carefully considers many factors and concludes
be that on a given subject some details should be discussed in executive season.while other facets of the same subject the public interest or complying with the OMA outweighs the harm resuthng to the public interest and the public entity that
matter should be discussed in public session.The Supreme Court pointed to this result in City of Kenai v Kenai Peninsula would flow from voiding the action.Procedural and other requirements were also introduced.
Newspapers,lnc.106 when It observed that public drsoussion 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 There is a huge difference in the statutory remedy provisions for violations by decision-making bodies compared with
well carry such a risk.The court's nrkng authorized executive sessions only for-discussing the personal characteristics of violations by advisory-only bodies.These two types of bodies will be discussed separately.
the applicanta'107 The same kind of direction was given in Cool Homes,Inc.v.Fairbanks North Star Borough](borough
attorneys general status report about litigation does not qualify for executive session.but legal advice about avoiding liability A.Oeclslon-McKing or Pollcy•Making Body-Remedles
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. Not all governmental bodies have the authority to make decisions or policies for the public entity.jl§This part of this paper
addresses remedies available for violations of the OMA only when committed by those bodies that do have such authority.
2.Generally,no action may be taken In executive session
An action taken in violation of the OMA by a decision-making or policy-making body is voidable.116 In other words.a court
Generally.no action may be taken in executive session.JD Except as discussed below,the body may only discuss matters might declare that the action had no legal effect.but such a declaration is by no moans automatic.Many factors must be
in executive session.and if any action must be taken on the subject,the body must reconvene in a pubke session to do so. considered before the court may rod the action.
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 pubic 1.When a violation is alleged,a body may attempt an informal cure
session to announce a decision made in executive session violates the OMA.unless one of the following exceptions or
exemptions apples. 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 DMA.j1 At that meeting the body must conduct a-substantial and public
3.Exceptions:directions on legal matters and labor negotiations reconsideration"of the matters considered at the allegedly improper meeting.
As exceptions to the rule that no action maybe taken in executive session.the OMA authorizes a public body to give One of the factors a court must consider when it decides whether an action resulting from an improper meebng should be
dkections in executive session on two kinds of matters.First,the body may direct its attorney about the handling of a declared void is whether.and to what extent.the body engaged in such public reconsideration.Interestingly,even
specific legal matter.This makes it clear that the attorney may be irrstiucted in executive session about things like reconsideration that occurs after a lawsuit is filed will be taken into account by the crud.Presumably,if the court determines
negotiating positions and legal strategies fora specific legal matter.Second,direction may be given to a labor negotiator that a reconsideration was not sufficiently substantial or public,then it may find the attempted cure was inadequate and
about the handling of pending labor negotiations.This allows the body to insbuct the negotator in executive session about proceed to consider the appropriate remedy for the violation.
such things as bargaining positions and negotiating points.
2.Improper action le voidable by court action
4.Exemption:quasi-Judicial decision-making
Tho OMA says that"action taken contrary to(the OMA)is voidable'11 Thus.the court has the power to declare the action
When a governmental body acfirg quasi-judicially meets solely to make a decision in an adjudicatory proceeding,it is vod.but it is not required to do so in at cases.A lawsml to void an action for violation of the OMA must be brought within
entirety exempt from the OMA.111 This means the decision-making may be done m pnvate.112 Logically.this should mean 180 days after the date of the action.Tho purpose of this short statute of limitations is apparently to reduce delay and
uncertainty about the finality of governmental actions.Furthermore,in an action to enforce the OMA,the members of the • whether invalidation is necessary to deter future oblations.
