City's ban on taping draws sunshine suit

Tape recording triggers conflict over mediation on flight noise

Posted: Thursday, November 09, 2000

Douglas resident Hugh Malone has hit the city and the city manager with a lawsuit charging they have failed to conduct the public's business in the open.

The suit, filed this morning in Superior Court, stems from the refusal of an aircraft-noise mediator and City Manager Dave Palmer to allow tape recording of "working sessions" convened by the city and the U.S. Forest Service to address flightseeing noise.

Malone attempted to tape an Oct. 31 session at the Douglas Library and was rebuffed by Lois Schwennesen, a mediator with Triangle Associates. The Seattle environmental mediation firm has been hired by the city and the Forest Service to establish the possibility of mediation among the "stakeholders" in the aircraft-noise issue: helicopter operators, fixed-wing aircraft operators, cruiseship companies, conservation and recreation groups, business organizations, the city of Juneau, the Forest Service, and citizen representatives for groups concerned about noise.

Although the public was allowed to attend the session, it was "not a public meeting," Schwennesen said.

The suit cites another attempted taping, at a Nov. 6 session at the Glacier Fire Station, when Juneau resident Donn Liston was informed by Palmer who cited his own

authority as city manager that the proceeding was not a public meeting and taping would not be allowed.

"(Liston) was asked by the mediator to turn (the tape recorder) off," Palmer said. "He refused, and he refused two requests to leave." The city manager then called for two police officers, he said, though Liston left of his own accord.

"There's no state law that you have a right to carry a tape recorder into the meeting," Palmer said today.

The state's open meetings law which requires that a panel set up by government to make recommendations hold open meetings clearly applies to this group, Malone said today. "This is simply an attempt to get the city to let the sunshine in.

"Even if the city finds a loophole to slip through on this, making community policy behind closed doors, with no record, is a very poor way to make public policy," said Malone, a former legislator and state official.

Malone's attorney, Joe Geldhof, filed the suit.

"This is pathetic," he said. "That the former speaker of the House and former commissioner of revenue has to bring a lawsuit to tell the city what they ought already to know, this is bound to increase suspicion about government."

The open meetings law might not cover subgroups of the work sessions that break to confer among themselves in caucus, Geldhof said. But city funding of the meetings, use of city facilities, and the participation of city personnel in the discussion of public issues all point to a public meeting held in the public interest.

Geldhof said the success of a 1990 Anchorage Daily News lawsuit to access the proceedings of a blue-ribbon task force empaneled to make recommendations to that city clearly has parallels in this case. "These are clearly public meetings," he said.

City Attorney John Corso is making a federal case out of it.

Whether or not the working sessions constitute a public body, he said, the meetings are part of a federal that is, U.S. Forest Service initiative. The state open meetings statute does not apply to the federal government, he said.

The decision to ban tape recorders was made, not by the city, but by the nine parties of the mediation design team, said Triangle's Schwennesen this morning. "My sense is that the parties at the table really want to find a solution to the flightseeing noise that responds to the interest of the various parties."

With issues such as flightseeing noise, the specter of litigation looms large, she said. "The cost of litigation is so huge, we want to organize the mediation so that it can't be used as discovery (compulsory disclosure) in future litigation."

"It's discouraging that the energy and attention demonstrated by the lawsuit is focused on the side issue," Schwennesen said.

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