Measure to repeal borough stream ordinance withdrawn over open meetings concerns

A Kenai Peninsula Borough Assembly member’s attempt to introduce an ordinance that would have undone an expansion of the borough’s anadromous waters habitat protection ordinance was foiled by an unlikely source: the “reply all” button on his email.

Newly elected assembly member Kelly Wolf withdrew Ordinance 2013-03 from introduction Tuesday night citing concerns from borough administration about possible violations of Alaska’s Open Meetings Act.

Wolf’s measure would have rolled back borough code to protect just the previously listed 25 waterbodies under the borough’s anadromous streams habitat protection ordinance passed by the assembly in 2011. It also would have called for an administrative review and assessment of the benefits of enforcing and regulating the entire anadromous streams habitat protection code.

“The integrity of this process needs to be upheld,” Wolf said during discussion at the borough’s lands committee meeting Tuesday afternoon.

“I very strongly believe that and it was not my intent to see a violation of the Open Meetings Act.”

Borough Clerk Johni Blankenship told the assembly the reason for her concern about the ordinance came from an email sent from a borough resident to the assembly members to which Wolf replied back to all assembly members.

“If you want to reply to the public members you obviously have the right to do that, (but) the importance is that you do not reply to the rest of the assembly,” Blankenship said.

“You simply reply to the public member and me so that it can become part of the record.”

According to a state of Alaska webpage on the Open Meetings Act — statute 44.62.310 — a meeting of a policy-making body occurs when a majority, or more than three members “engage collectively in discussion of a subject that the body is authorized to act and set policy on.”

“Under this definition, it doesn’t matter where the meeting occurs, if it was prearranged, or who arranged it and could include unplanned casual or social contact,” the state’s explanation reads.

Assembly President Linda Murphy said she was concerned about moving forward with legislation that could be “tainted” by the possible violation and could be challenged in court despite Blankenship’s efforts to cure any possible violation by entering the emails into the public record.

“I only know what I saw come through my server, so I don’t know what else might have taken place,” Blankenship said. “The concern is that there is debate happening, or argument through the email that the public isn’t privy to, which is why I remedied that by copying the whole discussion and making it part of the public record.”

Murphy also said she was concerned about the intent of the ordinance.

“I just think this is premature because the task force is still working,” she said.

“The ordinance that is currently being adopted might not be perfect, but it’s fixable in my opinion and I think we need to wait and let the task force do its job and come back to us with recommendations. Often we let the perfect get in the way of the good.”

Brian Smith is the city editor at the
Peninsula Clarion.