HB 254: OPEN MEETING ACT Number 653 CHAIRMAN PORTER read the title of HB 254 and called for a sponsor statement. Number 663 REP. DAVIDSON asked if HB 254 was properly before the committee under the Uniform Rules of the Legislature. Number 669 CHAIRMAN PORTER stated that it had been. He said that he had notified the House Rules Committee, under Rule 23, the previous Saturday that he wanted to hear HB 254; he had posted the meeting notice on Saturday; and he had made an announcement on the floor on Monday. He stated that he was confident that the five-day rule had been satisfied. He also stated that even though the information had not been turned into the Chief Clerk by the previous Wednesday, there was no prohibition on revising a previously submitted schedule. Number 692 REP. DAVIDSON noted the existence of a house bill with a lower number also dealing with the Open Meetings Act, and stated that it was customary to consider both bills. CHAIRMAN PORTER stated that a hearing on the bill to which Rep. Davidson referred (HB 37) had not been scheduled, that the bill was not before the Judiciary Committee, but that he was sure that there would be some discussion of the bill, if only for purposes of comparison to HB 254. Number 714 REP. NORDLUND called the committee's attention to an opinion from Division of Legal Services attorney Tam Cook stating the chairman's intent to hear HB 254 had indeed met the five-day rule, but not the previous Thursday rule. He stated that there was a need to modify the Thursday rule. Number 732 CHAIRMAN PORTER stated that the Thursday rule was in existence for the benefit of the Chief Clerk's office, and that the five-day rule was the driving rule behind most notice requirements. Number 744 REP. DAVIDSON stated that it was not his intent to prevent the hearing from occurring, but he wanted to make sure that the committee was following the Open Meetings Act (OMA) which it was considering modifying. Number 756 REP. PHILLIPS referred back to the opinion issued by Tam Cook with respect to the lack of consistency on compliance with the rules and agreed with Rep. Nordlund that the Uniform Rules should be amended in some way. Number 769 REP. AL VEZEY, PRIME SPONSOR OF HB 254, explained that under the Rules Committee's current interpretation, in the event of a Saturday meeting, the five-day rule was satisfied with a Monday notice. He stated that the number of lawsuits filed over alleged Open Meetings Act violations was the driving force behind HB 254. He stated that in order for business to go on as it should, there was a need for a single standard for all governments to follow, and that any governmental body could adopt more stringent standards if it wished. He stated that HB 254 also attempted to reduce the number of frivolous lawsuits filed, and that it also required those who would file suits to justify their actions. Among other changes, HB 254 eliminated the requirement that all agency materials under consideration be provided at teleconference sites, because the omission of any material would provide grounds for an OMA violation, and also allowed some votes under teleconference to be taken by voice. TAPE 93-51, SIDE B Number 000 REP. VEZEY continued his testimony on HB 254. He outlined the exemptions for various public bodies with respect to personnel matters. He also outlined the changes in the requirements for the voiding of an act made in violation of the OMA. Under the old OMA, any act taken in violation was automatically voided. Under HB 254, any act could be voided by an order of the court. He also explained that for any person filing an OMA court case, each party would pay its own legal costs. He stated that this would help to prevent frivolous lawsuits. Finally, he explained that the definition of a meeting was two or more persons, but not less than a quorum of a body. Number 076 REP. PHILLIPS stated that she felt Sections 2 and 3 on page 2, dealing with personnel matters, were duplicative. Number 096 REP. VEZEY stated that he kept Sections 2 and 3 much the same out of respect for the original drafters of the OMA. He also stated that he saw a difference between judging the character of a candidate and the judging of professional qualifications. Number 125 REP. PHILLIPS stated that she still found Sections 2 and 3 duplicative but would not object to their inclusion. Number 129 REP. DAVIDSON asked to hear the reasoning behind having those who would file an OMA suit bear their own court costs. Number 138 REP. VEZEY stated that all a governing body would have to do after a successful OMA lawsuit would be to hold an OMA friendly meeting and pass the same act again. He noted that most governmental bodies were easy targets for the OMA, even for some inconsequential reasons. He stated that HB 254 would make filing and defending suits more equitable. Number 155 