Session 08-15 a Special Meeting
of the Homer City Council was called to order at
PRESENT: COUNCILMEMBERS: HOWARD, NOVAK, ROBERTS, WYTHE, SHADLE
ABSENT: HEIMBUCH
(Excused)
STAFF:
DEPUTY
The Committee of the Whole
meeting was cancelled due to lack of a quorum.
AGENDA
APPROVAL (Only those matters on the
noticed agenda may be considered, pursuant to City Council’s Operating Manual,
pg. 5)
The agenda was approved by consensus of the City
Council.
3.
A. Appeal
of City Manager’s Denial of Request to Inspect Public Records – Frank Griswold
Mayor Hornaday explained that this is an appeal by
Frank Griswold of the decision by the City Manager denying Mr. Griswold’s
request on
ORAL ARGUMENTS
Mayor Hornaday recommended the Council hear oral
arguments and grant each party a total of 30 minutes if needed. The Council was
in agreement.
Mayor Hornaday apologized for the delay in starting
the meeting, explaining that they were waiting for Councilmember Wythe to
arrive.
Frank Griswold stated that as a preliminary matter he
thinks Mayor Hornaday has a conflict of interest due to the fact that his
emails are part of the public records request at issue and the fact that he
signed the brochure that is the subject of the APOC complaint that is
significant to the public records request. Further, prior to this meeting Mayor
Hornaday made, what Mr. Griswold believes to be a derogatory and prejudicial statement,
when Councilmember Shadle said Mr. Griswold might complain if the Mayor delayed
the meeting and Mayor Hornaday’s response was “I think you can count on that.”
For those reasons Mr. Griswold feels Mayor Hornaday should stand down.
Mayor Hornaday referred this to Mayor Pro-Tempore
Novak and stated that he does not recall any emails. Mr. Griswold responded
that he does not know that. Mayor Hornaday stated that he did sign the letter
on the brochure and made some verbal requests as he wanted the brochure to be
fair and balanced. The only changes he is aware of that were made based on his
verbal request was regarding the question of whether there would be at tax
increase. The changes made at his suggestion were that this Council did not
contemplate a tax increase based on the information for this project, but this
Council could not bind future Councils.
Mr. Griswold stated the emails he requested were not
specific to APOC, the brochure or anything else, he requested all the emails
from
Councilmember Wythe arrived at
Mayor Pro-Tempore Novak stated his opinion that
conflict of interest is not a relevant point in this hearing. If they are going
to vote on it there is not a possibility of the Mayor weighing in on the vote
as there w
City Attorney Tans responded that he has no reason to
contradict Mayor Pro-Tempore Novak’s comments. He briefly outlined the
hierarchy of the City Council, City Manager, and employees; and stated in a
sense they are all responsible for the records of the City, including the
emails. He doesn’t see this as a reason to disqualify any of the Council from
deciding whether the City records should or should not be disclosed.
Mr. Griswold stated objection to Councilmember Wythe’s
participation because of her extraordinary involvement in the town square
project which is significantly related to the brochure, which is at issue and
ties to the APOC issue and ties to the public records request. He read from the
memorandum that was provided as an attachment in his reply regarding the Robson
Case, stating that the key factor here is this is a quasi-judicial proceeding
and it is very important that all members not only be impartial but that there be an appearance of impartiality.
He added that Councilmember Wythe w
Mayor Hornaday asked if her participation and experience
would in any way affect her decision in this matter. She responded that it
would not. Mayor Hornaday referred it to the City Attorney. City Attorney Tans
responded that based on Mr. Griswold’s comments, in his opinion there is no
ground. He referred to the memorandum of the Robson Case on page 13 of the
supplemental packet in which the Attorney General States that generally bias
about issues of law or policy is not a ground for disqualification. He added
that per the memo, bias or prejudgment about issues of fact in the case is a
ground for disqualification as is bias or prejudice for or against a party to a
proceeding. He does not believe either of those two things have been alleged. Mr.
Griswoldargued that the records request could reveal evidence that w
Mayor Hornaday stated he found no basis to disqualify
Councilmember Wythe.
