A common sense ruling

Posted: Sunday, December 17, 2000

With so many influential people involved in Juneau's noise mediation effort insisting that black was white and vice versa, it was comforting on Wednesday to see retired Alaska Supreme Court Justice Jay Rabinowitz rule in favor of common sense.

The idea of the various parties to the dispute getting together to try to resolve their differences was and remains admirable. The city and the U.S. Forest Service deserve credit for providing funds and facilities, and for seeking a neutral party to mediate the squabble.

The shortcoming in this approach, however, was deferring to the hired consultant as the source of all authority.

Lois Schwennesen of Seattle's Triangle Associates arrived in town insisting that the meetings between the noise-makers and noise-sufferers were "not subject to the Alaska Open Meetings Act." She thus placed herself and the meetings above - or at least outside - the law.

She told the participants they would not be candid if the meetings were taped. In the spirit of cooperation, most of the combatants nodded their OKs without putting Schwennesen's comments to the test. Why, exactly, would people only speak candidly if their remarks were not recorded accurately? The best answers anyone could give seemed to be 1) because Schwennesen said so and 2) because we might hear our exact words on the radio or read them in the newspaper.

Over time, some did question Schwennesen's authority. City Manager David Palmer rushed to her rescue, threatening to call in what he seemed to believe was his personal police force to deal with anyone who dared to record the meetings. Let's be clear. Using a hand-held tape recorder is not a disruptive act - even if someone who imagines herself or himself to have unquestioned authority deems it so.

Schwennesen said if there were any more outbursts (non-outbursts, really) at a future meeting on federal turf, she, too, would call in the gendarmes.

The mediation effort by then was secondary to the power play.

With the city unyielding in its support of the consultant, one of the participants took steps to have a neutral party with real authority decide whether the bullying of Schwennesen and Palmer was legal. Peace and Quiet coalitionist Hugh Malone filed suit to prevent the city and its hirelings from preventing him from recording the meetings.

Like a good soldier following orders, City Attorney John Corso argued the city's position before Rabinowitz last Tuesday.

Recording the meetings could be "obtrusive or disruptive," he said, ignoring the fact that the disruptions originated with the city manager.

"The main danger is that people are less likely to be candid when they have a tape recorder stuck in their face," Corso said, parroting Schwennesen and suggesting that recorders had been or would be stuck in someone's face.

"The closer it gets to a verbatim transcript, the scarier it gets for people," Corso said, presumably with a straight face.

When he ruled the next day, Rabinowitz said the idea that the city would be harmed if the meetings were recorded was "belied by common sense."

It was that simple.

As we have said before, you don't have to be a lawyer to understand the intent of the Alaska Open Meetings Act. But you may have to be a hired mediator or city manager or city attorney to misunderstand it.

As Rabinowitz understood, meetings held in public facilities at the invitation of public entities and at public expense to discuss publicly an issue of interest to the public, are public under the law.

Those who bought into the assertions to the contrary are wringing their hands and saying the mediation process is doomed by the "impasse." There is an impasse only if Schwennesen, the city and the nay-sayers continue to insist the sole way the problem can be solved is by ridding the process of that pesky need to operate within the law.

Or, they could swallow their pride and ego, gather again and explore the issues - candidly, publicly and on the record.



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