Testing term limits — Voter group considers lawsuit against borough

By Jenny Neyman

Redoubt Reporter

Under most circumstances, the Alliance of Concerned Taxpayers is all about voter choice and giving the electorate more direct say in Kenai Peninsula Borough government. In the Oct. 4 municipal election, however, there was an item on the ballot that ACT members did not want included — the name of assembly member Bill Smith, representing District 8, Homer.

As far as ACT is concerned, Smith should not have had the opportunity to run for re-election.

ACT members aren’t charging that Smith has done a poor job of his assembly duties, though some think Smith is friendlier to big government than they would prefer. They don’t have anything against Smith personally, per se.

“He’s a nice man but he never met a government program he didn’t think was absolutely wonderful,” said Ruby Denison, of Ninilchik, a founding ACT member. “To his credit, he always shows up to meetings prepared, he knows his stuff, he does his homework, he is well-spoken, but he just thinks wrong. He thinks the government should provide all and we think the government should get out of the way.”

ACT’s biggest grievance with Smith was that he ran for re-election at all. They believe he was ineligible, under the dictates of a term limits initiative ACT sponsored and voters approved on the 2009 municipal ballot. The initiative stipulates that assembly members may only serve two consecutive terms, with any portion of a term considered a term. Smith finished one year of Deb Germano’s three-year term representing Homer after Germano resigned from the assembly in 2007. In 2008 Smith was re-elected for a full, three-year term. ACT’s term limit initiative was approved by voters in 2009.

Under state of Alaska statutes, successful voter initiatives are not to be overturned or substantively altered for two years after the initiative takes effect. The term limits initiative took effect Oct. 13, 2009, and so is protected by state statutes until Oct. 13, 2011.

So how, then, was Smith able to run for re-election to a third consecutive term in an Oct. 5 municipal election?

(Hint: It depends on what you mean by “term.”)

(Warning: Hairsplitting ahead.)

To ACT members, the answer is simple and infuriating — it’s another example of the borough assembly ignoring the will of the people. They add this issue to a list of other voter initiatives that have passed, then subsequently been altered or overturned by the assembly after the two-year protectionary period expired — including previous term limits, a cap on the sales tax rate and a cap on how much the borough can spend on a capital project without seeking approval from voters.

“It’s no wonder the people are growing increasingly disgusted with politics and with politicians, because we told you what we want. And you keep wasting time and effort bringing this issue back over and over again,” said Joann Odd, of Ninilchik, at an assembly meeting this summer.

This issue, however, is a bit of a change. It’s not so much that the assembly would consider tinkering with an ACT-sponsored and voter-passed initiative. It’s more that they took the matter up before the two-year protectionary period expired and how it was done.

“We’re in an absolute stalemate. The borough is holding firm that they can ignore the law that is on the books. They don’t have to comply with the law. Our choice is to sue them or go home quietly. And it would be a minimum of $12,000 (to bring suit against the borough), and God knows what the maximum would be. The frustration level is on just about 99 percent,” Denison said.

ACT has filed suits against the borough before — and at this time still has one working its way through the court system — so members know the time and money required to do so. They also know what it takes to sponsor a voter initiative and gather enough signatures to get it on the ballot, and are prepared to go through that process again should the assembly overturn term limits after the two-year protectionary period is up on Oct. 14.

But if ACT and its supporters have to follow the rules and go through the often expensive, time-consuming processes to cause change in borough government, members contend that the borough assembly and officials should follow the rules, as well.

“It’s the larger issue. They keep getting away with things like this,” Denison said. “So we’ve had some good success in holding the borough’s feet to the fire. It’s us against them, the people against them.”

From the assembly’s standpoint, the actions that led to Smith being able to run for re-election were not meant to sidestep voters’ wishes, but rather to clarify and codify them in a way that allows term limits to remain in effect yet apply more fairly, especially in light of the impact redistricting will have in the near future.