Mr. Griswold stated the right to cross examine is an
integral component of fairness in constitutional and administrative
adjudications and he requested to question the City Manager. No objection was
raised. Mr. Griswold asked that the City Manager be sworn in.
City Manager Wrede was sworn in by Mayor Hornaday.
City Manager Wrede stated his full name, address, and occupation for the
record.
Mr. Griswold said Mr. Wrede’s response brief states
that it is a clarification of the record. Mr. Griswold asked who prepared the
record or would he agree that City staff prepared the record, not Mr. Griswold.
Question was raised regarding procedure. City Attorney
Tans responded if getting this into the record is part of Mr. Griswold’s
presentation then it is appropriate.
City Manager Wrede responded that if he said it is a
“clarification of the record” he meant to say it is a “clarification for the
record.” He intended to clarify some of the points Mr. Griswold made in his
brief that were erroneous and misleading.
Mr. Griswold asked if City Manager Wrede would agree
that all public records requests seeking to uncover malfeasance on the part of
the City to some degree could constitute harassment.
Mr. Wrede responded no.
Mr. Griswold pointed out that City Manager Wrede
refers to the harassment clause, he asked if that harassment clause occur
anywhere in city code.
Mr. Wrede responded that there are plenty of times
that he agrees with everything Mr. Griswold said at the end of his brief where
he had all the lofty quotes regarding access to government and the rights of
people. But here things have to be taken in context. There is some history here
and things have occurred that lead City Manager Wrede to believe that there was
more to Mr. Griswold’s request than just asking for information.
Mr. Griswold asked where City Manager Wrede found his
definition of harassment and what criteria did he apply to deem it a harassment
request.
Mr. Wrede responded he is not sure where the language
came from, he thinks it is something that was already in the regulations and
adopted in 2003. He doesn’t believe he had anything to do with writing it. In
reading the definition, you w
Mr. Griswold asked how he or anyone else could know
City Manager Wrede acted in good faith other than his say so.
City Manager Wrede said he couldn’t answer that.
Mr. Griswold asked if a member of the media made the
same records request if he would have denied it.
Mayor Hornaday stated that is hypothetical and
disallowed the question. City Manager Wrede requested the opportunity to
respond to it.
City Manager Wrede said if a member of the media made
a request like that, out of the blue without history, he would have followed
the normal procedures in the regulation. He would go back to the requestor and
ask if they could be more specific, advise them this w
Mr. Griswold asked if he denied it because he thought
it might turn into harassment.
City Manager Wrede stated that he denied it because it
was already harassment. Mr. Griswold had been harassing the Clerk’s Office, a
person in City Manager Wrede’s office, making accusatory statements, statements
that were unfounded, accusing people of doing all kinds of things like lying
and cheating, deleting and editing emails, and unfortunately there was a very
familiar pattern that was forming. When Mr. Griswold submitted his new request,
City Manager Wrede said it raised all kinds of suspicions in his mind because
there were a lot of old issues that had already been dealt with, namely Mr.
Griswold’s unw
Mr. Griswold said considering the fact that City
Manager Wrede’s emails are being requested and the fact that he is a strong
advocate of town square and his wife was involved in promoting town square as
part of the Friends of Town Square, it seems like a conflict of interest for
City Manager Wrede and he wonders why City Manager Wrede didn’t delegate this
to another City Official who has less conflict.
City Manager Wrede responded it is his job as the City
Manager to carry out the instructions and w
Mr. Griswold clarified his question was since his wife
was part of the advocacy group for it and his emails are being requested, why
didn’t he delegate the public records request to another City Official as is
provided by code.
City Manager Wrede responded that as mentioned in his
brief he wanted to give Mr. Griswold the option to talk to him about the request
or come to the Council. He felt that if he delegated, it would just raise other
issues.
Mr. Griswold asked why the City couldn’t provide him
with the email document without Anne Marie Holen’s hand written note on it.
City Manager Wrede responded that in hindsight it was
a mistake and he agrees with that. Special Projects Coordinator Holen was
trying to be helpful and didn’t want Mr. Griswold to waste a lot of time. Those
emails were about a postcard that never happened. It ended up being rejected and
she wanted to let Mr. Griswold know that those emails were about something that
didn’t happen.