REP. DAVIDSON asked rhetorically why not just have a more careful, open government to start with. Number 164 REP. VEZEY stated that he knew that no one would argue against that, but whether the OMA had been violated should come down to a determination of fact, which should be done by a jury. Number 167 REP. NORDLUND asked if HB 254 would deny citizens access to the court. Number 174 REP. VEZEY said that he did not see it that way, because an OMA lawsuit would be a valid pro bono case for many attorneys, and also because most OMA violations were fairly simple matters: a determination of if they did or did not occur. Number 190 REP. NORDLUND stated that a municipality or the state could very easily make a lawsuit a very expensive process if it wanted to by simply prolonging the case, which would effectively prevent people from filing a case. Number 198 REP. VEZEY stated that any body could redo its actions even after an OMA violation was found, and after a court's determination. He also stated that the final judge of any OMA violation would be the electorate, which could easily remove officers who violated it. Number 216 KENT SWISHER, EXECUTIVE DIRECTOR OF THE ALASKA MUNICIPAL LEAGUE (AML), joined the committee to testify in favor of HB 254, and also in favor of HB 37. He stated that the AML's biggest concern was clarifying the law to set a clear standard for open meetings. He stated that when the original 1964 law was passed, officials knew what a meeting was, and that made following the OMA fairly easy. Since then, very few governments knew what a legal meeting was because of conflicting court decisions pertaining to Cordova and Fairbanks. He stated that the League preferred HB 254's definition of a meeting, but it also liked the processes set down in HB 37. He noted that in some cases, governments did have the need for closed meetings, such as when they needed to consult with their lawyers. He urged the committee to draft the statute to include a recognition of those needs. He also called for changes to cover the need to meet in an emergency, with little or no notice. He was also concerned about meetings that might be held with constituents, or attendance at conventions or workshops. Number 402 REP. DAVIDSON asked if he believed that HB 254 would encourage members of a governmental body to do more talking in the open. Number 410 MR. SWISHER said that if the body were not in violation of the OMA, then it would encourage such communication between officials and constituents. Number 419 REP. DAVIDSON asked if the AML would have a problem, in the case of a governmental body with eleven people in its membership, with a quorum of six, if five people were to meet and talk about policy before the next meeting. Number 425 MR. SWISHER stated that there would be no problem, since the statute would prevent the body from taking action. He stated that since there was no quorum, there could be no violation. REP. DAVIDSON asked if Mr. Swisher saw no problem with those private discussions. Number 438 MR. SWISHER stated that if any discussion were allowed in private, then there would probably be less in public, but it simply was a matter of judgment. He stated that AML's policy was that anything less than a quorum should be allowed to discuss business without violating the OMA. Number 443 REP. DAVIDSON asked what kind of items should be covered in one of those judgment calls. Number 448 MR. SWISHER said that people simply wanted a common standard that everyone could follow: an unarguable and clear standard. Number 457 REP. DAVIDSON asked how people would determine, or judge, when they were crossing the line of actually doing public business in private. Number 460 MR. SWISHER stated his position that less than a quorum should be the standard, and the line of judgment for a council was already established and observed even under the current law. Number 475 LARRY PERSILY, MANAGING EDITOR OF THE JUNEAU EMPIRE, joined the committee to testify in opposition to HB 254. He stated that HB 254 was not needed and was not a simple clarification of existing law. He claimed that HB 254 would diminish the public's ability to learn the hows and whys behind public decisions. He stated that Section 1 would dilute the ability of the public to follow policy at teleconferenced meetings. He stated that Section 2 would give policy makers a broad exclusion for hiding public business behind the attorney-client privilege. He claimed that Section 4, which dealt with legal costs, would build a barrier to enforcing the OMA. He said that defining any meeting as a quorum was overkill, and that such a broad exclusion would allow several people to meet in private to hide something. He stated that often, it was not necessary to have a quorum for a decision to be made. In conclusion, he stated that the current OMA was not the problem, just