ALASKA'S OPEN MEETINGS LAW
Gordon J Tans
The first edition of this publication appeared in 1992
under the title "Alaska's Open Meetings Act: A Guide For Local Governments
And School Districts." In 1994 the Alaska State Legislature passed
significant amendments to AS 44.62.310-.312, popularly known as the Open Meetings Act, which is reprinted in the Appendix.
Among other changes, the legislation clarified the definitions of
"governmental body" and "meeting" coming within the coverage of the act.
Sweeping changes were made to the law of remedies available for
violation of the act. The second edition of this publication was
published in 1996 to incorporate these legislative changes. This third
edition broadens the scope of the publication and provides additional
analysis. It also refers to all court decisions discussing the Open
Meetings Act that have been issued since 1996.
This publication refers to court decisions from several
different courts. Generally, only those opinions from the Alaska Supreme
Court (cited as Alaska) would be considered binding precedents. Cases
cited from other states, or from the Superior Court (cited as Alaska
Super. Ct.) or the U.S. District Court for Alaska (cited as D. Alaska)
are cited for illustrative purposes. Although those cases show how
courts interpret the Open Meetings Act, they are not precedents binding
on any other court's interpretation of the act.
This publication is intended to provide accurate and
authoritative information in regard to the subject matter covered. It is
made available with the understanding that the author and publisher are
not engaged in rendering legal or other professional service. If legal
advice or other expert assistance is required, the services of a
competent professional should be sought.
I. INTRODUCTION TO ALASKA'S OPEN MEETINGS ACT
Alaska's open meetings law has been in the statute
books since the earliest days of statehood. For the first twenty years
since statehood in 1959, no reported Alaska court decision even
mentioned the open meetings law. The first decision to do so appeared in
and since then there have been many. In the 1980s there were eleven
reported decisions in which the law played a substantive role and
another eight where the law was mentioned, but played an insignificant
part. In the 1990s, the law was substantively applied in ten reported
cases and mentioned in another four decisions.
In 1994 the law, popularly known as the Open Meetings
Act, was significantly amended by the Alaska Legislature. Among other
changes, the legislation clarified the definitions of "governmental
body" and "meeting" within the coverage of the act. Sweeping changes
were made to the legislated remedies for violation of the act.
One should be aware of the effect of these changes when
reviewing court decisions based on the prior law.
B. The OMA Requires Meetings To Be Open To The
Alaska's "Open Meetings Act" ("OMA"), AS
44.62.310-.312, requires meetings of most legislative or administrative
state and local governmental bodies to be open to the public. The
essence of the OMA is stated in its first sentence:
All meetings of a governmental body of a public
entity of the state are open to the public except as otherwise
provided by this section or another provision of law.2
The OMA, generally applicable to the state government,
is specifically made applicable to all municipalities by AS 29.20.020
and AS 44.62.310. School districts are also subject to the
OMA according to AS 44.62.310(h)(3).
The complete Open Meetings Act, as in effect on the
date of this paper, is reprinted in the Appendix at the end of this paper.
C. State Policy Regarding Open Meetings
State law expresses a strong policy in favor of opening
governmental meetings to the public. The statement of policy says
government exists to aid in the conduct of the people's business;
government actions should be taken openly and deliberations conducted
openly; the people do not yield their sovereignty to government
agencies; the people do not give public servants the right to decide
what is good for the people to know and not good for them to know; and
the right of the people to remain informed shall be protected so the
people may retain control over the government.3
Further, the OMA is to be narrowly construed to avoid unnecessary
executive sessions and exemptions from coverage of the act.4
This statement of policy is quoted often by the courts
when interpreting the OMA. It provides a strong impetus for court
interpretations of the OMA in favor of openness.
II. WHO IS COVERED BY THE ACT?
The Open Meetings Act requires that many governmental
meetings be properly noticed and open to the public. To whom do these
A. Public Entities
The OMA applies to every "governmental body" of a
"public entity." "Public entity" is defined to include entities of the
state, the University of Alaska, and all political subdivisions,
including boards, commissions, agencies, municipalities, school
districts, public authorities and corporations, and other governmental
units of the state and political subdivisions of the state.5
B. Governmental Bodies
For OMA purposes a "governmental body" means an
assembly, council, board, commission, committee, and any other similar
body of any public entity.6
Both home rule and general law municipalities are covered equally.7
By its terms, the act also applies to members of a subcommittee or other
subordinate unit of a governmental body if the subordinate unit consists
of two or more members.
The OMA draws a distinction between two types of
governmental bodies: those with authority to establish polices or make
decisions for the public entity, and those with authority only to advise
or make recommendations to the public entity. Both of these types of
bodies are covered by the OMA, but the distinction arising from the way
a "meeting" is defined8
affects the remedies that will be available for violations of the
C. Some Examples
It is important to note that a body does not have to
have any decision-making power to be subject to the OMA. A body is
subject to the OMA even if its only power is to give advice or make
recommendations on matters of public concern.
Certain bodies are easy to categorize as policy-making
or decision-making bodies. Obviously included in this category are the
Local Boundary Commission, a reapportionment board, borough assemblies,
city councils, school boards, boards of adjustment, and boards of
equalization. Each of these is easily characterized as a "governmental
body" with decision-making authority.
Other bodies may sometimes have policy-making and
decision-making authority and at other times have only advisory
authority. The functions assigned to each board, committee, or
commission should be examined to determine if it has some authority to
make policy or decisions binding on the government. Examples of bodies
that sometimes have policy or decision-making authority might include
planning and zoning commissions, port authority boards, service area
boards and similar bodies.
An example of a body that does not have authority to
make policy or decisions for the governmental entity would be an
advisory neighborhood council, like the community councils in the
Municipality of Anchorage.
Alaska Supreme Court decisions have held that some not
so obvious groups are governmental bodies covered by the OMA. For
instance, the following are or may be covered: a local tenure committee
formed to advise the administration of the University of Alaska,10
a gathering of municipal assembly members at a developer's office for an
informal discussion of a proposed development,11
and a joint federal/state advisory task force (including both agency and
non-agency members) formed to give advice to administrative agencies
about the terms of proposed leases.12
The very first reported case interpreting Alaska's OMA
was an attempt to apply it to the Alaska Bar Association to void the
results of a 1978 meeting of the board of governors held in Hawaii.13
The court held that the statute14
governing the bar association, as in effect at that time, exempted the
association from the OMA. At the very next legislative session the law
was amended to make the OMA expressly applicable to the Alaska Bar
Association, with specific requirements that 30 days' notice be given of
all meetings and that all board meetings be held within Alaska.15
D. Who Is Not Covered?
One assembly member, council member, board member, or
other individual member of a body may meet alone with members of the
public or lobbyists to discuss matters of public business without
violating the OMA.16
It has also been decided that the Commissioner of the Department of Fish
and Game, acting under authority delegated to him by the Board of Game,
did not fall within the coverage of the current OMA when, acting alone,
he deliberated and adopted subsistence hunting regulations.17
2. Employees and staff
Staff meetings and other gatherings of employees of the
public entity are expressly exempt from coverage under the OMA.18
Thus, a weekly staff meeting of department heads and the mayor or
municipal manager, for example, is not a governmental body covered by
the act. The Alaska Supreme Court also held that everyday dealings of
public employees with each other and with members of the public in
day-to-day conduct of government business are not "meetings" of "bodies"
and that such employees are not "governmental units."19
However, sometimes an employee may be appointed to a
board or committee that has either decision-making authority or advisory
authority for the public entity. In such cases the board or committee is
covered by the OMA. The mere presence of one or more employees on such a
body will not exempt it from the act.
3. Quasi-judicial bodies solely when
State agencies, municipalities, and school districts
may, from time to time, convene meetings of quasi-judicial bodies to
make decisions in adjudicatory proceedings. Examples of quasi-judicial
bodies include the Local Boundary Commission, the Worker's Compensation
Board, boards of adjustment, boards of equalization, boards of appeals,
and disciplinary boards. Sometimes other bodies may also sit as
quasi-judicial bodies, such as the assembly, council, planning and
zoning commission, and school board. Such bodies are exempt from the OMA
when meeting solely to make a decision in an adjudicatory
An "adjudicatory proceeding" is generally one in which the rights of
specific, identified individuals are being determined, such as a request
for a zoning variance, an appeal of a tax assessment, or consideration
of a contract termination.
To be exempt from the OMA means that such bodies, in
such cases, may meet in executive session to deliberate and make a
decision in the pending case. If the meeting is convened solely
for that purpose, public notice is not even required (such a meeting is
entirely exempt from the OMA). However, if other public matters
are also addressed at such a meeting, then public notice is required and
the other requirements of the OMA must be met as to the other matters to
The exemption from the OMA also means that a
quasi-judicial body, when meeting to make a decision in an adjudicatory
proceeding, is also further exempt from AS 29.20.020(a), meaning it
does not have to give the public an opportunity to be heard during the
4. Organizational votes
The OMA does not apply to votes required to organize a
Organizing votes are those that elect the leaders or officers of the
body, such as the mayor, mayor pro tempore, chair, vice-chair,
secretary, parliamentarian, and the like.
5. Meetings of membership organizations
Public entities are frequently members of other
organizations, like the Alaska Municipal League, Alaska Association of
School Districts, National League of Cities, and so on. Sometimes the
body, e.g., council, board, or commission, or the members of
those bodies will themselves be members of other organizations. These
membership organizations may be national, state, or local in scope.
The OMA does not apply to meetings held for the purpose
of participating in or attending gatherings of such membership
organizations if the public entity, the body, or the member of the body
is a member.23
However, this exception only applies if no action is taken and no
business of the governmental body is conducted at the meeting of the
6. Hospital staff
Also exempt from the OMA are meetings of a hospital
medical staff and meetings of the governing body or any committee of a
hospital when meeting solely to act upon matters of professional
qualifications, privileges or discipline.24
7. Alaska Legislature
As applied to the Alaska Legislature, the OMA, like the
legislature's Uniform Rule 22, is viewed by the court merely as a rule
of procedure concerning how the legislature has determined to do
business. While by its literal terms the OMA is applicable to the
legislature, a violation of the OMA by the legislature will not be
considered by the courts, absent infringement of the rights of a third
person or violation of constitutional restraints or a person's
In 1994 the legislature enacted a law requiring itself
to adopt guidelines applying open meetings act principles to the
This was to have been done during the 1995 legislative session, but it
has still not happened as of this writing.
