Resources for Board Members

Public Participation in Municipal Meetings and Cover Memo. Clifford J. Groh, II, CBS Attorney, Revised April 4, 2005(PDF, 278KB)

What is the Alaska Open Meetings Act?

As a member of a public body your prime responsibility is to represent your constituency. Representative government necessarily is a reflection of the diversity within the community. The actions of a public body should be consistent with this principle. Expedience, efficiency or personal discomfort are not grounds for ignoring this principle.

Alaska's courts have consistently ruled that the public must be afforded the right to observe all steps of the deliberative process on decisions by public bodies. The threshold determination for application of the open Meetings Act is deciding whether a meeting occurred. Clearly, court decisions hold that if there is a gathering of members of a public body where deliberations on public business occur, this meeting is subject to the Open Meetings Act. Any time a quorum of a municipal assembly, board, or commission discusses public business, it constitutes a meeting. Adequate public notice of the meeting must be provided and the public must be allowed to observe the deliberations. For gatherings of less than a quorum, the type of discussion is key to deciding whether the gathering is a meeting covered by the Act.

A gathering is a meeting when any discussion of public business that creates the possibility that a decision could be influenced occurs. This includes preliminary deliberations on public business, including collective discussions and collective acquisitions and exchanges of facts.

Avoiding Violations of the Open Meetings Act

The Open Meetings Act prohibits having a meeting without advertising. The definition of a "meeting" differs based on what kind of body it is-that is, whether it is a policy-making or decision-making body or an advisory-only body. For a body that has the authority to establish policies or make decisions-which would certainly include the Assembly and the Hospital Board-a meeting occurs when more than three members OR a quorum (whichever is less) are present and the members consider a matter upon which that body has the power to act. The traditional rule for the Assembly stands: If three Assembly Members are sitting around talking about City and Borough business and a fourth Member shows up, the conversation about City and Borough business should stop immediately.

For a body that is advisory only, a meeting occurs whenever two or more members get together on a pre-arranged basis to consider a matter upon which the body is empowered to act. The practical effect of this is that members of advisory-only bodies should never talk about the business of that body unless the meeting is advertised or unless they have just bumped into each other.

Members of both bodies should be cautious about contacting other members in person or by telephone or e-mail to try to influence other members or find out how they feel about an issue if the total number of members contacted exceeds the limits discussed above. This activity is sometimes called a "SERIAL MEETING." Although the law in this area is unclear, the courts might find, for example, that if two Assembly Members have discussed a matter and then each polled one other Member, that there has been a violation of the Open Meetings Act.

If there is a claim that a violation of the Open Meetings Act has occurred, the best approach is to conduct an informal CURE by holding a substantial and public reconsideration of the matters considered at the allegedly improper meeting. This "let the sunshine in" approach is similar to the disclosure recommended if a member arguably has a conflict of interest.

Once again, if you have questions, please contact the City and Borough Attorney.

Public Participation in Municipal Meetings and Cover Memo. Clifford J. Groh, II, CBS Attorney | Revised April 4, 2005(PDF, 278KB)

All meetings of the Assembly and City and Borough boards and commissions must be public unless there is a legally conducted executive session. The public has a right to attend and listen and review the materials to be considered at the meeting (sometimes called ''the packet"). State law also requires that members of the public attending public meetings be given a "reasonable opportunity" to be heard. This right to be heard does not give a right to be heard on every topic the Assembly or boards or commissions consider, and the presiding officer can impose reasonable time limits when members of the public do speak.

Public Participation in Municipal Meetings: Conflict of Interest. Clifford J. Groh, II, CBS Attorney | March 30, 2005(PDF, 37KB)

SGC 2.25.050: Teleconference Participation

The use of teleconferencing at meetings of boards, commissions and committees is for the convenience of government officials and the public. Teleconference participation by the members of boards, commissions and committees and the public is authorized by AS 44.62.310(a) and 44.62.312. While physical presence of the members and the public is the preferred method of participation at the meetings, the members and the public are allowed to participate at assembly meetings in the following manner:

Participation of Members by Teleconference

Any member may participate in any meeting by teleconference. Teleconference participation is solely at the discretion of the member who requests this method of participation if the member is out of town or incapacitated. The member shall notify the secretarial staff for that board, commission or committee to arrange for teleconference participation at least 24 hours before any regular meeting, and at least 12 hours before any special meeting.