Mr. Griswold said that when he requested it without
the written note he was told the email had been deleted and was no longer in
the City files. The Deputy City Clerk Krause told Mr. Griswold it had been
deleted. He wants to know if City Manager Wrede ordered the emails deleted, or
what happened to them. He asked City Manager Wrede if he had ordered any emails
deleted.
City Manager Wrede responded he did not.
Mr. Griswold asked if the email is recoverable.
City Manager Wrede responded he doesn’t know. He
thought Mr. Griswold received the email and that it had been a miscommunication
between the City Clerk’s office and Ms. Holen if she had the document.
Mayor Hornaday requested clarification regarding which
email they were discussing. Mr. Griswold responded that Ms. Holen added a note
to the email, he can’t give it to APOC with a note on it, and he can’t legally
take the note off. He asked for a clean copy and he was told the email no
longer exists, it has been deleted. So Mr. Griswold said he is thinking all kinds of emails are
being deleted. That is why he made the request because if he let it be known
that he wants these emails and someone intentionally deletes them, then he
believes it is obstruction of justice. He talked to the Anchorage Clerk, they
have training on this and they are not allowed to delete emails and their
emails are in their computer base. He was told that this email from Ms. Holen
doesn’t exist and he thinks there are some concerns that need to be addressed
there.
Mr. Griswold read from the City Manager Wrede’s brief
which stated “Mr. Griswold jumped to the conclusion that the staff must be
editing all kinds of things.” He asked if it ever occurred to City Manager
Wrede that he just wanted the email. Why did City Manager Wrede come up with
the conclusion that he jumped to something, how does the City Manager know what
he jumps to.
City Manager Wrede responded that it is by reading Mr.
Griswold’s emails. His emails give the impression that Mr. Griswold has already
formed a conclusion that the City is doing things wrong, covering things up,
and deleting things.
Mr. Griswold interrupted and said in fact they were. When
City Manager Wrede redacted the comment, he argued, so City Manager Wrede
finally admitted it was wrong, and because Mr. Griswold argued it shows that he
is harassing. Mayor Hornaday interrupted and asked Mr. Griswold if he had any
further questions.
Mr. Griswold asked why City Manager Wrede thought
redacting the “guess who” remark would keep him from being provoked, instead of
being provoked.
City Manager Wrede responded that it obviously had the
opposite effect. He takes full responsibility for it. At the time it seemed
like a good thing to do to avoid an issue that didn’t need to be there, but it
created an issue.
Mr. Griswold said City Manager Wrede made the
suggestion that the guess who remark be redacted to save Special Projects
Coordinator Holen from embarrassment. He asked if City Manager Wrede thinks
this is a valid reason to redact or withhold information from the public.
City Manager Wrede responded no.
Mr. Griswold asked what provision of chapter 1.80
would exempt the release of a complainant’s name to the complainant.
City Manager Wrede responded he doesn’t think there is
any section that addresses that. It is a judgment call.
Mr. Griswold noted the brief says “He became so
focused on the fact that something was redacted that he appeared to miss the
whole essence of the emails before him that address the question he raised with
both APOC and the City.” He asked how City Manager Wrede knows what he focused
on or whether he missed the whole essence of something.
City Manager Wrede responded that he was going by the
original records request in which Mr. Griswold asked for any documents or
invoices or anything that had to do with the production of the Q&A
document.
Mr. Griswold asked if, to the best of his knowledge,
City Manager Wrede knows if Mr. Griswold’s APOC complaint is pending.
City Manager Wrede responded they are not actively
investigating right now.
Mr. Griswold restated his question.
City Manager Wrede responded it is a play on words.
Mr. Griswold asked if an investigation could occur if Mr.
Griswold wins his appeal.
City Manager Wrede responded yes.
Mr. Griswold said, regarding the April 1st
request, City Manager Wrede states that all relevant documents were produced to
the best of staff’s knowledge. He asked if it is possible that some relevant
documents were not produced.
City Manager Wrede responded yes, but that is not what
Mr. Griswold asked for.
