Court decision places Janecek back in board seat

PALMER -- When the Matanuska Electric Association board meets Tuesday, board member Michael Janecek will resume his seat on the board, despite having been voted off the board in April.

Janecek officially regained the seat Thursday morning, after Palmer District Court Judge Eric Smith granted a preliminary injunction requested by MEA member Rowland Scott Waterman that had been filed on Janecek's behalf.

Janecek was voted off the board in April through a 3-2 vote after he did not attend a meeting at which other MEA board members participated in a hair-sample test for illicit drugs. At that meeting, board members certified election results from MEA's annual meeting, and ratified bylaw changes that included a new bylaw mandating drug testing for board members.

Prior to MEA's scheduled May meeting, MEA filed a lawsuit against Janecek asking that the two bylaws passed at its April annual meeting -- the drug-testing bylaw and a second one pertaining to campaign disclosures and reporting -- be upheld in Anchorage Superior Court. A few hours later that day, a case was filed in Palmer Superior Court by Waterman, asking for a temporary restraining order and preliminary injunctive relief through Janecek's reinstatement to the MEA board.

Smith denied the temporary restraining order that would have placed Janecek back on the board in April, citing that it violated a rule of the court by being filed late and, therefore, did not allow the defendant enough time to respond.

Since Smith's initial order, MEA dismissed its Anchorage case and requested that the case be heard in U.S. District Court, where a fourth-amendment violation could be ironed out, but U.S. District Court Judge James Rindner dismissed the charge and remanded the case back to Smith's courtroom.

Wednesday, Smith weighed the merits of the preliminary injunction that would return Janecek to his seat on the board and stay MEA from taking any further action on the drug-testing bylaw. According to Waterman's attorney Bill Ingaldson of Ingaldson Maassen, Smith had two significant matters to weigh in granting the injunction. First, whether there was a serious and substantive question of law and secondly, a balance of hardships -- which side would be harmed more if the injunction were granted or not granted.

Smith, according to court records, found the balance to be in the favor of the voters who elected Janecek, not in the right of MEA to enforce regulations adopted by the members.

MEA spokesman Mike Pauley, Thursday, said he was puzzled by Smith's decision, as nearly 65 percent of MEA members participating in the 2003 election cast ballots in favor of the drug-testing bylaw -- more members than cast ballots in favor of electing Janecek.

"While it is limited in scope, it is a disappointment to MEA," Pauley said of Smith's decision. "It would have been more fair to give the benefit of the doubt to the members who approved the bylaws."

Although the decision allows Janecek to continue as an MEA director, the lawsuit is not yet over. In addition to requesting that he be reseated, Waterman's case challenges the legality of the bylaw and its implementation.

"There's no procedure in place to protect people's privacy rights for legitimate drugs, and those rights have been really strongly recognized recently," Ingaldson said, mentioning the recently more strict HIPPA, or Health Insurance Portability and Accountability Act of 1996, which regulates the release of certain patient information. Drugs such as lidocaine or other -caine derivatives, he said, may produce positive results for cocaine, which would mean the subject would have to explain the use of or reasons for taking those drugs, although they may have been prescribed.

Smith, in a follow-up statement issued Wednesday regarding his decision, said a portion of the analysis regarding the balance of harms he used to reach the decision was that part of the problem could be solved with a requirement that Janecek submit to the testing. That requirement, Smith said, would have been included in his ruling, but Janecek already submitted to a hair test, the results of which have been provided to the court "in camera" or in private.

"Any harm or virtue of the fact that Mr. Janecek did not submit to a test at all therefore has been eliminated," Smith wrote in the statement.

Pauley disagreed, stating that a drug test isn't just a drug test. Only one national company has been certified in the nation as approved by the Food and Drug Administration. That company, Psychomedics, is the company through which MEA's company testing has been done in an effort to produce accurate, reliable results, Pauley said.

"Is Judge Smith going to know that?" Pauley asked. "With all due respect … we just don't know that. The fact that an envelope was given to the judge does not constitute compliance with the bylaw -- we certainly don't view it that way."

The next step, according to Pauley and Ingaldson, will be for the two parties to meet and agree on a briefing, discovery and deposition schedule to prepare to argue the remaining points of the case. In the meantime, Janecek said he plans to be present at Tuesday's MEA board member workshop. He'll be stepping into a seat that has been vacant for the past two months -- one that Pauley said the co-op was preparing to fill.

"We advertised for the vacancy and solicited applications," Pauley said. "We did review a number of applications, but the board never made a motion to appoint anyone to a seat."