Anchorage Assembly: Worksession solely for discussion and clarification of the removal procedure set forth...

Okay, everyone, I'm going to call this work session to order. Today is Friday, July 17th. One second. Friday, July 17th. We are noticed from 2:15 to 3:15 PM.

I will note this is our last meeting of the day. And so if we do need to extend our time, we do have that ability to a point. I will cut it off at some point. And, um, I will also note, I have some opening remarks, but before I even do that, I just want to be clear, this is about process. And so I've consulted with our attorneys prior to this work session.

And because this is only on— let me read, sorry, let me read the title of the work session first. I just want to be very clear about all of this. So this work session is solely for discussion and clarification of the removal procedure set forth in Anchorage Municipal Code Section 2.70.030. And of procedures available for the Assembly to express disapproval of a member's conduct. So that is the boundaries in which we are operating today.

So in that context, I will note that I've consulted with the attorneys, and they have determined or advised that Mr.— Member Martinez may participate in this conversation as a member because it is about process, and that is separate from any items that are on our agenda, which are not going to be discussed in this room at this time, the merits of those items. So with that, I'm going to start with introductions and then we'll have some remarks. So go ahead. George Martinez.

Janice Park. Donald Handlin. Jared Kirker. Erin Baldwin-Day. Sydney Scout.

Anna Brawley. Yara Silvers. And then on the phone, I know we have a few members. I see Mr. Boland.

Anyway, Mr. Boland, let us know if you're there. Mr. Johnson. I'm here. Mr. McCormick?

Here. And Mr. Voland, are you still there?

Okay, well, I'll note if he's on the record, if he's just, uh, if he joins again. Uh, we are also joined by Assembly Counsel, Community Attorney's Office. Okay, Mr. Voland, are you there?

I am. Can you hear me? Yes, now we can. Thank you. Okay, so that's the members present in the room and on the phone.

We also have, as I said, community attorney, Assembly Council members, the administration members, the public members of the press, the clerk. And so we have a number of folks here. So I am going to— essentially, most of this proceeding today is going to be run by our attorneys. But before we do that, I'm going to say a few brief things. First is, thank you so much to all of the staff that have been working hard to get us to this point and to really help us understand these processes.

I will say that the discussion today and the topics today are about process, so I will be keeping order to the extent possible if I need to, to make sure that we are staying within those bounds. So members are certainly free to ask questions because the purpose is to better understand what is— what are the options before us in certain situations. But I will also ask to, if you are going to use hypotheticals, to try to keep them as general as possible so that we do not stray out of those bounds, and this is not a proxy for debate on a specific item. I'll also say that none of us have done this in these seats, and any predecessor who has taken this up or anything, any action of this kind, are all gone now. So obviously they're not gone from the earth, but they are gone from this body.

Yeah, yeah, yeah. So, um, but, but we— so we need to understand this process, that, that none of us have lived experience, including most of the staff that I've been working with. This is about— this work session is about understanding the legal structures in which we operate. There are procedures and rules by which we did deliberate and decide on things in a number of areas. There are due process considerations which are both in our Constitution and baked into all of our laws, state and local laws as well.

There is always potential risk of litigation, which is something that if, if you have not internalized that as a member, I encourage you to do so quickly. And also I ask members to think about what precedent we have to base our actions and decisions on, and what precedents are we setting for our peers in the future. And so that's really, again, why it's so important to understand these processes and why we have this opportunity today. Lastly, I'll reiterate it's about process, but this is really an exploration and an understanding legally of what we could do, what we can do. If someone is coming to this work session seeking an answer to the question, what should the Assembly do in any given situation, you're not going to be satisfied today because that is not the discussion.

The what you should do is ultimately in the political realm, it's in the personal decision realm, and it is something that everybody has to grapple with. And so I just want to put that on the table. And with that, I'm going to turn it to our attorneys, and then I will be running the queue today. So if you have questions, please text me or raise your hand. We'll run through that as needed.

But really, I'm going to be having them kind of walk through and providing information. So I will turn it to— I believe Mr. Gates will start us off, and we have a slideshow. Yes, Ms. Baldridge. Do we have this slideshow available to us?

I believe we—. I know there were—. Yes, it's going to be on the work session page online, accessible to everybody. Oh, yeah, I just checked. It just wasn't up yet.

Thank you. Yeah, and I believe it should be in our emails. Is that correct? No, I haven't emailed it yet. We just got it, so I thought I'm getting staff upstairs to put it online.

Okay. Okay. Yeah. So folks on the phone, I think folks on the phone as well, just look for your emails in the next couple of minutes. But I know we have a lot to cover, so I do want to proceed if we can.

Yes, I think we can. And my apologies. I literally finished this, I guess, the last details about 20 minutes ago. And so I'll try to be better next time and do a book session presentation with my timeline. Thank you.

Um, so right, like Chair Bragi said, we're here today to talk about process, and I was asked for the scope of this to do the full gamut of what the body can do in terms of expressing disapproval of one of your own's, um, conduct, actions or conduct. And so with that, I made this PowerPoint that starts up, I guess, the, um, basic levels conduct, but actually it first relates to who you are. You're elected officials and holding public offices and public trust. There's all these typical duties you do and actions you're engaged in that constitutes producing legislation. You know, you have responsibility for the public fisc and wise appropriations, controlling the purse strings of, I guess, municipality's money.

So you've got these responsibilities. I had these statements that seem to fit your role from ethics code, so I'm not going to spend a lot of time reading all the slides, but I have them up here for you. But you know, even though we're very highly regarded respected and privileged individuals, sometimes bad behavior happens and you feel the need to do something about it. So today we're going to kind of COVID some of these things. Our gender— there's some inherent power to express disapproval or censure, usually sort of the bubble term, and that just arises from, I guess, even as far back as English history to the early days of our country, and as recently as 2022, I think, the US Supreme Court recognized the inherent power to express disapproval or censure one of our own members.

And then we have Robert's Rules of Order, which has, I guess, some of the lighter ranges of actions the body can take: calling member to order, name the member in the minutes, censure. And then we have our Incriminative Code removal, which, of course, I think everybody's kind of a little more familiar with in the past several weeks. Oh, excuse me. As Chair Broadly emphasized, and I'm going to just reiterate, I highlighted it, we're not discussing any current legislation, the resolutions before us, any versions that might be out there, any facts or allegations in there, any speculation about the likely outcome or findings and so forth, or recommendations. And, um, excuse me.

