A Petersburg assembly member thinks the borough is violating state law on open meetings by forwarding emails between the assembly. Brandi Marohl emailed the borough manager with questions and her opinions regarding the ongoing discussion over the reorganization of the electric utility and public works department. The borough manager forwarded that email along with his opinions and input from the borough attorney to the rest of the assembly.
Marohl raised this issue at a meeting of the assembly in early February.
“Anything that has an opinion that’s on, especially about an action item on the agenda that is shared is then in violation of the Open Meetings Act,” Marohl said. “And it says in here, electronic communications, all sorts of things.”
Marohl was citing materials from her training as a new assembly member and said she also talked to the Alaska Municipal League about this incident.
If assembly members start an email discussion about a topic they’re supposed to be talking about in public, that’s where the borough could be in violation of the state law. The law is intended to make all meetings of a public entity open to the public. So a discussion of an issue in emails between assembly members could be construed as a private meeting not allowed under the law.
Borough manager Steve Giesbrecht discussed the situation with the borough’s attorney was told it was on the edge of being a violation.
“Her take on what you’re referring to was what I did was OK but risky because other assembly potentially have the opportunity to then engage you,” Giesbrecht told the assembly. “So it’s not necessarily what we did. It’s more along the lines of we started losing control over what other people can do.”
The mayor and assembly members disagreed over whether a violation has occurred, but they agreed they needed to be more careful not to share their opinions with each other outside of meetings. Jeff Meucci wanted to be clear that the emails were public records.
“Well I think anytime you send an email to the city manager, all those emails are available to the public,” Meucci said. “You shouldn’t send anything to the city manager, city staff, that you don’t want the public to read. You should be thinking about it like you’re sending that email to the whole community.”
Mayor Jensen wanted to get an opinion from a different attorney about the matter and said that could be an action item at a future meeting.
Here’s the full text of the email forwarded by Giesbrecht from Marohl:
Sent: Friday, January 26, 2018 7:19 AM
To: Brandi Marohl
Cc: Debra Thompson
Brandi, on the issues of the review of the Mayor’s questions, I would suggest you work with Debbie to add the items to the next agenda so the entire Assembly can weigh in. As you know there are many different opinions on these issues, and staff cannot take action unless four of you agree.
Hope this makes sense.
From: Brandi Marohl
Sent: Thursday, January 25, 2018 2:00 PM
To: Stephen Giesbrecht
Subject: Re: Mayor’s questions
Which ordinances will be rewritten if this proposal happens to go through? I would to familiarize myself with them. I can guess a few but would like to be clear.
Contrary to your and Sara’s interpretation, I think this needs to be revisited. I realize that this motion correlates in the direction that you would wish to move but making a motion with specific names, especially under the description on the agenda, is not correct according to our charter. The descriptions of the agenda item said it was “to give direction”, not to confirm. The agenda item and motion that was made was one of the most shiesty moves I’ve seen yet, though not surprised. It definitely lacked the transparency that the community is looking for.
I, of course, will speak to all of this at the next meeting. However, I think it would be wise to let the employees that will be affected by this transition weigh in. It should be done in a manner where they feel like they can be honest, no one wants to speak up against a transition that may ultimately leave them with a boss they spoke out against negatively. Though, if you’re not willing, I have no problem doing a survey of my own and presenting the information. That being said there is a lot of focus on the electrical side of this transition, but not Public Works. There are some great employees thar work under the Public Works umbrella, not giving them opportunity for a promotion within their department is in my opinion the good ole boys hiring team that I mentioned to you before. Maybe Chris would be the best for the job, but I can think of several others that may be better. One in particular, who may not even be interested, has a great disposition, is well respected and came from the same area as Karl. I realize the idea is to cut the assistant position without laying an employee off, however, I think it’s completely unfair. That’s my 2 cents…
Sent from my iPhone
On Jan 25, 2018, at 10:16 AM, Stephen Giesbrecht
Subsequent to the most recent actions on the Utility Director position, Mayor Jensen expressed interest in clarifying several issues. I reached out to our Borough Attorney and reviewed the Charter, Borough Code (Ordinances), and Borough Employee Policy Manual.
Is the Borough required to recruit and post all open positions for internal and external applicants, or can the Borough do as the Assembly desires and appoint selected individuals to these roles?
The Borough employee policy manual indicates the Borough has a “job posting program” to inform current employees of “staff” job openings. The manual appears to distinguish between “management” and “staff” in some places, but in other places refers to all Borough employees as “staff”. Past precedent for department head positions include incidents where the Borough did not post the position, and in other cases where the position was posted externally.