8. Alaska Railroad
The Alaska Railroad Corporation is a public corporation
and an instrumentality of the state within the Department of Community
and Economic Development. As such it would be ordinarily be subject to
the OMA, but the law grants the Alaska Railroad an express exemption
from the act.27
However, the railroad corporation act requires the board of governors to
provide reasonable notice to the public of its meetings.28
This is identical to the OMA's requirement of giving reasonable notice
to the public, so the discussion below concerning the meaning of
"reasonable public notice" under the OMA is relevant to the Alaska
Railroad board of governors.29
The list of topics that may be discussed in executive session by the
Alaska Railroad board of governors is considerably broader than that
found in the OMA.30
Because of the similarities between the laws, the discussion below
concerning executive sessions will have considerable relevance to the
The U.S. government, corporations, including
non-profits, and Native entities are not covered by the OMA. A clause of
AS 44.62.310(a) extending the OMA to "organizations
. . . supported in whole or in part by public money" was
removed from the law in 1994.
III. WHAT IS A MEETING?
The OMA has two definitions of "meeting" that differ
significantly. One definition is applied to decision-making or
policy-making bodies, and the other definition applies to advisory-only
bodies. The differences between these two kinds of bodies is discussed
II.C. The different definitions require each kind of body to be
A. Meeting-Decision-Making Or Policy-Making Body
For a decision-making or policy making body, the OMA
defines a meeting to be:
a gathering of members of a governmental body when
. . . more than three members or a majority of the
members, whichever is less, are present, [and] a matter upon which the
governmental body is empowered to act is considered by the members
collectively . . . .32
1. A meeting may take any form
There is no particular format required for a gathering
of members of a decision-making body to become a meeting under the OMA.
In fact, if a sufficient number of members are present, any
gathering where public business is considered may become a meeting
subject to the act, including dinner before or coffee after a formally
scheduled meeting. Informal gatherings are treated the same as formally
called meetings. Work sessions are treated the same as regular meetings.
Furthermore, it does not matter whether the government called the
meeting, an individual or a private business called the meeting, or
nobody called the meeting. No matter where, when, or how it occurs, it
is a meeting if a sufficient number of members of a covered body get
together and collectively consider a subject upon which the body is
empowered to act. In this context, transacting public business is
broadly construed. It includes every step of the deliberative and
decision-making process, including work sessions, investigations,
fact-gathering, lobbying and simple discussions of matters of public
2. Four members or a majority make a meeting
Before the 1994 amendments to the OMA there was
uncertainty about how many members of a body could meet without
violating the OMA. The amendments have clarified this issue.
For a decision-making or policy-making body, four
members or a majority of the body, whichever is less, will
comprise a meeting. A gathering of less than that number is not a
meeting according to the definition.
The typical city council has six or seven members,
depending on whether the mayor is a member of the council. In either
case, a typical quorum is four. Therefore, a meeting will occur when
four members of a typical city council are present and collectively
consider a matter of city business.
For any larger body, like a borough assembly or school
board with eight or more members, the number of members that could
constitute a meeting is always four.
For a smaller body, like a subcommittee or board with
less than six members, any gathering of a majority of the body will
constitute a meeting if the members collectively consider any matter
upon which the body has the power to act.
3. Teleconference meetings
Telephone conference meetings are allowed by the
Both members of the body and the public are authorized to participate
from remote locations. Presumably, speaker phones or their equivalent
must be used so all persons present in every location may hear the
proceedings and participate. Materials to be considered must be made
available at teleconference locations, if practicable. Votes at a
teleconference meeting must be taken by roll call so all will know how
each member votes. Public notice of teleconference meetings must include
notice of the location of the teleconference facilities that will be
The Supreme Court has approved, if somewhat
reluctantly, the practice of allowing citizens to phone in comments to a
public meeting that is held at a single site. The court did not consider
this to be a teleconference meeting, and agreed that it had the effect
of expanding public access consistent with the intent of the OMA.35
4. Issue: Telephone polling, serial
communications, and e-mail
Occasionally, someone will "poll" the members of a
governmental body, usually by telephone, but it may done by other means
as well. One member, or a staff person for the public entity, may speak
to all the members of the body, one at a time, to discuss an issue. The
caller may either determine how the individual feels about the issue, or
attempt to influence the way the individual feels about the issue. In
this manner the outcome of the issue may be predetermined, without
discussing it at a public meeting. This is sometimes called a "serial
meeting" because it involves a series of consecutive communications
closely related in time.
If there are not more than three members present at any
one time for a collective discussion, such serial communications do not
come within the OMA's 1994 definition of "meeting." Nevertheless, there
is still some risk that serial communications might be considered an
illegal meeting in violation of the OMA. The reason for this risk is
that the series of telephone calls could be viewed by a court to have
the effect of circumventing the OMA by determining the outcome of a vote
before (or without) a meeting and without a public discussion.
Applying the law in effect before the 1994 OMA
amendments, two courts have concluded a series of consecutive individual
conversations may amount to an illegal meeting. A Superior Court judge
in Juneau concluded that a series of telephone calls about nominees for
appointment to advisory committees was an illegal meeting.36
The Supreme Court in Hickel v. Southeast Conference37
upheld a trial court finding that several one-on-one conversations by
reapportionment board members, coupled with a lack of substantive
discussion in a public meeting, was sufficient evidence to affirm the
trial court finding that business was being conducted outside scheduled
meetings in violation of the OMA.
A judge who gives great weight to the OMA's strong
public policy favoring open meetings might reach the same result even
though the current definition of a "meeting" seems to rule out that
conclusion. In the context of the question of whether a quorum or less
than a quorum could constitute a meeting, the Alaska Supreme Court said
in a pre-1994 opinion:
Given the strong statement of public policy in AS
44.62.312, the question is not whether a quorum of a governmental unit
was present at a private meeting. Rather, the question is whether
activities of public officials have the effect of circumventing the
Thus, if a court is persuaded that public business is
being conducted outside the public scrutiny with the effect of
circumventing the OMA, then it is possible a court will be tempted to
overlook the fact that there is no "gathering ... when more than three
members ... are present"39
at any one time and nevertheless conclude the OMA is being violated.
Indeed, without even commenting on the fact that there
were no members of the redistricting board present at a
gathering, the superior court in In re 2001 Redistricting
Cases concluded that the redistricting board violated the OMA by
using e-mail for communications among three members of the five member
The offending e-mail communications concerned the important "board
business" of choosing the locations for holding
constitutionally-required public hearings on proposed redistricting
plans. From all appearances, the 1994 OMA definition of "meeting" was
never addressed by the superior court when making these findings. On
appeal, the Supreme Court expressly declined to say whether the e-mail
exchanges actually violated the OMA, and based on an assumed
violation of the OMA, concluded the trial court was correct in deciding
that there should be no remedy in any event.41
Therefore, while one superior court judge has implicitly held that
serial e-mails can constitute an improper "meeting" under the post-1994
law, the Supreme Court expressly left the issue open.
Such questioned serial communications should be
distinguished, however, from other similar communications that are
proper. The same superior court decision found that other e-mails
relating to procedural and administrative topics and not involving
discussion of actual redistricting did not violate the OMA.42
This finding was affirmed by the Supreme Court.43
Although the Supreme Court offered no explanation for its conclusion,
the distinguishing feature for the superior court appears to have been
that the question of where to hold constitutionally mandated public
hearings was a substantive matter of redistricting "board business,"
while mere procedural and administrative matters were not.
The OMA also authorizes group discussions of
substantive business, if limited to less than four members or a majority
of a decision-making body. Because by definition a physical gathering of
three or fewer members of a body of six or more do not constitute a
"meeting" in violation of the OMA, then it seems quite logical to
conclude such a number may also communicate by telephone or e-mail
without violating the act. If the members are doing nothing more than
exchanging views on an issue, then it seems their activity does not
circumvent the OMA, and no violation occurs. However, when the private
discussions have the purpose and effect of eliminating public
discussion of the same issues and predetermining the outcome of a vote,
then the public policy behind the OMA is frustrated. In this
purposeful situation the possibility seems greatest that a court
may conclude a violation has occurred when a related series of telephone
or e-mail communications cumulatively involves the participation of four
or more members, even though no single communication involved four or
It is settled that a member of the public may privately
contact each member of the body without violating the OMA.44
Thus, a constituent may use the telephone to lobby each member of the
body, one at a time, and attempt to count the number of votes for and
against the issue in question. As long as that individual is not acting
as the agent for the public entity or a member of the body there should
be no problem. An individual has a right to petition the government and
attempt to influence the outcome of decisions. On the other hand, if the
individual is, in reality, acting as an agent of the public entity and
serving as a go-between among the members of the body, then it appears
there is an attempt to circumvent the OMA. In this context the activity
stands the same risk of being found to be an illegal serial meeting as
the telephone poll conducted by a member of the body or a staff member.
5. Issue: Lobbying by the mayor
What about the mayor of a city or borough lobbying the
council or assembly? Is the mayor a member of the body such that it is
improper to call all the members of the council or assembly to lobby for
a particular matter? In second class cities and some home rule
municipalities it is clear the mayor is member of the governing
In these municipalities the mayor's activity presents some risk of being
found to be an improper serial meeting if a sufficient number of other
members of the body are contacted.
