Open Letters: Concerned With Executive Session & Request for Documents
By Mike Holman
November 04, 2019
I am concerned that the executive session convened by the City Council on October 10th violated the Alaska Open Meetings Act. Therefore I am requesting that the Council immediately cure the violation by holding another meeting in compliance with notice and other requirements of the Act and conduct a substantial and public reconsideration of the matters considered during the executive meeting. See AS 44.62.310(f). I also request a copy of the log of the private meeting tape recording required by KMC 2.04.025(c)(2) of the executive meeting.
Because any action taken in violation of the Open Meetings Act (Act) is voidable by the Superior Court, I strongly encourage the City’s legal counsel to consider the following reasons why a public meeting of the Council must be convened to correct the unlawful executive session on October 10:
• The motion for the executive session was vague (“negotiation options and strategies related to the Request for Proposals”) and failed to clearly and with specificity describe the subjects to be discussed. Thus one can only speculate about what was discussed and decided during the private meeting. Was it about which members of the Council would be involved in the negotiations with prospective bidders, and how so, or was it about a methodology or the criteria for ranking proposals or use of a certain “matrix” after proposals are received? Or was it about both these things - or something else? There is no way to tell from the recommended motion what was the subject matter of the executive session. Clear delineation of the purpose of the meeting is mandatory so the public can better determine whether the stated purpose is allowed under the Act.
• Insofar as the City is not currently in any contract negotiations related to the RFP and the processes for reviewing proposals and negotiating with proposers who respond to the RFP are (or should be) fully set forth in the RFP itself, any discussion about these processes in a private meeting was inappropriate and unnecessary. These processes should be fully known by the public in advance of any such review and negotiations and public knowledge of these processes cannot possibly have a clearly adverse effect upon the finances of the City. See, A.S. 44.62.310 (c)(1) To the contrary, any adverse effect would result from the public being kept uninformed about these processes. After all, the subject underlying all this is the potential alienation of one of the largest pieces of public infrastructure in the City for which voter approval by referendum is provided in its Charter. Likewise, there would be no clear adverse effect upon the finances of the City for the public to hear a discussion or debate among councilmembers about what these processes should be prior to the receipt of any proposals or conduct of any actual negotiations.
• Similarly, to the extent the subjects discussed during the executive session involved the methodology or criteria for ranking proposals there would be no clear adverse effect upon the finances of the City for the public to know in advance what the proposal ranking methodology or criteria will be or to hear a discussion or debate among councilmembers about them. Instead, at this juncture before any proposals have even been received, it is a discussion of these matters in a private meeting itself which would have a clear adverse effect upon the finances of the City because it would tend to prejudice the outcome of the entire RFP process. Indeed, the effect of holding such discussions in private would be to stifle public debate among councilmembers and keep members of the public uninformed on a matter they may be called upon to vote. In the end, if a referendum is called it will likely be put forth as a single choice for the people to vote yes or no on a final deal negotiated by the City with a single proposer. The people are entitled to make an informed decision based not just on the substance of the final deal but on the integrity of the review and negotiating processes both real and perceived. To do so they must know what alternative proposals were made but not advanced by the City, at what stage in the process they were rejected and all the reasons why they were not pursued. The holding of unnecessary and premature executive sessions to discuss these matters can only undermine public confidence that the City negotiated and obtained the best possible deal with the best proposer.
Furthermore, my understanding is that it was the specter of going through an RFP process which has already led to the anticipated loss of one of the City’s largest port customers and several millions of dollars in port and sales tax revenues per year. The City’s holding of secret meetings to discuss “negotiation options and strategies related to the Request for Proposals” and lack of transparency risks the loss of more port customers and is likely to create uncertainty about the fairness of the RFP process among potential proposers. Thus, rather than adversely affecting the City’s finances, public discussion by the Council of “negotiation options and strategies” is likely to result in the receipt of more proposals and put the City in a better bargaining position with proposers who have confidence their proposals will be considered on an equal footing without prejudice.
Again, full public knowledge and timely awareness of all these things, including any differing viewpoints among councilmembers themselves along the way, would not clearly have an adverse effect upon the finances of the City. Instead the opposite is true, advance public knowledge about any and all of these matters is essential to protecting their City’s economic future for the next thirty years.
For these reasons the executive session held on October 10, 2019 was improper, ill-advised and illegal and the business conducted should be rescinded and conducted immediately in an open session of the City Council.
Note: Executive Session Letter Hand Delivered On October 18, 2019 to Office of the City Attorney and Office of the City ClerkLetter #2: Request for Documents Hand Delivered By Mike Holman on Oct. 18, 2019 - The City Attorney sent a note acknowledging receipt on Oct. 28th.) Editor's Note: Response time required to public infomation request is 10 business days
Dear Clerk Stanker,
Under the Alaska Public Records Act, I am requesting an opportunity to inspect and obtain copies of the following public records:
- The “market sensing” survey described by Luis Ajamil during his presentation to the City Council on October 10, 2019 including all questions posed therein, notes thereof and memorandums relating thereto. (Ajamil description of same can be heard at 20.08 of meeting video posted on the City of Ketchikan website);
- All records which evidence the identity of the persons and/or entities to which the “market sensing” survey (or any part thereof) described by Luis Ajamil during his presentation to the City Council on October 10, 2019 was submitted;
- All responses to the “market sensing” survey described by Luis Ajamil during his presentation to the City Council on October 10, 2019 including notes thereof and memorandums relating thereto;
- All records relating to the establishment of a review committee to review proposals received in response to the City of Ketchikan Berths I, II & III RFP (“RFP” herein) and the procedures to be followed by any such committee;
- All records evidencing the methodology and/or criteria for ranking proposals received in response to the RFP including any documents relating to a “matrix” that was mentioned during the city council meeting on October 10, 2019;
- All records reviewed and/or discussed during the City Council’s executive session held on October 10, 2019. See, Municipality of Anchorage v. Daily News, 794 P.2d 584 (1990)
Received November 02, 2019 - Published November 04, 2019
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