Mr. Griswold asked if there are City procedures for
the destruction of electronic records such as emails or other public records in
electronic form. He asked if they are treated any differently than any other
record.
City Manager Wrede responded no. The City has a records
retention schedule in code. The City does not, nor does
Mr. Griswold asked what evidence in the record
indicates that he became, in City Manager Wrede’s words, increasingly hostile
and accusatory with staff.
City Manager Wrede responded Mr. Griswold’s emails.
Mr. Griswold asked him to be more specific.
City Manager Wrede responded Mr. Griswold’s emails.
Mr. Griswold asked the Mayor to direct City Manager
Wrede to answer the question. The Mayor stated that he had answered it.
Mr. Griswold asked which specific email. He said in
his emails there are please and thank you’s and wanted City Manager Wrede to
point out where the emails become hostile.
City Manager Wrede responded that the emails are in
the record and he isn’t going to engage Mr. Griswold at this level.
Mr. Griswold asked what constituted the harassment,
the actual request or the envisioned argument to follow. It seems like the
first records request was not deemed harassment, City Manager Wrede seemed to
be more concerned about the discussion that took place after that. He asked if
that would be a fair statement. He didn’t deny the first one as harassment, so
it wasn’t harassment at that point.
City Manager Wrede responded it wasn’t at that point,
but when the emails became increasingly accusatory and the second request
wasn’t clear it had anything to do with the first, and based on Mr. Griswold’s
history, it seemed to be here we go again, Mr. Griswold just wants to argue
about points and looking for a backdoor way to get into old arguments about
whether or not he had to pay production fees and whether he had unfettered
access to any City file that he wanted to see. To City Manager Wrede it was a
bad faith request because Mr. Griswold knew the only way to accomplish this and
avoid production fees was to come in and sit at people’s computers.
Mr. Griswold said City Manager Wrede is not answering
the question; he is giving his talk on Mr. Griswold’s time.
Mr. Griswold asked what part constituted the
harassment.
City Manager Wrede said the second request didn’t
substantially relate to the first request.
Mr. Griswold asked if there is any requirement that it
has to.
City Manager Wrede responded that the second request
was harassment because of the history and Mr. Griswold’s track record. As he
stated earlier, if anyone else had made the request, he would have followed the
process. Mr. Griswold gave them something he knew the City couldn’t deal with.
Mr. Griswold asked if City Manager Wrede ever stated
to him during the April 1st records request that he was harassing
City Manager Wrede or any of his staff.
City Manager Wrede responded no.
Mr. Griswold asked why not. He asked how City Manager
Wrede would know any argument would take place with the second request.
City Manager Wrede responded because many of those are
arguments we have already had.
Mr. Griswold said when he makes the arguments, he
prevails and City Manager Wrede un-redacts a letter. Mr. Griswold said he
argued the redaction, City Manager Wrede said Mr. Griswold was right and gives
him the letter and now City Manager Wrede says since he argued, it’s
harassment.
Mayor Hornaday asked Mr. Griswold what his question
is.
Mr. Griswold asked how City Manager Wrede would know
this type of argumentation would take place in the second request just because
it took place in the first request, when City Manager Wrede never gave him any
indication that he thought it was harassment in the first place. He asked if
the City was obligated to take place in the argument. Can he argue all by
himself? Would that be harassing staff, doesn’t it take two to participate in
argument?
City Manager Wrede responded that the City tries to be
responsive. He doesn’t like to see Mr. Griswold arguing with himself.
Mr. Griswold asked how he is supposed to know how
large this request was as City Manager Wrede indicated he should have known. He
asked if City Manager Wrede had given him any indication this was a large
records request. One request was for the Mayor’s emails and the Mayor said he doesn’t
have any emails. There might be no emails at all.
City Manager Wrede responded that is why he gave Mr.
Griswold the opportunity to come in and be heard or file an appeal before the
Council. He wanted to talk to Mr. Griswold about it.
Mr. Griswold said that if he would have taken City
Manager Wrede’s option of the hearing, it would have likely involved more
argument. By bypassing that it he eliminates harassment. He asked that if it
were his goal to harass City Manager Wrede he would have taken him up on it at
every opportunity, to create more strife.
