Application seeking recall of borough mayor denied

Dismissed

Posted: Friday, October 13, 2006

Allegations of incompetence, misconduct and failure to perform official duties lodged last month against Kenai Peninsula Borough Mayor John Williams by a grassroots group seeking his removal do not rise to a level sufficient to justify approving a recall petition, Borough Clerk Sherry Biggs ruled Thursday.

Kenai resident Herman Fandel and Ninilchik resident Ruby Kime, a frequent critic of the mayor and Kenai Peninsula Borough Assembly, submitted a recall petition application Sept. 12. Both are members of the Alliance of Concerned Taxpayers, a group that has been doing political battle with the borough, mostly over spending policies, for the past few years.

In the recall petition application, Fandel and Kime alleged that Williams had violated his oath of office in that he “repeatedly ignored” and “campaigned against the people’s expressed will,” which they said violated the Alaska Constitution. They also accused the mayor of “repeatedly and selectively” ignoring state law and borough code, thus “denying citizens their constitutional right to petition their government.”

Finally, Fandel and Kime said Williams’ “open contempt” for laws and groups that did not support his positions left citizens the option of filing lawsuits or seeking recall. Fandel and Kime chose recall.

Thursday, Borough Clerk Sherry Biggs issued a five-page response, denying the application on the grounds that the charges leveled against Williams were “not stated with particularity, and are not factually or legally sufficient to establish ‘misconduct in office, incompetence, or failure to perform prescribed duties.’”

Reached in Seward on Thursday where he was surveying flood damage, Williams said the clerk’s decision had vindicated his position that he had not violated constitutional, state or local law. He said he would continue to do his job as best he could for the borough.

Recalling Abe Lincoln’s comment that one might fool all the people some of the time, some of the people all of the time, but never all of the people all of the time, Williams said it had to recognized that the borough’s roughly 50,000 residents were never going to all agree at the same time, either with each other or with borough policy.

“If I have a difference of opinion against some of the wishes of the constituency, that’s the way life is,” he said.

Attempts to reach to Fandel by phone for comment Thursday afternoon were unsuccessful.

Reached Tuesday evening, Kime acknowledged that the petitioners had been negotiating “a learning curve” with regard to the recall petition process.

“The application is not very clear about what kinds of things you have to put in your request,” she said.

In reaching her legal analysis, Biggs relied on advice and research by the Anchorage law firm Walker and Levesque, she said.

Detailing her decision, Biggs said the generally accepted definition of misconduct in office was any unlawful behavior by a public official in relation to the duties of his office (that was) willful in character, meaning misconduct had to imply some intentional act.

Allegations of incompetence, according to an Alaska Attorney General’s opinion, “must allege conduct” that would lead voters to question an elected official’s ability and fitness to discharge his or her official duty. Meanwhile, the Alaska Supreme Court, ruling in a 1984 case, explained that prescribed duties would include both those defined by the elected official’s job, and legal principals of general application.

The high court has held that two important requirements must be considered in reviewing the right to recall elected officials, Biggs said. First, allegations must be assumed to be true and, given that, the question then becomes whether or not they form the basis for a recall petition, Biggs said. Second, a recall may occur only “for cause” and a petition must be both legally and factually sufficient. It must specifically state the alleged illegal conduct and show sufficient facts to “constitute a prima facie showing of misfeasance, malfeasance, or a violation of the oath of office.”

The Alaska Supreme Court also has said elected officials cannot be recalled merely for legally exercising the discretion granted to them by law.

“In other words, the valid exercise of a legislative judgment is not a ground for recall,” Biggs said.

The “for cause” requirement serves to protect elected officials from recall elections grounded on frivolous charges or mere insinuations. The high court said the reasons for recall must be more than disagreement over policy.

Requiring “particularity” in allegations ensures an elected official a fair opportunity to defend his conduct and rebut the charges, the court said.

The Fandel-Kime recall application was deficient on all fronts, Biggs said.

“The allegations contained in the application to recall Mayor Williams are broad and fail to state with particularity how Mayor Williams violated his oath of office, or ignored or actively campaigned against the peoples’ express will,” Biggs said.

Nor do they show either how Mayor Williams “repeatedly and selectively” ignored state statutes and borough code, or how he showed “contempt” for laws or people, Biggs said.

“The substance of the allegations contained in the application, even if taken as true and assumed to be factually sufficient, appear to voice disagreement with the discretionary positions taken by Mayor Williams rather than particular ‘misconduct in office, incompetence, of failure to follow prescribed duties,’” Biggs said.

The allegations, she continued, “appear as instances to which the petitioners have objected to Mayor Williams’ political positions, which are apparently contrary to certain voters.”

Even if allegations that Williams ignored or campaigned against the peoples’ will were assumed to be true, the application did not allege a violation of any federal, state or local law, Biggs said. Neither did the application include any statements by Williams demonstrating a lack of ability, legal qualification, or fitness for office, she added.

“The allegations do not provide sufficient detail in order to allow Mayor Williams to defend himself,” Biggs concluded in denying the application. That lack, she said, would lead a court to “find that this allegation lacks sufficient particularity.”

Kime said she and others would meet at the Airport Inn in Kenai around 4 p.m. today to discuss whether or not to resubmit a recall application.

She added that she believes the mayor’s support for at least two spending ordinances passed by the assembly since voters approved Proposition 4 last year might constitute specific violations. That proposition requires voter approval by a supermajority of 60 percent when the assembly wants to spend over $1 million on a capital project.

The assembly has approved ordinances exceeding that amount recently, one dealing with a project already under way, the other regarding an emergency situation, both of which were deemed legal by the borough attorney.

A separate recall petition filed at the same time as the one against Williams seeking recall of assembly member Gary Superman, of Nikiski, is still pending a decision by the clerk. Nikiski residents Vicki Pate and James Mallott, also members of ACT, have sponsored that effort.

A decision from the clerk on the merits of that petition is expected soon.

Hal Spence can be reached at harold.spence@peninsulaclarion.com.



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