The Kenai Peninsula Borough Assembly will consider eliminating an ordinance limiting how the borough spends money that was recently deemed unlawful by the Alaska Supreme Court.
Ordinance 2012-21 seeks to clear a certain section of borough code that was placed there by voters in 2005. That code came from Ordinance 2005-01, which required 60 percent prior voter approval for all borough capital improvement projects to be constructed or acquired by the borough with a total cost of more than $1 million.
Essentially, the voters said they wanted to weigh in each time the borough wanted to build a capital project costing more than $1 million, but the court said such a request usurps the reserved power of the assembly, Deputy Borough Attorney Holly Montague said. Appropriation of such funds is listed under statute exclusively under the assembly’s purview, she said.
“The reason for that is somebody has to make the tough decisions between competing financial needs and it can’t be subject to special interest groups, basically, and popular votes,” she said. “It has to be done through a deliberative fair process, which is why we have representative government and an assembly to make that decision.”
The ordinance that would wipe that language from the books is up for introduction at the assembly’s Tuesday meeting and is set for a public hearing on July 3. The ordinance would also eliminate a 2004 North Peninsula Recreation Service Area approved initiative requiring service area approval for all capital improvement projects constructed in the service area costing more than $500,000.
In 2006, the Alliance of Concerned Taxpayers, a Central Peninsula government watch group, sued the borough, claiming, among other things, that it violated the terms of that spending limit. The borough said it hadn’t violated the initiative and argued it was legally invalid. ACT appealed a superior court judgment agreeing with the borough, but the supreme court upheld that judgment in an April 6 ruling.
Montague said only one project was voted on during the ordinance’s original tenure — a fire hall for the Bear Creek Fire Service Area. Although that project passed — it was only voted on by people in that service area — borough-wide projects would have presented a challenge, Montague said.
“Part of our position on the court with that was, ‘Look, it is easy to do that in a small service area where you have a homogeneous population and everybody is supporting their local fire hall. But when you get the people in the core area of the borough voting on whether there should be a new landfill in Seldovia, you could have quite a different result and you might have a much needed service or facility fail the popular vote,’” she said. “That’s why the assembly needs to make those decisions.”
Although it never came up in the case or tenure of the ordinance, the borough’s budget could have even been subject to a popular vote under such code language, Montague said.
“If the budget actually had appropriations in it for capital projects that had not been previously approved by the voters, I suppose it is arguable that it would have (had to go to the voters),” she said.
Montague said she thought the ordinance was designed to get the borough to spend less money or have the people decide which projects they thought were important. But it undermines the already established representative government of the borough, she said.
Borough Mayor Mike Navarre, who is sponsoring the elimination ordinance, agreed. He said the borough has a very open and deliberative budget and appropriation process.
Currently any money spent not already allocated in the budget must come before the assembly and the public has an opportunity to comment on it.
“Sometimes there might be unpopular decisions that are the right ones and you can’t constantly try to handcuff or throw artificial barriers up in the way of public policy, and in particular the appropriation process,” he said.
Mike McBride, a member of ACT, hasn’t had a chance to talk with the other members of ACT and wasn’t sure how the group would respond.
“It appears the mayor is just doing a bit of housekeeping and until something else happens the supreme court decision kind of negates all of that effort,” he said.
McBride said the group’s choice at this point is a federal court appeal.
“I haven’t heard any discussion to that effect,” he said. “But whether we are or not is still up in the air.”