An email thread between assembly members was posted to the public last week to stay in compliance with state transparency laws.
The emails, proposing a borough contract for local nonprofit Becky’s Place, contained content that had largely been publicly discussed at prior assembly meetings.
Even so, clerk Mike Denker immediately posted the emails to the borough’s website and notified assembly members that the thread constituted a meeting under Alaska’s Open Meetings Act.
The email thread began with a message from assembly member Mark Smith to the rest of the assembly, as well as Denker and interim manager Alekka Fullerton, proposing voting to authorize negotiating the Becky’s Place contract. Assembly members Craig Loomis and Richard Clement then replied to weigh in on the topic.
The Open Meetings Act mandates that government bodies, like assemblies, commissions, boards, and advisory committees, conduct all business in front of the public. The law includes limited exceptions for topics like ongoing litigation.
The email exchange may not have fit a standard conception of what a meeting is. But according to state statute, any discussion by more than three members of a government body – or a majority, whichever is less – on topics that could go in front of that government body, is considered a meeting. By law, the public must be given advance notice and opportunity to attend all such meetings. Because Smith sent the email to all assembly members, Denker read it as communication between more than three individuals.
Alaska lawyer and media law expert John McKay said the law is written broadly, so that for bodies like the borough assembly, even an unplanned meeting — for instance four assembly members running into each other on the street and talking about policy — would be considered a violation.
“It’s not the most efficient way to run government, and if efficiency was the number one goal we wouldn’t worry about this,” said McKay. “But it’s not, and public access is an important goal.”
Denker said that while in his eyes there was no nefarious intent, he believes posting the emails and adding the topic discussed to the assembly meeting agenda was the only proper response.
“I looked at the [email] and immediately knew, we need to handle this one way: a mistake was made, fully acknowledged,” Denker said. “We’re a small government, and these things happen. But when they do, it’s important how we react.”
McKay said Denker’s actions were in line with best practices.
“The smart thing to do is at the next public meeting, put it on the record that there was this meeting that shouldn’t have happened, then have the discussion again in public,” he said.
A large part of Denker’s job as clerk is to guide the process and procedures of governance in the borough. In that role, Denker said that state open meetings laws are his “north star” — something he’ll call out anytime he sees it.
“It is my contention that some of the issues we are struggling with here in our community stem not from our political differences, but from procedural breakdowns – things that have happened in the process where the public didn’t think they knew what was going on, and it destroyed trust,” Denker said. “This whole thing, the open meetings act, is about trust in government.”
Alaska statute describes government meetings as “the people’s business,” and states that “the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
Smith, who sent the original email, said that he had no intention of skirting the Open Meetings Act, and the problem arose simply from hitting reply all. “I understand it would be an issue if we were shooting the breeze and discussing the topic. The intention was just to introduce legislation. That’s all.”