those who would violate it. Number 572 WENDY REDMAN, VICE PRESIDENT FOR UNIVERSITY RELATIONS, UNIVERSITY OF ALASKA, testified in favor of HB 254. She stated that the University was not covered by a lawsuit, but had filed amicus curiae briefs in relation to other cases. She stated that the current OMA had had a chilling effect on business done by the University's Board of Regents. Number 585 ROSALEE WALKER, PRESIDENT, ALASKA MUNICIPAL LEAGUE, testified in favor of HB 254. She referred back to Mr. Persily's comments that he knew of no one filing an OMA suit on the basis of meetings away from home at conferences, and noted that the Fairbanks OMA case grew out of an alleged meeting at the National League of Cities meeting in Washington, D.C. She stated that anytime an unpopular decision was made, members of the public who were angry used the OMA for an easy way to protest the decision. She stated that the root problem was that no one had a definitive answer for what constituted an official meeting. She stated that the current OMA was causing public officials to engage in silly behavior, citing one Christmas when some assembly members placed an advertisement in the newspaper declaring that they would invite other public officials to dinner. In Nome, another public official was forced to change his dentist because the dentist became a member of a council on which the original official served. Number 634 REP. JOHN DAVIES, PRIME SPONSOR OF HB 37, joined the committee to testify in opposition to HB 254. He objected to the committee hearing itself, stating that it was in violation of the previous Thursday rule. He also objected to having only one hearing on Open Meetings, and to the meeting not being teleconferenced. He further objected to the hearing of HB 254 instead of HB 37, noting that it had been standard procedure to use the lower numbered bill on similar topics as the vehicle of discussion. As for the subject itself, he noted that the reason behind huge legal debts in previous OMA cases, including the Cordova case, was the filing of lawsuits against individuals. He stated that if HB 37 had been in effect, such lawsuits would not have been likely, and called for the committee to add such provisions to HB 254. He refuted the minimum standard claim that municipalities could institute higher standards, because they would not be held liable for that, based on legal precedents that a body could suspend its own rules. He also objected to the removal of the requirement that agency materials be available at teleconference sites, saying that the state would probably rely more on teleconferences in the future in order to save money, and that if the public did not have access to materials, it would be hard to follow the discussion. As for attorney- client privilege, he urged the committee to take care in modifying the statute. He stated that the relationship between an assembly and its attorney in executive session was different than that of an individual and his or her attorney. TAPE 93-52, SIDE A Number 000 REP. DAVIES said that exempting hospitals from OMA requirements was simply a mistake and urged the committee not to allow it. He did agree with changing the language automatically voiding actions taken in violation of the OMA, because the decision should be examined in court, and because the decision itself might actually be the right one. He objected to making OMA plaintiffs pay their own court costs, saying that it would disenfranchise the public. He stated that the million dollar plus Cordova case was an exception. He said that the key point of debate centered around the definition of a meeting. He noted that HB 37 called for a majority of a quorum, and said that it was best to set a minimum standard to safeguard the right of the public to know. He stated that allowing one less than a quorum to meet in private would circumvent the intent of the framers of the original OMA. In conclusion, he asked for more hearings on OMA, including HB 37, and asked for teleconferences on the topic. CHAIRMAN PORTER noted the introduction of several amendments to be considered. Number 258 REP. NORDLUND introduced what he called a compromise position between the Vezey bill and what the press association wanted. He introduced the first amendment, labeled "J.9", deleting the provision for both parties to pay their own court costs. It also eliminated the possibility for individual lawsuits; it allowed the court to void an action unless it was in the best interest of the public; and it deleted the reference to Rule 82 of the Alaska Rules of Civil Procedure. REP. PHILLIPS objected to the amendment, saying that individual members of a governing body were already protected to some degree. REP. NORDLUND stated that he drew the clause in because of the Cordova case, in which several members hired individual lawyers. CHAIRMAN