So disciplinary actions of a serious matter, though you shouldn't take that step lightly, it's a drastic step reserved for serious situations. Proper or tactful handling of the case is of prime importance. Back in 1993, when the Assembly first enacted removal provisions for the Assembly and the school board— and I thank Ms. Plantoni's office and Ms. Gardner for finding some of these quotes in the recordings from the meetings back then during the deliberations. I thought these were nice nuggets about how serious the action is. From Assemblymember Campbell in 1993, I think we're about to start the recall process if we decide to do it ourselves.

She put tremendous effort to convince us that we need to do that with people who have not initiated recall. And then also at the end, after her many amendments and the final 1993 ordinance, he said, I think it tightens it up, makes it so it'll be used less for political hammer than it will be for actually trying to rectify problems. That's what it's designed for, right? And then I guess the rest of the quote. It's very important though, so the body has to have a significant problem and it has to be demonstrated.

So, and I'm sorry, I also just want to pause and say, if I'm not speaking loud enough, you know, stop me anytime, raise your hand or anything. Sometimes I try, you know, or maybe we're not audible, it's okay. So the inherent power to express disapproval, I'm gonna rely on two authorities here.

The last— I'm sorry, US Supreme Court case I mentioned, Houston Community College System versus Wilson from 2022. And then, say, huumu' municipality, we have all legislative powers not prohibited by law or charter, and from that powers whatever arises, or ability to do whatever isn't prohibited, including these, I guess, central actions.

So the Houston Community College versus Wilson case, here just sort of a brief look at the facts. Mr. Wilson was elected to the community college's board of trustees in 2013. After 3 years, he was making a lot of criticisms of the other members and of the college board and so forth, and I guess the board got fed up and they did a written reprimand of his actions, you know, trying to tell him, you know, knock it off, right? But I guess he doubled down and continued and found lawsuits and so forth. And so the body decided to do a formal action, doing resolution of censure with some punishments included.

And so Mr. Wilson didn't like that, of course. He appealed all the way to the Supreme Court. But from the Supreme Court opinion, we have these interesting nuggets of wisdom and a look at our US history that I sort of highlighted and bolded here. So we expect elected representatives to shoulder a degree of criticism, right, for their conduct from their constituents and from their peers. So there's a practical universal agreement that the First Amendment was adopted in part to protect the ability for people to criticize the government, including yourselves.

Elected bodies in this country have long exercised the power of censorship over their members. The court went through a few examples, and I'm going to show you a couple of them on the next slide. It also recognized that as early as colonial times, assemblies have often exercised the power to censure members for views they expressed and actions they took, both within and without the legislature. So just recognize this inherent power was rather broad in terms of what the body can address and express its disapproval of for another member. And so I just thought these were some interesting facts from that opinion.

The US Senate issued its first censure in 1811, so, you know, a couple of decades after our country was founded and the House of Representatives in 1832. A couple decades later, I guess sort of comparable, it just struck me, the municipality unified in 1975, or several decades later, United General Road first action. It seems elected bodies in this country issued no fewer than 20 censures in August 2020, and that just jumped out at me as, you know, it's not really an uncommon thing to do around the country. I guess I wouldn't say it's very common at all though. So the other source, I guess, of our inherent power I mentioned was the Alaska Constitution and our home rule powers, because the test when you look at whether the assembly's, home rule assembly's action is allowed or not for a municipality is whether there's a prohibition in law or charter That's what the question rests on.

So the exercise of authority has been prohibited to municipalities, and so we have some questions of like, well, where does the power for assembly, censure come from? And Roberts Rules, it sort of like touches it, it doesn't elaborate. And what are the limits on it? The limits are if it's been prohibited, you can't do it. But so Tony's research, none of us found anything that sort of limits the power of the Home Rule Municipality of Alaska.

In this subject area. Uh, exactly, actually there is a little precedent here from 2007 from this assembly. They didn't call it a censure, so I guess it was an expression of disapproval by first Assembly Member Bauer. Uh, I guess they had an ethics code, there was a complaint, but then he reviewed some facts and results, uh, he violated ethics code, and the rest of the body was of course, displeased, and they expressed it by introducing these two resolutions to admonish, uh, this member of our side. And the first one didn't go forward, second one did.

They didn't have anything in the title interesting, but it was still an admonishment in the body of that resolution, plus a little bit of consequence where we had to attend ethics training. And we'll touch on, like, um, how the process is can be a little different when there's consequences involved.

So the other source, I guess, of the ability to— or with procedures for expressing disapproval is Robert's Rules of Order, now 12th edition revised, Section 61, entitled Discipline of Members and Guests. So we're not going to talk about guests today, that's fine, we're just talking about our members. And I pulled some quotes there. The organization or assembly has an ultimate right to make and enforce its own rules. It actually sounds a lot like the right, there's an inherent ability to do so.

Roberts rules recognizes, I guess, to sort of take, I guess, the locale of the action and how they might be treated differently, wondering whether there's an offense in the meeting. Members were all present, you know, you see the misbehavior right there in front of you, you can go ahead, you've all witnessed the conduct, there's no reason for a trial-like process. But I would add also there's no reason for a trial-like process when it's just an expression of disapproval. It's when you have, I guess, some punishment that's going to be imposed where Robert's Rules said you should have a trial-like process before you're going to have some consequences if it's more than just an expression of disapproval. And the second is, offenses elsewhere than a meeting, there's no firsthand knowledge of the members who didn't witness it.

They're just taking the information, I guess, sort of in a hearsay manner. So that's capable of accurate and ready determination. I assert true sources accuracy cannot be reasonably questioned, though may be relied upon. So I put this in here because there's sometimes a full process already and there's reliability on that process. So even though we weren't witness to it, that's very different from where there's no process, it's just rumors flying around, you can't rely on those, right?

You need to have a trial-like process for imposing, I guess, penalties. And you need to have some fairness as well, fundamental fairness for the person being accused of bad conduct, misbehavior, to make statements in their defense and so forth. So that's not necessarily a requirement or an entitlement, but it is sort of recommended as a matter of fundamental to fairness. Is there something they wanted to add?

Thank you.