A member who is the presiding officer of any board, commission or committee may also participate in any meeting by teleconference. The presiding officer shall notify the secretarial staff for that board, commission or committee at least 24 hours before any regular meeting, and at least 12 hours before any special meeting to arrange for teleconference participation. However, the presiding officer shall not preside over the meeting when participating by teleconference.

Any member participating by teleconference shall be deemed to be present at the meeting for all purposes, including for quorum and voting, except as provided in subsection of this section (above).

Any member participating by teleconference shall have the same right to participate in any matter as if physically present at the meeting, including executive sessions, adjudicatory matters, and presentations. Reasonable efforts shall be made to make available to the member participating by teleconference any pertinent documents that are to be discussed and/or acted upon.

Any member participating by teleconference shall have the same right to vote on any matter as if physically present at the meeting. All voting at the meeting shall be by roll call vote. It is at the discretion of the member who is participating by teleconference to determine whether the member has had the opportunity to evaluate all pertinent information, including any testimony and/or evidence, and is prepared to vote.

Teleconference participation at any meeting is limited to four times a year by each member.

Participation of Public by Teleconference

Any member of the public who will not be present within the city and borough of Sitka during the meeting, and who wants to participate by teleconference concerning any agenda item which allows for public participation, may request participating by teleconference. The member of the public shall provide the secretarial staff for that board, commission or committee, who is listed on the city and borough of Sitka website, with a telephone contact number for the teleconference participation at least 24 hours before any regular meeting, and at least 12 hours before any special meeting. The secretarial staff will call that phone number during the public participation section on the agenda item.

Cost of Teleconference Participation

A member of any board, commission, or committee and any member of the public who participates by teleconference shall not be charged for any telephone costs associated with the teleconference participation. _{(Ord. 06-01A(2) § 4(B), 2006; S.G.C. § 2.60.050.)}

Meeting minutes are taken to preserve an accurate written record of the actions that take place at a meeting, not what was said at that meeting. Minutes serve as the institutional memory for the organization. Because you have them to refer back to, they prevent a group from doing the same thing over and over¹. They are a requirement for all City and Borough of Sitka’s boards, commissions, committees and task forces. They are kept as a permanent record of the City and Borough of Sitka.

Board/Commission/Committee Meeting Minutes Policy, CBS Municipal Clerk's Office, Revised November, 2022(PDF, 303KB)

¹Sylvester, Nancy. The Complete Idiot’s Guide to Robert’s Rules Second Addition, Penguin Group, 2010
²Macfarlane, Ann G. and Estep, Andrew L. Mastering Council Meetings, ERGA, Inc., 2013
Robert, Henry M. III, Honemann, Daniel H., and Balch, Thomas J., with the assistance of Seabold, Daniel E., and Gerber, Shmuel.
Robert’s Rules of Order Newly Revised 11th Edition, Da Dapo Press, 2011

There are two standards for conflict of interest-the financial conflict of interest standard applies to every question made by an elected or appointed City and Borough official or employee, and a special standard of bias or prejudice applies to the special category of quasi-judicial decisions.

Financial Conflict of Interest: An Assembly Member or a member of a board or commission should not vote or even participate in a discussion of a matter in which he or she has a "substantial financial interest" SGC 1.05.080. If you think you might have a conflict of interest, you should disclose the facts at the meeting and ask the presiding officer to rule on whether you have a substantial financial interest. This allows the presiding officer and the body as a whole to make the determination. Disclosure also helps cure the likelihood that the body's action will survive legal challenge.

Prejudice/improper Motives: A special set of rules applies when the Assembly or a board or commission is asked to apply the law to a certain set of facts, because then the matter is quasi-judicial. Examples of quasi-judicial decisions are zoning cases and tax appeals. When a matter is quasi-judicial, financial interest is not the only consideration-you might have a conflict of interest based entirely on how you feel about the people involved. In a quasi-judicial matter, you should not vote or participate in any way if you feel that you cannot be fair. One rule of thumb is that if somebody's name is in the motion and .it's not a contract award or a vote on somebody getting a job, it's probably quasi-judicial and you should consider your state of mind.

