“It’s a bizarre fandango, John.”
That was one way to put last night’s assembly meeting, offered by a facebook friend.
The night played host to two ordinances dealing with Ordinance 37, a Sullivan-backed labor rewrite that you can read about here, here, here, and a hundred other places.
Tonight’s meeting sought to find closure as to whether or not voters, who gathered enough signatures to place a referendum on a ballot, would get to vote on said referendum – and when. The Sullivan administration introduced new precedent when it introduced a bill to delay the referendum until either the general election ballot next November, or the April municipal ballot the following April.
Tuesday night’s meeting decided the fate of two bills: one seeking to place the issue on the April, 2014 ballot; the other repealing the ordinance outright.
AO108 placed the referendum on the 2014 municipal ballot, avoiding delays and the exorbitant and unnecessary costs that would be incurred by a special election. The proposal passed by a 6-5 vote and was immediately vetoed by the mayor. After an elongated intermission, the body heard from both the city attorney and the assembly’s attorney.
The city attorney, Dennis Wheeler, went first.
Charter, section 5.02 describes the mayor’s veto power very simply, very concisely, and very powerfully. It says the mayor has the veto power. There’s no limitation; no exception in that language. The Supreme Court of Alaska has ruled that that veto power is sweeping, to use the court’s words. That the Charter is laid out as an expression of the will of the voters, back in 75, that we would go with a strong mayor form of government, not a strong assembly/municipal manager form. With that, the general veto power applies unless there is a specific exception. In Charter, Section 10, which deals with the assembly’s ability to suspend the ordinance and move the referendum date, there are no exceptions expressed there for the mayor’s veto power, unlike other sections of the code. It is the opinion of this office that the mayor has the ability to veto this ordinance under those broad, sweeping, general veto powers.
One might take issue with the assertion that it is the assembly attempting to “move the referendum date,” when they are following the express instructions of Article 3, Section 2(b) of the Charter. But the larger question is whether the mayor can veto an item on the ballot.
History tells us it’s generally a bad thing when leaders can pick and choose when and what voters can vote on.
The Assembly’s attorney, Julie Tucker, rebutted Wheeler’s assertion.
When the mayor attempts to exercise the veto power to control or manipulate the election date for when a referendum will appear on the ballot, we have a separation of powers problem. It’s the same problem we would have, and, that from time to time the administration – from administration to administration – complains about: should the assembly attempt to use its ordinance power, which is also under the Charter, to direct the mayor on executive powers that are not otherwise shared by the assembly. Separation powers is a recognized judicial doctrine. The municipal attorney and I disagree on the scope of the mayoral vetoes in a number of areas and this is one of those areas.
Ernie Hall listened to both sides, and decided to ignore the city attorney’s ruling, saying that his “decision is not to acknowledge the mayor’s veto until we have a court decision.”
So, once again, government ceased to work and, in this case, falls to the mercy of the superior court.
Questions linger. Eagle River Assemblyman Bill Starr was confused.
“If the mayor veto stands, is that subject to referendum? Sounds funny, but it’s a referendum of a referendum. Could you clarify that in terms of how an [ordinance] would be repealed?”
City attorney Wheeler answered by saying whatever the mayor vetoes ceases to be, prompting Starr to follow up: “We’ve just relegated the decision on when to set the election to the mayor?”
The attorneys clarified that if the courts uphold the mayor’s veto power, then the assembly must clarify a new election date within the 75 day mark mandated by court.
“If his veto is sustained, than it goes back to the judgment of the court, which would probably have it on the tenth of December. We have real problems, because we can’t make that date,” Assemblyman Traini said.
Delay, delay, delay. Hopefully, by the time the court has its say, the same Assembly hoping to put the referendum on the municipal ballot will have to admit that they can’t run the election.
AO115 was an outright appeal of the labor rewrite dropped on the table during the last assembly meeting by Assemblyman Dick Traini and cosponsored by Bill Starr. This prescription took a vote out of the equation entirely, offering Sullivan (running for lieutenant governor) and vulnerable assembly members, facing reelection, a way out; taking the referendum off the ballot entirely.
Speaking to his main objection the the process, Starr said that he didn’t think the process that culminated in the law worked; “I think it was far too political.”
He worked with Patrick Flynn and introduced a new compromise that was introduced tonight.
Mayor Sullivan finally chose his time to speak. And it was entirely problematic.
“It’s been an interesting public discussion tonight, and, you hear some of the… emotional buzzwords like ‘process’ and ‘secret’…”
When was “process” inducted into the “emotional buzzwords” Hall of Fame?
“I can’t recall a time when any piece of legislation was developed on the public table. It’s internal work product when you’re developing a piece of legislation. It becomes public when you lay it on the table for introduction. At that point, the public process begins. And what a public process there was.”
Bad legislation is dropped on the table with the mandate that all affected parties go along. Good legislation is vetted through community councils and groups that would have to endure massive policy changes.
“Then, of course, you had over 20 hours of public testimony. I can’t recall an ordinance that had 20 hours of public testimony.”
So, Mayor Sullivan can’t remember the last hugely controversial, backwards piece of legislation he vetoed. Awesome.
“Don’t fall prey to the pressure that says this is somehow flawed, or the process was flawed. This was one of the most open, comprehensive public processes, and point by point in this bill…”
This is where everyone started laughing loudly.
“See, I didn’t laugh once when you guys testified. Not once. I could have, but I didn’t,” he chuckled.
The Assembly voted 7-4 to repeal the measure. The pro-repeal bloc picked up Adam Trombley, who would really like to avoid sharing a ballot with the referendum. But the effort fell one vote short of a veto-proof majority. Mayor Sullivan immediately vetoed the measure.
So, the courts get to decide what government couldn’t.