City attorney questions council recall petition
March 16th, 2017 | Carey Restino
City clerk approves initial merit of petition
Signatures can now be gathered by sponsors of a petition to recall three city council members who sponsored an "inclusion resolution" some say bordered on an attempt to create a sanctuary city in Homer.
Donna Aderhold, David Lewis and Catriona Reynolds co-sponsored the resolution earlier this month, which drew testimony from more than 100 residents, most of whom said the resolution was politically divisive and called for the city police to take action that could run counter to recent federal efforts to remove illegal immigrants.
Following the meeting, the petition for recall was submitted to the city for review, and was found by City Clerk Jo Johnson to meet the initial requirements that allow it to move forward. Petition sponsors may now move forward gathering the necessary signatures once the petitions are issued by the clerk. Each councilmember's recall will be a separate petition requiring 373 signatures — 25 percent of the 1,490 city residents who voted in the last election.
But the matter of whether the grounds for the recall are founded is far from settled, City Attorney Holly Wells said in a memo. The petition sponsors make two allegations — that the council members engaged in prohibited "political activity" with the "inclusion resolution" as well as an earlier resolution affirming support for the Standing Rock Lakota tribe in its opposition to the Dakota Access Pipeline and that they engaged in misconduct that caused "irreparable economic harm" to the city.
However, Wells noted, political activity is defined as influencing the nomination or election of an individual or the outcome of a ballot proposition. Since the resolutions both occurred after the national election, and were not directed at any candidate or pending ballot proposition or question, Wells said it does not appear that the recall petition application states a violation of the council members' oaths of office.
Wells noted that the second claim of misconduct in office is not defined in the recall statute, though using legal definitions, it is defined as "a dereliction of duty; unlawful or improper behavior."
"Using this definition, sponsors statements may be sufficient to survive the clerk's review for certification because 'improper behavior' is a very subjective standard," Wells wrote.
Wells also noted in her memo to the council that the grounds provided by the sponsors exposes the city to constitutional challenges based upon protections afforded speech under the Alaska and United States constitutions.
"In an effort to minimize these risks, I researched the city's options for seeking court guidance prior to or shortly after certification," Wells said. "Unfortunately, I could find no avenue that did not require the city to identify an adverse party, even if the city filed a complaint for declaratory action."
She called the laws governing the issuance and certification process as "woefully unclear."
"Consequently, regardless of the action taken by the city, it has significant exposure to challenge," she wrote.
Once the necessary signatures are gathered, the city clerk will have the responsibility of determining whether the petition's allegations against the council members have merit. If the clerk deems the petition to have grounds and determines that it meets all the other requirements, a special election will be scheduled and voters will determine the outcome of the recall petition.
The signature-gatherers are operating under a tight time window, however, because once the petitions are issued, two of the petitions — those for Lewis and Reynolds — must be returned to the clerk with the necessary signatures by April 11 rather than within the typical 60-day timeframe allotted to Aderhold's petition. That is because both Lewis and Reynolds are up for re-election in October, and code states that any petition must be received within 180 days of the end of elected official's terms.
Wells noted during Monday's city council meeting that she has advised the council members being considered by the recall petition not to engage in defenses or discussions regarding the recall as it essentially is an election process and any statements could be construed as inappropriate given that framing.
In an email, Lewis said, however, that he objects to the grounds for the petition.
"What the petition is based on isn't true," he wrote. "We did not write or post it on social media or share it."