An investigation into four Palmer City Council members, including Julie Berberich who is up for re-election on Oct. 5, has found that their participation in a private Facebook group likely violated Alaska’s prohibition against elected officials meeting in quorum to privately discuss matters they are empowered to act on.
The report, which was obtained by the Watchman, was conducted by attorney Scott Brandt-Erichsen and sent to Palmer City Manager John Moosey on Sept. 15. In addition to Berberich, the investigation involved actions taken by City Council members Brian Daniels, Sabrena Combs, Jill Valerius.
The report notes that the four elected officials were all members of the private left-leaning Facebook group, Mat-Su Moms for Social Justice, an association of 350 members that controls who has access to the group. The group advocates for far-left political and social issues such as critical race theory, community oversight of police, mask mandates, Black Lives Matter protest marches and more.
At the Aug. 24 city council meeting, Mat-Su resident Mike Coons raised concerns about council members engaged in the private online group. The city council then directed City Manager John Moosey to hire an independent investigator to look into whether the four council members violated Alaska’s Open Meetings Act.
Investigator Brant-Erichsen reviewed more than 100 screen shots from the Facebook group, which included dozens of conversations on matters the city council had authority to act on. This includes posts about mask mandates, police oversight boards, voting by mail, open seats for local boards and commissions and more.
While Brant-Erichsen was unable to view the Mat-Su Moms for Social Justice page directly, the screen shots revealed at least two instances in which all four city council members in question were either discussing or “liking” comments that directly pertained to mask mandates and board vacancies. Many other posts showed at least three members discussing public policy matters.
Brant-Erichsen said there is “no real question that the exchanges on Facebook” were “not made with notice of the date, time, place and location of a meeting” as required by the Open Meetings Act.
According to Alaska Statute, a meeting by a public body is considered a “a gathering of members of a governmental body when more than three members or a majority of the members, whichever is less, are present and a matter upon which the governmental body is empowered to act.”
Brant-Erichsen focused in on two instances in late 2020 which he said raise serious concerns. In late October 2020 there was a Facebook thread about a proposed mask mandate being pushed by the four council members. The full city council later took this issue up at a Nov. 8 meeting which generated considerable public opposition and was ultimately rejected after multiple nights of extended and passionate public outcry.
“I believe that a court would find that the discourse in the Facebook group with a quorum of the city council members participating, even if not fully debating the public policy issue, constituted a meeting under the OMA (Open Meetings Act),” Brant-Erichsen concluded. “Further, I believe that a court deciding the issue would find that the lack of public access and notice for that meeting violated the OMA.”
He added that subsequent full consideration of the mask mandate over several public meetings “remedied the violation.” He also observed that it has now been more than 180 days since the violation took place so it would be “too late to challenge the validity of the action based upon an Open Meetings Act violation allegation.”
The other instance involved an Oct. 15 Facebook discussion on filling vacant boards and commissions, a specific duty of the city council. While this post included likes and comments from four council members, Brant-Erichsen said it was “less clear” whether this was an OMA violation because he could not identify whether any actions were brought up for a vote.
Violating Alaska’s Open Meetings Act through private online groups is new legal territory, Brant-Erichsen observed. That said, he believes a court would find that some of the actions by Berberich, Combs, Daniels and Valerius violated state law.
“The courts in Alaska have not addressed the issue of whether a person posting a social media comment or just a ‘like’ on another person’s comment constitutes consideration of a matter,” he said. “Where one or more council members does not make any comment other than posting a ‘like’ it may be argued that they are not engaging in any collective consideration.”
Brant-Erichsen warned, however, that courts in other states have found violations of similar open meetings laws when a quorum was present even if elected officials were not “actively engaged in the discussion” but merely participating in “some level of discourse on the issue of public policy that is being presented.’”
Here he cites a 2018 Michigan case and a 1985 Alaska Supreme Court decision, Brookwood Homeowners v. Municipality of Anchorage. The Alaska Supreme Court said a “meeting” includes “every step in the deliberative and decision making process when a governmental unit meets to transact business,” Brand-Erichsen stated. Applying the two cases, he said there is a “substantial likelihood that the Alaska courts would follow this reasoning” and find that the Palmer City Council members did, indeed, break the law.
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In conclusion he said the council members’ Oct. 2020 online discussion “raise serious concerns about OMA compliance” and that it “appears to have violated the OMA.”
The investigator recommended council members “not participate in communications by social media, e-mail or otherwise where a quorum of the council is included in the communication” and they are privately discussing matters they have authority to act on. Doing so, he said, poses “several risks,” including breaking Alaska law and the danger that local residents could file recall petitions against council members.
“The Alaska Supreme Court has held that compliance with the [Open Meetings] Act is a duty of office, and that violation of that duty is sufficient grounds to form the basis for a recall petition,” Brant-Erichsen concluded. “If allegations are properly made in a petition, the voters would be the judge of whether, in fact, the acts alleged constituted an OMA violation.”
Several Palmer citizens filed recall petitions for the council members in question. While the first petitions were rejected on technicalities in September, they have been refiled and are awaiting approval by the city clerk’s office.
READ THE INVESTIGATIVE REPORT