January 31, 2013 | Volume 43, No. 4

Assembly to review executive sessions

A Jan. 22 closed-door meeting of the Haines Borough Assembly may have violated Alaska’s Open Meetings Act and borough code, according to borough officials.

Assembly members met as a committee of the whole prior to the regular assembly meeting and effectively extended borough manager Mark Earnest’s contract until July 2014 by determining he achieved a “satisfactory” performance evaluation. The evaluation was held in executive session, but whether correct procedures were followed has come into question by Mayor Stephanie Scott and assembly members.

Scott has contacted borough attorney Brooks Chandler to investigate whether the assembly violated laws governing the executive session process. “I said, ‘Look, here it is in black and white. I think we made a mistake and I don’t know how to correct the mistake but I want to take corrective action at the Feb. 12 meeting.’”

Assembly member Debra Schnabel said when the Mayor, manager and assembly members convened Tuesday night as a committee of the whole to discuss the manager’s performance evaluation, no motion was made to enter into executive session.

Alaska’s Open Meetings Act requires a motion to convene in executive session, and the motion “must clearly and with specificity describe the subject of the proposed executive session.”

“We met as a committee of the whole and the Mayor asked the manager what his preference was: the evaluation could take place in public or it could take place in executive session. It was his choice. He chose to have it in executive session. I don’t recall a motion being made. It was then decided that the door be shut,” said Schnabel.

Assembly member Steve Vick said he did not remember whether an official motion was made to enter executive session.

  “I don’t recall either way actually. Sometimes when I’m sitting there process is process and it just comes naturally. I don’t recall it not being done, either,” Vick said.

When asked last week whether an official motion has to be made to enter executive session, Mayor Scott said no. “You can just announce it. It was posted as an executive session. No, no motion,” Scott said.

In an interview with the CVN this week, however, Scott said she reviewed the Open Meetings Act and was having doubts about the validity of the procedure.

A public notice posted Jan. 15 announced the committee meeting and intent to “discuss with the borough manager the results of his performance evaluation (he has a right to request public discussion).” The notice also stated the matter qualified for executive session as “a public discussion may tend to prejudice the reputations of those involved.”

Whether executive sessions can be convened during committee meetings is also in question, as it’s not clear that elected bodies can take action in committee, such as make a motion to meet in executive session.

Clerk Julie Cozzi said borough committees are allowed to meet in executive session. “They’re allowed to conduct committee meetings in executive session provided they are published that way,” Cozzi said.

Scott agreed with Cozzi last week that committees are allowed to convene in executive session, as that is what she was told by the administration. However, Scott said this week she would have done things differently.

“I was told that everything was okay. I was told that we did everything correctly. I was told that. And maybe it’s true. But when I see that written in black and white the way it is...let’s put it this way: I am never again going to let anybody post a committee of the whole meeting as an executive session,” Scott said.

  Scott and Cozzi said the manager’s evaluation has historically been conducted in a committee executive session. However, Earnest’s last evaluation was held during an executive session convened during a regular assembly meeting.

According to the minutes from the Jan. 10, 2012, meeting, assembly member Joanne Waterman moved to “go into executive session to discuss the manager’s evaluation and contract because discussion in open session may tend to prejudice the reputations of those involved.”

The motion carried unanimously and the executive session lasted from 10:05 p.m. until 11:17 p.m. When they exited executive session, Waterman moved to renew the manager’s contract for 18 months with a 2 percent salary increase, and the motion carried unanimously.

No minutes exist for last week’s committee meeting, as Cozzi said she does not take minutes at committee meetings.

  Assembly members did not exit the executive session to vote on giving Earnest a “satisfactory” evaluation, nor did they vote on the matter during the regular assembly meeting when it came before them in the form of “new business.”

Instead, Scott issued a brief statement: “It’s probably time to announce that the assembly members present at the executive session to evaluate the manager concur that he meets the job standards and therefore the motion that was adopted way back when that said the manager’s contract will be extended pending a satisfactory evaluation of job performance is the case,” Scott said.

  Regarding the failure to make any public motion at all on the “satisfactory” evaluation, Vick said the assembly “might have screwed up procedurally there.”

  “Procedurally, we should have accepted it formally with a vote. And I think we might have missed that,” Vick said.

  Scott said this week she agrees a mistake may have been made.

“When we came into the regular meeting it would have been my preference that somebody said, ‘I move to find Mark has a satisfactory evaluation.’ I would have preferred that. On reflection, that would be my preference,” Scott said.

According to Alaska’s Open Meetings Act, “action may 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.” Assembly member Debra Schnabel said she recalls a vote being taken during the executive session.

  Schnabel said assembly member Dave Berry made a motion to rank the manager as “satisfactory” according to the 1 through 5 scale used on the evaluation to score various traits. Schnabel said a vote was then taken. “I think we totally forgot that we were in executive session...Certainly nobody was trying to be devious about it,” Schnabel said.

  Berry said he does not remember voting on the matter.

  “I don’t think we did. I think it was a consensus of the committee of the whole in executive session. I don’t think we did vote on that,” Berry said.

Berry, Scott, and Vick said consensus can be achieved through discussion, nodding of heads, raising of hands, or tacit approval, but that does not constitute an official “action,” such as a vote, which would violate the Open Meetings Act.

  “It was a group decision. We talked about the various ways to determine it and there was just a consensus. I can’t tell you how the vote went on that. Or even if there was a vote. We’re not allowed to vote in executive session,” Vick said.

At some point, a document indicating Earnest’s “overall performance rating” as “meets job standards” was circulated and signed by the Mayor and all assembly members present. (Assembly member Norm Smith was absent). Scott said the document was signed in public after the group came out of executive session, which occurs when “you open the door,” she said. Berry said he thought it was signed during the executive session, but couldn’t remember exactly.

Scott and all present members circled “Yes” on the document under the category “Concurrence,” indicating they agreed Earnest meets job standards. Scott said the circling of “concurrence” did not constitute a vote or an action.

“It’s not a vote. It is definitely not a vote. It’s a record of concurrence,” Scott said.

Assembly members also did not make a recording of the executive session, which is required by a section of borough code stipulating all executive sessions be recorded.

Scott admitted to the recording error.

The borough attorney will travel to Haines in late February for a meeting intended to educate the assembly, borough staff, and members of the public on the Open Meetings Act and the proper way to conduct an executive session.