Story last updated at 1:33 PM on Monday, October 16, 2006

Applications seeking recall of borough mayor, assembly member denied

Morris News Service - Alaska

Applications to start recall efforts against Kenai Peninsula Borough Mayor John Williams and assembly member Gary Superman of Nikiski have been denied.

Allegations of incompetence, misconduct and failure to perform official duties lodged last month Williams 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.

Nikiski residents Vicki Pate and James Mallott filed the application seeking the recall of Superman. Both are ACT members; Pate is the organization’s current president.

Biggs denied their application Friday.

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.”

Fandel and Kime also 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.

The Sept. 12 application against Superman alleged he had violated his oath of office by violating an Alaska Constitution article stating “all power is inherent in the people.” Further, Pate and Mallott 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 violation borough code when the passed 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.

Thursday, Borough Clerk Sherry Biggs issued a five-page response to the application for the recall petition against the borough mayor, denying the application on the grounds 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.

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 is 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 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.

Relying on Alaska Supreme Court precedent, Biggs said Friday 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 their 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 regards 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.

Allegations that his 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.

Hal Spence is a reporter for the Peninsula Clarion.