Superman recall effort fails

Clerk: Assemblyman didn’t violate constitution, laws, oath of office

Posted: Sunday, October 15, 2006

An application to start a recall effort against Kenai Peninsula Borough Assembly member Gary Superman was denied Friday by the borough clerk.

For the second time in as many days, Borough Clerk Sherry Biggs ruled against a citizen application seeking the recall of a public official, this one filed last month by Nikiski residents Vicki Pate and James Mallott.

Pate and Mallott are members of the Alliance of Concerned Taxpayers. Pate is the organization’s current president.

Thursday, Biggs denied a similar recall application from two other ACT members seeking the recall of Mayor John Williams.

The Sept. 12 application against Superman alleged that he had violated his oath of office by violating an Alaska Constitution article stating “all power is inherent in the people.” Further, they alleged that when Superman voted to pass a tax ordinance (Ord. 2005-09) in June of last year he violated a state statute they believe required the assembly to put the question on the municipal ballot. They also accused Superman of committing an unlawful act when he supported the summary language of Proposition 2 “in an attempt to have voters legitimize his previous unlawful act.”

Pate and Mallott accused Superman of violating borough code when he voted to pass an ordinance (2006-22) and a resolution (2006-073) that authorized spending in excess of a voter-approved $1 million capital project cap that required a public vote to be exceeded.

“Gary Superman has repeatedly ignored the constitution, state law and borough code. The grounds for recall are incompetence, misconduct in office and failure to perform his prescribed duties in a lawful manner,” the application read.

Not so, Biggs ruled. Relaying on Alaska Supreme Court precedent, Biggs said nothing Superman did rose to a level justifying a recall petition.

“I really wasn’t too concerned,” Superman said Saturday. “I was a little taken aback at the effort just to trash me, though. That bothered me. I’ve been involved in this community for 20 years.”

As for the full motivation behind ACT’s effort to seek his removal from office, Superman could only guess.

“I don’t know if they’re lining themselves up for a run at this seat next year, or what,” he said. “I don’t think they are done with any of their devices.”

Superman said he had, as yet, made no decision regarding a run for re-election.

Biggs said the allegation that Superman violated the Alaska Constitution failed to state with particularity how the assembly member had violated his oath of office. Charges must be specific enough to allow an accused official to address the charges, she said. The allegation that Superman had “repeatedly ignored the constitution, state law and borough code” failed for the same reason.

“Neither of these allegations, standing alone, rise to the level of misconduct in office, incompetence, or failure to follow prescribed duties,” Biggs said.

As to allegations that Superman should be recalled for simply casting votes to pass ordinances and resolutions, they fail because voting on legislation is a discretionary function of his position. The high court has ruled “elected officials cannot be recalled for legally exercising the discretion granted to them by law.” Superman’s actions were a valid exercise of a legislative judgment, Biggs said.

With regard to Ordinance 2005-09, which, among other things, attempted to raise the borough sales tax from 2 percent to 3 percent, Superman, along with the other members of the assembly, were advised by the borough attorney’s office that no public vote was required. Thus, Biggs said, voting on that ordinance was not a violation of state law.

Superman’s votes authorizing expenditures exceeding the $1 million cap had also been cast after assurances that the cap did not apply to those expenditures, Biggs said. Ordinance 2006-22 concerned replacing a CT scanner at South Peninsula Hospital. Resolution 2006-073 concerned funding for repairs to Spruce Creek Bridge near Seward.

“The allegations (in the application) are not legally sufficient to establish misconduct in office, incompetence, or failure to follow prescribed duties,” Biggs said in denying the application.

Reached Saturday morning, Pate said she was not surprised that both the Superman and Williams recall applications were denied.

“In fact, that was one of the reasons we put the mayor recall through because they (the administration) have been denying things (other initiative efforts) that shouldn’t have been denied, things that would have passed (if presented to voters),” she said. Pate pointed to an initiative application last year to create a total revenue cap, which had been turned down by the clerk’s office for legal reasons.

“It was word for word what passed in the Mat-Su Borough,” she said.

Pate had yet to receive a copy of Biggs’ letter denying the recall application and, therefore, declined to discuss its specifics. She did say that when she gets one, she would turn it over to ACT’s legal counsel for review and proceed from there.

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