governmental body may not be named in a personal capacity;they may only be named in an official rapacity. • whether the goal of encouraging public participation and input in the operation of government has been met.and
• the strength of the link or closeness,i.e.,the nexus between the violation of the OMA and the challenged action.j
According to the OMA.'If the court finds the action is void,the governmental body may discuss and act on the matter at
another meeting held in compliance with[the OMA].'119 Exactly what that means about the status of the voided action Even though most of the Revelle factors are not stated in the 1994 amendments.its rude possible the court will continue to
between the time of the improper meeting and the reconsideration meeting is yet to be determined by the courts. apply these factors to cases brought after the 1994 amendments,for at least live reasons.First.these factors derive from
the public policy behind the OMA.which remains unchanged.Second.the list of factors in the 1994 amendments is not
3.Action Is voidable only after a public interest analysis exclusive-the court is directed by the OMA to consider'all of the circumstances.'including'at least'the factors hdcntified ill
the statute.These additional factors based on the policy supporting the OMA may still be appropriate vnnaderathons
The OMA says that a court may declare an action void because of an OMA violation only after the court completes a public
interest balancing test.Before declaring the action void.the court must find that The only Supreme Court case to date dealing with the remedy provisions enacted fin 1994 summarily affirmed a superior
court decision that no remedy was appropriate for a redistricting boards assumed OMA violation(using a-mails to privately
considering all the cicumstances,the public interest in compliance with[the OMAj outweighs the decode where to hold required public hearings).The Supreme Court agreed that the superior court properly applied the
harm that would be caused to the public interest and to the public entity by voiding the adon.j2g factors set out in AS 44.62.310(f)in concluding the public harm that would result from voiding the entire 2001 ledishictirg
plan outweighed the public interest in compliance with the OMA.123
Only if the court finds the good to be accomplished by voiding the action outweighs the harm that it would cause may the
court declare the action void.In making that determination.AS 44.62.310(f)requires the court to consider at least the B.Advisory-Only Body-Remedies
following nine factors:
The discussion in this part of this paper applies only to those advisory-only governmental bodies that have no authority to
(1)the expense that maybe incurred by the public entity.other governmental bodies,and individuals if the action is make decisions or policy for the public entily.124
voided,
Concerning advisory-only bodies.the OMA says simply that subsection))).describing the remedy of voiding actions of
(2)the disruption that may be caused to the affairs of the public;entity.other governmental bodies.and individuals if the decision-making bodies.-does not apply."125 The act falls to say what remedies.If any.do apply.However.because.by
action is voided. definition.an advisory-only body cannot make decisions or policies,there will be no significant decision or policy to void.
(3)the degree to whldt the public entity,other governmental bodies.and individuals may be exposed to additional Of more interest here is the question of whether a violation of the OMA by an advisory-only body can lead a court to declare
litigation if the action is voided, void a subsequent action taken by a docisbnmaking or policy-making body in reliance on the advice of the advisory-only
body.Under the ad prior to the 1994 amendments it is apparent that in sane circumstances subsequent actions taken by
(4)the extent to which the governing body,in meetings held in compliance with[the OMA(,has previously considered the public entity in reliance on such advice horn an advisory-only body could be voided.,(, However.when the public
the subject. entitls decision in another case was arrived at independently horn the advisory body's advice.there was substantial
opportunity for public input despite the violations-and the damage that would result from voiding the action was great.the
(5)the amount of time that has passed since the action was taken. court was reluctant to void the edion.127 Thus,even before the 1994 amendments the court was considering all the
circumstances and weighing the public benefit against the public harm.128 Therefore,a decision-making body's reliance on
(6)the degree to which the public entity.other governmental bodies,or individuals have come to rely on the action, procedurally defective advice of an advisory-only body might or might net result in voiding the action.Whether the Supreme
Court will continue to follow this lore of analysis in cases arising after 1994 remains to be decided.
(7)whether and to what extent the governmental body has.before or after the lawsuit was filed to void the adios.
engaged or attempted to engage in the public reconsIderatlon of matters originally considered in violation of[the OMA). C.Remedies Fashioned By The Courts-Damages
(8)the degree to which violations of(the OMA)were wilful,flagrant,or obvious,[and] If the court declares an action void.as the pre-1994 OMA prescribed for as violations,then the court may attempt to fashion
a remedy that attempts to approximate the status quo at the time of the violation. The courts have Indicated considerable
(9)the degree to which the governing body failed to adhere to the policy under AS 44.62.312(a) willingness to be flexible in fashioning specific remedies.While open meetings laws are'not primarily intended as vehicles
for individuals displeased with governmental action to obtain reversals of substantive decisions'130 the Supreme Court has
In Rove*.v.Marmon,121 a case interpreting the OMA as in effect prior to the 1994 amendments.the court identified other nevertheless approved an award of damages to an individual harmed by an OMA violation.In employment cases,for
factors to be considered when weighing the public interest in disclosure against the public harm resulting from voiding an example.the court ordered reinstatement with back pay and reconsideration of a tenure application or one case.131 but in
action taken in violation of the OMA for purposes of fashioning a remedy different circumstances hell that reinstatement without back pay might be the proper remedy,depending on further analysis
of the nexus between the OMA violation and the employee's temrination.j
• whether the goal of maximizing Informed and principled decision-making has been mil.