Public Participation in Municipal Meetings: Conflict of Interest. Clifford J. Groh, II, CBS Attorney | March 30, 2005(PDF, 37KB)

Off-the-record contacts concerning an appeal between an Assembly member and citizen without the presence of other interested parties are ex parte contacts¹. Ex parte contacts could lead to either the disqualification of the Assembly member or even the invalidation of the decision made by the Assembly when hearing the appeal². If-despite your best efforts-you do have an ex parte contact concerning an appeal, please contact the City Attorney so that they can make sure that it is put on the record before the consideration of the appeal³.

If a citizen calls you or comes up to you and wants to talk to you about an appeal pending before the Assembly, please change the subject or end the conversation. If it will help, please tell the citizen that this is the advice from the City and Borough Attorney. You could also suggest that the citizen (a) contact the City Attorney or (b) write a letter to the Municipal Clerk to be put in the packet. 

It is also important to avoid any ex parte contacts on subjects that might become an appeal. Obviously, this can be difficult. One tip-off of a matter that might become an appeal is if a citizen wants a decision by the City and Borough that will grant a specific and concentrated benefit on himself or herself If you have questions about a citizen contact on a matter that you think might become an appeal, please contact the City Attorney.

^{Importance of Avoiding Ex Parte Contacts in Matters that are Appeals or Seem Likely to Become Appeals Memo,Clifford J. Groh II, CBS Attorney | May 1, 2001(PDF, 33KB)
1}See, e.g., memorandum to Denton Pearson, "Quasi-Judicial Procedures in Zoning Context," December 1, 2000.
²Griswoldv. City of Homer, 925 P.2d 1015, 1019 (Alaska 1996); and McQuillin Municipal Corporations §25.262.50 and §25.218.20 (3^rd ed.).
³See id at §25.266.

The Charter provides that there be a City and Borough Attorney. The Sitka General Code provides that the City and Borough Attorney shall be responsible for providing legal services for the City and Borough. Any board or commission considering the engagement of separate legal counsel should (a) consult with the City and Borough Attorney first and (b) have an appropriation approved by the Assembly that will cover this expenditure.

(PDF, 278KB)Public Participation in Municipal Meetings: Conflict of Interest. Clifford J. Groh, II, CBS Attorney | March 30, 2005(PDF, 37KB)

The client of the Attorney for the City and Borough of Sitka is the City and Borough of Sitka itself, not any single official or employee.¹ The City and Borough cannot act except through its "constituents" or "representatives," who are its Administrator, the Assembly Members, and the City and Borough employees.² When one of the City and Borough's representatives-which would include an Assembly Member-communicates with the City and Borough Attorney, the communication is protected by the ethical rule that protects a client's confidences and secrets.³ Five important points of clarification need to be made here:

• The communications are protected, but the facts in those communications are not. Put another way, a client representative cannot bury a fact known to others by telling the organization's attorney.
• A client representative can waive confidentiality by revealing the confidence or secret to others besides the organization's attorney.
• The attorney's first duty is to the client-the organization. If the interest of the client representative becomes adverse to those of the client (the organization itself), the attorney must take steps to advise that client representative (such as an Assembly Member) that (a) the attorney cannot represent the client representative and (b) discussions between the lawyer and the Assembly Member may not be privileged based on the facts of the case.⁴
• An attorney for an organization-including a governmental organization-"shall proceed as reasonably necessary" to prevent a client representative from committing a violation of a legal obligation to the organization or a violation of law which reasonably be imputed to the organization if such violation is likely to result in substantial injury to the organization.⁵ "When a client is a governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved....In a matter involving the conduct of government officials, a government official may have authority to question such conduct more extensively than that of a lawyer for a private organization in similar circumstances."⁶
• Other legal process-such as court orders served on the attorney-can result in the piercing of the attorney-client privilege.⁷