The result of the mayor's lobbying activity is not so
clear, however, in boroughs, first class cities, and those home rule
municipalities where the mayor is by law not a member of the governing
Although not a member of the governing body, the mayor is nevertheless
often the presiding officer of the body or the chief executive officer
of the municipality, or both,47
and will sometimes vote with the council or assembly in the case of a
In these circumstances, some municipalities, especially those without a
manager plan of government, consider the mayor's office more like a
separate administrative branch of government rather than part of the
governing body. There is some justification for this point of view,
given the mayor's veto power and other distinctions between the office
of mayor and the office of assembly or council member. As a non-member
of the governing body, and perhaps a distinct branch of government, may
a mayor be allowed to privately contact all members of the governing
body and attempt to influence the outcome of governing body decisions?
Just how the Alaska Supreme Court will respond to this question is not
known. It might conclude the mayor is allowed to do so because the mayor
is not a member of the body, but it is also possible the court might
view the mayor as simply an agent of the governing body serving as a
go-between facilitating an improper serial meeting.49
Such activity by the mayor might have the effect of circumventing the
policy that governmental units should conduct deliberations and take
actions openly, so there is some risk that a mayor's private lobbying of
four or more members or a quorum of the governing body will be found to
be a violation of the OMA.
6. Issue: Social gatherings
The OMA does not apply to purely social gatherings of
members of a decision-making body. A meeting only occurs when a
sufficient number of the members collectively consider a matter of
government concern on which they are empowered to act. However,
experience suggests it is very difficult to have a purely social
gathering of politicians. If the talk turns to public business of the
body, the OMA will come into effect if a sufficient number of members
are present and engage in collective consideration. The key point to
remember is that every step of the body's decision making process must
be open to the public and, if a discussion by a sufficient number at a
social gathering tends to circumvent that policy, it is possible a
violation has occurred. Even if the social gathering is public, a
violation can occur when public business is collectively discussed if
reasonable public notice and an opportunity to be heard are not given.
B. Meeting-Advisory-Only Body
As noted above, the definition of a "meeting" for a
body that only gives advice and recommendations differs from the
definition for a decision-making body. For a body that only has
authority to advise or make recommendations but has no authority to
establish policies or make decisions, a meeting is defined to be:
a gathering of members of a governmental body when the
gathering is prearranged for the purpose of considering a matter upon
which the governmental body is empowered to act . . . .50
1. A meeting must be prearranged
For an advisory-only body a meeting occurs when the
members gather by prearrangement for the purpose of considering a matter
upon which the body is empowered to act. Chance encounters by members of
the body do not constitute meetings, even if the members discuss a
matter about which the body has authority to give advice or make
recommendations. Gatherings for some purpose other than the business of
the body are likewise not meetings as defined by the OMA, even if
substantive discussions take place.
However, a prearranged gathering for the purpose of any
step of the deliberative process will be considered a meeting. As is the
case with decision-making bodies, a meeting of an advisory-only body
will include every step of the deliberative and decision-making process,
including a work session, investigation, fact-gathering, and simple
discussion of matters of public business,51
if the gathering is prearranged for one of those purposes.
2. Any number of members can constitute a meeting
Unlike a decision-making or policy-making body, there
is no exception for a gathering of a small number of members of an
advisory-only body. A gathering of two or more members of an
advisory-only body will be a meeting under the OMA when it is
prearranged for the purpose of considering the business of the body.
3. Teleconference meetings
Teleconference meetings are authorized for advisory
bodies. The discussion in Section
III.A.3 about teleconference meetings also applies to advisory-only
4. Issue: Telephone polling, serial communications,
Because of the way "meeting" is defined, telephone
polling, serial communications, and e-mails raise greater concerns for
advisory-only bodies than for decision-making bodies. A "meeting" for
purposes of an advisory-only body occurs whenever a gathering of any
number of members is prearranged for the purpose of considering a
matter on which it is empowered to act. Assuming that a gathering
can occur when no members are actually present together in one location,
then every time one member intentionally makes a telephone call, e-mail,
or other communication to another member to discuss business, it can be
said to be prearranged and a "meeting" occurs. However, the issue still
seems open as to whether such communications can constitute a "meeting"
when no members are present at a gathering in one location. See the
discussion in Section
III.A.4 above, particularly concerning the e-mails in In re 2001
5. Issue: Social gatherings
A social gathering that includes members of an advisory
body will not be considered a meeting, even if the members discuss
matters about which the body has authority to give advice. This is so
because a social gathering, by common understanding of that term, would
be for social purposes and not prearranged for the purpose of conducting
the body's business.
However, convening a "social" gathering for the hidden
purpose of conducting the body's business will be viewed as a
subterfuge, and a court may conclude that such a "social" gathering is,
in fact, a prearranged meeting held in violation of the OMA.
IV. PUBLIC PARTICIPATION RIGHTS
A. In General-Public Rights Under OMA
The only rights of public participation in an open
meeting expressly granted by the OMA are the rights to be present
and to listen and, if the meeting is by teleconference, the right
to have available for review any agency materials (e.g., the
agenda packet) to be considered at the meeting. Surely the public's
right to review the agency materials under consideration at live
meetings will also be implied.
B. The Right To Be Heard
The right of the public to speak and be heard at an
open meeting does not come directly from the OMA. The right to speak, if
it exists, must come from another source. In the case of municipal
governments, that right originates in AS 29.20.020(a), which says, "The
governing body shall provide reasonable opportunity for the public to be
heard at regular and special meetings."
The right of the public to speak at school board and
committee meetings in municipal school districts comes from the same
statute. The council or assembly, as the governing body, is required to
provide an opportunity for the public to be heard at meetings of all
municipal bodies, which would include municipal school boards, and
As to non-municipal school districts, the right of the public to speak
can only be implied; there is no statute that expressly requires it.
The right of the public to speak at public state agency
meetings will depend on specific statutes or regulations affecting the
action or agency involved. For example, the general statutory provisions
concerning public comments about proposed state regulations require the
acceptance of written comments, but it is optional whether to accept
In contrast, the procedures for Local Boundary Commission hearings on
local boundary changes require one or more public hearings where the
commission must receive public comments from all interested
A reasonable opportunity to be heard, however, does not
mean a speaker has a right to disrupt a meeting or to speak endlessly.
The body may certainly put reasonable limits on the right to speak.
Public speaking may be limited to public hearings and other limited
opportunities listed on the agenda. Efficiently run meetings often limit
public testimony on agenda items to one slot early in the agenda, after
which the governing body may proceed through the agenda without public
interruption, limiting debate to members of the body only. The length of
time that any individual or group may speak may also be limited.55
The manner in which a person may speak may also be controlled in order
to preserve the decorum of the meeting. Limitations on the content of
speech, however, may implicate First Amendment free speech issues, so
caution is advised in this area.
C. Implied Reasonable Opportunity to Attend
The right to attend is not often discussed, but it is a
significant component implied in the public's right to have a reasonable
opportunity to be heard. For example, how reasonable is the public's
opportunity to be heard if the meeting is held at a remote location that
is difficult or expensive for the public to reach? Telephone conferences
for remote public access may be practical and reasonable in some
circumstances, such as borough or state-wide meetings, but not practical
in other circumstances. A body covered by the OMA does not have the
luxury of "getting away" to a remote retreat for "peace and quiet" in
order to get its work done. The right of a reasonable opportunity to be
heard implies that reasonable access and reasonable accommodations will
be made for the public to attend and participate.
V. WHAT NOTICE IS REQUIRED?
A. Reasonable Notice-Timeliness
Generally, the OMA requires that "reasonable
public notice" be given for all meetings to which it applies.56
An important element of reasonable public notice is its timeliness.
Municipal officials sometimes assume that 24 hours' notice of a meeting
is sufficient because AS 29.20.160, and many municipal charters and
codes, authorize special meetings on 24 hours' notice to the members.
Often this assumption will be wrong. It is entirely possible to comply
with this members' notice requirement and still violate the OMA
public notice requirement. To determine what public notice is
reasonable, all of the circumstances must be considered.
If the public entity or governmental body has set its
own reasonable notice requirements that are more specific than the OMA
requirements, they should be followed. Failure to meet notice
requirements established by internal guidelines or regulations will be
evidence of failure to give reasonable notice, and has led at least one
court to a finding the OMA was violated.57
One important case for understanding the timeliness
component of reasonable notice is Tunley v. Municipality of Anchorage
In Tunley the court interpreted the phrase "maximum reasonable
public notice" contained in the Anchorage Municipal Charter. The
Anchorage School Board gave five days' notice, published in the local
newspaper, of a meeting at which it intended to decide to close two
specific elementary schools. There had already been much news coverage
of the Board's consideration of school closures, including reference to
the two schools in question. However, the court said that in light of
the impact the decision would have on the children's and the parents'
interest in the maintenance of neighborhood schools, "Five days is not
sufficient time for appropriate preparation of opposition concerning an
issue of this complexity and importance."59
Therefore, the more complex and important an issue is,
the more public notice must be given in order to meet the reasonableness
standard. Unless a very long period is chosen (three months?), it is
impossible to say that any given time period will provide adequate
public notice in all circumstances. The circumstances surrounding
each issue must be judged independently and an appropriate period for
reasonable notice chosen.
Applying this standard, under true emergency
circumstances the period of reasonable notice may be very short,
possibly even no advance public notice, depending on the circumstances
and the need for immediate action.60
Whether a true emergency exists, which would make little or no notice
reasonable, is a question that will depend on the facts of each case. In
the absence of compelling facts, a court will be inclined to find no
emergency exists and require advance notice. However, it would seem
possible and reasonable, even under the most dire true emergency
circumstances, to at least post the required notice and to call the
local news media to notify them of the pending meeting.
No specific guidelines can be given to test how much
notice is reasonable, but certain general guidelines may be suggested.
For instance, if an item is controversial or complicated, more public
notice must be given. If an item is likely to be contested (like the
granting of a permit or a lease where there are competitors for the same
right), then more, rather than less, public notice should be given.
Matters that are truly simple or unimportant may be taken up with less
public notice, but never without at least advance public notice of the
meeting. Emergency matters may be taken up with less notice, depending
on the severity of the need to take prompt action.