Borough Charter 4.02 states “The manager shall be the Chief Administrative Officer and head of the Administrative branch of the borough Government. The manager shall:
A. Hire and remove Employees. Appoint, lay off, suspend, demote or remove all directors or heads of administrative departments and all other officers and employees of the Borough, except personnel in the school district and personnel employed by the Petersburg Medical Center. The manager may delegate this power and duty to directors or heads of departments and other administrative officers.”
Comments: Based on the above, it appears the Borough Manager has the authority to hire employees, which includes Department Heads. The lack of specific details on whether or not jobs must be posted, makes me believe past City Council’s or Assembly’s viewed this as a discretionary decision to be made by the Manager. The fact that in some cases department head positions were not posted and still approved by the Assembly, lends to the accuracy of this argument.
The Mayor referenced Section 2.10.B of the Charter; “Relationship with Employees – The Assembly shall not recommend or direct the appointment or removal of any officer or employee of the Borough except as provided in this Charter. Subordinates of the borough manager shall report to and obtain direction from the borough manager and not from the assembly, the mayor, or individual assembly members.”
During the meeting of January 16, 2018 the “Assembly voted to approve the appointments of Chris Cotta and Karl Hagerman to the roles of the proposed revised positions of Public Works Director and Utility Director.” I believe Mayor Jensen’s concern is that the Assembly had no right to make these “appointments”.
The Assembly can, by ordinance, establish, alter or abolish departments (Charter sec 3.01(o)), which could include provisions designating management positions within that department. Under section 4.02(A) of the Charter, the Borough Manager is to appoint department heads, and section 2.10(B) indicates the Assembly is not to “direct” the Manager to appoint any certain individual. A number of Borough Code chapters regarding specific departments provide that the department head is appointed by the Manager, and approved or consented to by the Assembly. I (Sara Heideman) don’t believe that Charter Section 2.10(B) would prohibit such an “approval” or “consent” provision, since each provision can be given effect without violating the other. The Manager makes the initial appointment under sec 4.02(B), and the Assembly, even if it does not confirm that appointment, would be prohibited from recommending or directing the Manager to hire a specific individual.
In short, the Charter provides that the Assembly is not to either recommend or direct the Manager to hire a specific individual to any borough position, and its role is limited to approval of the Manager’s appointment, where such approval is provided in charter or code. I (Sara) understand the actions of the Assembly at the meeting of January 16, 2018, referenced the hiring of Karl and Chris in the positions discussed, however I (Sara) understand these actions may have been more in line with “confirming” the Manager’s earlier stated intentions in regard to those appointments, rather than “directing” the Manager to make those appointments. If there is any confusion on that point, that should be clarified.
Comments: I (Steve), felt the Assembly was giving staff instructions in line with my previous recommendations to appoint Karl and Chris. These instructions included the revisions of the ordinances and implementation of the salaries as outlined to achieve the savings in the Borough’s Budget.
What role does the Assembly have in setting Department Head Job Descriptions? I believe the Mayor would like this explained as the previous Assembly reviewed the revised descriptions.
I (Sara) do not find, in either the Code or the Charter, any specific provision regarding Assembly approval of job descriptions. The Assembly could, of course include language in the ordinance itself setting out specific position requirements or duties, in the applicable code provision addressing that position. Has the Assembly in the past reviewed and approved separate department head job descriptions?
In answer to Sara’s question regarding past precedent; Traditionally, no. In this instance, Steve announced the reorganization on May 2nd via email to the Assembly and requested the Assembly approve the appointment of Karl and Chris to their new positions at the May 15 meeting. However, Mayor Jensen was against the restructuring, and at the time he did not allow the reorganization issue on the agenda as an action item. It was added as a discussion item. At the end of the discussion item regarding the reorg, Mayor Jensen requested a job description for PMPL Superintendent be brought forward at the next meeting scheduled for May 30. Mayor Jensen resigned on May 18. On May 30 the Assembly does hold an executive session on the subject based upon new information brought forward. Nothing is done on the subject all summer, other than Steve making Karl and Scott both “interim PMPL Superintendents” to keep things running while the Assembly took time to think about the issues. On October 3, Mark Jensen is voted in as Mayor and at the October 16 Assembly meeting, Steve brings forward a new PMPL Superintendent job description (which was only changed by adding wording about electrical inspections) as requested back on May 30. The Assembly approves the job description, without amendment, and directs Manager Giesbrecht to begin recruitment.