“I wanted the voters to weigh in on whether they thought three terms was appropriate for assembly members,” said assembly President Gary Knopp in a July 5 assembly meeting. “When the initial citizens’ initiative went to the ballot box, voters overwhelmingly said ‘yes’ to term limits, which I agree with. The problem was that nobody at the time knew what the correct number of terms was. And the voters never had an option to consider it. … When you give the voters a ballot question they had two options — term limits of two terms (or no term limits). They didn’t have any other options, they supported term limits. They might have supported term limits with three terms, but we didn’t ask them.”

Defining terms

A regular term of service for an assembly member is three years. The voter initiative that went into effect in 2009 limits assembly members to serving two consecutive terms. In most cases, this would mean assembly members may only serve six years — two, consecutive three-year terms. But by the initiative, that period of service could be less than six years, if an assembly member is appointed or elected to serve a truncated term, as was the case with Smith.

Typically this is a rare occurrence, but census-driven redistricting could cause more shortened terms in the 2012 election. If voters decide in this year’s election that they want to stay with nine assembly districts, then districts with a change of population of 10 percent or more will stand for re-election in 2012. If voters choose 11 districts, then all seats will be up for election. In order to avoid all 11 assembly seats coming up for election every three years, three seats will initially be elected to one-year terms, four seats will be up for two-year terms and four will be three-year terms. Subsequent elections for all seats will be for three-year terms.

Some on the assembly, including Knopp, say the dictates of the 2009 term limit initiative are an unfair limitation on assembly service when paired with partial terms. Re-elected assembly members, and the constituents who voted for them, should get a full six years of service, Knopp has said.

Actually, Knopp would prefer they get three full terms of service. In its June 7 meeting, Knopp introduced an ordinance that would have asked voters in the Oct. 4 election to increase the limit of consecutive assembly service from two terms to three; would define a term as a full three years, rather than any part of three years; and would reduce the amount of time a person must sit out of assembly service before running again for election from three years to 180 days.

Knopp’s measure, as proposed, didn’t pass the assembly to make it onto the ballot, but it did serve to open the can of worms that led to Smith being on the ballot for re-election, and ACT to considering whether it should bring another lawsuit against the borough.

Ordinance 2011-24 came up for discussion and amendment several times throughout the summer. Myriad iterations of the ordinance were proposed and debated. Eventually the discussion boiled down to one key issue — should a term be defined as three full years, or any part of three years? Linda Murphy, who represents Soldotna, proposed an amendment that passed the assembly 8-1 (with Brent Johnson, representing Kasilof, casting the lone oppositional vote) on Aug. 2. With her amendment, Ordinance 2011-24 aligns assembly term limits with those imposed on the borough mayor — two consecutive terms in office with a term being three full years.

The measure has an effective date of Oct. 14, a day after the two-year protectionary period for the term limits initiative expires, or upon preclearance by the U.S. Department of Justice, whichever occurs later.

“So it’s more than two years, and they’ve (ACT) already asked the state of Alaska this question and received that answer. Under the state statutes which govern local initiatives, the actual wording is you can’t change the effect of an ordinance within two years of its effective date,” said Colette Thompson, borough attorney.

That change on the horizon opened a window for Smith to get on the Oct. 4 ballot. Again, it’s a matter of future tenses.

“Under the borough code a candidate is qualified to run for the assembly if they are a qualified voter of the state of Alaska and a resident from the district from which they are seeking election for at least 180 days immediately preceding filing for office,” Thompson said.

Check and check. Smith will not be eligible to serve another consecutive term — his third — on the assembly until Ordinance 2011-24 goes into effect, but that doesn’t mean he can’t run.

“The term limitation provision does not prohibit a person from running, it prohibits them from serving three consecutive terms,” Thompson said.

There would be no point in running or in the borough clerk allowing a candidate on the ballot if there was no way he or she could serve his term if elected. Without Ordinance 2011-24, there wouldn’t be a reason to allow Smith on the ballot. But with the change to term limits, the borough clerk decided he could be eligible to serve come Oct. 14, so he is eligible to be a candidate.