PORTER stated that hiring a lawyer must be an individual choice. Number 352 REP. JAMES suggested getting rid of Rule 82, saying that the possibility of negotiated settlements would increase. Number 356 CHAIRMAN PORTER called for more discussion. Seeing none, he called for a vote. Amendment 1 failed by a 5-2 vote with Reps. Davidson and Nordlund voting yes and Reps. Phillips, Green, Kott, James and Porter voting no. Number 365 REP. NORDLUND asked to get the sense of the committee on the issue of both parties having to pay court costs. He asked if the committee would force a plaintiff to pay his or her own costs only if he or she lost. He stated that a total exemption went too far, especially if one party had a good case, but did not have the money to pay for it. Number 379 CHAIRMAN PORTER replied that it was necessary to reduce the number of lawsuits as well as court costs, and that he would support the suggested amendment. He allowed a verbal amendment to be introduced. REP. NORDLUND moved such an amendment. REP. PHILLIPS objected. Number 401 REP. DAVIDSON spoke in favor of the amendment, saying that without the change, the state would become the state of the privileged, those who could pay for suits. Number 422 REP. PHILLIPS took the opposite stand, saying that it was not a right to sue, but rather a privilege. She said that a person might have the privilege to sue, but the state should not be obligated to pay. Number 434 REP. DAVIDSON stated that privilege based on the ability to pay was wrong. Number 444 CHAIRMAN PORTER noted the existence of legal organizations which helped needy people, including Alaska Legal Services. Number 454 REP. DAVIDSON stated that the agency had a huge case load, and faced major budget cuts. REP. JAMES noted that anyone could sue for almost anything. She said that the state must pursue settlements. Number 485 REP. KOTT stated that an OMA suit was often a tool used to embarrass groups. He theorized what would happen to a Citizens Advisory Group if it were taken to court by a major corporation for an alleged OMA violation. He stated that it would be very easy for the company to eliminate the group by prolonging the case. Number 509 CHAIRMAN PORTER stated that there were remedies in the law to specious litigation, but they were not adequate. Number 517 REP. DAVIDSON agreed that anyone could accuse anyone of anything, but noted that there was a right to appeal, and was thankful it was that way. He stated that allowing the state to pay for that process was part of democracy. Number 535 REP. PHILLIPS stated that there was nothing in HB 254 that denied a citizen the right to sue. It only stated that if someone sued, they would be responsible for the costs. Number 545 CHAIRMAN PORTER called for a vote on the amendment. Amendment 2 failed by a 4-3 vote. Reps. Nordlund, Davidson, and Kott voted yes; Reps. Phillips, Green, James and Porter voted no. Number 559 REP. NORDLUND then introduced Amendment 3 (labeled "J.7"), dealing with notice requirements for a meeting. It added provisions for announcements of the subjects to be covered, as well as allowing for a 72-hour notice period except for emergency meetings. Number 570 REP. PHILLIPS noted that such a provision was already set in local ordinances in several communities. She asked for comment by Mr. Swisher to verify that most local meetings were advertised already. Number 583 MR. SWISHER stated that the League had always thought that 24 hours was reasonable notice, but some court decisions, such as in an Anchorage School Board case, held that five days' notice was not considered adequate for certain topics. He objected to the 72-hour notice, saying that some areas did not have daily newspapers, and changing an agenda would be difficult. He stated that the League was not as concerned about "reasonable notice" as it was about emergency action. Number 605 REP. PHILLIPS stated that amendment to Title 44 was not the right place to deal with notice, but rather in Title 29. She also stated that it would be more appropriate to allow the municipalities to request any changes desired. Number 610 REP. NORDLUND stated that the change would affect more than just the municipalities. He stated that it would guarantee that all people would be given notice for all governing bodies 72 hours in advance. He asked Mr. Swisher if the League would like more clarification on what constituted reasonable notice. Number 618 MR. SWISHER stated that the League would like clarification on notice required in emergency situations. REP. PHILLIPS asked why that could not be handled at the local level. CHAIRMAN PORTER noted the diversity of the state and the difficulty in setting a statewide minimum. Number 641 REP. JAMES stated that she would like to see a clarification on emergency meetings, but did not like setting a statewide 72-hour standard.