So, this is the only job description they approved. (Debbie)
Comments: I (Steve) believe the Charter provision in 4.02 intends for the Borough Manager to be responsible for the administration and organization of the operations and recruitment of the Department Heads. Generally the creation and approval of a job description is part of the recruitment process. However, it is clear the Assembly has the right to specify certain skills by their approval of specific duties in various ordinances. With this being a bit vague, I have to leave it up to the decision of the Assembly on whether or not they wish to weigh in on specific job descriptions for management or even other employees.
Here are additional email exchanges sent to KFSK by borough assembly member Brandi Marohl:
> From: Jeigh Gregor
> Date: January 31, 2018 at 11:14:51 AM AKST
> To: Brandi Marohl
> Subject: Your note
> The manager forwarded your email to the entire assembly, including yourself. In no way does that come close to an open meetings violation. No members were polling or discussing info via email. Just to be clear, he was just sharing information. Me responding to you individually to better understand what you were saying is also, of course, perfectly acceptable. In short, I’m well aware of open meeting rules and always stay on the right side of the rules.
> Thanks for clarifying your thoughts for me. I see it quite differently, but that’s ok. The only thing I’d like to respond to is my shaking hands. The mayor had just finished implying he’d like to fire Chris. He said eliminate the assistant pub works director position. I wanted Chris and Karl to know they were supported. Nobody should have to sit in an assembly meeting and wonder if their job could be in jeopardy. I have empathy for that and acted accordingly. I don’t feel the need to justify this action, but I decided to share the context with you.
> Enjoy the snow and I’ll see you Friday.
> Jeigh Stanton Gregor
> From: Brandi Marohl
> Date: January 27, 2018 at 8:11:52 AM AKST
> To: Jeigh Gregor
> Subject: Re: Mayor’s questions
> I was unaware that correspondence between myself and the manager could be forwarded on. This being, that had I shared with two other members, forwarding on to you would violate the open meetings act. I haven’t, but the potential is there. For the record, I never write anything, in any correspondence, that I would not be ok with sharing in public. But I find this predicament an odd one.
> The lack of transparency I spoke of comes from the description you placed on the agenda, as well as, the fact that myself and the community as a whole was under the assumption that Karl was no longer interested in the superintendent position. Although worded on the agenda as a direction, once you started with a motion it was obvious that your intention was to reorganize departments. An idea that was controversial and unpopular, especially with professionals in the field. It also appeared evident that Karl, Chris, Steve and yourself were all well aware that you were going to push this idea through during that meeting. Especially, after you got up immediately following the recess to shake hands with the two people you proposed to be promoted.
> I understand the public process and that it gives the public opportunity to speak. However, how it was initially proposed did not seem transparent to me at all. I have heard from many other constituents, your constituents, who feel the same. I was working, like many, 6 hours prior to the meeting and I was not able to listen to Kfsk. Yes, you have always been open with the public in regard to your support of the manager. Perhaps to a fault. However, considering that the community thought this idea was no longer on the table “due to the results of the election,” it appeared to be an underhanded (shiesty) way to place it on the agenda under a direction of hiring, not a reorganization, including changing 5 ordinances to accommodate specific people. For these reasons, your actions appeared to lack transparency.
> Have a great rest of the weekend!
> Sent from my iPhone
> On Jan 26, 2018, at 2:35 PM, Jeigh Gregor
>> In reading your correspondence with Steve regarding the mayor’s questions, I found myself confused when you stated:
>> “The agenda item and motion that was made was one of the most shiesty moves I’ve seen yet, though not surprised. It definitely lacked the transparency that the community is looking for.”
>> In what way was this shiesty and lacking transparency? From my perspective, it is the exact opposite. After talking with Steve, Karl, and Scott, I very clearly (on borough business call in show) stated I thought the utility director position was a good one; that I agreed with the managers idea from last year and wanted to put it before the assembly again. I’d have phrased it a bit differently in the meeting as it wasn’t my intention to tell Steve who to hire. I was trying to validate what he’d previously stated he wanted; I’ve no desire to micromanage anybody. Again, please explain what was shiesty as I am truly confused.
>> About transparency: I announced it publicly on the radio (as discussed above). Further, by bringing it up at the last meeting it gave the full assembly an opportunity to weigh in; and it adds two more weeks to the process (6 weeks for the ordinances plus the two weeks after our last meeting). That’s 8 weeks of public process and it includes a public hearing. Again, I’ve always been very clear in my public support of the manager and his utility director plan. I don’t know how to be more transparent. It felt (at the meeting) that every assembly member clearly stated their position, which seemed quite transparent. Again, please explain how this is lacking transparency as I’m confused here too.
>> I hope it goes without saying, but know I’m asking these questions from an honest place so that I can better understand where you are coming from.
>> Hope this finds you well and enjoying this Friday afternoon.
>> Jeigh Stanton Gregor