D.Injunctive Relief APPENDIX
Although not mentioned in the OMA,the Supreme Court has also noted that an injunction may be issued forbidding More Alaska Open Meetings Act
violations of the act.'This brings to bear the coercive judicial power in subsequent cases.in addition to the remedies
otherwise provided by the statrde.'133 (Current no of OUobew 2002)
E.Recall of Elected Officials Sec.44.62.310.Government meetings public.
An elected official's violation of the OMA constitutes failure to perform the prescribed duties of office,134 one of the lawful (a)All meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided
grounds for recall of an elected official.The mere allegation of facts sufficient to establish a violation of the OMA is adequate by this section or another provision of law.Attendance and participation at meetings by members of the public or by
ground to subject elected officials toe recall election under AS 29.26.250(municipal officials.including municipal school members of a governmental body may be by teleconferencing.Agency materials that are to be considered at the
board members)and AS 14.08.061(regional school board members).j 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 that the public may know the vote of each person entitled to vote.The vote al
F.Attomey'e Feesa 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.
In many cases a person who brings a law suit alleging an OMA violation will be found to he a public Interest INgant.L If the
public interest litigant prevails,all allowable Costs and actual.reasonable attorneys lees will be awarded against the public (b)If permitted subjects are to be discussed at a meeting in executive session,the meeting must first be convened as a
entity ni On the other hand.it is generally an abuse of discretion fora court to award costs and attorneys fees against a public meeting and the question of holding an executive session to discuss masers that are listed in(c)of this section
losing public interest litigant who raises an issue in good feeh.138 shell he 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
It appears that an award of actual attorneys fees might also been appropriate remedy for some non-public interest litigants addressing the subject in private.Subjects may not be considered at the executive session except blase mentioned in
In discussing remedies for an OMA violation arising prior to the 1994 amendments.Revelle v.Marston suggests that In the motion calling for the executive session unless auxiliary to the main question.Action may not be taken at an
some circumstances the OMA's remedial goal of deterrence might warrant the remedy of an award of actual costs and executive session.except to give direction to an attorney or labor negotiator regarding the handling of a specific legal
attorneys lees to a harmed individual.even when invalidation of the improper action is not in the public interest and matter or pending labor negotiations.
circumstances do not warrant an award of back pay for the individuars employment termination.fl5
(c)The following subjects maybe considered in an executive session
(1)matters,the immediate knowledge of which would clearly have an adverse effecl 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-archon!hmclan 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.
l51 meehrrfs of the governmental body or any committee of a hospital when holding a meeting solely to nit (7)vdlethie and to what extent the governmental body has.baby.or alter the lawsuit was filed to void the
upon matters of prolosnor al qualifications.privileges or discipline. Action.engaged In or attempted to engage in the public racoraderetoe of natters orapnea,considered in
voletron o1 the section:
(6)staff meetings co ntho.getheringe Of the employees of a public entity.including meetings of en employee
group established by policy of the Board of Regents of the University of Alaska or held while acting in en (8)the degree to which violations of this section were wilful,Dwelt.or obvious;
advisory capacity to II.Booed of Regents,or
(0)the degloe to which the governing body failed to adhere to the policy under AS 44.62.312(a).
(7)meetings held for the papo9n of participating in or attending a gathering of a natural,slats.of regional
organization of which the public entity,governmental body,or member of the govmnmentel body is a mombei (g)Subsedon(f)of this section does not apply to a governmental body that has only authemy to advise of make
but only of no action a taken and no business of the governmental body is conducted at the meeergs ,0oomnlendatans to a public entity and has no authority to establish potions or make densrorin Mr the public entity
(el Reasonable public notice shell be given for all meetings required to be open under this section The notice must (h)In this sedan.