B. Reasonable Notice-Statutory Minimums
In addition to meeting the general reasonableness
standard, the public notice must meet a number of specific statutory
The notice must always include the date, time, and place of the meeting.
If the meeting will be by teleconference, the location of the
teleconference facilities must also be stated.
The notice must be posted at the principal office of
the public entity or, if the public entity has no principal office, at a
place designated by the governmental body. In addition, notice may be
given by print and broadcast media. State agencies are also required to
post notice of agency meetings on the Alaska Online Public Notice
The OMA requires that notice should be provided in a
consistent fashion for all meetings. Presumably, if notice is provided
in an inconsistent manner, the public may become confused about how to
find out about meetings of the body, and the court may find such notice
to be unreasonable.
C. Reasonable Notice-Agenda Specificity and Clarity
The question of whether a matter to be considered must
be listed specifically on a published or posted agenda presents another
facet of the requirement of reasonable public notice. Apparently the
court's reasonable notice standard requires that some important,
complex, or controversial issues must be specifically identified in the
advance notice of the meeting and listed on the agenda.
In Anchorage Independent Longshore Union Local 1 v.
Municipality of Anchorage,63
the court again addressed Anchorage's "maximum reasonable public notice"
requirement. In this case, the question was whether the municipal port
commission's consideration of a terminal use permit application had to
be specifically mentioned on the official agenda posted in advance of
the meeting. The issue was taken up by the commission under the agenda
category described as "items not on the agenda." The Supreme Court noted
that the Anchorage public notice requirement is similar to the OMA's
"reasonable public notice" standard and stated, "The timing and
specificity of 'reasonable notice' is necessarily dependent upon the
complexity and importance of the issue involved."64
The court declined to decide whether the notice was reasonable in that
case and instead remanded the matter to the trial court to make factual
findings about how complex and important the issuance of that particular
permit was. In other words, if the court found the matter was too
important or complex to be considered without specifically mentioning it
on the agenda, then presumably the court would find that a violation of
the OMA had occurred.
It is also important that public notice be given
clearly. In Hickel v. Southeast Conference65
confusing public notices and display advertisements were a factor
leading the court to conclude that notice of a meeting was not
reasonable and, therefore, the meeting violated the OMA. The
advertisements were not clear about whether a "meeting" or a "hearing"
was going to occur.66
The important point here is that under some
circumstances the reasonable notice requirement may be violated by the
consideration of complex or important items not specifically and clearly
listed on the public notice or the agenda of an otherwise properly
called and noticed meeting. Amending the agenda at the beginning of a
meeting will not cure a defect of this nature because it will do nothing
to provide reasonable and timely advance notice to the public.
D. Notice To Specific Individuals
Although not an OMA requirement, in some matters notice
should be provided to specific persons whose individual rights are at
stake in the issue to be considered. For example, participants in a
quasi-judicial hearing on a zoning application or an appeal of any kind
must receive reasonable notice of the meeting. To satisfy constitutional
due process requirements, advance notice must be given to one whose
rights stand to be terminated or revoked (e.g., an employment agreement,
lease, contract, permit or license.)
E. Notice To Certain Individuals Who Are
Subjects Of Executive Sessions
The topic of executive sessions is discussed in more
detail in Section
VI below, but, on the issue of notice, there is a special
requirement that applies only to executive sessions called to discuss
subjects that may tend to prejudice the reputation and character of a
A body's right to hold an executive session on such a matter is subject
to the superior right of the person in question to demand public
consideration instead of an executive session. In University of
Alaska v. Geistauts68
the court found the OMA implies an obligation to provide adequate notice
of the meeting to the individual whose reputation and character are to
be the subject of the executive session. The purpose of the notice is to
afford that person the opportunity to demand a public discussion instead
of an executive session. Furthermore, in order to adequately protect
that right, the individual must be specifically advised of the right to
request that the meeting be open to the public. If the person requests
an open meeting, an executive session may not be held.
On the other hand, the failure to notify a person of
his right to demand that the discussion about him be held publicly was
harmless when he had actual notice that his employment would be
discussed by the city council, he was invited to attend the executive
session but chose not to, and he stated he did not want the matter
discussed publicly, Ramsey v. City of Sand Point.69
F. Notice Of Teleconference Meetings
If a meeting will be held by teleconference, the
meeting notice must state the location of any teleconferencing
facilities that will be used. Of course, this means that if a remote
location is being used at which the public may gather and participate,
notice of such a location must be given.
The Alaska Supreme Court has recognized a distinction
between a true teleconference meeting and the situation in which one
person, i.e., a citizen, participates in the meeting by
telephone. The practice of allowing a citizen to phone in comments to a
meeting held at a single location was approved because it had the effect
of expanding public participation consistent with the goals of the
No particular notice can be given of the locations from which such calls
can be made because they may be made from anywhere. However, if such
call-ins are going to be accepted, it would seem reasonable that public
notice should be given of that fact, with instructions on how a person
may properly place such a call.
VI. EXECUTIVE SESSIONS
It seems that no other facet of the OMA generates more
questions than the subject of executive sessions. An executive session
is a portion of a public meeting from which the public is excluded
because of the nature of the subject matter to be discussed. Implicit in
the legislative conclusion that certain subjects qualify for executive
session is the judgment that the danger of harm to public or private
interests that may result from public discussion of such subjects
outweighs the public benefits of a public discussion.
It is important to distinguish an executive session
from a private or secret meeting. An executive session must begin and
end in a public meeting. The public will be excluded only from the
executive session portion of an otherwise public meeting. The body
itself will determine who, if anyone, will be invited into the executive
session along with the members of the body.
A. What Subjects Qualify For Executive Session?
1. In general
AS 44.62.310(c)(1) describes the subjects that may be
discussed in executive session as follows:
(a) matters, the immediate knowledge of which would
clearly have an adverse effect upon the finances of the government
(b) subjects that tend to prejudice the
reputation and character of any person, provided the person may
request a public discussion;
(c) matters which by law, municipal charter, or
ordinance are required to be confidential;
(d) matters involving consideration of government
records that by law are not subject to public disclosure.
The court has also held that some attorney-client
communications qualify for executive session treatment.71
It is very interesting to note that a municipality
cannot by ordinance or charter narrow the list of exceptions that
qualify for executive session. Walleri v. City of Fairbanks72
held that the effect of AS 29.20.020 ("meetings of all municipal bodies
shall be public as provided in AS 44.62.310") was to preempt municipal
enactments that provide for a narrower list of executive session
subjects than as provided in the OMA. The ramifications of the court's
conclusion that the OMA preempts inconsistent municipal ordinances are
yet to be discovered.
2. Adverse financial impact
The first category of eligible subjects, matters having
an adverse financial impact, has several limiting qualifiers attached.
The statue requires that it be clear that immediate public
knowledge of the discussion will adversely affect government finances. A
mere possibility of adverse effect on government finances does not
One example that appears to qualify under this test is
the consideration of offers to settle litigation. A government body
cannot candidly discuss settlement offers and potential counter offers
publicly without great risk of letting opposing litigants know how much
the government is willing to pay or accept in settlement. All
opportunities to bargain for a more favorable settlement will be lost
when everyone knows what the government's bargaining position and points
of weakness are. The only way to discuss settlement offers without
harming the public financial interest is in executive session.
However, it is not enough to qualify for an executive
session to merely say the matter is one of "pending litigation" or a
"financial matter," as is often heard. As a practical matter, for an
adverse financial impact executive session to withstand a court
challenge, there must be facts in the record to enable the court to
conclude it was clear that immediate public knowledge of the particular
issue to be discussed would harm the government's financial interests. A
court is directed to construe the law narrowly to avoid unnecessary
so an informative on-the-record statement of the facts justifying an
executive session seems necessary.
3. Reputation and character
Subjects that tend to prejudice the reputation and
character of any person may be discussed in executive session. The
person in question does not have to be a government employee or job
applicant, but often it is.
In City of Kenai v Kenai Peninsula Newspapers,
the court reviewed a legal challenge to an executive session held to
discuss the applicants for a city manager position. The court said,
"Ordinarily an applicant's reputation will not be damaged by a public
discussion of his or her qualifications relating to experience,
education and background or by a comparison of them with
those of other candidates."75
The court recognized an exception, however, for the discussion of
personal characteristics, especially in the context of comparing
several applicants, acknowledging that such discussion would "carry a
risk that the applicant's reputation will be compromised."76
Our court shed more light on the meaning of this
exception in University of Alaska v. Geistauts77
where a university tenure committee held executive sessions to consider
whether a professor should be granted tenure status. The court
recognized such meetings are appropriate for executive sessions. Such a
meeting was "likely to focus on perceived deficiencies in the
candidate's qualifications. Tenure committee members may raise concerns
for the purpose of discussion which would damage the applicant's
reputation if aired publicly."78
This statement shows not only a concern to protect the individual from
damages, but also a realization that an executive session will encourage
a full and candid discussion of important concerns that should be
In a footnote to the Geistauts decision, the
court discussed this exception in a general employment context,
observing that AS 44.62.310(c)(2) was designed to serve the same
function as other states' exemption of employment matters from open
meeting law requirements. "The reasoning behind the 'personnel matters'
exception in other jurisdictions appears to be the avoidance of
embarrassment to employees whose strengths and weaknesses will be
In the context of considering whether the stated
grounds for recall of a school board member sufficiently described
misconduct in office or failure to perform prescribed duties, the court
stated in Von Stauffenberg v. Committee For An Honest And Ethical
School Board that "there is no law which precludes public officials
from discussing sensitive personnel matters in closed door executive
It should be remembered, however, that the person whose
reputation or character is in issue is entitled to specific notice of
the executive session and of the right to demand that the discussion be
public. If a demand for a public discussion is made by that person, then
an executive session may not be held on that ground.81
4. Matters required to be kept confidential
The third exception is a catch-all for other subjects
that are required by law, municipal charter, or ordinance to be
kept confidential. Note that this language leaves open the question of
whether laws, charters, or ordinances authorizing, but not requiring,
confidentiality will satisfy this exception.