So the Robert's Rules goes on from like the light forms of expressing disapproval, which I'm starting with, calling the member to order. This is sort of like a super point of order, right? And maybe a point of order because you've gone off topic. 'Oh, you're criticizing the personal attacks, ad hominem attacks on another member.' That's not what this is. This is where the behavior continues and the members defying the chairs or ruling on a point of order.

So that's why I call it a strong point of order. It's not a debatable action, and warning should be given first. If the member who's being disciplined had warned in speaking, The chair should ask though that the member stop. If they refuse, they can put the question to the body. So Robert Swoose has this piece at this point where they say the chair doesn't actually have authority to penalize the offending member, so the body has that authority.

And that's why they put this question to the body: should the member be shut down? And she's speaking, should the member be removed from the chambers?

Robert Swoose has these forms of penalty written out there after naming a member in minutes. So this is sort of the next level. You have a call the member to order, they don't come to order. The process that Robert Swoose describes for naming a member in minutes is they take down the name, they ask the clerk to like, would you document what what was said, the offending, what the action was, then try to address it. The member asks for compliance.

If that's not the case, then the chair can direct, I guess, that the member's names in the minutes and that they've been reprimanded. The chair should ask for an apology. That sort of resolves the matter if that's the case. The body or the chair can do a censure right there. This is a verbal censure.

There's not a lot of formality. You can simply say, disapprove, you know, what you're doing is wrong, stop, you're being censured. There's one example at the bottom here in Robert's Rules that I pasted where it's simply saying that members refuse to comply and refrain from their conduct, so I mean that we censure them, period. You know, very clean, very simple. That's how it can be if it's a verbal censure for conduct right in front of you, right?

So But back to that bulleted list, I had to leave the chambers for the remainder of meeting, and then I have these other two: suspend the member's rights, expelled from organization by two-thirds vote. I have those lined through in asterisks because leaving the chambers is really significant. If you recall, Robert's Rules is designed for a wide range of, I guess, organizations and bodies, not just elected bodies or assemblies of local governments, right? But leaving the chambers is very different than it, uh, for an assembly member than it is for a member of a corporate board of directors, right? The private sectors, for no problem there.

But here you represent, uh, residents in the district, and even the chambers, you no longer are there to speak for them. I do represent them. So that's very, I guess, significant. That's why I started. It's not something that we recommend in terms of discipline.

I don't— I'm sorry, I said we, I mean me. And then the other two that I crossed out, suspended members' rights and expelled from the organization, I crossed those out because being expelled is the removal action. And so we adopted Robert's Rules by reference, and this— I'm sorry, only for matters that aren't addressed in Chapter 230 of our code. So these are addressed in Chapter 230. That's why I crossed those out from Robert's Rules.

We're not going to look to Robert's for those actions. So, um, Mr. Gates, um, Ms. Baldwin asked a question on the prior slide. Yeah, thank you. Um, thank you, Mr. Gates. So to clarify, are these first two, A and B, are these disciplinary measures that are reserved to the chair, or may any member undertake either of these actions?

A, any member can meet the sanction, right? I'm sorry.

Any member can ask to call a member to order. The chair does— it's like a point of order, you know, that a member can say, chair, I want to call member to order, and chair can do so.

So it would be a motion addressed, or it would be addressed to the chair, like, chair, I would like to call member so-and-so to order. Like, that would be the appropriate Steph, and then the Chair would respond.

I think so. So I don't have an exactly, I guess, template how you would phrase this. Yeah. But I think you could say it a number of different ways. It's a request to the Chair, though.

Thank you. I think it would be interesting to have clarity on that point. Is this something that any member can initiate, and if so, how? Or is it up to the chair to make these determinations? So, Ms. Baldwin-Taylor, if I understand, you'd like sort of a script of how this would go.

Yeah, or just, you know, the— if it is, you know, for example, if we are in this hypothetical situation, if we are naming a member in the minutes, is that something that any member could do, or would that need to flow through the chair first? I think is my question. Not necessarily a script so much as the order of operations.

I don't want to say that only the chair can do this because I don't believe that's the case, but the chair has an important role to sort of facilitate the process for naming a member in the minutes. But I wouldn't say that the other members can't. Ask to speak and say, I think these other members conduct this awful, and they should be named in minutes. Thank you. That's helpful.

Ms. Gordon.

I pulled up the Robert's Rule at issue. So in terms of calling a member to order, the chair or any member can call a member to order. I think the preference procedurally is for the chair to do it. It's all about orderly proceedings. And then for naming in the minutes, that looks like it is the chair's prerogative.

But a member could request it. Okay, thank you very much. And I'll note there's probably going to be—. Thank you. I think there's going to probably be questions that we can't answer in the meeting, and then I think if there's ones that get more complex, I think at least if we can get those questions on the record, and then if it's not possible to easily answer them on the fly, then we can get written responses.

I think I should have said also part of my intent with this presentation, with this flowchart and any other written documents on the process is to put these into the record as an AIM, separate from any other item, standalone, so that whoever has the unfortunate job of being me in a decade or 20 years or whatever has more references than we have now. So, so, so just to say, I think we put the questions on the table. If we cannot answer them today, we will get an answer if it takes some time. So thank you. And next, Mr. Handeling.

Yeah, I was just kind of curious on the require an apology. I mean, if kind of number 3 there is not, I guess, available, I guess, what is the, I guess, consequences if a member chooses not to apologize?

In Robert's Rules, it's sort of, I pulled those words from Robert's Rules about requiring an apology, but it says if there's an apology, well, maybe the situation is just diffused and carry on business. If there's a refusal to apologize, The chair would first give the opportunity to apologize. If that doesn't happen, then the chair directs the clerk to put the member's name in the minutes.

Is there additional script that you're looking at, Ms. Calder? Yes, I have the benefit of looking straight at the rule and not just the bullet points.

So what Robert's Rule says is it might be sufficiently resolved by an apology. If not, any member can move to order a penalty. Or the chair can first ask what penalty shall be imposed on the member. And it is an open question because what Robert's Rules does is give these as examples. It says a motion offered in a case of this kind can propose, for example, this list.

But I think that does contemplate there could be something, some other sanction that would be appropriate as long as it doesn't conflict with what's in municipal code.

Ms. Baldwin-Day. And so just to clarify, the penalty to leave the chambers, because that is at odds with our duty to vote, and that is really why that option is off the metaphorical table, is that correct?

