"People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing." - Warren Burger, former chief justice of the U.S. Supreme Court, 1980
When members of the Juneau Assembly reject the advice of City Attorney John Corso and proceed in favor of holding unscrutinized discussions in possibly illegal executive sessions, they risk much, including the loss of public trust.
Last Monday, Assembly members voted 5-4 to go into executive session to discuss how to negotiate with the cruise industry over the issue of a tonnage tax vs. project-based partnerships.
When, prior to the vote, a reporter (or any citizen) who seeks to comment about the ill-advised motion is ruled "out of order" by the mayor, the reporter (or citizen) has been wronged. As Juneau Assembly Rules of Procedure No. 14 states: "Public participation shall be permitted on a motion to recess into executive session prior to the vote on such a motion."
When Assembly members back down sheepishly in response to the refusal of three reporters to leave the chamber in which the closed-door meeting was to take place, it's a sign the elected officials knew they were on shaky ground all along.
Seeking the refuge of an executive session should be a last resort, not a first nor an easy option.
Elected officials know better than most of us the meaning of "damned if you do and damned if you don't." But elected officials, including those of the City and Borough of Juneau, weren't conscripted. In choosing to run, they accepted the responsibilities of the offices to which they aspired.
In reality, being required to give notice unfailingly, to follow procedural rules consistently, to stay within posted agendas without exception, and to adhere to the letter and spirit of laws big and obscure can be exasperating. In their impatience to move forward, including moving toward doing "the right thing," public officials may be tempted to take an occasional shortcut.
It's the final outcome that matters, right? In a word, no. As any police investigator, prosecutor, criminal courts judge, civil libertarian - or even the city attorney - will tell you, the legal T's must be crossed and the legal I's dotted each step of the way. To do less is to invite the consequences of inappropriate outcomes.
Juneau and Alaska long ago recognized the value of open government and the suspicions generated by back-room dealing. The restrictions limiting closed-door executive sessions are addressed explicitly within the state's open meetings law.
In 1986, then Deputy City Attorney Corso wrote a seven-page memorandum in which he explained the Alaska Open Meetings Act. We have a copy of the memo and refer to it frequently.
The Alaska statute and others like it exist "in response to perceived abuses of power at all levels of American government," Corso wrote. Alaska's law "repeatedly affirms the primacy of Alaska's people over their government agencies and explicitly instruct(s) courts to interpret the Open Meetings Act in favor of openness."
In addressing the subject of executive sessions, Corso wrote: "If an open discussion of financial matters would have a possible, hypothetical, long-range, or indirect effect upon municipal finances, you should remain in open session."
The added emphasis is ours; the meaning of the emphasized words is unambiguous.
What happens if the Assembly violates the Open Meetings Act?
A court "can void any action taken by the body ..." Corso wrote.
It is possible some Assembly members have fallen into the trap of thinking they cannot speak candidly if they have to conduct city business in public. That premise is, to put it kindly, a myth.
Apart from narrowly defined exceptions, the public's business is best conducted in public. That's not merely this newspaper's opinion. It's the law.