include the date,time,and pia. of the mewing and.if the meeting is by teleconference.the location of any
teleconferencing lacarliea that WI be used Subject to posts.notice of a meeting on the Alaska Onra Pubs Notre (t)'goverrenertal body meads an assembly.murrJ.boar co0mtsa6n,committee.or other smear body of a
System as re7uard by AS 44 62 175(a).the notice may be given by using pent or broadcast media The notice shall be public entay with the authorey to establish pofcies or make deueora In.the public inky or with the authority to
posted al the principal office of the public entity or.t the pudic entity has ro pnwpal once.et a place desalnated by Ihe advise or make ieue,..wo.datrons to Me public ether.'governmental body includes 6a mambas of a
governmental body The governmental body shall provide notice in a consistent fastlon br as its meetings euicomrdtee or other subcrdmate unit of a governmental body if the subordinate teal consists of two or more
members,
(f)Acton taken contrary to that section a vadeble A lawsuit to void an action taken in Violation of the Becton must be
filed in superior court within 100 days after the dale of the action.A member of a governmental body may not be named (7)'meeting"means a gathering of members of a governmental body when
m an actor,to enforce the section in the members personal capacity.A governmental body that votales ore alleged to
have violated this sacbon may cure the volition or alleged volation by holding another meeting in compaenco with notice (A)pore than three members ore rnaprty of the members.whichever us Iwle,are present,a natter
and Other requnementa of this section and conducting a subetenbal and public reconederaton of the natters considered upon which the governmental body is empowered to act is conedererl by the members collectively.
at the orgrnal meeting Il the court finds that en action is void.the govemmentel body may discuss nod act on the matter and the governmental body has the outhortty to establish policies or make decisions for a public
at anther meeting held in compliance with this section.A court may hold that an action taken at a meeting hold in entity,or
violation of this section or void only If the mutt finds that,considering all of the cacumstancee,the public Internet ar
compliance with this section outweighs the harm that would be caused to the public interest and to the public.entity by (B)the gathering is preananged for the purpose of considering A matter upon which the governmental
voiding the action In making thin determination,the court shall consider at least the following body is empowered to ad and the governmental hide he.:only nuhersy to advise or make
recommendations fora public entity but has no authoudy to establish policies or make decisions tot
(1)the expense that may te Incurred by the public entity.other governmental bodies,and individuals if the the putncc toady.
action Is voided.
(.3)'public entity'means an entity of the slate or of a pok.eal sutdtvrson of the slate including an agency.a
(2)the difauplwn that may be caused to the affairs of the public eraty.other governrne ntn Mdrr Ann board or commewn,the University of Alask&a pubic auarooty or err pnralnn,a rtrl,acormry,a sCMol drsmct.
individuals it the action e v iM. end otar goverrerarltal units of the state or a political subdivision of the stale.it dues not include the court
system or the legelahve branch of stale government(§t art VI foil t)ch 143 SLA t PSg am§t ch 48 SLA
(3)the degree to w4much the pudic MM.Oder governmental bodies.and adrvduals maybe exposed to 1966.am§I ch 78 SLA 1 it88.am§I ell 7 SLA 1969.an§§t.2 ch Ali SLA 1972 an,§2 Oh 100 SLA 1972.
additional Iapation i the action a voided. ern§I ch 189 SLA 1978:am§§2.3 ch 54 SLA 1985:ran§2 a,IOt SLA 1990_am§7 ch 74 SLA 1991.am
§§2.8 oh 69 SLA 1994.am§7 ch 54 SLA 2000)
(4)the extent to which the governing body.in meetings held n compliance with this micron,fuss prevnusN
considered the stewed. Sec.44.62.312.State policy regarding meetings.
(S)the amount of line that has passed since the Acton was taken: (a)It is the policy of the state that
(0)the degree to which Ihe public entity.other governmental bodies.or Individuals have come to sly on the (I(the governmental units mentioned en AS 44.62 310(e)exist to t d in the conduit of Ina people's business.
adon.
(2)11 Is the Intent of the law that ectoes of those units he taken openly and Mot their deliberations he conducted
openly,
(3)the people of this state do not yield their sovereignly to the agencies that servo them. Footnotes
(4)the people,in delegating authority,do not give their public servants the right to decide what is good for the 1 Horowitz v.Alaska Bar Assn,609 P.2d 39(Alaska 1980).
people to know and what is not good for them to know.
