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Borough Mayor John Williams has approved paying court-ordered attorney fees to a plaintiff who sued the borough late last year when the assembly failed to seat three incumbents re-elected to their assembly seats in the October 2007 election.

Assembly members Gary Superman of Nikiski, Pete Sprague of Soldotna, and Paul Fischer of Kasilof, each won in their respective districts. But the assembly delayed a decision to seat the re-elected members for several weeks because voters across the borough also had approved a ballot proposition imposing term limit restrictions that apparently prevented their taking office.

The term-limit proposition, sponsored by the grassroots activist group Alliance of Concerned Taxpayers (ACT), limited assembly members to no more than two consecutive terms, redefined a term to include even a short stint as an appointee, and imposed a three-year waiting period before term-limited assembly members could seek office again.

ACT also sponsored a similar proposition imposing the same restrictions on Kenai Peninsula Borough Board of Education Seats. It affected two successful incumbents.

The borough disputed the constitutional legality of the initiatives. ACT demanded adherence to their provisions.

Not long after the election, Soldotna attorney Dale Dolifka filed suit against the borough and former Borough Clerk Sherry Biggs for failing to seat the three assembly incumbents.

At nearly the same time, ACT filed suit naming the borough and the school district as defendants after the school board's decision to seat term-limited incumbents Sunni Hilts of Seldovia, and Sammy Crawford of Kalifornsky Beach. ACT also alleged, correctly as it turned out, that the assembly was preparing to do the same with its three incumbents.

Faced with two lawsuits in which the borough could have found itself defending the seating one set of candidates on the one hand, and not seating another group on the other, the assembly opted to seat its assembly incumbents, on the theory it would render the Dolifka suit moot, leaving the borough to defend only the ACT suit.

Dolifka indeed dropped his suit shortly after the assembly voted to seat the members in their disputed seats. Dolifka's attorney, Tom Amodio of Anchorage, then filed a motion seeking $9,450 in attorney's fees to cover the cost of the litigation. The borough opposed that motion on several grounds including "the lack of a final decision on the merits," Borough Attorney Colette Thompson said.

Kenai Court Judge Carl Bauman issued an order in mid-May granting Dolifka's motion for fees, but reducing the amount to $4,250.

"The legal department recommends that these fees be paid instead of incurring additional costs associated with an appeal," Thompson said in a memo to Williams on June 5.

Signing on behalf of the mayor, Chief of Staff Tim Navarre approved the recommendation. Barring an assembly decision to fight the matter, the payment will be made.

Meanwhile, ACT and the borough await a decision from Kenai Superior Court Judge Anna Moran in the term-limits suit. Both sides are hoping to have a decision before Aug. 1, the opening of the 15-day filing period for municipal offices, including assembly and school board seats.

It isn't clear at this point what steps would be necessary if incumbents, who could fall under the term-limit rules, were to file and a subsequent court ruling upheld the propositions. According to state law, if a candidate has not withdrawn his or her name by the end of the filing period, their name would appear on the ballot even if, in this hypothetical case, they were ineligible to serve.

Hal Spence can be reached at hspence@ptialaska.net.