The Mayor objected stating that Mr. Griswold is asking
City Manager Wrede to get into his mind. Mr. Griswold responded that all
through City Manager Wrede’s response he is in Mr. Griswold ‘s mind, saying
Griswold thinks this, he’s focused on that. That is why earlier he had asked if
City Manager Wrede was a clairvoyant.
Mayor Hornaday clarified that he did send one email,
but it doesn’t have to do with this. Mr. Griswold reiterated his objection regarding
the Mayor’s conflict. Maybe he has forgotten about more emails. Mr. Griswold began
to argue the issue and the Mayor noted he only has 2 minutes left. Mr. Griswold
objected to the Mayor interrupting and using his time.
Mr. Griswold said City Manager Wrede says that Mr.
Griswold argued that no correspondence from the City Attorney should be
confidential or that all City documents should be in the public domain. He
asked where this argument is. If he makes a records request, he asked if City
Manager Wrede can produce documents that show he made these arguments.
City Manager Wrede said certainly on the lawyers, he
took it all the way to the court.
Mr. Griswold said City Manager Wrede says Mr. Griswold
said the City Attorney’s advice about strategy should be in the public domain
or released. If he makes a public records request for documents that prove his
statements, is City Manager Wrede going to consider them harassment or w
City Manager Wrede responded he w
Mr. Griswold said City Manager Wrede says Mr. Griswold
requested to walk through the City files. He asked what the basis for that
statement is.
City Manager Wrede responded it had to do with are
records request and he is not sure if it is in writing because at that time
they were st
Mr. Griswold noted that it is in his brief. He stated
that City Manager Wrede is under oath and asked if he thought Mr. Griswold
seriously expected or thought he was entitled walk through City Hall and look
through City files.
City Manager Wrede responded that he is not a
clairvoyant. Mr. Griswold asked him to answer the question. City Manager Wrede
said he has no idea, he thinks Mr. Griswold does.
Mr. Griswold ‘s time ended. He requested additional
time because of all the time that they took up during his questioning and was
denied.
City Manager Wrede gave his oral presentation. He
noted that he was not going to question Mr. Griswold or ask him to speak under
oath. City Manager Wrede cited section 207 regarding harassment requests it
says if the City Manager, in good faith, reasonably determines that a request
for copies or inspection of records is not made in good faith and is made for
the purpose of harassment of the City, or City Officials, or to purposefully
interfere with the orderly conduct of City business, the City Manager w
Mayor Hornaday granted Mr. Griswold another 5 minutes.
Mr. Griswold commented that City Manager Wrede said he
claimed it was more expeditious to claim harassment. City Manager Wrede
corrected that he said it would be more expeditious to deny it and give Mr.
Griswold the opportunity to come in and talk about it, rather than writing a
long letter explaining why, because he knows that Mr. Griswold already knows
the reasons. Not because he is clairvoyant, but because of their past
correspondence on public records.
Mr. Griswold said his point is that City Manager Wrede
hoped he would just go away without giving it deep thought and without giving
it careful consideration or good faith, City Manager Wrede just said he would
stamp this denied and maybe it w
City Manager Wrede stated he had no
Mr. Griswold asked if City Manager Wrede now thinks he
is serious about getting these records.
City Manager Wrede said he hasn’t heard anything
tonight that would bring him to any conclusion about whether Mr. Griswold was
serious about this or not.
Mr. Griswold said he is serious about it.
Mayor Hornaday asked if Council had questions of
either party. Hearing none he concluded the party’s presentations. He said he
would entertain a motion to go into executive session for the purpose of
deliberating and deciding this appeal.
NOVAK/WYTHE SO MOVED.
There was no discussion.
VOTE: YES: ROBERTS, WYTHE, SHADLE, HOWARD, NOVAK
Motion carried.
Council adjourned into Executive Session at
Mayor Pro Tempore Novak announced that Council and the
City Attorney deliberated in Executive Session and a decision w
4. ADJOURNMENT
There being no further
business to come before the Council the meeting was adjourned at
MELISSA JACOBSEN, DEPUTY
Approved: