An attempt to recall half of the members on the Haines Borough Assembly is underway. It’s still uncertain whether the effort will go to a public vote. But one of the misconduct allegations brings up a ‘gray area’ in Alaska law about whether private conversations between assembly members can violate open meetings rules.
Don Turner Jr. is the main sponsor on three recall applications filed last week.
Turner did not want to be recorded for this story. But he provided KHNS copies of the emails he references in his case against Assembly members Tresham Gregg, Tom Morphet and Heather Lende.
One is an email Gregg sent to Lende on December 12, 2016. It was the day before the assembly would vote on whether to approve a piece of the small boat harbor expansion they had previously rejected: a 33-foot extension on the new wave barrier. In the email, Gregg says to Lende ‘I hope we don’t have to tussle over the 33 ft extension of the wall. Tom and Ron and I are against it. Need you there too.’ Gregg was referring to fellow assembly members Tom Morphet and Ron Jackson.
Turner says he got the email from former manager Bill Seward, who put in a public records request for certain assembly communications after he was fired. Lende replied to Gregg, but her response was redacted by the borough attorney.
Turner thinks Gregg talking to three other assembly members, even in separate conversations, about this issue amounts to a violation of the Alaska open meetings law.
The Open Meetings Act says more than three members of a policy-making body shouldn’t ‘engage collectively’ in discussion of a subject the body is authorized to set policy on.
Alaska Municipal League Director Kathie Wasserman says AML advises newly-elected officials against what’s called ‘serial polling’ or ‘serial meetings.’
“We have recommended that you not do serial polling at all,” she said.
An AML handbook for elected officials says while this is not explicitly forbidden in the Open Meetings Act, courts have concluded that a series of individual conversations ‘may amount to an illegal meeting.’
“To have one person start to contact another and then it works its way through an assembly or council is against the Open Meetings Act because basically decisions are being made not in the meeting,” Wasserman said. “And the discussion around that issue, more importantly, is not being held in public.”
John McKay, a lawyer who specializes in the open meetings law, says serial meetings are a ‘gray area.’ He says the Open Meetings Act is meant to provide access to all phases of the deliberative process government bodies go through.
Turner says Gregg’s email to Lende is evidence the two of them and Morphet violated the Open Meetings Act.
But the three assembly members disagree. Gregg says the private conversations did not preclude a public debate, which the assembly did have at its meeting.
“I don’t know, I don’t think that we did anything particularly wrong,” he said.
Gregg also pointed out that the 33-foot breakwater extension was approved. He was the only vote against it.
“If there was some sort of collusion involved, it didn’t work,” said Lende.
She says assembly members checking in with each other is not depriving the public of its right to witness the deliberation process.
“I think this assembly more than any other one in recent memory has been really good about deliberating in public,” Lende said. “And I think that 33-foot wall had lots of discussion in public. And I think that minds were changed back and forth from what people thought on the street to what happened in the meeting.”
Morphet also defended the assembly members’ right to have private conversations about borough business.
“It is my understanding of the Open Meetings Act that any individual member can poll any other member,” Morphet said. “What we can’t do is make decisions outside of public meetings. We can’t say ‘what are we going to do?'”
Morphet says it looks like Gregg polled fellow assembly members and then reported to Lende what he found. Morphet says they did not get together to plan their decision.
“I don’t believe that that is a violation of the words of the Open Meetings Act,” Morphet said. “I think it might be arguable that that violated the spirit of the act. But even that would be tenuous.”
Turner’s Open Meetings Act violation allegation is just one of the claims in the recall applications. In the next couple weeks, the borough clerk and attorney will decide whether the claims warrant official recall petitions.