Borough could seek legal answer to initiative's validity

Posted: Tuesday, May 17, 2005

The Kenai Peninsula Borough may be planning legal action challenging the effects of an ordinance passed last fall by North Peninsula Recreation Service Area voters limiting the size of capital expenditures that could be made without a service area election.

More than 60 percent of service area voters said yes to Initiative Ordinance 2004-03, which effectively capped the size of any election-free capital improvement project at $500,000. The ceiling had been $1.5 million.

The borough assembly met in closed-door session April 19, apparently to discuss possible litigation strategy. Borough Attorney Colette Thompson told the assembly prior to the executive session that the borough currently was not engaged in a lawsuit, but that the matter to be discussed had to do with capital improvements for the recreation service area.

According to the minutes of the open special meeting called to convene the executive session, assembly member Pete Sprague of Soldotna asked if the executive session also would include discussion of more recent initiative petitions filed by a group calling itself the Alliance of Concerned Taxpayers, or ACT. Assembly President Gary Superman of Nikiski said the new petitions were not specifically included in the motion (for executive session) but did have a significant relevance to the motions, according to the minutes.

Thompson said two of the more recent initiative petitions filed in March by ACT contained the same legal issue as the one limiting capital improvements in the recreation service. One sought a similar cap boroughwide. It would have made all capital improvement projects costing $1 million or more subject to the approval of 60 percent of all borough voters, if their construction, acquisition or operations involved borough funds. The only exceptions would be projects involving bonds already approved by voters. Another petition sought to make voter approval retroactive to Jan. 1, 2005.

Then borough clerk Linda Murphy rejected the petition on constitutional grounds.

James Price, a Nikiski resident and member of the North Peninsula Recreation Service Area Board, is a member of ACT and actively has been pursuing several avenues toward reforms the group says it wants in the borough. He said Sunday that he could not find out exactly what reason the borough might have for needing a litigation strategy regarding the already passed ballot measure.

Reached Monday, Thompson would not reveal what had been said behind closed doors, nor whether the need to have a "litigation strategy" involved legal defense or offense — that is, defense against a suit or an offense for filing suit.

An ordinance up for introduction on today's agenda, however, may shed some light on the borough's thinking. Proposed by Mayor Dale Bagley, ordinance 2005-24 recognizes the wishes expressed by service area voters and notes "significant legal concerns regarding the validity of using the initiative process" to place limitations on the budgetary authority of the assembly.

The ordinance also notes that since the adoption of the service area proposition, "additional initiative propositions have been submitted that would apply throughout the entire borough imposing limitations on the assembly's ability to appropriate funds for certain capital improvement projects."

The borough, the ordinance said, "intends to comply with the terms of the proposition approved by the voters while attempting to obtain a ruling from the courts as to the legal validity of using the initiative process for this purpose."

In a memo to the assembly May 5, Bagley said the legal review initiative petitions are given before an election was "much less stringent" than might occur after an election. Further, Bagley said using an initiative to require voter approval for proposed expenditures might prove legally unenforceable. He said the borough was seeking a legal ruling on the validity of the NPRSA initiative.

As proposed, Ordinance 2005-24 would continue the law approved by the service area voters, but adoption by the assembly would not bind future assemblies for two years as the initiative does, he said.

"However, placing this ordinance on the books forces the assembly to address the voter approval requirement as preferred by the voters regardless of whether the initiative is upheld by the courts," Bagley said.

Ordinance 2005-24 would become law only if the effect of last fall's vote were to be declared invalid by the courts.

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