In addition to federal and state constitutions and
laws, this exception specifically recognizes municipal charters and
ordinances as valid sources of law requiring confidentiality. However,
many municipalities have few, if any, charter provisions or ordinances
requiring confidentiality, even though there are some subjects that
would easily qualify for required confidential treatment, such as
juvenile and individual student matters, collective bargaining and
similar negotiations, settlement negotiations, and certain attorney
advice (discussed further below).82
There has not been any Supreme Court decision in which
the validity of a local ordinance requiring confidentiality has been
challenged in the Open Meetings Act context. It is possible such an
ordinance might be challenged on the basis that the ordinance unduly
restricts the public's right to know about the affairs of the
government. Such a challenge might be successful if the court concludes
the local government does not "need" the confidentiality when the
interest of the public in knowing outweighs the governmental interest in
keeping confidentiality. The Supreme Court already uses that balancing
test in the public records context to determine the validity of local
exemptions from the state law requiring disclosure of records.83
Because of this possibility, ordinances requiring confidentiality should
be based on a legitimate need for confidentiality that outweighs the
public's interest in knowing what is going on with the government.
The confidential-by-law category was the basis for the
Alaska Supreme Court holding that the common law attorney-client
privilege justifies executive session treatment of some attorney-client
This attorney-client privilege exception is discussed below in Section
VI.A.6. Other common law privileges might also provide a basis for
additional executive session treatment under the court's analysis.
There is also the constitutional right of privacy,85
another "law" that requires confidential treatment of a subject when the
individual in question has an expectation of privacy that society
recognizes as reasonable. The full extent of the constitutional right of
personal privacy is not well defined, and a complete discussion of the
issue is beyond the scope of this paper.
5. Confidential records
Matters involving government records that are protected
from public disclosure by law may also be discussed in executive
session. As a general rule, records of public agencies (which include
municipalities and school districts86)
are subject to public disclosure unless the law provides an
A number of confidential records are listed in AS
40.25.120(a), including records pertaining to juveniles (unless
disclosure is authorized by law), medical and related public health
records, records required to be kept confidential by a federal law or
regulation or by state law, and certain records compiled for law
Our court has been willing to consider whether
municipal ordinances concerning confidential records qualify for common
law (i.e., nonstatutory) exceptions from disclosure. The court's
analysis focuses on the need for the exception, which requires weighing
the public interest in favor of disclosure against the governmental
interests and individual privacy interests favoring nondisclosure.88
However, the government will bear the burden of justifying the
exception, and public policy favors public access.89
Under these constraints, new exceptions to the general rule of public
disclosure may be approved by the court, but probably not frequently.
An interesting case now pending in the Alaska Supreme
Court, Fuller v. City of Homer,90
should answer the question of whether a city manager is entitled to the
same deliberative process privilege for documents that is granted to the
If so, this will establish another category of documents that are
required by law to be confidential and, therefore, may be discussed in
executive session under this exception.
6. Attorney-client privilege
Under limited circumstances communications between a
governmental body and its attorney qualify for executive session
treatment, according to Cool Homes, Inc. v. Fairbanks North Star
This exception is based on the attorney-client privilege, but for Open
Meetings Act purposes, the privilege is defined narrowly.
This executive session exception is not available for
general legal advice or opinion. It applies only when the revelation of
the communication will injure the public interest or there is some other
recognized purpose in keeping the communication confidential. It is not
even enough that the public body is involved in pending litigation.93
Rather, the specific communication must be one that the confidentiality
rationale for the privilege deems worthy of protection. The court cited
a number of examples of attorney-client communications that might
qualify for executive sessions: candid discussions of facts and
litigation strategies; a conference on a decision to appeal; a
conference about settlement; and advice about how a body and its members
might avoid legal liability. A discussion generally about the "ins and
outs and status" of litigation, and "what has happened in the year . . .
as to court findings" did not qualify for executive session.94
B. Procedure For Executive Sessions
An executive session cannot be an unannounced, secret
meeting. Except in very limited circumstances,95
an executive session is only a part of a public meeting. Several steps
must be followed in calling an executive session.
1. Public meeting
Before an executive session may be held, the meeting
must first be convened as a public meeting. In the public meeting, a
motion to hold an executive session must be considered and decided by a
majority vote of the body. As at any public meeting, the public has a
right to attend and, to a certain extent, participate. At least at
municipal public meetings, this includes a reasonable opportunity to be
heard under AS 29.20.020 during the public portion, but not during
the confidential portion of the meeting.96
Because an executive session occurs at a public
meeting, reasonable notice of the meeting must be given to the public
according to the same requirements for any public meeting.97
This applies whether the executive session is to be held at a regular or
a special meeting. That does not mean, in this author's view, that the
public notice must specifically state that an executive session will be
held. It is enough if reasonable public notice of the meeting has been
given, including any reasonable subject matter notice that might be
required. Even if the meeting notice and agenda do not mention the words
"executive session," an executive session may be held if the body deems
it necessary and the public has sufficient reasonable notice of the
meeting and the subject matter.
However, specific advance notice of the executive
session is required in at least one circumstance. If it is anticipated
in advance that an executive session will be required to discuss a topic
that might prejudice the reputation and character of a person, that
person must be personally notified of the meeting and the contemplated
executive session so the individual may exercise the right to demand a
If it is not known in advance that such a discussion will occur, it will
be necessary to postpone that discussion until the individual in
question has been advised of his or her rights.
3. Motion calling for executive session
The motion calling for an executive session must
"clearly and with specificity describe the subject of the proposed
executive session without defeating the purpose of addressing the
subject in private."99
A well-stated motion will also identify the legal grounds being relied
upon. A mere recitation of the statutory language (e.g., "a
matter that would prejudice a person's reputation") may not satisfy the
"clearly and with specificity" standard.
In the case where an individual's reputation or
character may be at issue, it may be appropriate to name the individual
in some cases but not in other cases. For example, when a city council
is about to discuss the personal characteristics of a short list of
candidates for city manager, there is no likelihood that stating the
names of these individuals would cause any harm at all. On the other
hand, if the purpose of the executive session is to consider
confidential information concerning allegations about a dishonest police
officer, it would not be appropriate to say that the purpose of the
executive session is "to consider allegations of dishonesty involving
Officer Smith." Identifying the individual in these circumstances would
entirely defeat the purpose of holding the discussion in private by
causing damage to his reputation before the discussion even starts.
Clearly identifying the specific topic and, where
possible without causing harm, naming the specific individual under
consideration is important for several reasons. If an executive session
is challenged, the court will need to know what subject was to be
discussed and why it qualified for executive session treatment.
Furthermore, it is important to properly describe the subject matter to
be discussed in the motion because anything not mentioned in the motion
cannot be discussed in the executive session, unless it is auxiliary to
the main question.100
Finally, even though the public may not have a right to hear what is
said in executive session, the state's public policy indicates that the
public does have a right to know what the session is about and why it is
Because both the public and the court have an interest
in knowing why an executive session is warranted, either the motion or
the debate preceding the vote on the motion should explain how the
matter legally qualifies as a legitimate executive session subject. For
example, during debate on the motion for the executive session a member
of the body should describe how knowledge of the matter will clearly
have an immediate adverse effect on the government finances, or mention
the particular law that requires confidentiality. A proper discussion on
the record will minimize the chances of a successful legal challenge.
It is inadequate when the motion contains only
short-hand phrases, such as "pending litigation" or "attorney-client
privilege" or "personnel matter." None of these phrases describes the
subject matter "clearly and with specificity," nor do they
accurately describe subjects that are within the lawfully allowable
executive session categories. Further, they fail to give adequate notice
to the public or to the courts about what is to be discussed and why it
qualifies. The courts are compelled to give a narrow construction to the
executive session exceptions so unnecessary executive sessions may be
and such short-hand phrases fail to show that an executive session is
4. Recording and minutes
There is no statutory requirement to take minutes or
make a recording of the discussions in executive session.102
However, at least one superior court judge has observed that one reason
why he was unable to determine whether an executive session in question
was legal was that no recording had been made of the session.103
Some public bodies do record executive sessions (the
tapes are not released to the public) while others do not. Municipal
attorneys and public officials in this state disagree about whether an
executive session should be recorded. Until the law is clarified by the
legislature or the Supreme Court, it seems likely there will continue to
be inconsistency in the practices of various public entities on this
C. Limitations On Executive Sessions
1. Only main and auxiliary issues may be
The discussion in executive session must be limited to
those subjects described in the motion calling for the session and those
subjects "auxiliary" to the main question.104
The OMA does not attempt to define "auxiliary," and the Supreme Court
has not done so either. According to Webster's Third New
International Dictionary (1981), "auxiliary" means "functioning in a
Given the strong public policy favoring open meetings
and Webster's definition, it seems likely the court will require
that any auxiliary issues discussed have a fairly close degree of
subsidiary relationship to the main question. Thus, the OMA gives the
public body only limited flexibility to address subsidiary issues. This
still enables the public to have a fair idea about the subjects the
governing body is discussing so the public may retain appropriate
control over the government it created.105
Court interpretations of the OMA suggest that as much
of the subject matter as possible should be discussed publicly. It may
be that on a given subject some details should be discussed in executive
session, while other facets of the same subject matter should be
discussed in public session. The Supreme Court pointed to this result in
City of Kenai v. Kenai Peninsula Newspapers, Inc.106
when it observed that public discussion of a city manager applicant's
experience, education and background would not ordinarily endanger a
reputation, while discussion of personal characteristics and habits
might very well carry such a risk. The court's ruling authorized
executive sessions only for "discussing the personal characteristics of
The same kind of direction was given in Cool Homes, Inc. v. Fairbanks
North Star Borough108
(borough attorney's general status report about litigation does not
qualify for executive session, but legal advice about avoiding liability
does qualify.) So far, the court has not attempted to explain why these
other matters are not "auxiliary to the main question," which would
allow them to also be discussed in the executive session.