That's the reason I wouldn't recommend it, so I can't really honestly say You're absolutely prohibited from having a member leave the chambers for some offending conduct.

Thank you. And I will just reorient us. These are for offenses committed during a meeting. So these are, you know, during a meeting somebody is behaving inappropriately. We're happy to elaborate on this another time as well.

It's not the chief area of interest today. Mr. Martinez, next. Oh, thank you. Just the last point I was going to ask for clarification on that. These are about essentially conduct during the meetings is what you just described.

And the, the example here, just to read it on the record, the example on the slide says, uh, Mr. J, the chair has repeatedly directed you to refrain from offensive personal references when speaking in this meeting. 3 Times the chair has ordered you to be seated and you have nevertheless attempted to continue speaking. That would be the scenario that we're describing now, one of the scenarios where, uh, out of order in terms of inside of a meeting would be one of these particular penalties applicable. That's a hypothetical situation where this would apply. And again, just to re— to orient you, this work session is about the various disciplinary options that are available to the Assembly.

So, you know, during meetings, outside outside of meetings and have the conduct occurring in both places. Thank you.

Thank you. And I would like to add to what Chair Broaddie mentioned. Nobody really has a lot of experience of these in practice or an application, right? Even these naming a member of minutes, I don't think in this role since 2017 that I'd ever seen that actually happen, although we've discussed it and it almost happened maybe once, twice. A few times, but I think that calling a member to orders probably happened.

I might not have been paying attention, but that's not something we got involved with. But naming a member on the minutes and other forms of discipline we have. I think that we all have mentioned that we've never seen a removal action happen, so a lot of these things we're understanding from our reading of the law in some other jurisdictions and Robert's Rules and so forth. So Robert's rules does go into a little bit of detail about, well, the chair is maybe the one that's misbehaving, right, or not doing the chair's duties, and how do you, the other members, address that. And so I talked to Chair Bragi about this.

We're not talking about her, of course, at all. This is just the options if some chair is misbehaving. Any member can call point of order, you know, do a ruling and appeal. And so the chair is going to rule on the point of order that member calls, that the member that does the point of order asks for it, and then appeals so that body can vote or not, right? If the point of order is ignored by the chair, the member can continue and address the body directly.

Robert's rule said continue standing, you know, standing up. Well, we don't traditionally stand up in our meetings, you know, seated, but I guess we can continue sitting and begin over the chair who's ignored her point of order and just address the whole body. Is my point well taken? The chair's, I guess, out of order. And if the appeal is ignored, the member can just put the vote to the body and call for a vote on that point of order.

Beyond that, Robert's Rules talks about, I guess, removing the chair, but this is where Robert's Rules isn't applicable because we've addressed how to change the chair in our code, and that's by a motion to reorganize. And so that's in 230— actually, it's code 230.10. You know, we have the requirement to annually reorganize or have it on the agenda after each election, right, in April, and we do that. But we also in code provided that a motion to reorganize can be made at any time, no prior notice, so it doesn't have to be on agenda. You can stand up and do it any regular or special meeting.

So you do have to be in a meeting. So this motion just takes precedence over everything else, whatever you're in the middle of, stops, and the body votes. Are we going to reorganize, yes or no? No, no, go back to business. Yes, well, we do the reorganization procedures that are laid out in, um, that section of code.

I guess our next level of expression of disapproval is censure. We've touched on it a little bit. There's a few, I guess, forms. Censure seems to be a bubble term that can encompass, of course, reprimand, admonishment, like you saw in our 2007 presidents. And they take these forms, I guess, in how it's made or when it's made.

Verbal censure, right? Just meeting. Censure by resolution. We're going to prepare it just like the errors in 2007. By resolution, it's much more formal statement by the body, and but it in and of itself, it doesn't trigger doing essentially by resolution or verbally, uh, any due process protections.

So due process would apply when there's like a property right or jeopardy, but that's not the case here. Uh, we were in a meeting and we were conducting a meeting as an elected official.

If though censor is part of disciplinary process, right, where there's consequences or punishment being added, Robert's Rules lays out a more formal way to address that. It says there should be a trial-like procedure where, I guess, because there's going to be punishment consequences, the accused member should be able to make a statement in defense.

There's a little more formal process laid out in Robert's Rules, and going through that, then it finds that we should be imposing some meaningful punishment.

So I'm pausing to see if, uh, Ms. Gardner is reading from Robert's Rules on this topic for now. Thank you. Um, so next, uh, I guess we're just going up the levels of, uh, the severity of these, uh, ways to express disappointment. And before we move to that topic, I think Ms. Scout has a question.

Then I'll just note, you know, throughout— and I, again, we can extend the time if we need to— all questions are fair game, but I think we're trying to get through the information so we can come back. But no, I mean, if you have a question on century, go ahead. Thank you. Um, yeah, is there a definition in Robert's Rules of meaningful punishment? Related to the disciplinary process section?

Um, it doesn't really say meaningful punishment means this or this, but you know, throughout some of the sections it has some examples.

Like Ms. Gordon mentioned, there's removal from committees.

Um, I need to check, but we can send that to you. Um, offline after to the members if you'd like to know what those examples are. That would be helpful, thank you. Absolutely, thank you. Uh, and I'm sorry, I didn't realize how far along we are on time.

I'll try to speed up. I meant to go through the first ones more quickly. So, removal. Um, the legal basis for removal here in Anchorage arises from Army Civil Charter 701B And I'm not going to read this out. I think that many people here have read this as of late.

But that charter provision, though, directs that the Assembly shall enact procedures for removal for breach of public trust. But the Assembly didn't do that until 1993. And now there were, I guess, an S.1 version that passed ultimately after several floor amendments and so forth. And it only though addressed assembly members and school board members. And so in 2022, the assembly filled that gap by passing a resolution— I'm sorry, the ordinance— adding a section for removal of mayor that the charter says removal of elected officials.

So the other elected officials are members of boards of supervisors and service areas that are elected. So we filled those two gaps to complete the charter's command to the Assembly to provide for rules procedures. So here's, I guess, in the section, I just thought this was important about the legislative history and what Assemblymember Campos said about it. 8 Members of the Assembly about to go against other members that are so concerned about Tony's fees and I think other costs, maybe they ought not to start to start the process. But once they start the process, the one who's being accused should be allowed the opportunity to find the best defense they can to protect themselves, their integrity, their reputation based on the accusation.

