Council corrects itself

Open Meetings Act violation fixed; Bowen withdraws from race

August 9, 2005

DARRELL L. BREESE\Frontiersman reporter

WASILLA - Wasilla's City Council opened its meeting Monday right where it left off at the end of the last one - in the middle of a controversy involving a possible violation of the Alaska Open Meetings Act.

The meeting started like any other, but that is when business as usual came to an end.

Council members Mark Ewing and Diana Straub called for the council to take action to correct an apparent violation of the state's Open Meetings Act caused by the council's use of a secret ballot to fill a council vacancy.

The controversy first ignited when Straub's improperly filled out ballot resulted in confusion over the vote to select one candidate from four who applied to fill a vacancy left by the resignation of Noel Lowe in late June.

Straub asked the council to take action to address the apparent statutory violation, moving for members to identify their ballots and then have the clerk read the votes of each member into the record.

Ewing quickly offered a second to the motion.

"We need to correct this wrong," Ewing told his fellow councilors. "State law supersedes Robert's Rules, and we can undo what might be a big wrong and get back to business as usual. I believe by doing this tonight we will eliminate the possibility of legal problems or lawsuits arising."

Straub echoed his position.

"The Open Meetings Act indicates that the governing body can attempt an informal cure," Straub said. "I believe we can do that tonight by having the votes read into the record."

Last week, city clerk Kristie Smithers asked Kimberly Doyle, a lawyer from city attorney Thomas Klinkner's office, if the city had violated the Open Meetings Act.

Doyle responded that the city was not in violation because the vote was organizational in nature, which is allowed by the Open Meetings Act.

Ewing pointed out that in justifying the action of the city, Doyle's advice overlooked that the vote was taken by a secret ballot. He continued to express what he perceived as flaws in Doyle's opinion, including that she overlooked the portion of the Open Meetings Act that explains how organizational votes are those that elect the leaders or officers of the body, such as the chair, vice chair, secretary, parliamentarian and the like.

He continued, stating the Alaska Supreme Court case she used as an example to support her position, Malone v. Menkins, involved electing the speaker of the state House and did not involve filling a vacancy or electing an individual to serve as a representative of the public.

"The process used to fill the vacant seat was not an organizational vote," Ewing said, "which the court ruled is exempt from Open Meetings Act regulations. It was clearly a vote to complete the body and not organize it. We need to be careful that we are getting good legal advice when it comes to matters of this magnitude."

After the discussion, there was no objection from the council members to having their votes read into the record. Smithers proceeded to have them identify their ballots before reading them into the record.

Smithers paused when she got to Straub's ballot, giving her the opportunity to correct her voting error, but Straub told her to read the ballot as marked.

Ewing was puzzled by her action.

"Diana should have taken advantage of the chance to change her vote," he said. "I thought that was one of the reasons we proceeded as we did."

But Straub defended herself.

"My biggest goal was to address the Open Meetings issue," Straub said. "The whole confusion with the vote was secondary to me. I made the mistake and own it. It's over."

Verdie Bowen, whose selection to fill the vacancy was surrounded by all the turmoil, announced at the end of the meeting that he was withdrawing from the election for Seat C in October. He indicated he would be too busy with work to effectively serve on the council.