Three assembly candidates re-elected Oct. 2 by large margins within their respective districts, but who are affected by the concurrent boroughwide voter approval of a term-limit ballot proposition, were prevented from taking the oath of office Tuesday by the remaining members of the Kenai Peninsula Borough Assembly.
However, during what was an emotional and sometimes stormy meeting, the assembly chose not to declare the three seats vacant, thus allowing assemblymen Gary Superman, of Nikiski, Pete Sprague, of Soldotna, and Paul Fischer, of Kasilof, to continue serving for up to 30 days.
A lawsuit seeking clarification of the voter conflict from the Alaska Supreme Court is expected.
The three incumbent candidates won new terms by overwhelming margins in Assembly Districts 3, 4 and 7 respectively. But Proposition 2, which limits assembly members to two consecutive terms, became law Tuesday upon certification of the election results.
A provision of that law retroactively considers terms already served when determining a candidate's eligibility, and by that criteria, Superman, Sprague and Fischer are unqualified to assume office.
That left the remaining members of the assembly facing an intractable impasse: how to decide between the clear wishes expressed by voters within Districts 3, 4 and 7 to re-elect their favorite candidates, and the decision by voters boroughwide to approve term limits and their retroactive effects. In two of those districts, 3 and 4, a majority of voters actually opposed term limits, though Prop 2 passed with 53.7 percent of the vote boroughwide.
Emerging from an executive session, the remaining members assembly members Ron Long, of Seward, Margaret Gilman, of Kenai, Gary Knopp, of Kalifornsky, Milli Martin, of Diamond Ridge, and Grace Merkes, of Sterling took a pragmatic if unsatisfying position.
They voted not to hold the swearing-in ceremony for the three term-limited incumbents, but to allow a provision in the borough code concerning how and when vacancies are to be filled to be applied. According to the code, the assembly must declare a vacancy if an elected official fails to qualify for or take office within 30 days.
By not officially declaring those seats vacant, Superman, Sprague and Fischer could remain in office at least through Nov. 8, time enough for an expected lawsuit to be filed that would put the matter before the only body qualified to render a decision balancing competing voter rights the Alaska Supreme Court.
Navigating to a decision Tuesday was not a happy cruise for the assembly.
Borough Attorney Colette Thompson told the assembly that there is a presumption of validity in laws enacted by initiative, and thus under Prop 2 the three assembly members are considered ineligible for office.
"And until a court orders otherwise, that presumption stands," she said, noting that the assembly would have to authorize a lawsuit if it wanted declaratory relief from the courts.
At that point, Fischer moved that all members who had been elected be sworn in, including Bill Smith, of Homer, the winner in Assembly District 8, who is not facing imposition of term limits.
That opened a procedural Pandora's box. Would conflicts of interest prevent Superman, Sprague and Fischer from voting on Fischer's motion?
Thompson said they had a personal stake in the outcome of the vote "specific and different" from those of other assembly members and indeed had conflicts of interest. Then Superman asked whether the assembly had the power to deny them their seats, after they'd legally won an election and were qualified candidates when they'd filed to run in August.
Thompson said she could find nothing in state statutes addressing that question regarding local governing bodies, and that the borough code of ordinances was silent on the matter as well. Thus, she said, common law gave the assembly the authority to judge whether the three members were qualified.
Asking the converse, Long inquired whether the assembly had the authority to seat them. Yes, said Thompson, though such a decision might ultimately prove to be illegal.
Long then ruled the three assembly members had conflicts of interest and could not vote with the others whether or not to swear them in. Sprague challenged that ruling.
"This is not about me," he said. "This is about the voters in my district being disenfranchised if we are not even allowed to vote on this question."
"I'm going to go a little further," Fischer said. "A third of the Kenai Peninsula is shafted here ... (they are) being denied representation by this body here tonight. I think it's wrong."
Long said his ruling was not intended to disenfranchise any voters. The procedural mire became quicksand when Sprague attempted to split the question of who was eligible to vote on the conflicts of interest matter. He argued that he, Superman and Fischer should be allowed to vote on each other's conflicts, but following a debate and several questions to the attorney, the body voted 5-3 against splitting the question.
Other members eventually voted to uphold Long's initial conflict ruling, thus barring Superman, Sprague and Fischer from participating in the decision over their swearing in.
At a special meeting Oct. 4 mostly held behind closed doors and without participation by the same three the assembly had opted to comply with the provisions of Prop 2 "at this time" and not to initiate legal action. That appeared to leave the door open for filing or participating in a suit later on. Facing the inability to participate in decisions regarding his seating, Superman indicated that a lawsuit was imminent.
"The assembly and legal have punted all the way through this issue. Had it taken the right course, this probably would have been decided tonight and we wouldn't be sitting up here in this mire," he said. "But that is in retrospective now. This will be the last time you'll hear punt because I can guarantee you tomorrow somebody's going to catch this ball."
Later, Superman told the Clarion a suit could be expected in the next few days. He did not elaborate on who the defendants would be, but they could include the assembly, the borough clerk's office, and possibly the Alliance of Concerned Taxpayers, the group that sponsored Prop 2 and Prop 3, which established similar term limits on school board seats.
Gilman said it was obvious that the situation was a mess. The five remaining members (minus Deb Germano of District 8 who had resigned her seat effective Oct. 1) were facing "a decision of Solomon" over which voters' votes were most valid.
"I certainly understand the frustration of the members, and certainly understand the frustration of voters who voted to put those members in office," he said. "And I certainly hope that they will be filing an action immediately."
He said the temptation was great to seat the term-limited members and let the legal chips fall where they may.
"But that's not what I see as most responsible. We are, as Ms. Gilman said, cast in the position of splitting the baby here. I don't want to be in the business of picking one set of voters over another. That is more properly a role that goes to the state and the state needs to provide us with some direction that we are sorely lacking in our code, in statute or in case law."
Not swearing in the thee members serves to extend their terms for up to 30 days, he said, "during which time I hope the courts will find it is in the public interest to look at an expedited review."
After voting not to swear in Superman, Sprague and Fischer, Bill Smith, of Homer, took the oath of office.
Long wryly wished him "good luck."
Hal Spence can be reached at firstname.lastname@example.org.
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