And if they lose, they will have lost fighting a good battle. This is important, I think, because it leads to a change, I guess, in the nature of a removal process at this point where it becomes an important due process right to have this representation throughout, and we will get into that. So what does the process look like? And there's this beautiful flowchart, and I'm going to give credit where it's due to, um, let's leave Council Mr. Hurt that put this together, and it's been very useful and helpful, and we're going to see snips of it throughout. And I provided a copy to everybody.

I believe it'll be on the work session webpage as well. So the first step is, of course— excuse me, I need my glasses here— accusation being delivered. That's first, though, must have a vote to submit it.

And it can be, I guess, delivered either to the English Assembly or the Board of Ethics. Majority vote by either body is required.

If a majority vote does it, then the accusation is delivered and then it's considered submitted. And at this point, the nature of this proceeding changes. Right? Before that point, it's more of a policy decision and policy considerations. At this point, it becomes an adjudicated administrative matter.

And Did you want to add?

Yeah, so as Mr. Gates said, at this point it switches from the Assembly has made a vote based on, you know, allegations and policy to a legal proceeding. And at that point, this is where I think we've mentioned this in the last Assembly meeting, um, any investigation should really be limited to the prosecuting agency, which would be the Municipal Attorney's Office, uh, or anyone else charged with that investigation. And so at that point, members, you know, to get the accusation document together, of course there must be some suspicion of wrongdoing, right? And somebody has to gather information to build that accusation and include those allegations. And members, of course, are going to be doing that on their own, or the Board of Ethics, or community members bringing that, that to the Assembly or the Board of Ethics.

But that process should end once it becomes a formal accusation, because the Assembly should protect itself and preserve— really protect the universe of information it's looking at. Because at the ultimate end of this process, the Assembly will be called upon to review hearing officer's decision, and at that point you should only be looking at what's in the record there. So this is the point where we kind of drop the gate on Assemblymember investigation. Information should flow through the investigation and the hearing process.

Thank you. And at this point in our flowchart, and for the question about what does the removal process look like, we're calling this day zero. So, uh, throughout that code section there's a number of like times and that things need to be done within. This is in 270.30, that day zero begins.

So next is— oh, oh, I'm sorry, this next slide just continues the language.

Excuse me. It's subsection 30. After the vote to submit, clerk personally serves the accused member and delivers it to the municipal attorney So then Ms. Plottrone gets, uh, gets triggered to do certain things. One is, uh, begin a legal sufficiency review that must be done within 10 days.

If that, um, in the legal sufficiency review, the standard is— it's, it's much like, um, a court process called motion to dismiss. But in that kind of review, um, Ms. Plottrone needs to take all the allegations of fact and assume if these were all true if these were all true, they're all proven, does it match the law that they're accused of violating? That be the result. And so that's the question. And there's 10 days to do so.

If the municipal attorney decides it's not legally sufficient, that's the end of it, except for your right to appeal that decision. So that can appeal to the Superior Court., and then I guess it's left to the judicial appellate process at that point. But if it's found legally sufficient, then this process moves forward here. Excuse me. And the next step is nominating a hearing officer.

SILCO provides that the clerk gets 6 names, you know, in-state, 3 in-state, 3 out-of-state hearing officers that are with the American Arbitration Association, and then the parties, Slaternia on one side, a Jewish member on the other side, the rural council, they can agree on one, or if they can't, they start to do preemptive strikes, so there's no down to one. So they're back and forth though. And then there's the nomination— oh, sorry, I kind of jumped forward the slide there. A hearing conducted by the appointed officer should be held no later than 30 days following appointment. So now, uh, the removal hearing is to be conducted under procedures set forth in Chapter 368 of our code.

So that chapter is called, um, well, excuse me, I don't have the chapter heading, but I think it's Administrative Adjudication. And in this section, the hearing procedures are laid out. I thought it was important to note that whoever is the hearing officer may be established some of their own rules and process, except they must follow these that are here in this section of Chapter 360. And I've actually been in a 360 process more than a decade ago, for the last time I was in one, and so I'm not completely involved and familiar. But if you have questions about that, we did have our Administrative Hearing Officer, who I guess regularly handles these and applies these procedures.

Paul Ervashti, if you want to ask questions about that procedure. But I also want to note in our flowchart here, after that step 2, the Assembly doesn't have a role. You know, this all goes outside the Assembly's purview for the time being. And I want to note the Assembly doesn't have any role in this removal hearing. So our next step— after the conclusion, within 10 days, the officer shall submit written findings and recommendations to the assembly.

The recommendations shall include whether the member should be removed. Excuse me. And then the next section, subsection, that code just defines What's the type of review or of standard of proof for the allegations, for the accusation document that the hearing officer needs to evaluate under the clear and convincing evidence standard? And so a lot of lawyers kind of understand that, but laypersons may not. So I put the three levels that I guess are common here that you may be familiar with.

Most people understand criminal prosecution, you got to prove stuff. Beyond a reasonable doubt to prove someone's guilt, right? And, uh, in civil litigation there's, um, what's called the preponderance of the evidence standard. And that standard is like the parties dispute a fact, they submit their evidence to prove it, and the decision is whether, um, it's more likely or not that fact is true based on that evidence. Clear and convincing evidence standard is somewhere in between the two.

So, and I can't tell you like exactly like a percentage of it, and that's not how that works. I was going to actually try to bring a quote from our Alaska Supreme Court about what that standard means and how it's applied, but I didn't have time to do that, so my apologies.

I guess I would mention that that's the standard that's applied when there's a kind of fundamental rights involved, such as termination of parental rights and things like that.

So the next stage in the process, within 10 days after receiving recommendations, the Assembly votes to remove. Removal shall be only by a concurrence of two-thirds.

Pardon me. So the decision can be appealed within 30 days, but if the decision for removal becomes vacant at 12:01 AM, 7 days following that decision. So while you have pending court appeal, the code lays out some things. If—. Can the court order a stay of the removal?

That might be like one of the first motions that the court receives. And so the code sets out whether grant or stay of removal can appeal, uh, can't depend on the member missing important votes. So that's not a basis, um, to say that's irreparable.

Uh, or— oh, excuse me.

I've missed a couple of clicks on the slides, pardon me, but if that decision is appealed, there's 30 days to do so.