2. Generally, no action may be taken in executive
Generally, no action may be taken in executive
Except as discussed below, the body may only discuss matters in
executive session, and if any action must be taken on the subject, the
body must reconvene in a public session to do so. The taking of "straw
votes" in an executive session would probably be held to be a violation
of this rule, as it tends to circumvent the policy of the OMA to require
governmental body actions to be taken openly.110
Reconvening in public session to announce a decision made in executive
session violates the OMA, unless one of the following exceptions or
3. Exceptions: directions on legal matters and labor
As exceptions to the rule that no action may be taken
in executive session, the OMA authorizes a public body to give
directions in executive session on two kinds of matters. First, the body
may direct its attorney about the handling of a specific legal matter.
This makes it clear that the attorney may be instructed in executive
session about things like negotiating positions and legal strategies for
a specific legal matter. Second, direction may be given to a labor
negotiator about the handling of pending labor negotiations. This allows
the body to instruct the negotiator in executive session about such
things as bargaining positions and negotiating points.
4. Exemption: quasi-judicial decision-making
When a governmental body acting quasi-judicially meets
solely to make a decision in an adjudicatory proceeding, it is entirely
exempt from the OMA.111
This means the decision-making may be done in private.112
Logically, this should mean that it is also permissible to conduct such
decision-making in an executive session convened during an otherwise
public meeting. Surely it is proper to make a decision in executive
session that could lawfully have been made in total privacy. Therefore,
a court should approve using an executive session to make a final
decision while functioning quasi-judicially in an adjudicatory matter.
VII. REMEDIES AND PENALTIES FOR VIOLATIONS
Prior to the 1994 amendments, the law declared simply
that "action taken contrary to [the Open Meetings Act] is void." The
effect of declaring an action void is to treat it as though it had never
happened. From time to time, the court found that to be a harsh and
and it struggled to find a way to manipulate the inflexible law to mesh
with practical realities.114
Major legislative revisions to the remedy portion of
the OMA were adopted in 1994. The length of the remedy provisions was
increased from one sentence to an entire page, and its complexity
increased accordingly. Now the remedy portion of the act provides that
an action in violation of the OMA is voidable only after a court
carefully considers many factors and concludes the public interest in
complying with the OMA outweighs the harm resulting to the public
interest and the public entity that would flow from voiding the action.
Procedural and other requirements were also introduced.
There is a huge difference in the statutory remedy
provisions for violations by decision-making bodies compared with
violations by advisory-only bodies. These two types of bodies will be
A. Decision-Making or Policy-Making Body-Remedies
Not all governmental bodies have the authority to make
decisions or policies for the public entity.115
This part of this paper addresses remedies available for violations of
the OMA only when committed by those bodies that do have such authority.
An action taken in violation of the OMA by a
decision-making or policy-making body is voidable.116
In other words, a court might declare that the action had no legal
effect, but such a declaration is by no means automatic. Many factors
must be considered before the court may void the action.
1. When a violation is alleged, a body may attempt an
A governmental body that has violated or is alleged to
have violated the OMA may attempt to cure the violation by holding
another meeting that complies with the OMA.117
At that meeting the body must conduct a "substantial and public
reconsideration" of the matters considered at the allegedly improper
One of the factors a court must consider when it
decides whether an action resulting from an improper meeting should be
declared void is whether, and to what extent, the body engaged in such
public reconsideration. Interestingly, even reconsideration that occurs
after a lawsuit is filed will be taken into account by the court.
Presumably, if the court determines that a reconsideration was not
sufficiently substantial or public, then it may find the attempted cure
was inadequate and proceed to consider the appropriate remedy for the
2. Improper action is voidable by court action
The OMA says that "action taken contrary to [the OMA]
Thus, the court has the power to declare the action void, but it is not
required to do so in all cases. A lawsuit to void an action for
violation of the OMA must be brought within 180 days after the date of
the action. The purpose of this short statute of limitations is
apparently to reduce delay and uncertainty about the finality of
governmental actions. Furthermore, in an action to enforce the OMA, the
members of the governmental body may not be named in a personal
capacity; they may only be named in an official capacity.
According to the OMA, "if the court finds the action is
void, the governmental body may discuss and act on the matter at another
meeting held in compliance with [the OMA]."119
Exactly what that means about the status of the voided action between
the time of the improper meeting and the reconsideration meeting is yet
to be determined by the courts.
3. Action is voidable only after a public interest
The OMA says that a court may declare an action void
because of an OMA violation only after the court completes a public
interest balancing test. Before declaring the action void, the court
must find that
considering all the circumstances, the public interest in
compliance with [the OMA] outweighs the harm that would be caused to
the public interest and to the public entity by voiding the
Only if the court finds the good to be accomplished by
voiding the action outweighs the harm that it would cause may the court
declare the action void. In making that determination,
AS 44.62.310(f) requires the court to consider at least the
following nine factors:
(1) the expense that may be incurred by the
public entity, other governmental bodies, and individuals if the
action is voided,
(2) the disruption that may be caused to the
affairs of the public entity, other governmental bodies, and
individuals if the action is voided,
(3) the degree to which the public entity, other
governmental bodies, and individuals may be exposed to additional
litigation if the action is voided,
(4) the extent to which the governing body, in
meetings held in compliance with [the OMA], has previously
considered the subject,
(5) the amount of time that has passed since
the action was taken,
(6) the degree to which the public
entity, other governmental bodies, or individuals have come to rely
on the action,
(7) whether and to what extent the governmental body
has, before or after the lawsuit was filed to void the action, engaged
or attempted to engage in the public reconsideration of matters
originally considered in violation of [the OMA],
(8) the degree to which violations of [the OMA] were
wilful, flagrant, or obvious, [and]
(9) the degree to which the governing body failed to
adhere to the policy under AS 44.62.312(a).
In Revelle v. Marston,121
a case interpreting the OMA as in effect prior to the 1994 amendments,
the court identified other factors to be considered when weighing the
public interest in disclosure against the public harm resulting from
voiding an action taken in violation of the OMA for purposes of
fashioning a remedy:
- whether the goal of maximizing informed and principled
decision-making has been met,
- whether invalidation is necessary to deter future
- whether the goal of encouraging public participation and
input in the operation of government has been met, and
- the strength of the link or closeness, i.e., the
nexus between the violation of the OMA and the challenged
Even though most of the Revelle factors are not
stated in the 1994 amendments, it is quite possible the court will
continue to apply these factors to cases brought after the 1994
amendments, for at least two reasons. First, these factors derive from
the public policy behind the OMA, which remains unchanged. Second, the
list of factors in the 1994 amendments is not exclusive - the court is
directed by the OMA to consider "all of the circumstances," including
"at least" the factors identified in the statute. These additional
factors based on the policy supporting the OMA may still be appropriate
The only Supreme Court case to date dealing with the
remedy provisions enacted in 1994 summarily affirmed a superior court
decision that no remedy was appropriate for a redistricting board's
assumed OMA violation (using e-mails to privately decide where to
hold required public hearings). The Supreme Court agreed that the
superior court properly applied the factors set out in AS 44.62.310(f)
in concluding the public harm that would result from voiding the entire
2001 redistricting plan outweighed the public interest in compliance
with the OMA.123
B. Advisory-Only Body-Remedies
The discussion in this part of this paper applies only
to those advisory-only governmental bodies that have no authority to
make decisions or policy for the public entity.124
Concerning advisory-only bodies, the OMA says simply
that subsection (f), describing the remedy of voiding actions of
decision-making bodies, "does not apply."125
The act fails to say what remedies, if any, do apply. However, because,
by definition, an advisory-only body cannot make decisions or policies,
there will be no significant decision or policy to void.
Of more interest here is the question of whether a
violation of the OMA by an advisory-only body can lead a court to
declare void a subsequent action taken by a decision-making or
policy-making body in reliance on the advice of the advisory-only body.
Under the act prior to the 1994 amendments it is apparent that in some
circumstances subsequent actions taken by the public entity in reliance
on such advice from an advisory-only body could be voided.126
However, when the public entity's decision in another case was arrived
at independently from the advisory body's advice, there was substantial
opportunity for public input despite the violations, and the damage that
would result from voiding the action was great, the court was reluctant
to void the action.127
Thus, even before the 1994 amendments the court was considering all the
circumstances and weighing the public benefit against the public
Therefore, a decision-making body's reliance on procedurally defective
advice of an advisory-only body might or might not result in voiding the
action. Whether the Supreme Court will continue to follow this line of
analysis in cases arising after 1994 remains to be decided.
C. Remedies Fashioned By The Courts-Damages
If the court declares an action void, as the pre-1994
OMA prescribed for all violations, then the court may attempt to fashion
a remedy that attempts to approximate the status quo at the time of the
The courts have indicated considerable willingness to be flexible in
fashioning specific remedies. While open meetings laws are "not
primarily intended as vehicles for individuals displeased with
governmental action to obtain reversals of substantive decisions,"130
the Supreme Court has nevertheless approved an award of damages to an
individual harmed by an OMA violation. In employment cases, for example,
the court ordered reinstatement with back pay and reconsideration of a
tenure application in one case,131
but in different circumstances held that reinstatement without back pay
might be the proper remedy, depending on further analysis of the nexus
between the OMA violation and the employee's termination.132
D. Injunctive Relief
Although not mentioned in the OMA, the Supreme Court
has also noted that an injunction may be issued forbidding future
violations of the act. "This brings to bear the coercive judicial power
in subsequent cases, in addition to the remedies otherwise provided by
E. Recall of Elected Officials
An elected official's violation of the OMA constitutes
failure to perform the prescribed duties of office,134
one of the lawful grounds for recall of an elected official. The mere
allegation of facts sufficient to establish a violation of the OMA is
adequate ground to subject elected officials to a recall election under
AS 29.26.250 (municipal officials, including municipal school board
members) and AS 14.08.081 (regional school board members).135
F. Attorney's Fees
In many cases a person who brings a law suit alleging
an OMA violation will be found to be a public interest litigant.136
If the public interest litigant prevails, all allowable costs and
actual, reasonable attorney's fees will be awarded against the public
On the other hand, it is generally an abuse of discretion for a court to
award costs and attorney's fees against a losing public interest
litigant who raises an issue in good faith.138
It appears that an award of actual attorney's fees
might also be an appropriate remedy for some non-public interest
litigants. In discussing remedies for an OMA violation arising prior to
the 1994 amendments, Revelle v. Marston suggests that in some
circumstances the OMA's remedial goal of deterrence might warrant the
remedy of an award of actual costs and attorney's fees to a harmed
individual, even when invalidation of the improper action is not in the
public interest and circumstances do not warrant an award of back pay
for the individual's employment termination.139
Alaska Open Meetings Act
(Current as of October 2002)
Sec. 44.62.310. Government meetings public.