2 AS 44.62.310(a)
(5)the people's right to remain informed shall be protected so that they may retain control over the instruments
they have created: 3 AS 44.62.312(a)
(6)the use of teleconferencing under this chapter is for the convenience of the parties,the public.and the 4 AS 44.62.312(b).
governmental units conducting the meetings.
5 AS 44.62.310(h03).
(b)AS 44.62.310(c)and(d)shall be construed narrowly in ode to effectuate the policy stated in(a)of this section and
to avoid exemptions from open meeting requirements and unnecessary executive sessions.(§3 ch 98 SIA 1972.am§4 6 AS 44.62 310(h)(1).
oh 54 SLA 1985;am§9 oh 69 SLA 1994)
7 AS 29.20.020(b).
8 See Section Ill below.
9 See Section IV below.
10 Univorsiry of Alaska v.Geistauts.666 P 2d 424(Alaska 1983).
11 Brookwood Aveo Homaowno,S Assn v Municipality of Anchorage.702 P.2d 1317,1323 n.6(Alaska 1985).
12 Hammond v.North Slope Borough.645 P.2d 750(Alaska 1982).
13 Horowitz v.Alaska Bar Assn.609 P.2d 39(Alaska 1980?.
14 AS 08.08.100
15AS 08 08 075
16 Brookwood Area Homeowners 4ssn v.Municipality of Anchorage./07 P 2d 1317,132..n 7(Alaska 1985)
17 Krohn v.Slate,Dept.of Fish and Game.938 P 2d 1019(Alaska 199 i)
18 AS 44.62.310(d)(6).
19 KILA.tnc.v State.876 P.2d 1102(Alaska 1994).
20 AS 44.62.310(d)(1).
21 Griswcwl v.Cdy of Homer.No.S-10321.sap opinion at 18(Alaska.September 20.2002)
22 AS 4462 310(a):and see Malone v Meekns,650 P.2d 351(Alaska 19821.
23 AS 44.62.310(d)(7)
24 AS 44.62.310(4)(5). 44 Brookwood Area Homeowners Assn v.Municipality of Anchorage.702 P.2d 1317,1323 n.7(Alaska 1985).
25 Aimed v League of Women Voters,743 P.2d 333(Alaska 1987). 45 E.g..AS 29.20.230(b).
26 Section 10.chapter 69 SLA 1994(Temporary and Special Acts). 46 See AS 29.20.130:AS 29.20.230(a):AS 29.20.240(a):AS 29.20.250(b):and AS 29.20.280(h).
27 AS 42.40.920. 47 See AS 29.20.160(a):AS 29.20.220:and AS 29.20.250.
28 AS 42.40.150(b). 48 AS 29.20 250(0).
29 See Section V below. 49 This comment assumes that senal communications can constitute a"meeting"when there is no gathennq where
members o1 the governing body are present,but that is still an open question.See AS 44.62.310(h)(2(A)and the discussion
30 Compare AS 42.40.170(h)with AS 44.62.310(c). m pad III A,3 above.
31 See Section VJ below_ 50 AS 44.62.310(h)(29B).
32 AS 44.62.310(hX2XA1. 51 Brookwood Area Herneorrners Assn v.Municipality of Anchorage,702 P2d 1317.1323(Alaska 1985)
33 Brookwood Area Homeowners Assn v.Municipality of Anchorage.702 P.2d 1317,1323(Alaska 1985). 52 AS 44.62.310.AS 14.12 010.and AS 29.20.300.
34 AS 44.62.310(a). 53 AS 44.62 210(a).
35 Hur:kel v Southeast Conference,868 P.2d 919(Alaska 1994). 54 3 AAC 110.550-.560.
36 Cahill v City and Borough of Juneau.Case No.1JU-81.1048 Civil(Alaska Super.Ct..Nov.10.1982)(Memorandum of 55 E.g..not more than five minutes par person at Local Boundary Commission hearings.3 AAC 110.560(b).
Decision and Order).See also.Stockton Newspapers,Inc.v.Members of the Redevelopment Agency of the GP),of
Stockton.171 Cal App.3A 95.214 Cal.Rut,561(1985). 56 AS 44.62.310(e).
37 868 P.2d 919(Alaska 1994). 57 Nickel v Southeast Conference.668 P.2d 919(Alaska 19941.
