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HomeMy WebLinkAbout2011-01-24 Council Packet - Work SessionNOTICE: The Kenai City Council and Administration Invite You to Attend and Participate in TOPIC: OPE RAI MONDAY, JANUARY 24, 201 6 :00 P.M. KENAI CITY COUNCIL CHAMBERS 210 Fidalgo Avenue Kenai, AK 99611 ALAS 'S OPEN MEETINGS ACT AS 44.62.310 — 44.62.312 Work Session for the City of Kenai, Alaska January 24, 2011 Outline prepared by: Krista S. Stearns, City Attorney, City of Kenai kstearns @ci.kenai.ak.us (With special thanks to Gordon Tans, retired municipal attorney) DISCLAIMER: The information contained herein is intended for informational purposes only. The information presented here is not intended as legal advice and may not be relied upon as legal advice. Any use of information by you is at your own risk. You should consult an attorney in your state or jurisdiction who can provide advice appropriate to your particular situation. Copyright © 2011 by Krista S. Stearns. You may reproduce these materials for your own personal use and for non- commercial distribution. Copies must include this copyright notice. All other rights reserved. ALASKA'S OPEN MEETINGS ACT AS 44.62.310 - .312 I. INTRODUCTION A. Alaska's Open Meetings Act ( "OMA ") was heavily litigated during the 1980's — 1990s. As a result, the OMA was amended by the Alaska Legislature in 1994. The 1994 legislative amendments clarified the meanings of "governmental body" and "meeting." The legislature also adopted remedies for violations of the Act. B. Under the OMA as it reads today: All meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by this section or another provision of law. AS 44.62.310(a). C. The state, municipalities, and school districts are all subject to the OMA. AS 29.20.020; AS 44.62.310. II. POLICY A. The policies behind the OMA are set out in AS 44.62.312(a): 1. Governmental units exist to aid in the conduct of the people's business. 2. Government actions should be taken in the open. 3. Deliberations should be conducted in the open. 4. The people do not yield their sovereignty to the government agencies that serve them. 5. The people do not give public servants the right to decide what is good for the people to know and what is not good for them to know. 6. The right of the people to remain informed shall be protected so that the people may retain control over the government. 7. Teleconferencing is for the convenience of the public, the parties, and the governmental units conducting the meetings. Alaska's Open Meetings Act Page 1 of 8 © Krista S. Stearns 201 1 C. The OMA is to be narrowly construed to effectuate the above policies and to avoid unnecessary executive sessions and exemptions from coverage of the Act. AS 44.62.312(b) III. APPLICATION A. The OMA applies to every "governmental body" of a "public entity." That generally includes the state, the university, all political subdivisions, hoards, commissions, agencies, municipalities, school districts, public authorities and corporations, and other governmental units of the state and of its political subdivisions. B. When reviewing the respective "governmental body" it is important to determine whether or not the body has authority to make decisions or has only a limited authority to advise or make recommendations. The determination will become important when reviewing the applicable remedies if there is a violation of the OMA. C. Individuals, employees and staff, quasi- judicial bodies (rendering decisions), organizational votes, meetings of membership organizations, hospital staff, the Alaska Legislature, and theAlaska- BafAssociatiorr'are not covered by the OMA. Also, the United States goverrunent, corporations, including non - profits, and Native entities are not covered by the OMA. 44,4 ,q mete- (. IV. MEETING A. Under the OMA, the notion of a "meeting" is very specific and is set by definition. What is a meeting under the OMA? The OMA provides two definitions of a "meeting," one for decision - making bodies and the other for bodies that act only in an advisory capacity. B. For a decision - making body, the OMA defines a meeting as: a gathering of members of a governmental body when . . . more than three members or a majority of the members, whichever is less, are present, [and] a matter upon which the governmental body is empowered to act is considered by the members collectively ... AS 44.62.310(h)(2)(A). Alaska's Open Meetings Act Page 2 of 8 © Krista S. Stearns 2011 C. For an advisory -only body, the OMA defines a meeting as: a gathering of members of a governmental body when. ..more than three members or a majority of the members, whichever is less, are present, and the gathering is prearranged for the purpose of considering a matter upon which the governmental body is empowered to act, and the governmental body has only authority to advise or make recommendations for a public entity, but no authority to establish policies or make decisions for the public entity.... AS 44.62.310(h)(2)(B). D. A meeting under the decision - making body definition is whenever a group gathers; this includes a gathering for coffee or lunch, or a work session. The point is that it does not matter whether the gathering is formal or informal. For a decision - making or policy - making body, four members or a majority of the body, whichever is less constitutes a "meeting." By definition, a gathering of less than that number is not a "meeting." E. Teleconference meetings are allowed under the OMA. AS 44.62.310(a). F. Serial communications (typically, telephone polling and emails) may be deemed as an attempt to circumvent the OMA and could be determined to be an illegal meeting in violation of the OMA. According to the Alaska Supreme Court, if the matter being discussed is a. substantive matter, the matter should be addressed in an open meeting. On the other hand, if the matter being discussed is deemed to be merely a procedural or an administrative matter, it may be addressed through telephone polling or by email. V. NOTICE OF MEETINGS A. The OMA requires reasonable notice of the meeting. The question then becomes "what is reasonable notice ?" The answer as to what is reasonable notice depends upon the circumstances. If the scheduled meeting will address important complex public issues five days' notice may not be reasonable. Usually, if a municipality follows its own specific notice requirements its notice will suffice for OMA purposes. B. What about emergencies? If a true emergency exists, the municipality may call a meeting with shortened notice. However, the municipality should at least post a notice and contact the local news media to provide notice of the pending emergency meeting. C. Although the question of reasonable notice has been left open by the Legislature, depending upon the circumstances, the OMA imposes a few requirements about Alaska's Open Meetings Act Page 3 of 8 © Krista S. Steams 2011 what info nation the notice should contain and where is should be posted/published. The notice must always include the date, time, and place of the meeting. Also, the notice should provide the location of teleconference facilities if the meeting is by teleconference. The notice must also be posted at the principal office of the entity or at a place designated by the governmental body. Notice may also be given via print and broadcast media The important point is to be uniform in issuing meeting notices. D. What is reasonable notice also requires one to consider whether the matters to be discussed by the body must be listed specifically on the public notice. This also depends upon the circumstances. If the matter to be discussed at the public meeting is a complex or a controversial issue, then it is appropriate to specifically list the matter on the posted notice. E. A few notes regarding notice for executive sessions: 1. Since an executive session occurs during a public meeting, the same reasonable notice of the meeting must be giver, to the public as is required for any public meeting. Although it is generally prudent to provide notice that an executive session will be on the agenda at the public meeting and although it is generally prudent to include all reasonable subject matter that may be required, the public notice does not have to specify that an executive session will be held. If during a public meeting the governing body determines that an executive session is necessary, it may hold an executive session so long as the public has sufficient reasonable notice that the subject is on the agenda. 2. The one exception to this rule occurs when the executive session topic might prejudice the reputation and character of a person. In such a case, advance notice must be given to that person and that person has the absolute right to demand a public discussion. AS 44.62.3 10(c)(2). VI. EXECUTIVE SESSION A. Motion to Meet in Executive Session. As touched on above, an executive session cannot be an unannounced, secret meeting It is a part of a public meeting; therefore, several steps must be taken before conducting an executive session. 1. At the public meeting, a motion to hold an executive session must be made, considered, and decided by a majority vote of the body. Alaska's Open Meetings Act Page 4 of 8 C Krista S. Stearns 2011 2. The motion to go into 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." AS 44.62.310(b). 3. Only those specifically invited by the governing body may participate during executive session. A motion to hold an executive session should include a list of the persons who are to participate in the executive session. 4. As a rule, anything not mentioned in the motion to go into executive session may not be discussed in the executive session unless it is somehow related to the main question. 5. As a reminder, a public entity's right to hold an executive session on a person that might prejudice the reputation and character of the person also requires specific notice to the individual and the individual has the right to demand that the meeting be held in public. AS 44.62.310(c)(2). B. Some Matters That may be Discussed in Executive Session. Under AS 44.62.310(c)(1) the subjects that a body may discuss in executive session are: matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit; subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; matters which by law, municipal charter, or ordinance are required to he confidential; and. 4. matters involving consideration of government records that by law are not subject to public disclosure. 5. In addition, some attorney- client communications qualify for executive session treatment. C. Recording and Minutes. Recording and minutes of an executive session are not required. However, some municipalities do record executive sessions. As a rule, as much information, that is not deemed confidential, should be discussed during the public meeting. The executive session should address only the subjects that qualify for an executive session. AS 44.62.310(c)(1). Alaska's Open Meetings Act Page 5 of 8 © Krista S. Stearns 2011 D. No Action During Executive Session. A body may not take any action during an executive session. The one exception allowed under the OMA is that the body may give directions to its attorney on legal matters and labor negotiations. Government bodies acting in a quasi-judicial role meeting solely to make a decision in an adiudicatory proceeding are exempt from the OMA. VII. REMEDIES FOR VIOLATION OF THE OMA A. Before the 1994 amendments to OMA, the law provided that "action taken contrary to [OMA] is void." Such a rule was determined to be too harsh and impractical. Today, with the 1994 legislative amendments, the remedy is flexible in comparison to the old remedy. While an action in violation of the OMA may still be declared void, such a declaration can be made only after a court considers the factors and concludes that the public interest in complying with the OMA outweighs the harm resulting to the public interest and the public entity from voiding the action. C. The remedies available under OMA depend on whether the violation was from a decision - making body / policy - making body or an advisory-only body; however, the remedies listed under AS 44.62.310(f) do not apply to advisory-only bodies. While all action taken in violation of the OMA by either a decision - making body or a policy - making body is voidable, voiding the action is not automatic. In fact, as discussed below, the court must weigh and consider many factors before it may determine an action taken by a public body in violation of the OMA to be void. D. Curing the Violation. When a violation of the OMA is alleged, the public body may attempt to cure the violation by holding another meeting that complies with the OMA. A reviewing court will consider as one of the factors whether or not the body engaged in a full public reconsideration and a court can even consider public body's post - litigation reconsideration. Moreover, even when a court determines that the action was in violation of OMA and is void, the OMA allows the public body to discuss and act on the matter at another meeting held in compliance with the OMA. AS 44.62.310(f). E. Legal Action. A lawsuit filed to void an alleged violation of the OMA must be brought with 180 days from the date of the action and members of the public body can only be sued in their official capacity. AS 44.62.310(f). Alaska's Open Meetings Act Page 6 of 8 © Iirista S. Stearns 2011 F. Balancing Test. As addressed above, an action taken in violation of the OMA can be declared void only after the court has performed a public interest analysis [a balancing test]. 1. The court must consider and weigh a number of factors. It can declare an action void only if the court finds the good to be accomplished by voiding the action outweighs the harm that would occur if it did not. 2. Under AS 44.62.310(0, the court will consider nine factors: a. the expense; b. disruption; c. exposure to additional litigation; d. whether the public body has previously considered the subject; e. passage of time; f reliance on the action; g. whether the public body has reconsidered the matter; h. whether the violation was willful, flagrant, or obvious; and, i. degree to which goveming body failed to adhere to OMA policy. 3. In addition to these nine factors, courts have also considered four additional factors (see, Revelle v. Marston, 898 P.2d 917 (Alaska 1995)): a. whether the goal of maximizing informed, principled decision - making was met; b. whether invalidation is necessary to deter future violations; c. whether the goal of encouraging public participation and input in the operation of government been met; and, d. the nexus between the violation of the OMA and challenged action. G. Discretion of the Courts on Remedies. The court, upon determining that an action is void, has discretion to fashion its own damage remedies, including an Alaska's Open Meetings Act Page 7 of 8 © Krista S. Steams 2011 award of damages to an individual harmed by an OMA violation. The court may also provide injunctive relief forbidding future violations of the Act. Violation of the OMA by an elected official may also provide grounds for a recall petition against the elected official for failure to perform prescribed duties of office. Meiners r. Bering Strait School District, 687 P.2d 287 (Alaska 1984). Those litigants who both prevail on an OMA claim and are found to be public interest litigants are usually entitled to an award of all reasonable costs and attomey's fees. Alaska's Open Meetings Act Page 8 of 8 © Krista S. Stearns 2011 ADMINISTRATIVE PROCEDURE ACT § 44.62.310 Chapter 62. Administrative Procedure Act. runic h26. Open Meetings of Governmental Bodies (§ 44.62.310) Article 6. Open Meetings of Governmental Bodies. ;Section t.,310, Government meetings public Sec. 44.62.314. Government meetings public. (a) All meetings of a governmental body of a public entity of the state are open to the public except as otherwise provided by ds section or another provision of law. Attendance and participation at meetings by Members of the public or by members of a governmental body may be by teleconferencing. Agency materials that are to be considered at the meeting shall be made available at f teleconference Locations if practicable. Except when voice votes are authorized, the vote 'ball be conducted in such a manner that the public may know the vote of each person entitled to vote. The vote at a meeting held by teleconference shall be taken by roll call. ;.!Phis section does not apply to any votes required to be taken to organize a governmental body described in this subsection, (b) If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are Listed in (c) of this section shall be etermined by a majority vote of the governmental body, The motion to convene in session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private. Subjects may not be considered at the executive session except those mentioned in the e motion calling for the executive session unless auxiliary to the main question. Action may 41„not be taken at an executive session, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations. (c) The following subjects may be considered in an executive session: (1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity; (2) subjects that tend to prejudice the reputation and character of any person, provided 5it the person may request a public discussion; (3) matters which by law, municipal charter, or ordinance are required to be' confiden- tial; t(' ` (4) matters involving consideration of government records that by law are not subject ?io public disclosure. (d) This section does not apply to (1) a governmental body performing a judicial or quasi-judicial function when holding eeting solely to make a decision in an adjudicatory proceeding; (2) juries; (3) parole or pardon boards; (4) .meetings of a hospital medical staff; (6) meetings of the governmental body or any committee of a hospital when holding a eeting solely to act upon matters of professional qualifications, privileges, or discipline; (6) staff meetings or other gatherings of the employees of a public entity, including meetings of an employee group established by policy of the Board of Regents of the ',1Iniversity of Alaska or held while acting in an advisory capacity to the Board of Regents; (7) meetings held for the purpose of participating in or attending a gathering of a national, state, or regional organization of which the public entity, governmental body, or ember of the governmental body is a member, but only if no action is taken and no usiness of the governmental body is conducted at the meetings; or § 44.62.310 STATE GOVERNMENT 342 (8) meetings of' municipal service area boards established under AS 29.35.450 — 29.35,490 when meeting solely to act on matters that are administrative or managerial in nature. (e) Reasonable public notice shall be given for all meetings required to be open under this section. The notice must include the date, time, and place of the meeting and if, the meeting is by teleconference, the location of any teleconferencing facilities that will be used. Subject to posting notice of a meeting on the Alaska Online Public Notice System as required by AS 44.62.175(a), the notice may be given using print or broadcast media. The notice shall be posted at the principal office of the public entity or, if the - public entity has no principal office, at a place designated by the governmental body. The governmental body shall provide notice in a consistent fashion for all its meetings. (f) Action taken contrary to this section is voidable. A lawsuit to void an action taken in violation of this section must be filed in superior court within 180 days after the date of the action. A member of a governmental body may not be named in an action to enforce this section in the member's personal capacity. A governmental body that violates or is alleged to have violated this section may cure the violation or alleged violation by holding another meeting in compliance with notice and other requirements of this section and conducting a substantial and public reconsideration of the matters considered at the original meeting. If the court finds that an action is void, the governmental body may discuss and act on the matter at another meeting held in compliance with this section. A court may hold that an action taken at a meeting held in violation of this section is void only if the court finds that; considering all of the circumstances, the public interest in compliance with this section outweighs the harm that would be caused to the public interest and to the public entity by voiding the action. In making this determination, the court shall consider at least the following: (1) the expense that may be incurred by the public entity, other governmental bodies, and individuals if the action is voided; (2) the disruption that may be caused to the affairs of the public entity, other governmental bodies, and individuals if the action is voided; (3) the degree to which the public entity, other governmental bodies, and individuals may be exposed to additional litigation if the action is voided; (4) the extent to which the governing body, in meetings held in compliance with this section, has previously considered the subject; 1 (5) the amount of time that has passed since the action was taken; (6) the degree to which the public entity, other governmental bodies, or individuals have come to rely on the action; (7) whether and to what extent the governmental body has, before or after the lawsuit was filed to void the action, engaged in or attempted to engage in the public reconsider- ation of matters originally considered in violation of this