Open Meetings Act review delayed again

PALMER — The review of two separate alleged violations of the Open Meetings Act by members of the Palmer City Council did not occur at the latest regular meeting. An executive session had been scheduled, but was later removed from the agenda.

“We contacted Mr. Brandt-Erichsen and asked him is it necessary to have the E session, and his position was there’s nothing really more that he could add than he has already mentioned in his memoranda with respect to the subject that was to be discussed. So he felt that there wasn’t really any need or basis to go into the E session, and so that’s part of it. Plus, the memo apparently is in the public so that’s just another piece of it and when the E session was scheduled that wasn’t out there so no need for the E session and I concur with Mr. Brandt-Erichsen as well,” said City Attorney Michael Gatti.

Councilman Richard Best had moved for an investigation into alleged OMA violations by then four members of the council who participated in the Facebook group Mat-Su Moms for Social Justice, as informed by testimony given from Mike Coons earlier in August. A subsequent OMA investigation was requested by Councilwoman Dr. Jill Valerius concerning the direction given to the city Manager during the August 24 meeting when Best made his motion for the initial OMA investigation in which some discussion was had after Mayor Edna DeVries had gaveled the meeting out. Posts made on October 1 in “Borough Budget Watch” included the entirety of the legal reviews provided by Brandt-Erichsen of Keene & Currall, a Ketchikan law firm.

“I would want to examine that question on whether the attorney client privilege was waived by one council member or whomever released it, we don’t know anything about that. The only information that my office has received was from Mr. Moosey that apparently Mr. Eriksen’s memo was on some social media site. That’s about the extent of all that I know and I would want to research the question of whether or not that would constitute a waiver of privilege so we can report back to council on that question,” said Gatti. “The council holds the privilege and the council may or may not by a vote release the memo based upon its holding of the privilege.”

During discussion on whether or not to remove the executive session from the agenda to be placed on the October 26 meeting agenda, Mayor DeVries questioned whether or not the legal review by Brandt-Erichsen would have to be published with the packet for the October 26 meeting. During the meeting, no member of the council admitted to having released the “attorney client privileged” legal review. The posts with photos of a computer screen containing the legal review concluded that OMA violations had not occurred on August 24 with Best’s motion for the original legal review.

“I believe that a court would more likely than not find that the motion in question was made during a regular meeting, and that sufficient notice was provided, and therefore no OMA violation occurred. I believe that a court looking at the issue would find that the discussion clarifying the direction was part of the same regular meeting,” wrote Brandt-Erichsen.

The motion from Valerius to move the planned executive session to the October 26 meeting passed unanimously.

“It would be an Informational item since all of this was actually released to the public against the advice of the attorney,” said Valerius.

Much of Brandt-Erichsen’s legal review of the Facebook communication centered around screenshots provided between January 2020 and November 2020. Current councilman Brian Daniels was not elected to the council until October of 2020 and Brandt-Erichsen focused his review on specific posts that received engagement by a quorum of the council once Daniels had been elected. Brandt-Erichsen then wrote that he found no corresponding action that would require curing. Brandt-Erichsen’s legal review of the August 24 meeting motion was dated September 21 and his review of the alleged OMA violations on Facebook was dated September 15.

“The general discussion of boards and commissions dated october 15,2020 did include likes or comments from four members, and related to issues upon which the council might have the power to act, but I did not locate any associated council consideration of the topic of procedures for appointments in that time frame. Where there is not an action brought up for a vote it is not clear whether there is a decision which could be challenged,” wrote Brandt-Erichsen. “At least one of the streams of communications in October 2020 appears to have violated the OMA. Even if none of the posts contain sufficient detail to conclude unequivocally that the OMA is being violated by the communication, I recommend that council members not participate in communications by social media, email or otherwise where a quorum of the council is included in the communication and that quorum is either discussing or being presented with information provided by a fellow council member for deliberation on matters upon which the council is empowered to act and is outside of a public meeting.”

Gatti noted that it would be up to the council whether to release the documents to the public or not, though they had already been released and posted in at least two Facebook groups for public review. Valerius then made a second amendment to the approval of the agenda which moved for a change in the listed meeting minutes of August 24 when the original OMA violation investigation motion was made by Best.

“I’m just asking that the minutes be reflected properly, that’s all. I’m not insinuating anything else, I’m just saying that we ought to reflect the minutes accurately,” said Valerius.

The motion to amend the August 24 meeting minutes passed unanimously.

“Sometimes we often see where it shows where somebody got to a meeting late. I’ve never seen it actually indicate when somebody has logged off,” said Best. “I think this is an additional but I’ve got no heartburn over it either way.”