The Haines Borough Assembly last week introduced an ordinance that would restrict public access to employee evaluations and applications for borough jobs.
Borough attorney Brooks Chandler drafted an ordinance at the request of manager Mark Earnest that would make performance evaluations and job applications of many borough employees confidential and inaccessible to the public.
The Chilkat Valley News in recent months has challenged the legality of confidentiality clauses in borough employee contracts and pressed the borough several months before receiving former police chief Lowe’s performance evaluation conducted by Earnest.
The ordinance would apply to all employees except the manager, school district employees, the borough’s chief fiscal officer and clerk, temporary employees and the borough attorney.
In a Tuesday interview, Earnest claimed he is not spearheading the ordinance but merely trying to prompt discussion. “I want the conversation to take place. This is not manager-driven… The version (of the ordinance) that was drafted is not necessarily what I would consider.”
“I don’t want to fight about it. It’s not a fight. It’s a conversation,” Earnest said.
At the Aug. 13 assembly meeting, members of the local media including KHNS reporter Margaret Friedenauer and CVN reporter Tom Morphet criticized the proposed ordinance as a blow to the public’s right to information and a violation of state law.
Friedenauer submitted a letter to the assembly voicing her concern and warning passage of the ordinance would not only possibly lack legal teeth, but damage the public interest.
“It is that public interest that I am concerned with in regards to this ordinance, and specifically public interest in the performance of borough officials and other positions that greatly impact policy and decisions, such as the chief of police. As a journalist, I advocate for an open and transparent government and for the public to have access to the information that keeps them informed of their government officials,” Friedenauer wrote.
Several cases, including City of Kenai v. Kenai Peninsula Newspapers (1982) and Municipality of Anchorage v. Anchorage Daily News (1990), have established precedent for release of personnel records to the public for positions as low-ranking as librarian.
Friedenauer and Morphet have also been in contact with media attorney John McKay of Anchorage for advice regarding the legality of the ordinance.
“I really understand the position that the press and the media has in all this,” Earnest said. “I totally understand that. I’m looking at it from the other side of the conversation. I’m looking at it from an employee’s standpoint, and I’m looking at it from an employer’s standpoint.”
Chandler wrote in a memo to Earnest that not only does the assembly have legal authority to make evaluations and applications confidential, doing so would bring borough code in line with state statute.
“The assembly has the authority to classify personnel records as confidential under state law,” Chandler wrote. “The public records act states that records are open to inspection ‘unless specifically provided otherwise.’ This ordinance would be such a specific provision ‘otherwise.’”
Mayor Stephanie Scott said she has mixed feelings on the ordinance. On the one hand, Scott said, the borough might get into trouble “living in a world where the evaluator anticipates his/her observations as headline news.”
“That may have an effect on what the evaluator writes. One effect might be that the evaluation is watered down; just so-so. That can have a disastrous effect if management should subsequently decide to take some disciplinary action, but the record shows ‘acceptable’ performance evaluations,” Scott said.
Earnest gave the same reason for keeping evaluations confidential. “If certain evaluations are public documents, I think it’s going to have an influence on the critique. I think it’s going to perhaps have a tendency to soften the constructive criticism. I think it’s human nature,” he said.
Making such documents public would open the possibility for misuse and unfairness, Earnest added. “I think it will have a tendency to be used as a club or as a way to undermine an employee who otherwise has (many) good qualities.”
The more Scott thought about the ordinance, she said, the more she leaned toward letting the evaluations be public. “This requires a manager to be very confident in his evaluation strategy and to make it ‘okay’ for the subordinates he evaluates to take the evaluation public. It heightens that connection between our most highly-placed (and paid) employees and the public who pays them,” she said.
The first public hearing on the ordinance is Tuesday.