Hal Smalley, current Kenai Peninsula Borough assembly who's also running for his second term on Kenai City Council might have to forfeit one of his seats if re-elected to Kenai's council Tuesday.
A borough assembly ordinance enacted in April prohibits local politicians from holding dual office, or serving simultaneously on the assembly or another board, commission or council.
"If we follow the borough ordinance then the rule would apply that if he elects to be sworn into office as a city council member, when he is sworn into office under the common law he is assumed to have resigned from his position on the assembly," said Collette Thompson, borough attorney.
She said the issue comes down to the two elected seats being "incompatible." And while there is no case precedent in the State of Alaska directly referring to this issue, Thompson said, there are four factors that the Supreme Court of Alaska reviewed in determining "incompatible offices" in a 1983 case.
In that case, Acevedo vs. North Pole, a police officer ran for city council and won but the state Supreme Court ruled that the two positions were incompatible and upheld a ban on city employees also serving as elected council members.
These "incompatible" factors are outlined in the borough's ordinance to prevent positions of public trust from accumulating in a single person, to prevent individuals from financial benefits from holding dual positions, to avoid conflict if the person has supervisory authority over themselves or their supervisor, and "to ensure that public office holders discharge their duties with undivided loyalty."
According to the borough ordinance, simultaneously holding office on the borough assembly and city council places a person in a position of accumulating public trust and potentially divided loyalties between both bodies. At least two of these four criteria of incompatible dual office holding exists, the ordinance states.
But Smalley -- who serves on the Alaska Municipal League -- said the issue of "incompatible offices" does not apply to his term on the assembly.
He said it comes down to a change in qualifications for his job on the assembly.
When he was elected in 2008 he was serving on Kenai City Council and the borough did not prohibit it dual office holding.
"Can you change the qualifications of a job midstream?" he said.
Smalley cited Alaska state statutes on term of office that state "if the term of a member of a governing body is changed by charter or ordinance the term of the member holding office when the change becomes effective is not affected."
Apart from the statutes, Smalley said he has other issues with the ordinance.
"I think it's short sighted in the sense that voters would be disenfranchised. They went to the polls assuming I'd be serving on both bodies," he said.
He also said he thinks it's unfair because only four of the seats on the assembly are actually representing cities with councils. The other five seats -- East Peninsula, South Peninsula, Kalifornsky, Nikiksi and Sterling -- do not represent areas with other elected bodies.
"I think it can be thrown out," Smalley said, "Maybe because it just treats four of the nine assembly seats disproportionately.
"Where's the fairness across the board there?"
As far as he is concerned the ordinance will not affect him until his assembly term is up next year.
"At this point in time it really does not mean much of anything," Smalley said. "It's under some scrutinization by a lot of different folks as far as the viability of it."
He said several agencies are looking into the issues surrounding the ordinance like the Department of Justice, Division of Elections and the Division of Community and Regional Affairs.
Smalley said he would challenge the borough if he's elected to Kenai City Council and it makes him choose an office.
"I would challenge it on behalf of myself and the city," he said.
Thompson said the assembly was advised that there are concerns about the legality of this ordinance and declaring the two offices as incompatible. The borough is having a third-party legal advisor examine the issues as well, she said.
"We are continuing to look at this. It's not in my view a black-and-white foregone conclusion," she said.
At this time she said it is "not clear" about the legal standing of the ordinance.
"I couldn't say definitively if it was legal or legal," Thompson said.
Borough clerk Johni Blankenship said that she is waiting for a decision from the Department of Justice in regard to the Voting Rights Act on the ordinance because it technically changes the election code.
"Any amendment to our election code we want to make sure the Department of Justice has an opportunity to weigh in on that," she said.
Assembly President Pete Sprague at one time served on both the Soldotna City Council and assembly. He said that for him serving on both bodies was "untenable" so after a few months he resigned form the council.
"For me, it just didn't work," he said.
While he was originally in support of the ordinance this year, he changed his vote after a public comment on voter's rights struck a chord with him.
Sprague said that even if officials are conflicted because they serve on both bodies it was the people's choice to elect them to both.
He said he is under the impression that if elected to the Kenai council this year, Smalley would have to make a choice between that and the assembly.
Assemblyman Paul Fischer, who represents Kasilof, said that he introduced the ordinance prohibiting dual office holding in January of this year because "you can't serve two masters."
He said there were a few issues Smalley could not vote on at the assembly level concerning Kenai.
"I feel it's not fair to the city of Kenai or any city," he said.
This is not the first time an ordinance like this had come before the assembly.
In 2007, former assembly member Milli Martin proposed a similar one that did not pass.
Brielle Schaeffer can be reached at firstname.lastname@example.org.
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