38 Brookwood Area Homeowners Assn v Municipality of Anchorage,702 P.2d 1317.1323 n.6.This comment by the Court 58 631 P.2d 67(Alaska 1981).
was not necessary to is decision,and could be considered dicta.Nevertheless.0 reflected the attitude of the Court when
interpreting the law before the 1994 amendments. 59 Id.at 81.
39 AS 44.62.310(hX2)(A),defining"sleeting'for a policy-making or decision-making body. 60 See Taylor v.Van Brockhn.Case No.3C0-90-46 Civil(Alaska Super.Ct..July 25.1991)(Findings of Fact and
Conclusions of Law and Order).
40 In re 2001 Redistricting Cases.Case No 3AN-01.8914 Civil(Alaska Super.Ct..February 1.2002)(Memorandum and
Order.Part V.A.I.)This memorandum and order is available at http://wwve.alaskabar.orq/ommons/ACF41310.htm. 61 AS 44.62.310(o).
41 In re 2001 Redistricting Cases.44 P.3d 141.147(Alaska 2002). 62 A5 44.62 175(aX2)and AS 44 62310(e)
421n re 2001 Redistricting Cases.Case No.3AN-01.8914 Civil(Alaska Super.Ct..February 1.2002)(Memorandum and 63 672 P.2A 891(Alaska 19831,
Order.Part V.A.I.)
641d.at 895.
431n re 2001 Redistricting Cases.44 P.3A 141.147(Alaska 2002)("We further conclude that the superior court did not err
by(mlag to find additional violations of the Act.") 65 868 P.2d 919(Alaska 1994).
66 Id.at 929.n.15. 88 City of Kenai v.Kenai Peninsula Newspapers.Inc.,642 P 2d 1316(Alaska 1982)-
67 AS 44.62,310(c821- 89 Municipality of Anchorage v.Anchorage Daily News.794 P.2d 584(Alaska 1990).
68 666 P.2d 424(Alaska 1983). 90 Supreme Court No.S-10079.argued on December 11,2001.
•
69 936 P.2d 126(Alaska 1997). 91 E.g.,Gwich tin Steering Committee v.Slate.10 P.3d 572(Alaska 2000).
70 Nickel v.Southeast Conference,868 P 24 919(Alaska 1994).The court did nol consider the practice perfect.however. 92 860 P.2d 1248(Alaska 1993).
and stated it would have been more meaningful had the citizen callers boon provided with the materials under consideration
93 From the Cool Homes opinion it is not doer if the court intends to limit the scope of the attorney-client privilege exception
71 Cool Homes,Inc.v Fairbanks North Star Borough.860 P.2d 1248(Alaska 1993),discussed in Section VII A 6 below to pending litigation.The case involved pending litigation,and the opinion does recognize that seine other states do lima the
exception to pending legation.but the specific communications the court found justified the executive session.i.e..how to
72 964 P 2d 463(Alaska 1998). avoid threatened legal liability.may he Just as worthy of protection when litigation is not pending,but is merely threatened or
anticipated.Other non-litigation matters are also generally deemed worthy of protection by the adorney.client privilege.such
73 A$44.62.312(b). as strategy sessions and candid discussions of the fads and issues concerning negotiations in commercial transactions
The Coot Homes decision dealt only with klgation,and made no comment about non-litigation contexts.so the privilege's
74 642 P.2d 1313(Alaska 1982). application in non-litigation contexts remains unresolved.It is dear,however.that mere isvotvement in pending litigation vall
not justify having all communications about that litigation in executive session.
75 Id.at 1326.(Emphasis added.)
94 Id at 1259.1261-1262.
76 Id.
95 See Section 111).3 above.
77 666 P.2d 424(Alaska 1983).
96 Griswold v.City of Homer.No.S-1032t,skp opinion at 18(Alaska,September 20,2002).
78Id.at 429.
97 See Section V above.
79 Id.at 429.n.7.
98 See Section V.E above.
80 903 P.20 1055.1061 n.15(Alaska 1995).
99 AS 44.62.310(b).
81 See Section V.E above.
100 AS 44.62 310(b):see also Cool Hanes,Inc..,v.Farbanks Nafh Star 8crouglr,860 P.2d 1246.al 1259 n 18(Alaska
82 See.ogee AS 42.40.170 for a fist of executive sessions subjects authorized for the board of the Alaska Railroad t993).
Corporation.