section; (8) the degree to which violations of this section were wilful, flagrant, or obvious; (9) the degree to which the governing body failed to adhere to the policy under AS 44.62.312(a). (g) Subsection (f) of this section does not apply to a governmental body that has only authority to advise or make recommendations to a public entity and has no authority to establish policies or make decisions for the public entity. (h) In this section, (1) "governmental body" means an assembly, council, board, commission, committee, or other similar body of a public entity with the authority to establish policies or make decisions for the public entity or with the authority to advise or make recommendations to the public entity; "governmental body" includes the members of a subcommittee or other subordinate unit of a governmental body if the subordinate unit consists of two or more members; (2) "meeting" means a gathering of-members .of a governmental body when 343 ADMINISTRATIVE PROCEDURE ACT ,§ 44,62.640 (A) more than three members or a majority of the members, whichever is less, are present, a (natter upon which the governmental body is empowered to act is considered by the members collectively, and the governmental body has the authority to establish policies or make decisions for a public entity; or (B) more than three members or a majority of the members, whichever is less, are present, the gathering is prearranged for the purpose of considering a matter upon which the governmental body is empowered to act, and the governmental body has only authority to advise or make recommendations for a public entity but has no authority to establish policies or make,decisions for the public entity; (3) "public entity" means an entity of the state or of a political subdivision of the state including an agency, a board or commission, the University of Alaska, a public authority or corporation, a municipality, a school district, and other governmental units of the state or a political subdivision of the state; it does not include the court system or the legislative branch of state government. (§ 1 art VI (eh 1) ch 143 SLA 1959; am § 1 ch 48 SLA 1966; am § 1 ch 78 SLA 1968; am § 1 ch 7 SLA 1969; am §§ 1, 2 ch 98 SLA 1972; am § 2 ch 100 SLA 1972; am § 1 eh 189 SLA 1976; am §§ 2, 3 ch 54 SLA 1985; am § 2 ch 201 SLA 1990; am § 7 eh 74 SLA 1991; am §§ 2 — 8 ch 69 SLA 1994; am § 7 ch 54 SLA 2000; am §§ 1, 2 ch 25 SLA 2009) Effect of amendments. — The 2009 amendment, whichever is less, are present," to (h)(2)(B); "made effective. August 23, 2009, added (d)(8); added "more related stylistic changes. than three members or "a' majority of the members, Sec. 44.62.312. State policy regarding meetings. (a) It is the policy of the state that (1) the governmental units mentioned in AS 44.62.310(a) exist to aid in the conduct of the people's business; (2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted. openly; .. (3) the people of this state do not yield their sovereignty to the agencies that serve them; (4) the people, in delegating authority; do not give their public servants the right to decide what' is good for the people to lmow and what is not good for them to know; (5) the people's right to remain informed shall be protected so that they may retain control over the instruments they have created; (6) the use of teleconferenoung:.iander ,this chapter is for the convenience of the pat1 the public, and the governmental l n pQndnoting the meetings. (b) AS 44.62,310(c) and (d) shall be construed narrowly in order to effectuate the policy stated in (a) of this section and to avoid exemptions from open meeting requirements and unnecessary executive sessions: (§ 3 ch 98 SLA 1972; am § 4 ch 54 SLA 1985; am § 9 ch .69 SLA 1994) NENA ASNA PUBLIC NOTICE Notice is hereby given, the Kenai City Council will meet in a work session on Monday, January 24, 2011. The topic of the work session is Opening Meetings Act Training. The work session will be held in the Kenai City Council Chambers located at 210 Fidalgo Avenue, Kenai, Alaska and begin at 6:00 p.m. The work session /training is open to the public. Contact the Kenai City Clerk's office at 283 -7535, extension 231 with questions. Carol L. Freas, City Clerk 0/211 Publish: January 21, 2011 PUBLISHER'S AFFIDAVIT UNITED STATES OF AMERICA, STATE OF ALASKA Denise Reece being first duly sworn, on oath deposes and says: That 1 am and was at all times here in this affidavit mentions, Supervisor of Legals of the Peninsula Clarion, a news- paper of general circulation and published at Kenai, Alaska, that the Council Work Session PO #93476 a printed copy of which is hereto annexed was published in said paper one each and every _day for one successive and consecutive _stay the issues on the following dates: January 21, 2011 X d4L2At aell SU BSCRIBED AND SWORN to me before this day of January 2011 NOTARY PUBLIC in favor for the State of Alaska. My Commission expires 26- Aug -12 PUBLIC NOTICE Notice is hereby given, the Kenai City Council will meet in a work session on Monday, January 24, 2011. The topic of the work session is Opening Meetings Act Training. The work session will be held in the Kenai City Council Chambers located at 210 Fidalgo Avenue, Kenai, Alaska and begin at 6:00 p.m. The work session /training is open to the public. Contact the Kenai City Clerk's office at 283 -7535, extension 231 with questions. Carol L Freas, City Clerk D551/211 Publish: January 21, 2011