Following discussions held behind closed doors Thursday, the Kenai Peninsula Borough Assembly decided against taking any immediate legal action concerning the dilemma posed by Tuesday's municipal election that saw voters re-elect three assembly and two school board incumbents while also approving term-limit propositions that prevent them from taking office.
How to seat candidates legally elected in their districts and also abide by the will of the boroughwide electorate on term limits is a dilemma neither the assembly nor the school board can resolve. It appears headed for the courts but not quite yet.
The assembly's special meeting began at 10 a.m. After taking public comment, the members retired to executive session, emerging shortly thereafter to declare they would not initiate legal action with regard to Proposition 3, which imposed term limits on Kenai Peninsula Borough Board of Education seats.
Though they did not say as much specifically, the assembly appeared to be deferring any decision to hear from the school board, which is scheduled to meet Oct. 15.
"We don't get to tell them who to seat or not seat," Assembly President Ron Long, of Seward, said. "That's under their rules of procedure."
That was followed by a long discussion about whether the assembly's incumbent election winners, Gary Superman, of Nikiski, Pete Sprague, of Soldotna, and Paul Fisher, of Kasilof, could legally participate in an executive session to discuss the impact of Proposition 2 (assembly term limits) where discussion would surely center on whether to direct the administration to prepare a lawsuit on their behalf.
Long ruled the three would have clear conflicts of interest and ruled them out of the closed-door meeting. Superman and Fischer voiced objections, but the remaining members Milli Martin, of Diamond Ridge, Grace Merkes, of Sterling, Gary Knopp, of Kalifornsky, and Margaret Gilman, of Kenai supported Long's decision.
Former Assemblywoman Deb Germano was not at the meeting, her resignation was effective Monday.
When the remaining assembly members returned to regular session, they took a slightly different stance with regard to Proposition 2.
"At this time," Gilman read from a prepared text, "the assembly intends to comply with the initiative in Proposition 2 and not initiate legal action regarding 2."
That clearly left the door open for action to be taken later. Mayor John Williams and Borough Attorney Colette Thompson said legal action could be initiated by the affected candidates or by voters.
Superman has said publicly that he would sue if the borough did not. Late Thursday afternoon he said he was not quite ready and wanted to wait and see what voters may do.
"I believe there will be other people coming forward from the public to initiate some action," he said, adding that could include his own district, as well as those of Sprague and Fischer. "I have been contacted by people who are concerned with their votes being overturned."
In his case, as well as in Sprague's, voters in Districts 3 and 4, respectively, not only re-elected them, but also turned thumbs down on term limits. Their votes could be overturned by the boroughwide vote supporting term limits. In Fischer's District 7, voters approved term limits.
About 1,000 absentee, mail-in and questioned ballots from around the borough still need to be counted, according to Borough Clerk Sherry Biggs.
The best situation would be for voters to file the suit and send the matter to the Alaska Supreme Court for resolution, Superman said.
"I would like to see what proceeds in the next week or so," he said, noting there was a small window of time. "I can tell you, it's not going to sit this way. District 3 voters will have their say."
In comments before the executive sessions, Ruby Denison, a member of the Alliance of Concerned Taxpayers who proposed the initiatives, said Tuesday's vote reversed the assembly's 1999 decision to overturn term limits imposed by public votes in the early 1990s.
"Who was the villain and who was the victim in 1999?" she asked rhetorically.
She chastised assembly members who have served since then for not taking action to put term limits back into the code.
"The truth is the assembly refused to be proactive on issues they didn't like," Denison said.
Later, she was informed that the assembly lacks that power to impose term limits, though they could have approved a term-limit measure for the ballot. Term limits must be ratified by a public vote.
David Lashley, of Nikiski, who ran a write-in campaign in District 3 garnering almost 29 percent of the vote, told the assembly that many voters in his district had voted against term limits to avoid precisely the situation the borough finds itself in now. He said they had thought there was time to fix the term limit problem by rewriting it and bringing it back to the ballot next year.
Thompson said the options for court are varied. At one extreme, the provisions of the term limit propositions could be upheld completely. At the other, they could be declared invalid under the Alaska Constitution. In between, it is conceivable a court might decide to impose term limits beginning next year but seat Superman, Sprague and Fischer for new terms.
Thompson said she thought a good case might be made that term limits don't meet constitutional muster in Alaska.
Props 2 and 3 not only limited members to no more than two consecutive terms, but also defined a term to include even a small portion of the normal three-year period, as when someone is appointed to fill a vacancy or a term is shortened after reapportionment. Beyond that, it retroactively counts terms already served by sitting members, immediately affecting candidates this year, as well as members who would be up for re-election in 2008 and 2009.
Superman said he didn't like it, but he was not surprised the truncated assembly chose to take no action at this time, saying the remaining members did not grasp the situation.
"That was the basis of my objection to being conflicted out (of the executive session)," he said. "I wanted to make sure all the bases were touched in the discussion. Whether they were or not I don't know."
Hal Spence can be reached at email@example.com.
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