Assembly President Ron Long will convene a special meeting of the Kenai Peninsula Borough Assembly this morning to decide how to react to Tuesday's conflicting election results.
Assembly incumbents Gary Superman, of Nikiski, Pete Sprague, of Soldotna, and Paul Fischer, of Kasilof, easily won re-election in assembly districts 3, 4 and 7 respectively.
In two of those districts, Superman's and Sprague's, voters also turned thumbs down on Proposition 2 a measure setting term limits on assembly seats. Only in Fischer's did voters of the entire district approve Proposition 2.
All three incumbent candidates saw Prop 2 defeated in their own home precincts, however.
Proposition 2, an initiative ballot measure sponsored by members of the Alliance of Concerned Taxpayers, passed by a healthy margin boroughwide. Under its provisions, the three incumbents all with long histories on the assembly would be prevented from assuming those seats again later this month. Prop 2, which limits incumbents to no more than two consecutive terms without a nearly three-year hiatus, counts terms already served when determining eligibility. In other words, it is retroactive. It also counts truncated terms as full terms.
When Superman, Sprague and Fischer filed in August, they were eligible for office. Now that the election has occurred, their eligibility is in question.
The dilemma facing the assembly and the borough is that in all cases voters have made distinct and clear choices, putting voters rights in conflict. The assembly will be looking to the courts for direction, Long said Wednesday morning.
"We need some discussion and clarity on what to do," he said.
The assembly could seat the winners, or seek nominees to fill the vacancies if they don't, or not seat anyone and wait for a court determination.
"Anyone we seat we have an even chance of seating the wrong person," Long said. "We need a higher authority."
Just how to go about putting the case before the courts will be part of Thursday's discussion. Fischer recommended Tuesday that the assembly simply seat the winners and let the Alliance (ACT) sue the borough, letting the borough be the respondent in the case.
Not the best option, said Borough Mayor John Williams on Wednesday, though he agreed the issues need to be cleared up legally.
"Letting ACT sue us would be improper," he said. "In all probability, they would not spend the money to sue, but would use it (a decision to seat the winners despite the boroughwide term-limit vote) in a public relations campaign."
In a Tuesday press release, ACT officials warned against legal action and recommended that the winning incumbents simply step aside and let the assembly fill the vacancies until an election can be held next fall.
"If the assembly or individual members choose to take legal action they will likely lose," ACT said. "By taking legal action the election process will be substantially harmed."
Williams said he thinks the assembly should direct the administration to take legal action, and that the courts should intervene immediately. He also slammed ACT, saying they were bent on creating chaos in government.
He said there was a tremendous amount of confusion created by the two term-limit propositions (Proposition 3 set identical term limits for school board seats), and that some legal action must be taken.
"The assembly has to decide whether to direct the administration to pursue legal action and against whom," he said, adding that assembly options might include suing ACT, or ACT members individually, or suing the borough clerk (merely as a vehicle to the courts), or even suing themselves for allowing the initiative to reach the ballot in the first place. Other options might also exist, but while the borough attorney's office has done some preliminary research, in the absence of assembly direction, the administration does not have a suit ready, Williams said.
Long said there were no statutes and no case law to which to refer for guidance in resolving the conflicting election results.
"In the extreme scenario, one-third of the borough could be without representation, so we will certainly ask for an expedited review," he said.
The new assembly terms begin Oct. 15; the first meeting is Oct. 23.
If the assembly (or the court) decides the incumbents cannot be seated, interested residents in the districts could apply to fill vacant seats by appointment. The remaining six members of the assembly would decide who gets those jobs.
Any legal action, once filed, would likely end up in the Alaska Supreme Court, and justices would have to weigh competing voter interests, including how to honor the clear retroactive intent of the term-limit propositions. How the justices might rule is anyone's guess.
While ACT has claimed its purpose in sponsoring the initiatives was to ensure fresh ideas coming to the assembly and school board, Long, and other assembly members, believe the group's real intent was a mass recall of assembly members. If all of the Prop 2's provisions were eventually upheld, within three years, all current assembly members would be out of office and with them a lot of legislative experience.
The same difficulties surrounding the seating of winning assembly incumbents also face school board winners Lorraine "Sammy" Crawford, District 1 (Kalifornsky) and Edith-Helen "Sunni" Hilts of District 9 (South Peninsula), both of whom have served multiple terms and would be ineligible under the terms of Proposition 3.
"I am very pleased with my school board election results but dismayed that the term limits has passed. These are mixed messages from the voters who elected all incumbents but also approved term limits. I look forward to serving and hope that there is a reasonable solution to this dilemma," said Crawford in an e-mail Wednesday.
School board president Debra Mullins said she would wait for direction from the borough clerk and borough attorney before the board takes action, whether it be to seat Crawford and Hilts or to seek applications to fill those seats. Mullins said she is hoping to have some direction before the board's next meeting on Oct. 15.
Clarion city editor Will Morrow contributed to this report. Hal Spence can be reached at email@example.com.
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