Attorney-Client Privilege Between City and Borough Attorney and Assembly Member Memo,(PDF, 32KB) Clifford J. Groh, II., CBS Attorney, December 11, 2001(PDF, 32KB)
¹Alaska Rule of Professional Conduct 1.13(a); and Comment to Rule 1.13 entitled "The Entity as the Client."
²Alaska Rule of Professional Conduct l.13(a); and Comment to Rule 1.13 entitled "The Entity as the Client."    Although the Rule uses the term "constituents," to avoid confusion in the governmental context this memorandum shall use the term "representatives" to refer to the same group of persons.
³Comment to Alaska Rule of Professional Conduct 1.13 entitled "The Entity as a Client"; Alaska Rule of Professional Conduct 1.6; and Comment to Alaska Rule of Professional Conduct 1.6.
⁴Alaska Rule of Professional Conduct 1.13; and Comment entitled "Clarifying the Layer's Role" to Alaska Rule of Professional Conduct 1.13.
⁵Alaska Rule of Professional Conduct l. l 3(b).
⁶Comment entitled "Government Agency" to Alaska Rule of Professional Conduct 1.13.
⁷Comment entitled "Disclosures Otherwise Required or Authorized" to Alaska Rule of Professional Conduct 1.6 ("The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.")

Executive sessions are of course allowed for any governmental body to which the Alaska Open Meetings Act applies, although the subjects for which they are allowed are construed narrowly in order to maximize open government and avoid unnecessary executive sessions.¹ There are four essential requirements for going into an executive session:

1. A body can only go into an executive session if the body is already convened in a public meeting of the body
2. A member of the body must make a motion to go into executive session that clearly and specifically describes the subject of the proposed executive session without defeating the purpose of addressing the subject in private;
3. The proposed subject of the executive session must fall into one of five categories
   
   • Matters which if they were made public immediately would clearly have an adverse impact on the City and Borough, subjects that tend to prejudice the character and reputation of any person, provided that the person may request a public discussion
   • Matters which by law, the Charter, or ordinance are required to be confidential
   • Matters involving consideration of governmental records that by law are not subject to public disclosure
   • Communications between the body and a lawyer for the body if revelation of the communications will injure the public interest or if there is some other recognized purpose in keeping the communication confidential
4.  A majority of the body must vote for the motion to go into executive session.²

The executive session called for the purpose of considering subjects that tend to prejudice the· character and ·reputation of a person is one of the most frequently litigated of all types of • executive sessions.³ The law requires both that the person involved must be notified in advance of the executive session and given an opportunity to request a public discussion unless the body can show that the person has received notice and has chosen not to exercise the right to request a public discussion. ⁴

After the body goes into executive session, care must be taken to avoid any consideration of any subject not mentioned in the motion unless that subject is auxiliary to the main question.⁵ Additionally, the body should take no action at the executive session except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiation.⁶

Finally, a person who violates the confidentiality of the executive session may both be subject to disciplinary procedure and also may face a lawsuit for defamation (libel or slander).'

Executive Sessions Memo, Clifford J. Groh, II | April 9, 2001(PDF, 126KB)
¹AS 44.62.310-.312. There are similar provisions concerning executive sessions in the Sitka General Code, but those ordinances are pre-empted to the degree that they conflict with the state statutes. See Walleri v. City of Fairbanks, 964 P.2d 463, 468 (Alaska 1998).
²AS 44.62.310 (b)-(c); and Cool Homes v. Fairbanks North Star Borough, 860 P.2d 1248, 1259-62 (Alaska 1993) (lawyer-client privilege is permissible basis to go into executive session even though it is not mentioned in Open Meetings Act, but privilege should not be applied blindly).
3Ramseyv.CityofSandPoint,�98 P.2d 917, 133-35 (Alaska 1995);Geistautsv.University of Alaska,666 P.2d 424, 429 (Alaska 1983);von Stauffenberg v. Committee for Honest and Ethical School Board,903 P.2d 1055. 1060 (Alaska 1995); andCity of Kenai v. Kenai Peninsula Newspapers,642 P.2d 1316, 1325-26 (Alaska 1982).
⁴Ramsey v. City of Sand Point, 898 P.2d at 133-35. This requirement that a person be given advance notice and opportunity to request a public discussion does not appear to apply in one narrow class of executive sessions called to discuss a subject that tends to prejudice the character and reputation of a person, and that is when a governing body goes into executive session to discuss the personal characteristics of the applicants for the position of city manager. See City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d at 1325-26. There appears to be no requirement that the City Council-or City and Borough Assembly-notify in advance each applicant of the executive session and the right to ask for an executive session
⁵AS 44.62.310(b).
⁶Id.