Attorney: School Board Committee operating in violation of state’s Open Meetings Act

Mired in controversy over recent decisions, the local school board is now facing questions about how those decisions were made. As the new school year got underway in August, the Matanuska-Susitna Borough School District board had several policy changes teed up for quick action, including forming a committee to review books for age-appropriateness, instituting a lottery system for public testimony at board meetings, and limiting student representative Ben Kolendo’s role on the board.

At the board’s Aug. 16 meeting, Katie Gardner, deputy superintendent for the school district, said during the board’s summer retreat, committee members discussed issues and suggested changes, including those that ultimately diminished the role of the student rep.

“This was an item that was addressed during the board retreat, and I do believe that the (Board) Policy Committee, with the superintendent, worked on these revisions and put them forward,” she said.

But a meeting of the Board Policy Committee was not on the public agenda for the school board retreat. There also is no record of any meetings of the committee. Neither the school board calendar, its social media sites, nor the school board website itself has any record of the policy committee meeting, or any record of past meetings. The state’s Open Meetings Act, outlined in Section 44 of the Alaska Constitution, lists that as a clear violation.

“All meetings of a governmental body … are open to the public,” the Act states. “… Reasonable public notice shall be given for all meetings … The notice must include the date, time, and place of the meeting …”

At the Sept. 6 school board meeting, the student representative’s chair had been removed from the dais at the front of the meeting room. This prompted board member Ted Swanson to ask about it, because no statement had been made explaining the change.

“It was determined through discussions that we would start the year and the routine, work through the policy revisions, and not have the (student) member on the dais,” Gardner explained.

Swanson suggested the board should take a public vote on the matter first, so residents would know what led to the student rep’s reduced role.

“I think it does a disservice to us,” he said. “There wasn’t a lot of explanation to the public, and the perception is that we have done a disservice to Mr. Kolendo.”

Longtime Alaska attorney John McKay, who specializes in media law and public access issues, said the Open Meetings Act’s reference to “subordinate groups” of government bodies includes committees, whether they are advisory or otherwise.

“The law very specifically covers them. It can’t be any clearer,” he said. “There’s really no question that it’s covered.”

The Constitution says any official action taken by a government body while it is in violation of the Open Meetings Act is voidable. McKay said OMA violations are usually settled by the offending body agreeing to correct course, but occasionally it takes a lawsuit to force compliance and void an action taken inappropriately.

During her time representing the Kenai Peninsula in the Alaska Senate in the mid-’90s, Suzanne Little was instrumental in revising the OMA to its current form. She said public access to government is at the heart of the Act.

“The cornerstone of our democracy is the public’s ability to know about and participate in government functions,” she said.

School district administration sees it differently.

Speaking on behalf of the district, “There has never been a notice to the public in the past (about the policy committee),” Chief Communication Officer Jillian Morrissey said. “This new group of board members maintained decades-long practice.”

The Board Policy Committee has been a mainstay of the school board for years. Its mission is to review policy and recommend changes and revisions to the full board, which then votes on them.

Debby Retherford served on the school board for six years, from 2012-18. Her board tenure included service on the policy committee.

“I’m sure we gave public notice for our policy committee meetings. I’m sure we put them on the calendar. And they were usually mentioned in a footnote section of the agenda of the board meeting before,” she said. “Although we weren’t required to take minutes, we did take notes and typed up a report that went out to every board member. It was always in the meeting packet.”

Today, not only is there no public notice, other school board members said even they are in the dark.

Swanson, who was elected to the school board last year, said he knows nothing about the policy committee beyond periodic reports given to the full board.

“I don’t have any knowledge of how or when that committee meets,” he said.

The Board Policy Committee is made up of three regular board members: Jacob Butcher, Kathy McCollum, and Ole Larson.

Retired Frontiersman publisher and editor Mark Kelsey contributed to this report.