(a) All meetings of a governmental body of a public
entity of the state are open to the public except as otherwise
provided by this section or another provision of law. Attendance and
participation at meetings by members of the public or by members of a
governmental body may be by teleconferencing. Agency materials that
are to be considered at the meeting shall be made available at
teleconference locations if practicable. Except when voice votes are
authorized, the vote shall be conducted in such a manner that the
public may know the vote of each person entitled to vote. The vote at
a meeting held by teleconference shall be taken by roll call. This
section does not apply to any votes required to be taken to organize a
governmental body described in this subsection.
(b) If permitted subjects are to be discussed at a
meeting in executive session, the meeting must first be convened as a
public meeting and the question of holding an executive session to
discuss matters that are listed in (c) of this section shall be
determined by a majority vote of the governmental body. The motion to
convene in executive session must clearly and with specificity
describe the subject of the proposed executive session without
defeating the purpose of addressing the subject in private. Subjects
may not be considered at the executive session except those mentioned
in the motion calling for the executive session unless auxiliary to
the main question. Action may not be taken at an executive session,
except to give direction to an attorney or labor negotiator regarding
the handling of a specific legal matter or pending labor negotiations.
(c) The following subjects may be considered in an
(1) matters, the immediate knowledge of which would
clearly have an adverse effect upon the finances of the public
(2) subjects that tend to prejudice the reputation
and character of any person, provided the person may request a
(3) matters which by law, municipal charter, or
ordinance are required to be confidential;
(4) matters involving consideration of government
records that by law are not subject to public disclosure.
(d) This section does not apply to
(1) a governmental body performing a judicial or
quasi-judicial function when holding a meeting solely to make a
decision in an adjudicatory proceeding;
(3) parole or pardon boards;
(4) meetings of a hospital medical staff;
(5) meetings of the governmental body or any
committee of a hospital when holding a meeting solely to act upon
matters of professional qualifications, privileges or discipline;
(6) staff meetings or other gatherings of the
employees of a public entity, including meetings of an employee
group established by policy of the Board of Regents of the
University of Alaska or held while acting in an advisory capacity to
the Board of Regents; or
(7) meetings held for the purpose of participating
in or attending a gathering of a national, state, or regional
organization of which the public entity, governmental body, or
member of the governmental body is a member, but only if no action
is taken and no business of the governmental body is conducted at
(e) Reasonable public notice shall be given for all
meetings required to be open under this section. The notice must
include the date, time, and place of the meeting and, if the meeting
is by teleconference, the location of any teleconferencing facilities
that will be used. Subject to posting notice of a meeting on the
Alaska Online Public Notice System as required by
AS 44.62.175(a), the notice may be given by using print or
broadcast media. The notice shall be posted at the principal office of
the public entity or, if the public entity has no principal office, at
a place designated by the governmental body. The governmental body
shall provide notice in a consistent fashion for all its meetings.
(f) Action taken contrary to this section is
voidable. A lawsuit to void an action taken in violation of this
section must be filed in superior court within 180 days after the date
of the action. A member of a governmental body may not be named in an
action to enforce this section in the member's personal capacity. A
governmental body that violates or is alleged to have violated this
section may cure the violation or alleged violation by holding another
meeting in compliance with notice and other requirements of this
section and conducting a substantial and public reconsideration of the
matters considered at the original meeting. If the court finds that an
action is void, the governmental body may discuss and act on the
matter at another meeting held in compliance with this section. A
court may hold that an action taken at a meeting held in violation of
this section is void only if the court finds that, considering all of
the circumstances, the public interest in compliance with this section
outweighs the harm that would be caused to the public interest and to
the public entity by voiding the action. In making this determination,
the court shall consider at least the following:
(1) the expense that may be incurred by the public
entity, other governmental bodies, and individuals if the action is
(2) the disruption that may be caused to the
affairs of the public entity, other governmental bodies, and
individuals if the action is voided;
(3) the degree to which the public entity, other
governmental bodies, and individuals may be exposed to additional
litigation if the action is voided;
(4) the extent to which the governing body, in
meetings held in compliance with this section, has previously
considered the subject;
(5) the amount of time that has passed since the
action was taken;
(6) the degree to which the public entity, other
governmental bodies, or individuals have come to rely on the action;
(7) whether and to what extent the governmental
body has, before or after the lawsuit was filed to void the action,
engaged in or attempted to engage in the public reconsideration of
matters originally considered in violation of this section;
(8) the degree to which violations of this section
were wilful, flagrant, or obvious;
(9) the degree to which the governing body failed
to adhere to the policy under AS 44.62.312(a).
(g) Subsection (f) of this section does not apply to
a governmental body that has only authority to advise or make
recommendations to a public entity and has no authority to establish
policies or make decisions for the public entity.
(h) In this section,
(1) "governmental body" means an assembly, council,
board, commission, committee, or other similar body of a public
entity with the authority to establish policies or make decisions
for the public entity or with the authority to advise or make
recommendations to the public entity; "governmental body" includes
the members of a subcommittee or other subordinate unit of a
governmental body if the subordinate unit consists of two or more
(2) "meeting" means a gathering of members of a
governmental body when
(A) more than three members or a majority of the
members, whichever is less, are present, a matter upon which the
governmental body is empowered to act is considered by the members
collectively, and the governmental body has the authority to
establish policies or make decisions for a public entity; or
(B) the gathering is prearranged for the purpose
of considering a matter upon which the governmental body is
empowered to act and the governmental body has only authority to
advise or make recommendations for a public entity but has no
authority to establish policies or make decisions for the public
(3) "public entity" means an entity of the state or
of a political subdivision of the state including an agency, a board
or commission, the University of Alaska, a public authority or
corporation, a municipality, a school district, and other
governmental units of the state or a political subdivision of the
state; it does not include the court system or the legislative
branch of state government. (§ 1 art VI (ch 1) ch 143 SLA 1959;
am § 1 ch 48 SLA 1966; am § 1 ch 78 SLA 1968; am § 1
ch 7 SLA 1969; am §§ 1, 2 ch 98 SLA 1972; am § 2 ch 100
SLA 1972; am § 1 ch 189 SLA 1976; am §§ 2, 3 ch 54 SLA
1985; am § 2 ch 201 SLA 1990; am § 7 ch 74 SLA 1991; am
§§ 2-8 ch 69 SLA 1994; am § 7 ch 54 SLA
Sec. 44.62.312. State policy regarding meetings.
(a) It is the policy of the
(1) the governmental units mentioned in
AS 44.62.310(a) exist to aid in the conduct of the people's
(2) it is the intent of the law that actions of
those units be taken openly and that their deliberations be
(3) the people of this state do not yield their
sovereignty to the agencies that serve them;
(4) the people, in delegating authority, do not
give their public servants the right to decide what is good for the
people to know and what is not good for them to know;
(5) the people's right to remain informed shall be
protected so that they may retain control over the instruments they
(6) the use of teleconferencing under this chapter
is for the convenience of the parties, the public, and the
governmental units conducting the meetings.
(b) AS 44.62.310(c) and (d) shall be construed
narrowly in order to effectuate the policy stated in (a) of this
section and to avoid exemptions from open meeting requirements and
unnecessary executive sessions. (§ 3 ch 98 SLA 1972; am § 4
ch 54 SLA 1985; am § 9 ch 69 SLA 1994)
1 Horowitz v. Alaska Bar
Ass'n, 609 P.2d 39 (Alaska 1980).
2 AS 44.62.310(a).
3 AS 44.62.312(a).
4 AS 44.62.312(b).
5 AS 44.62.310(h)(3).
6 AS 44.62.310(h)(1).
7 AS 29.20.020(b).
8 See Section III below.
9 See Section IV below.
10 University of Alaska v.
Geistauts, 666 P.2d 424 (Alaska 1983).
11 Brookwood Area Homeowners
Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1323 n.6 (Alaska
12 Hammond v. North Slope
Borough, 645 P.2d 750 (Alaska 1982).
13 Horowitz v. Alaska Bar
Ass'n, 609 P.2d 39 (Alaska 1980).
14 AS 08.08.100.
15 AS 08.08.075.
16 Brookwood Area Homeowners
Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1323 n.7 (Alaska
17 Krohn v. State, Dept. of
Fish and Game, 938 P.2d 1019 (Alaska 1997).
18 AS 44.62.310(d)(6).
19 KILA, Inc. v. State,
876 P.2d 1102 (Alaska 1994).
20 AS 44.62.310(d)(1).
21 Griswold v. City of
Homer, No. S-10321, slip opinion at 18 (Alaska, September 20, 2002).
22 AS 44.62.310(a);
and see Malone v. Meekins, 650 P.2d 351 (Alaska 1982).
23 AS 44.62.310(d)(7).
25 Abood v. League of Women
Voters, 743 P.2d 333 (Alaska 1987).
26 Section 10, chapter 69 SLA
1994 (Temporary and Special Acts).