“If it were impossible for him to serve — like last year it would have been impossible because the two-year period of the initiative could not be changed last year. So, if that were the case, then probably the clerk would not have allowed his application to go forward. (But the clerk decided) he could be qualified as of the date that he has to be sworn into office,” Thompson said.

Borough Mayor Dave Carey vetoed Ordinance 2011-24 on Aug. 12, on the grounds that the public did not have sufficient opportunity to consider the amendment and testify about it. Ordinance 2011-24 was on the agenda for the Aug. 2 meeting, and two members of the public gave testimony about it. Murphy’s amendment was then proposed and approved in the same meeting.

Going into the Aug. 2 meeting, Ordinance 2011-24 called for limiting assembly members to two full (three-year) terms with a maximum of eight consecutive years and requiring a break in service of at least 180 days, subject to the approval of voters. Upon passage by the assembly, the ordinance no longer called for going to a public vote.

Carey, with his veto, contended that the amendment was a substantive-enough change to the ordinance as it appeared on the agenda going into the meeting that it should have been held over and put on the next meeting’s agenda, giving the public time to consider it and testify about it.

The assembly did not agree, and at its Aug. 16 meeting voted unanimously to overturn the veto.

Whether or not an amendment requires an ordinance to go out to public notice and stand for public testimony depends on how significant a change the amendment poses. If it does not alter the basic character of the ordinance, an amendment does not have to go out to public notice and be held for public testimony before a vote, Thompson said.

“Beyond that it’s a legal question that I can’t really get into the merits of, except to say that the general rule is that the assembly is by statute authorized to amend ordinances after final hearing and before adoption provided the amendment doesn’t substantially change the basic character of the ordinance,” Thompson said.

“They did allow public comment when it was at the assembly meeting. The veto was considered by the assembly. A number of people did testify regarding that veto. They did have substantial publicity on the issue. There was public notice,” Thompson said.

But did Murphy’s amendment alter the basic characteristic of the ordinance, as Mayor Carey contended with his veto? The assembly, in overturning the veto, says no — all the amendment did was define the length of a term — three years instead of any part of three years. It did not change the number of terms — it’s still two.

ACT members say that stipulating the length of a term as three years is indeed a substantive change, as is changing the ordinance from requiring a public vote to not requiring one. When ACT members wrote the term limits initiative they meant to count a partial term toward the limit.

“There was no doubt in anybody’s mind what a term was. If you’re elected, that is a term. If you’re elected a second time, that is two terms and that’s all you can serve. If you’re elected for a day, that’s a term,” said Fred Sturman, at the Aug. 16 meeting.

“To me, changing a word changes the world one way or the other. There’s a dictionary, we all agree to it and we use it. … The word ‘term’ was clearly defined when we went about this in gathering the signatures and speaking about it and debating it. We didn’t have a problem with it, and the voters didn’t,” said Diane MacRea, of Kasilof, also at the Aug. 16 meeting

ACT members have attempted to address the issue with the state Department of Elections, under Lt. Gov. Mead Treadwell. They were frustrated with what they termed a lack of a response. Especially indicative of the response they’ve gotten from the state level was an office staffer assuming they were speaking about the Lake and Peninsula Borough, not the Kenai Peninsula Borough. That did not bode well for state assistance in the matter, or that they were being taken seriously, Denison said.

“The state is not about to enforce this law. Apparently these kinds of laws are just self-enforcing by the borough themselves,” Denison said.

At this point, if ACT wants the question answered definitively, the group would need to pose it in court. Denison said the group is leaving its options open for whether it wants to go that route. In the meantime, they campaigned for Smith’s challenger, Kelly Cooper, and they also plan to continue their ongoing campaign to — as Denison put it — hold the borough’s feet to the fire.

“I think that the ACT is the only citizens advocate group at the borough level and, in fact, there doesn’t seem to be any groups at the city level either. We’re just like the only game in town to try and protect the citizens, and they wish we would go away. But we’ve held in there 10 years. We are the only citizens group that has been consistently working to keep spending down and citizens rights up,” she said.

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