In the past month, the Haines Borough Assembly and its committees have met four times in closed-door sessions. According to a public notice, the assembly’s Personnel Committee may go into another executive session Friday to discuss interim manager applications, bringing that number to five.

Some assembly members have questioned the practice or expressed concern about the lack of information provided to the public after the assembly or committee reconvenes in the open.

“I think the executive session is overused in our assembly,” assembly member Mike Case said on Nov. 25. On Nov. 10, Case was the only assembly member to vote against going into executive session to discuss former manager David Sosa’s resignation and release from his contract.

At that meeting, Case questioned the purpose of going into the executive session, and Mayor Jan Hill responded that the assembly “might discuss performance.” “If it came up, then we’re in trouble, because we’re not in executive session,” Hill said.

“It’s a personnel matter, and personnel matters are discussed in executive session,” she added.

In fact, an item being a “personnel matter” doesn’t qualify it for executive session, according to state law. According to a state handbook on “Open Meetings of Governmental Bodies,” “it is not enough to state ‘personnel issues’ or ‘legal advice’ as the reason for going into executive session.”

The purpose of executive session, outlined in the Alaska Open Meetings Act, isn’t to provide a shield from the public “in case” discussion veers into an area that may qualify to be talked about behind closed doors.

According to Alaska law, “The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session.”

Case also said he believed the personnel committee’s Nov. 23 executive session to discuss options for filling the acting manager position was “inappropriate.” That executive session, which lasted 45 minutes, was entered under the premise that “discussion in public would tend to prejudice the character of one or more persons.”

According to the Alaska Open Meetings Act, all meetings of a governmental body are public, with a few exceptions. The two exceptions invoked most frequently by the assembly are “matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity,” and “subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion.”

So far in 2015, the assembly or its committees went into executive session about a dozen times. The number of sessions is hard to track and there’s no easy way of getting a firm number; it involves combing through public meeting notices, agendas and minutes to confirm if an executive session occurred.

The groups met in executive sessions for a variety of reasons. On Aug. 3, the personnel committee met behind closed doors to discuss the $22,000 study of the Haines Borough Police Department. On April 27, the borough’s public safety commission met in executive session to have post-interview deliberations on the finalists for interim police chief. Last Friday, the personnel committee conducted an exit interview with Sosa.

Aside from the issue of making sure everything discussed in executive session qualifies under the law, there’s also the lack of information provided once the assembly comes out of the session. The assembly and its committees have repeatedly come out of executive session only to vote on a matter without comment, then move to the next agenda item.

Former assembly member Norm Smith said he doesn’t necessarily feel executive sessions were overused during his tenure, but said decisions are pretty much made behind the closed doors and simply formalized in public with the vote.

“The vote is already decided in executive session. It’s already set in stone what is going to happen,” he said. “Nobody wants to disclose why they voted the way they voted.”

“It’s kind of like, ‘Why do we want to rehash it again? We’ve already made a decision. We’re the elected officials and you don’t need to know,’” Smith added. “Nobody wants to admit to anything in the public session. If you call them at home, some of them will talk to you and some will tell you to piss off.”

Coming out of executive session to simply vote and move on doesn’t help the public, and sends a red flag that more than what qualifies for executive session is being discussed behind closed doors, said David Cuillier, a professor at the University of Arizona’s School of Journalism.

Cuillier served as the president of the Society of Professional Journalists and as the chair of the organization’s Freedom of Information Committee from 2007 to 2011. He has won numerous awards, and researches citizen and press access to government information, including public attitudes toward freedom of information, the state of access, and strategies for increasing transparency.

When officials come out of an executive session and “rubber stamp” something – for example, the Alaska Power and Telephone rate increase on Nov. 12, 2014 – that’s not a good sign, Cuillier said.

“That’s a pretty clear signal there is stuff going on behind the scenes, either via email or down at the cafe,” he said. “My guess is during that session they are sizing each other up and seeing what the vote will be or taking a straw vote.”

Cuillier called open meetings acts “the most broken laws in the country.”

One of the difficulties with executive sessions, though, is it’s hard to determine or prove that what is being discussed behind closed doors is illegal, he said. Elected officials are usually loath to blow the whistle on their own behavior.

“We are just relying on their honesty. We are relying on our elected officials to be honest with us,” he said.

Oregon fixed that by allowing members of the news media to sit in on executive sessions, except for sessions that involve labor negotiations, confidential medical records or expelling a minor student from a school. The governing body can specify information from the executive session not be released.

“There is always someone watching them. Maybe that is something to consider in Alaska,” Cuillier said.

The laws of most states also lack teeth in the form of sanctions for violations, he said.

What many executive sessions boil down to is government officials not wanting to discuss their opinions in public, Cuillier said.

“What we are talking about is courage. We are talking about elected officials who have the courage to do their business in front of everybody. And sometimes it is not easy, and it is scary. They don’t want to be criticized,” he said.

Nobody likes being criticized but public officials need to have the courage to make their decisions in public, he said, “even when it is uncomfortable and they would rather be able to do it behind closed doors.”

Former Mayor Stephanie Scott agreed. “Executive session isn’t to protect the elected officials from scrutiny. That’s not what’s it’s for,” she said.

Scott said she sees the ramping up of executive sessions as “a threat to open government,” especially the increase in committee executive sessions. “I just think we have to be very watchful and careful. The default position in Alaska is that all meetings of the government should be open to the public. To have an executive session is a serious departure from that fundamental law and public right.”

Scott said she hopes the assembly will conduct the application reviews and interviews for the interim and permanent manager positions in public. When the assembly went through the process that eventually ended in hiring Sosa, it publicly scrutinized applications and interviewed four finalists via Skype at the library.

“I just don’t see how a review of the applications or interviews should be in executive session,” Scott said.

Assembly member Margaret Friedenauer, a former reporter who objected to several executive sessions while she was the KHNS news director, said she is trying to remain vigilant about closed-door sessions now that she is on the assembly. She’s also trying to make sure the public gets some kind of explanation after the assembly comes back into open session.

“I’m trying to make it my challenge to encourage us to recap as much as we can when we come out of executive session for the public. I think that is very important to do,” she said.

At last week’s assembly meeting, Friedenauer voted against going into executive session to discuss resident Jessica Plachta’s administrative appeal of a heliport permit. The court had already dismissed the case, and according to an email from Sosa to assembly members, the purpose of the executive session was to discuss whether to try recouping legal fees from Plachta.

Case moved to go into executive session, stating it qualified because “a public discussion may adversely affect the finances of the borough.”

Friedenauer said that rationale didn’t apply, because the case was already closed. Discussing whether to recoup costs also wouldn’t adversely affect borough finances; on the contrary, it would possibly do the opposite, she said.

The assembly ultimately voted 3-3 on the executive session, with Mayor Hill’s tie-breaker vote tilting in favor. Friedenauer, Ron Jackson and Tresham Gregg were opposed.