27 AS 42.40.920.
28 AS 42.40.150(b).
29 See Section V below.
30 Compare AS 42.40.170(b) with
31 See Section VI below.
32 AS 44.62.310(h)(2)(A).
33 Brookwood Area Homeowners
Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1323 (Alaska
34 AS 44.62.310(a).
35 Hickel v. Southeast
Conference, 868 P.2d 919 (Alaska 1994).
36 Cahill v. City and Borough
of Juneau, Case No. 1JU-81-1048 Civil (Alaska Super. Ct., Nov. 10,
1982) (Memorandum of Decision and Order). See also, Stockton
Newspapers, Inc. v. Members of the Redevelopment Agency of the City of
Stockton, 171 Cal. App. 3d 95, 214 Cal. Rptr. 561 (1985).
37 868 P.2d 919 (Alaska 1994).
38 Brookwood Area Homeowners
Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1323 n.6. This
comment by the Court was not necessary to its decision, and could be
considered dicta. Nevertheless, it reflected the attitude of the
Court when interpreting the law before the 1994 amendments.
39 AS 44.62.310(h)(2)(A), defining "meeting" for a
policy-making or decision-making body.
40 In re 2001 Redistricting
Cases, Case No. 3AN-01-8914 Civil (Alaska Super. Ct., February 1,
2002) (Memorandum and Order, Part V.A.1.) This memorandum and order is
available at http://www.alaskabar.org/opinions/ACF4D1D.htm.
41 In re 2001 Redistricting
Cases, 44 P.3d 141, 147 (Alaska 2002).
42 In re 2001 Redistricting
Cases, Case No. 3AN-01-8914 Civil (Alaska Super. Ct., February 1,
2002) (Memorandum and Order, Part V.A.1.)
43 In re 2001 Redistricting
Cases, 44 P.3d 141, 147 (Alaska 2002) ("We further conclude that the
superior court did not err by failing to find additional violations of
44 Brookwood Area Homeowners
Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1323 n.7 (Alaska
45 E.g., AS 29.20.230(b).
46 See AS 29.20.130; AS
29.20.230(a); AS 29.20.240(a); AS 29.20.250(b); and AS 29.20.280(b).
47 See AS 29.20.160(a);
AS 29.20.220; and AS 29.20.250.
48 AS 29.20.250(b).
49 This comment assumes that
serial communications can constitute a "meeting" when there is no
gathering where members of the governing body are present, but that is
still an open question. See AS 44.62.310(h)(2(A) and the discussion in part III.A.3 above.
50 AS 44.62.310(h)(2)(B).
51 Brookwood Area Homeowners
Ass'n v. Municipality of Anchorage, 702 P.2d 1317, 1323 (Alaska
52 AS 44.62.310,AS 14.12.010, and AS 29.20.300.
53 AS 44.62.210(a).
54 3 AAC 110.550-.560.
55 E.g., not more than
five minutes per person at Local Boundary Commission hearings. 3 AAC
56 AS 44.62.310(e).
57 Hickel v. Southeast
Conference, 868 P.2d 919 (Alaska 1994).
58 631 P.2d 67 (Alaska 1981).
59 Id. at 81.
60 See Taylor v. Van
Brocklin, Case No. 3CO-90-46 Civil (Alaska Super. Ct., July 25,
1991) (Findings of Fact and Conclusions of Law and Order).
61 AS 44.62.310(e).
62 AS 44.62.175(a)(2) and AS 44.62.310(e).
63 672 P.2d 891 (Alaska 1983).
64 Id. at 895.
65 868 P.2d 919 (Alaska 1994).
66 Id. at 929, n.15.
67 AS 44.62.310(c)(2).
68 666 P.2d 424 (Alaska 1983).
69 936 P.2d 126 (Alaska 1997).
70 Hickel v. Southeast
Conference, 868 P.2d 919 (Alaska 1994). The court did not consider
the practice perfect, however, and stated it would have been more
meaningful had the citizen callers been provided with the materials
71 Cool Homes, Inc. v.
Fairbanks North Star Borough, 860 P.2d 1248 (Alaska 1993), discussed
72 964 P.2d 463 (Alaska 1998).
73 AS 44.62.312(b).
74 642 P.2d 1313 (Alaska 1982).
75 Id. at 1326. (Emphasis
77 666 P.2d 424 (Alaska 1983).
78 Id. at 429.
79 Id. at 429, n.7.
80 903 P.2d 1055, 1061 n.15
81 See Section V.E above.
82 See, e.g., AS 42.40.170 for a
list of executive sessions subjects authorized for the board of the
Alaska Railroad Corporation.
83 Municipality of Anchorage
v. Anchorage Daily News, 794 P.2d 584 (Alaska 1990); City of
Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316 (Alaska 1982).
84 Cool Homes, Inc. v.
Fairbanks North Star Borough, 860 P.2d 1248 (Alaska 1993).
85 Alaska Const., Art. I, Sec.
86 AS 40.25.220(2); and
Anchorage School District v. Anchorage Daily News, 779 P.2d 1191
87 AS 40.25.110(a) and AS
88 City of Kenai v. Kenai
Peninsula Newspapers, Inc., 642 P.2d 1316 (Alaska 1982).
89 Municipality of Anchorage
v. Anchorage Daily News, 794 P.2d 584 (Alaska 1990).
90 Supreme Court No. S-10079,
argued on December 11, 2001.
91 E.g., Gwich'in Steering
Committee v. State, 10 P.3d 572 (Alaska 2000).
92 860 P.2d 1248 (Alaska 1993).
93 From the Cool Homes
opinion it is not clear if the court intends to limit the scope of the
attorney-client privilege exception to pending litigation. The
case involved pending litigation, and the opinion does recognize that
some other states do limit the exception to pending litigation, but the
specific communications the court found justified the executive session,
i.e., how to avoid threatened legal liability, may be just as
worthy of protection when litigation is not pending, but is merely
threatened or anticipated. Other non-litigation matters are also
generally deemed worthy of protection by the attorney-client privilege,
such as strategy sessions and candid discussions of the facts and issues
concerning negotiations in commercial transactions. The Cool
Homes decision dealt only with litigation, and made no comment about
non-litigation contexts, so the privilege's application in
non-litigation contexts remains unresolved. It is clear, however, that
mere involvement in pending litigation will not justify having all
communications about that litigation in executive session.
94 Id. at 1259,
95 See Section II.D.3 above.
96 Griswold v. City of
Homer, No. S-10321, slip opinion at 18 (Alaska, September 20, 2002).
97 See Section V above.
98 See Section V.E above.
99 AS 44.62.310(b).
100 AS 44.62.310(b); see also Cool Homes, Inc., v.
Fairbanks North Star Borough, 860 P.2d 1248, at 1259 n.18 (Alaska
101 AS 44.62.312(b).
102 AS 29.20.160(e) requires
only that a journal of official proceedings be kept.
103 Pioneer Printing Co. v.
Skannes, 1KE-86-494 Civil (Alaska Super. Ct., Dec. 19, 1986)
(Memorandum of Decision).
104 AS 44.62.310(b).
105 AS 44.62.312(a).
106 642 P.2d 1316 (Alaska 1982).
107 Id. at 1326.
108 860 P.2d 1248 (Alaska 1993).
109 AS 44.62.310(b).
110 AS 44.62.312(a)(2).
111 AS 44.62.310(d)(1).
112 See Section II.D.3 above.
113 The court noted that the
rule declaring actions void is "generally short, mechanistic, and
inadequate to deal with the difficulties involved." Alaska Community
College Federation of Teachers v. University of Alaska, 677 P.2d
886, 890 n.8 (Alaska 1984), quoting Comment, Invalidation as a Remedy
for Open Meeting Law Violations, 55 Or. L. Rev. 519, 524 & n.25
114 See, e.g., Hammond v.
North Slope Borough, 645 P.2d 750 (Alaska 1982); and Alaska
Community College Federation of Teachers v. University of Alaska,
677 P.2d 886 (Alaska 1984).
115 The distinction between
decision or policy-making bodies and advisory-only bodies is discussed
116 AS 44.62.310(f).
121 898 P.2d 917 (Alaska 1995).
122 Id. at 924.
123 In re 2001 Redistricting
Cases, 44 P.3d 141 (Alaska 2002), affirming In re 2001
Redistricting Cases, Case No. 3AN-01-8914 Civil (Alaska Super. Ct.,
February 1, 2002) (Memorandum and Order, Part V.A.1.) (available at http://www.alaskabar.org/opinions/ACF4D1D.htm.)
124 The distinction between
decision-making or policy-making bodies and advisory-only bodies is
discussed in Section II.C above.
125 AS 44.62.310(g).
126 E.g., Revelle v.
Marston, 898 P.2d 917 (Alaska 1995).
127 E.g., Hammond v. North
Slope Borough, 645 P.2d 750 (Alaska 1982).
128 Also see Alaska Community
College Federation of Teachers v. University of Alaska, 677 P.2d 886
130 Id. at 891.
131 University of Alaska v.
Geistauts, 666 P.2d 424 (Alaska 1983).
132 E.g., Revelle v.
Marston, 898 P.2d 917 (Alaska 1995).
133 Alaska Community College
Federation of Teachers v. University of Alaska, 677 P.2d 886, 889
n.5 (Alaska 1984).
134 Meiners v. Bering Strait
School District, 687 P.2d 287 (Alaska 1984).
135 Von Stauffenberg v.
Committee For An Honest And Ethical School Board, 903 P.2d 1055
(Alaska 1995), affirmed that a violation of the OMA is grounds for
recall, but held that the recall petition in that case did not allege
facts sufficient to establish a violation of the act.
136 E.g., Brookwood Area
Homeowners Ass'n. v. Municipality of Anchorage, 702 P.2d 1317
137 E.g., Hickel v. Southeast
Conference, 868 P.2d 919 (Alaska 1994), in which the superior
court's award of costs and attorney's fees totaled $966,567.33 to be
paid by the state to five public interest litigants.
138 Gilbert v. State, 526
P.2d 1131, 1136 (Alaska 1974).
139 Revelle v. Marston,
898 P.2d 917, 924-925 (Alaska 1995).
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