Attorneys disagree on local Open Meetings Act question

As Wrangell residents may remember, the borough assembly held a vote early in June to appoint Ryan Howe to fill an empty assembly seat.

There was some question about this vote and whether or not it violated the Open Meetings Act, as assembly members chose their candidate via text message. Borough Manager Lisa Von Bargen said in a June 18 article for the Wrangell Sentinel that the assembly does not believe anything incorrect occurred, and that she ran the idea by the city's attorneys before moving forward with the vote. However, Juneau lawyer Joe Geldhof believes that this vote was, indeed, a violation of the Open Meetings Act. This opinion is not shared by borough attorney Joe Levesque, who defends the assembly's actions.

Geldhof said that, in his opinion, holding a vote to appoint an assembly member via text message was very inconsistent with the Open Meetings Act. The Open Meetings Act is a piece of state legislation that dictates how official business, such as an assembly meeting, must be conducted in a transparent manner. An important part of the Open Meetings Act is a requirement that votes be made public.

"I generally know what's going on [in Wrangell] and I'm certainly familiar with the Open Meetings Act," Geldhof said.

There is a prescribed process for taking a meeting out of the public eye, Geldhof said. A borough assembly or city council, for example, must open their meetings publically, where anybody can listen in or otherwise be involved. They can enter into an executive session, closed to the public, to discuss things like personnel matters, upcoming litigation, something directly involving a city employee, or other items of a sensitive nature. However, Geldhof said that if these items require a vote, the executive session has to be closed, and the public meeting reopened. The Open Meetings Act reads that votes must be taken in a manner that "... the public may know the vote of each person entitled to vote." Discussion about the merits of each candidate can be held in a closed session, but a vote must be done in the public eye.

Geldhofsaid that there was a simple fix the assembly could make to this matter of an alleged secret vote. All they have to do, he said, is hold a vote in a future meeting to ratify their previous decision to appoint Howe. As long as this vote is done out in the open, Geldhof said that the matter should be fixed. Otherwise, he said that it would be up to a member of the public to take the matter to court if they felt strongly enough about the matter.

Borough Clerk Kim Lane said, in an interview on the evening of June 30, that there was some misunderstanding on what occurred when Howe was appointed. The assembly did not elect Howe to the position through the text message vote. That vote was simply to nominate him for consideration. The motion to appoint him was made publicly, in the open.

"They didn't appoint him by text," Lane said. "What they did was they made a nomination choice by text."

Lane also shared a memorandum from borough attorney Levesque, defending the city's actions, dated June 23. Levesque writes in this memorandum that the accusation of holding a secret vote in violation of the Open Meetings Act is untrue. Due to the outbreak of COVID-19, he wrote, the assembly has been holding their meetings via web conference. This has led to the assembly conducting its business differently than normal. One such way, he said, was by letting assembly members make nominations for an appointment to the assembly via text message, and not vocally. This decision was made to "level the playing field," Levesque writes, so that all assembly members could make simultaneous nominations and to streamline the nomination process. In short, as Lane said, the actual appointment of Howe was done publicly, but the nomination to consider him was done in a ballot vote by text. As such, there was no violation of the Open Meetings Act, and therefore nothing to correct.

"While there is no Alaska Supreme Court cases interpreting 'secret voting' in Alaska. A [sic] 1994 Alaska Attorney General Opinion states that voting by ballot is not in conflict with OMA," the memorandum reads. "The CBW Assembly, forced to meet by video conference, chose to use a ballot form for nominating a new Assembly member. Such a nomination was not intended to be the actual vote, it was a mechanism to use a more efficient method of nominating the new Assembly Member. It was not an attempt to circumvent OMA and the actual vote that took place in open session by individual roll call vote allowed the public to view how each Assembly member voted."