So the next subsection of code mentions that during the stay, unless otherwise ordered, the city shall fill the vacant seats. And how is that done? And according to Section 270.20, filling the vacancy depends, I guess, on what time is the next regular election in the municipality. So if there's less than 30 days remaining in the term of that seat that the member was removed from, you don't fill it. You know, just wait for the election that's coming because it was already coming to the end of the person's term.

We've already got a campaign and so forth going, right? But if there's more than 30 days but less than 6 months before the regular election, we're not becomes vacant by removal, the Assembly may appoint in the interim, but they're not required to appoint. We had this sort of discussion in 2018 about whether we should appoint when we're having a special election to fill it, and I guess we landed on— we amended this section— we don't want a seat to remain vacant for too long, so appoint someone until the election's done and someone is elected to fill it, and then we appoint again. Meet. Anyways, if though there's more than 6 months before the next regular election, the Assembly may appoint— not required, but they are required to call for a special election.

So, um, removal— important, I guess, considerations and issues, because this has never been done before. We're trying to make sure we understand all the things that may come up. So one thing is, is members conduct in a private capacity versus when they're acting in their role as Assembly members? Is there a difference there in facts for the removal and the grounds for removal? We're not answering that question here today.

That might be part of a whole process, the hearing officer's recommendations. Should there be an executive session or not? And there's discussion of these things. And, you know, it of course does pertain to the accused member's character, the reputation, the actions they've taken. And so of course our Opa meanisa provides for an executive session in those circumstances, but it does require the person to have the option to say, no, I want this to be out in public.

And so that's one of the things. Then there's the Projected expense, you know, this is an elaborate process. It's not going to be, I guess, I mean, there's going to be a dollar value attached. We tried to provide some range of magnitude projections that will come up later. And what happens after a vacancy, we addressed that.

But I just wanted to emphasize again, removing is actually affecting franchisee voters who elected this person to represent their district Right. And from the last portion, that's about 48,000, a little over 48,000 residents each district. So it's important that I'm not going to be represented. And if we can briefly go back to the prior slide, Ms. Baldende has a question. Actually, it's several slides prior, but I think I can articulate the question without us needing to flip around.

So I understand that there are different standards, evidentiary standards that are applied. Is there a particular standard that is used to determine legal sufficiency at the beginning of the process, and how is that determination made?

Yes, thanks for the question. Yeah, so we do legal sufficiency reviews on other things. For example, if somebody, if a citizen presents a ballot initiative petition, we have to look at that, say, hey, is this something that legally they could put on— could be put on the ballot in this format, in this— through this mechanism. But for this one, we would look at it the same way we would consider legal sufficiency of review of a complaint filed in court, which is essentially under a specific court rule, 12, where you look at it and you say, does it state a legal claim? These are allegations.

We don't know yet if they're true or not, but Assuming they're true, would they state a violation of the— a breach of the public trust under code? So we'd look at them, assume they were true, and then apply that review. So it's a pretty technical review. It's not— we don't have a lot of discretion in it. It's like, does it state— does it qualify or does it not qualify?

So I want to be sure that I heard you correctly. So the The, the legal sufficiency question is if every fact in this complaint is true, is there a law that— or a standard that has been violated? Is that the legal sufficiency test, essentially? Yes. Thank you, that's helpful.

Ms. Park, go ahead. Thank you, Chair. Um, you brought up Rule 12, and I'm wondering whether there is consideration as to whether the complainant has standing? That would be my first question.

So here there's a specific process outlined in code to bring it, so standing I don't think is something that we would be looking at here, because if it has gone and voted on by the assembly, standing really speaks to do you have procedural or legal, legal right to bring this claim. And so since code lays out a process and this would be coming to us through theoretically through an assembly vote or through the Board of Ethics, as long as it followed that process, then we would not have to consider that. If a citizen, you know, sent in an accusation under the removal statute, we wouldn't consider that because they would, I guess, not have standing. And okay, my second question is, um, the hearing officer still on the municipal level, it's an administrative law judge and not a district or Superior Court hearing officer? Yes, so our— we internally to the municipality, we have an administrative hearing officer who is appointed and confirmed, appointed by the mayor, confirmed by the assembly, who serves a set term.

That is not who would be conducting a hearing under the removal procedures. So this procedure to ensure a completely independent tribunal requires us to go to a state or a national organization, maybe international, AAA arbitration organization, and pull an arbitrator or a hearing officer from their ranks to come in. So it'd be an independent individual that we'd have to separately retain. Thank you. Yeah, so we have our hearing officer here just to answer any questions about the process that would be in place that that hearing officer would have to—.

Thank you. And I'll just note, so first, just a reminder, I know there can be an echo on microphones for folks on the phone, so just take a look if you're not speaking to make sure to turn them off. I heard a little bit of, a little bit of scratchy noise there. And then also we are at 3:13, so I'm going to ask if there's any objection to extending to 3:30 at this point. Okay, yeah.

If folks have to leave, they can leave, but I think, yeah, we're in the middle of this. So, okay, any other questions before we move on? Okay, so please proceed, Mr. Gates. Thank you. You know, I would often hear officers from the American Arbitration Association or otherwise, they're often maybe a retired judge or someone with extensive experience.

This recruitment, of course, you've got 6 and the parties will probably choose someone highly qualified. We're going to see the resumes and backgrounds and so So our next slide was about the costs, cost considerations, because removal is of course not a simple and light process. It's not calling a member on the floor and point of order, right? Huge difference there. And so we tried to estimate some things.

Um, I mean, today we've been looking at this issue and these procedures and maybe spend over 110 hours combined. I guess that's attorneys, some staff support, maybe from clerk's office. We asked some people to estimate their time, so that's just an approximate to date. Um, now I guess I have this investigation part. That's because we're not talking about them, but in terms of costs, there's an independent investigation before and preceding I guess, the initiation, we've estimated maybe when the attorney would work full-time on it during that short duration, but would need also some support, it was about 1.5 during this whole period when that's going on.

Oh, the table I put in below is the removal process. Once it's, I guess, initiated, as submitted, There's certain things that occur from this flowchart from day 0 to day, uh, 71, right? Or actually day 94 if there's an appeal. Um, there's an attorney for the accused, and it's hard to judge— these are very rough ballpark estimates— $50,000, $100,000 for that whole period. Uh, the municipal attorney has two steps, right?