101 AS 44.62.312(b).
83 Municipality of Anchorage v.Anchorage Daily News.794 P 2d 584(Alaska 1990):City of Kenai v.Kenn Peninsula
Newspapers,642 P.20 1316(Alaska 1982). 102 AS 29.20.160(e)requires only that a journal of official proceedings be kept.
84 Coo/Homes.Mc.v.Fairbanks North Star Borough,860 P.2d 1248(Alaska 1993). 103 Pioneer Printing Co.v.Skannes.tKE-86-494 Civil(Alaska Super.Ct..Dec.19.19861(Menorandum of Decision)
65 Alaska Const.,Art.I.Sec.22. 104 AS 44.62.310(b).
86 AS 40.25.220(2):and Anchorage School District v.Anchorage Daly News,779 P.2d 1191(Alaska 1989). 105 AS 44.62 312(a).
87 AS 40.25 110(a)and AS 40.25.120 106 642 P.2d 1316(Alaska 1982).
107 Id.at 1326. 127 E.g.Hammond v.North Sippa Borough.645 P.2d 750(Alaska 1982).
108 860 P.2d 1248(Alaska 1993). 128 Also sea Alaska Community College Faderatidr of Teachers v University of Alaska.677 P.2d 886(Alaska 1984).
109 AS 44.62.310(b). 12914
110 A$44.62.312(o)(2). 130 Id at 891
111 AS 44.62.310(dX1) 131 University of Alaska v.Geistauts.666 P.2d 424(Alaska 1983).
112 See Section II D above 132 E.g.,Revelle a Marston.898 P.2d 917(Alaska 1995).
113 The court noted that the rule doctadng actions void is"generally short.mechanistic.and inadequate to deal with the 133 Alaska Community College Federation of leachers v University of Alaska.677 P.2d 886.889 n.5(Alaska 1984).
difficulties Involved.'Alaska Community College Federation of Teachers v.University of Alaska,677 P.2d 886,890 n 8
(Alaska 1984).quoting Comment.Invalidation as a Remedy for Open Meeting Law Violations.55 Or.L.Rev.519.524& 134 Mainers v.Bering Strad School District.687 P.2d 287(Alaska 1984).
n.25(1976)
135 Von Slaul/enborg v.Committee For An Honest And Ethical School Board,903 P.2d 1055(Alaska 1995).affirmed that a
114 See,e.g..Hammond v.North Slope Borough.645 P.2d 750(Alaska 1982):and Alaska Commtmiy College Federation violation of the OMA is grounds for recall.but held that the recall petaron in that case did not Mega facts sufficient to
of Teachers a University of Alaska.677 P.2d 886(Alaska 1984). establish a violation of the act.
115 The distinction between decision or policy-making bodies and advisory-only bodies is discussed in Section II.0 above. 136 E.g..Brookwood Area Homeowners Assir.v.Municipality of Anchorage.702 P.2d 1317(Alaska 1985).
116 AS 44.62.310(1). 137 E.g..Hickel v.Southeast Conference.868 P.2d 919(Alaska 1994).in which the superior court's award of costs and
attorneys fees totaled b1)66.567.33 to be paid by Iho state to free public interest litigants.
117/d
138 Colbert v State,526 P.2d 1131.1136(Alaska 1974).
1181d.
139 Revelle v.Marston,898 P.2d 917,924-925(Alaska 1995)
119 Id.
2'Gordon Tans 2002.An rights reserved.No pad of this publication may be reproduced.stored in a retrieval system.or
1201d. transmitted in any form or by any means.elecbonic,mechanical.phot000pyrng.recording.or otherwise.without prior written
permsslon of the author
121 898 P 2d 917(Alaska 1995)
122 Id at 924.
123 In re 2001 Redistricting Cases.44 P.:kl 141(Alaska 2002).affemmg In re 2001 Redistricting Cases.Case No.3AN.01.
8914 Civil(Alaska Super Ct..February 1.2002)(Memorandum and Order,Part V A.1.)(available at
httpf/www.alaskabar.orq/opmions/ACF4D1O htm)
124 The distinction between decision-making or policy-making bodies and advisory-only bodies is discussed in Section ILC
above.
125 AS 44.62 310(9)
126 E g..Ravage v Marston.898 P.2d 917(Alaska 1995).