A formal complaint against the Wrangell Medical Center Board of Directors was filed last week with the City and Borough of Wrangell – and is calling into question whether the board may have violated Alaska’s Open Meetings Act with a Facebook page.
The Facebook group, under the name “Save Wrangell Medical Center,” is a closed group on the social network, and a screenshot taken by WMC recall proponent Judy Allen on June 7 purports to show five members of the board as taking part in the group.
Closed groups on Facebook require users to obtain permission from administrators to view posts on the webpage. In this case, as of June 7, the administrators were alleged to have been WMC CEO Noel Rea and board president Mark Robinson, board member Jake Harris, WMC employee David Scaggs, and WMC Director of Nursing Sue Nelson.
Under OMA regulations, for large boards with eight or more members, the number of members that constitute a meeting is always four.
In an email sent by Borough Manager Tim Rooney to WMC CEO Noel Rea, Rooney said his office had no power to investigate the matter – but did ask for Rea to look into the issue as he saw fit.
“The complaint indicates that there is a ‘closed’ group on a social media site and provides a screen capture of the members of the closed group. The screen capture indicates 5 of the members of the WMC Board are members of this group. This would appear to be a violation of the Open Meetings Act,” Rooney wrote in the email.
“The Borough Manager and/or Borough Assembly do not have any oversight authority over the WMC Board,” Rooney added. “In general, violations of the Open Meetings Act can result in voidable actions by the violating body. In this instance, it would perhaps be best if both you and the WMC Board Chairman police the WMC Board and address this apparent violation … but as I said, I have no oversight authority over you or the WMC Board. You are welcome to do what you feel is best.”
In addition to addressing the core of the claim of an OMA violation, WMC board president Mark Robinson said the filing by Allen was not surprising to him.
“Our Facebook page is nothing but good,” Robinson said. “There is no hospital business or city business even talked about on the page or in the postings. It’s just a useful forum for us and no official business has ever been done there.”
Robinson then added a personal feeling about the claim.
“I believe there are two roads to follow, a high one and a low one,” Robinson said. “We choose to take the high road and we’re not going to get in the mud with them. Nothing surprises me at this point.”
According to borough attorney, Juneau’s Robert Blasco, violations of the OMA would require scrutiny under state law – and that a precedent for meetings over the Internet has been established.
“If someone were to challenge that social network page, they would have to analyze it against the open meetings statute,” Blasco said. “The exchange of emails or electronic communications, however, has been shown to possibly be a violation of the act in case law.”
Gordon Tans, a retired Anchorage attorney and expert on open meeting laws said there are certain requirements needed to trigger a violation of the act in an Internet setting.
“If the members are doing nothing more than exchanging views on an issue, then it seems their activity does not circumvent the OMA, and no violation occurs,” Tans said. “However, when the private discussions have the purpose and effect of eliminating public discussion of the same issues and predetermining the outcome of a vote, then the public policy behind the OMA is frustrated.
Tans concluded by saying that a continual pattern of communication must emerge for a court to be swayed.
“In this purposeful situation the possibility seems greatest that a court may conclude a violation has occurred when a related series of telephone or e-mail communications cumulatively involves the participation of four or more members, even though no single communication involved four or more,” Tans said.
In a posting to another Facebook page involved in the issue, titled “Support Dr. Salard,” recall supporter Judy Allen posted a comment on June 9 stating she would no longer be pursuing action against the board for such violations.
“If you think we’re not wise to all the many different ways a group of determined, desperate people could violate the OMA and not likely get caught… you’re sadly mistaken. But I don’t think any of us cares enough to invest any time in pursuit of further infractions. I know I’m totally satisfied with the facts that have already been disclosed,” Allen wrote on the page.
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