Legal sufficiency review and then prosecuting the matter.. And so we kind of separated those out because efficiencies were shorter. Well, in short, you can look at the table. I just wanted to mention that appeal costs. There's of course an appeal to Superior Court provided here, two different points, but there's also the Superior Court, you know, their decision can be appealed to the Alaska Supreme Court.

And so this estimate is based on all levels, you know, Superior Court, Alaska Supreme Court. I don't think we consider that going beyond— jurisdiction, but I think that was sufficient for this estimation.

There's also, though, at the end, I would ask for considerations of what's the cost expense because they're filling the vacancy. There's a special election for a single district. I got this estimate from the clerk's election team, about $160,000 to do all of them for my mayor election. But if the special election to fill is concurrent with the regular election, they said there's not really much cost, just adding one race into a ballot you're already producing for the regular election. And I would just mention that if it happens to occur at the end of the term, that's the regular election, you were gonna have an election for that seat anyway.

That's just a regular election. But if, I guess, it's like the first or second year into that 3-year term, it's a special election, but you run it concurrent with the regular elections. And so I think, and if you put a separate ballot, cheating, that's up to the clerk. But again, it's just a nominal cost. So that just kind of relates to timing for the charter.

And I'll just briefly note, we're not talking about vacancies at this point. There are plenty of recent precedents of a seat that was vacated before the end of a term, people getting elected to other offices, other situations, at least one person stepping down. So there's plenty more. We're not—. That's obviously a separate question altogether, but there are other pieces to that.

So we've all lived that in recent years. Thanks.

Absolutely. Yeah, I'm not saying the vacancy isn't necessarily a removal process thing, absolutely. But if it ends up one way, you need to fill it in. Absolutely. And then I guess there were some questions floating around about, well, what's the difference between removal and recall?

And I thought it important to sort of distinguish the grounds that are set out in law for these, you know, breach of the public trust. In our code section, there's a long specific list, but first is sort of a catch-all, the first two bullets: willful and knowing breach of duty and capable Culpable indifference to official duties. And, uh, in drafting this section in 2022, we sort of looked at, um, some municipal law treatises and common law, and those things seem to be important. But you can find all these specific offenses which we have, and I think all the members, uh, I mean, Essential Communication sort of lists these out as well, and, uh, uh, specific statute or that they cross-reference. But recall grounds are quite different.

Um, there are not— the grounds aren't detailed. There's actually a single sentence, and these words in these bullets are the majority of that single sentence for the grounds of recall. But, uh, I have done a few opinions when I worked in Ms. Plantoni's office about recall grounds, whether sufficient or not, like Ms. Garner described earlier for legal sufficiency. But misconduct in office, um, It basically means you violated some code or duty you have, and we see this often brought up in the Open Meetings Act context, which is why, you know, your lawyers are always saying comply with the Open Meetings Act, we don't want to subject you to recall, and give your detractors some grounds to start. So, you know, try to comply with the Open Meetings Act at all times because that seems like the easiest grounds for some people that just don't like an assembly member to proceed if they find it.

So it doesn't have to relate to anything else, but they can't just bring you grounds for recall because they don't like your votes, they don't like your legislation, or they don't like you as a person, or they don't like your tie. I mean, of course they can't be ridiculous. Misconduct in office. So incompetence is where, you know, you've grossly mishandled some duty that you were charged with. And there's a few AG opinions on that.

One that I recall was Lieutenant Governor was subject to recall and this alleged his competence because the Lieutenant Governor runs the state elections and this one just did this horrible job at it. So that was the grounds to recall them. Failure to perform prescribed duties. I guess that's sort of a straightforward reason, but this doesn't cover a lot of the grounds that are, I guess, provided for. In the removal grounds.

So I thought that was a slide that might answer some people's questions. And so Ms. Gardner wanted to add some remarks here at the end about the practical considerations and these approaches. Thank you. And this is, I think, the last slide with actual information on it. Um, just wanted to give a few suggestions for any process whether it's censure or removal when you're taking disciplinary action potentially toward a member.

And so one is to— the first half of the slide is just keeping in mind what the goals are. You want to ensure that the assembly, if it's taking action that is going to affect somebody, is acting based on reliable information. You want to promote fairness, and you want to provide transparency for the public so they understand what you're doing and why, or if you're not doing anything, you know, why that is. And so the recommendations we have that are generally recommendation to investigate before you take an action. So our office, internal audit, outside investigators— there are a lot of resources available or that can be made available to investigate a suspicion of wrongdoing, a concern, or an allegation to really pin it down and then bring that information to the Assembly, allowing an accused member, member accused of misconduct, to respond to the allegations.

In the course of that investigation or at the time the Assembly is contemplating taking an action is also a good idea that promotes fairness, but it also helps ensure that you have reliable information because there are always multiple sides to every story. It's good to hear what the other side is before you take a— take action. And finally, making sure that again, in the interest of transparency, if there is an investigation or anything that you— that the Assembly directs that to the extent possible it's made available to the public again, so the public understands what you're doing to govern yourselves. Thank you.

Thank you. So I believe that's the end of the presentation. Are there additional questions?

Ms. Baldwin-Day. Thank you. I, I'm curious, um, at what point in the proceeding— I mean, is it at would it be at the submission of accusation to the clerk that ex parte communication would start to be a factor in this process? Like, at what point should we start— would we start to be aware of ex parte communication? Since I'm sort of envisioning this as a quasi-judicial proceeding or similar to that.

I think at the time the Assembly votes to move forward with an accusation, then that is something where the Assembly has authorized it. It is now off and running. And so at that point in time.

And then are there—.

What are the, what are the considerations around— does following this process as it's been laid out, does that satisfy the requirements of due process, or are there other considerations that we ought to be aware of? Are you asking specifically for removal? Yes. Yeah, for removal, Municipal Code builds in due process. So that is the reason why the member whose conduct is at issue is given a defense attorney.

They get to choose who that attorney is. It's totally up to them. We have no say in it. Nobody— Attorney's Office, Assembly— no one has a say in who that is. And the municipality pays for it.

And so that, you know, due process, and we, uh, yeah, that, and they have a right to participate at the hearing, of course. Thank you. And, and then my, I think my last question is with respect to executive session, uh, which is something that we as a body have the ability to request, especially with sensitive topics or something that might, um, I'm going to forget the exact phrasing, but potentially injure the reputation of an individual. What recommendations or suggestions do you have with respect to the use of executive session in either a censure or a removal proceeding?

I would say we'd probably need to consult more closely if there's a specific situation at issue, but I think it would depend on the reliability of the information that is under discussion.. For example, if it is a court finding against a member, that's one thing, you know, repeating that publicly is not going to raise any concerns about reputation that don't already exist. So I would say that would be a case-by-case determination, as it always is when just thinking, considering reputational concerns for executive session. Okay, thank you. That's helpful.

Thanks. And, uh, just to follow up on that, um, can you restate, because I think Mr. Gates, you said it, or or Miss Gardner, you might have said it, the opportunity— yeah, and I don't know if he was saying the same thing, but I think there was— because we've had this come up before regarding a board or commission appointment, and they had the opportunity to have it discussed in public. So can you clarify how that relates to the executive session piece? Yes, since the— if the reason for going into executive session is concern about affecting an individual or multiple individuals, reputation, you do allow them the opportunity to request that the discussion happen publicly, and if they exercise that option, then it can happen publicly because you're doing it really to protect that individual.

Mr. Gates. Uh, thank you. I just wanted to add to, uh, Ms. Gardner's response about the ex parte question that Ms. Bauboundé had. And it's important to understand it's a subject matter restriction. So, uh, I mean, it's a removal process for one of your colleagues, right, um, on the body, but you are also continuing to have meetings and pass legislation and take votes, and those things are all fair game.

But ex parte prohibition is on anything about the removal process, you know, what's in the accusation and so forth. So it's a subject matter restriction. You could talk about, you know, I don't know, all the other topics that you guys handle, appropriations and all.

Okay, next I have Ms. Silvers.

Um, so suppose the Assembly were to vote to authorize an investigation, uh, does the Assembly play any role in that investigation? Do they do they dig up information? Do they subpoena people?

Do they speculate? Like, what is the Assembly's role once that happens?

So I think that the Assembly conveniently has subpoena power. For example, the Municipal Attorney's Office independently, outside of a court proceeding, cannot subpoena anyone. So I think that the Assembly could play a supporting role in authorizing the use of subpoena power. And other than that, I think any information that Assemblymembers come and happen to identify, I would say direct it to the office or individual charged with conducting the investigation so it can be explored and examined properly. If the investigation is occurring prior to the filing of any removal doc— you know, the approval of any removal document, then there aren't really the same ex parte, you know, concerns as would happen once we're in formal removal proceeding world.

But it would still be generally for an investigation, you want to have somebody who's lead going forward with it so that you don't have crosswires and different answers coming from different places. So, and even once they're— if an accusation document were filed and submitted, if a member comes into possession of information that might be useful, you know, forward it to whoever's doing the investigation, and they can pursue that lead. So it's still appropriate to direct information, but mainly you want to make sure all the information is directed to the investigation.

Thank you.

Thank you. I will note, um, we're at 3:28. I'm going to suggest that we extend one more time to 3:45 and make sure we get questions answered. If—. And of course we can end if needed before that, but I want to give everybody an understanding of time.

Okay. Other questions from members? And I'm keeping an eye on the phone. I haven't seen anybody, but if I missed someone on the phone, please speak up as well.

Okay. I do have one question. So just to be clear, I think you provided a list, and this is in the— really the context of removal, but I think in all of them. You provided a list of, in some sense, in some cases, examples like in Robert's Rules, in our code there's a clear list of justification, some of which are specific, some of which are broad, and so I guess the question— and then of course, you know, an investigation happens or there's accusations that are delivered and so on, so I guess the question is who, at the end of the day, who decides what sufficient grounds are to act in these various situations? And I know that's a broad question, but I think for— it seems like for anything involving the Roberts Rules and those kinds of things, that is really the purview is the members' discretion and the information.

Is that correct?

Yeah, I think under Roberts Rules, it's up to the body entirely. I think in the removal process, there are a few different points where the Assembly is acting as the gatekeeper. So initially the Assembly would have to vote to submit the accusation, and that could be based on facts, it can be based on policy, right? There could— if the alleged violation is minimal versus really severe, you know, that could play into the Assembly's decision because it's not a mandatory obligation. It doesn't say the Assembly shall remove anyone, you know, who violates, who breaches the public trust.

It just as you may. So it's that initial decision to vote to submit that accusation, and then it's handed over essentially to the hearing officer who looks at the evidence and makes recommendation. And then if the assembly— assembly looks at it again at that point, and if code says that if they're going to depart from the recommendation of the hearing officer, they have to show good cause. So there are a few different points where the assembly comes in.

Thank you. Yeah, so at the end— oh, go ahead, Mr. Gates. Oh, I would just add, for the Robert's Rules display and, like, um, calling the member in order or naming the member in the minutes, uh, it is part of that, um, appeal and vote process, right? If you reach a ruling, vote on it, it's the body. And then the censure is only done by a vote of the body.

Thank you. Other questions?

Okay, and just checking one more time, I don't see any on the phone. I know some members had to step out, um, so I guess I'll turn back to the attorneys if you have any other closing comments. I'll say about 30 seconds and then we'll be done, so please feel free if you have anything else to add to it. No, I just— as always, we're happy to talk one-on-one, and I am as well. So email if you have questions, happy to answer them, and Thank you all for being gracious audience.

Yeah, thank you. And I know there were, I think, a couple kind of follow-up questions, so we'll just look to the attorneys. And again, members can certainly avail themselves. And if you have questions about the administrative hearing process, that would be our administrative hearing officer, Mr. Ravasti. Bueno was not presenting today, but that's also in our code.

So I will just wrap up by saying thank you again so much for your staff, or to the— it's for the staff for your work on kind of sorting all of this out. And then I'll end where I started, which is to say the focus of this meeting has been to discuss process and really help members fully understand and have some more kind of documentation of what that looks like. And again, I think the— this was in the realm of what the Assembly could do as a body. And so I think that the separate questions of what the Assembly should do on any particular case. That is something that we can and will be taking up at another time, but that is something that ultimately sits with the members, as long as we all understand the rules and the process before us.

So with that, don't think there's any other business today, so we will be adjourned. Thank you everyone and have a good weekend.