Propositions scheduled to appear on the Oct. 2 municipal ballot that would apply term limits to assembly and school board seats might face difficulties with Alaska statutes, according to attorneys with the borough.
The Alliance of Concerned Taxpayers (ACT) was successful this summer in gathering sufficient signatures to place a pair of term-limit propositions on the fall ballot. Those propositions would limit Kenai Peninsula Borough Assembly and Kenai Peninsula Borough Board of Education members to two consecutive terms.
As written, the terms of the ACT propositions would prevent an incumbent candidate who has served two terms as defined by the proposition from assuming office this fall, even if that person was successfully re-elected by voters within his or her district. Furthermore, that person would be prevented from running for that seat again for at least three years.
According to Borough Attorney Colette Thompson, the way the propositions define the word "term" could be a source of possible conflict with state law with respect to school board members. Additionally, the fact that term limits would apply retroactively to terms already served, that they would apply even to members re-elected this year, and that they would restrict such citizens from running again for three years have the potential of becoming problematic legal issues, she said.
"They present a lot of interesting legal questions and raise a lot of concerns with regard to clarity of process," Thompson said.
Equivalent clauses in the text of the two propositions define a term as being not only a normal, three-year elected period, but also "any portion of a regular term of office served by appointment or election to the remainder of an unexpired term vacated by another person, or any term served by election that is less than three years because of a change in school board composition, membership structure, districting or apportionment."
Thus, an elected official conceivably could "complete" two terms as defined by ACT without serving six consecutive years.
In the case of school board seats, state law specifically defines a term as a three-year period, except in cases where a board is newly created, or where the number of board seats has been changed, in which case shorter terms are applied to some seats to stagger which appear on ballots in future elections.
Those two issues are covered in Titles 14 and 29 of Alaska Statutes, and AS 14.12.050 states simply that "nothing in this section prevents school board members from succeeding themselves."
In a June 25 memo to Borough Clerk Sherry Biggs prior to the launch of ACT's successful initiative drive, Thompson noted that AS.29.300 "flatly provides" that school board members are elected at large for "three-year terms."
But in 2003, borough voters eliminated the "at-large" election of school board members in favor of districted seats. Also, the state statute only refers to five-member and seven-member boards and how seats are to be handled in a transition between the two sizes. The statutes are silent regarding nine-member school boards, Thompson said.
She added it was questionable whether statutorily defined terms (applying statewide) could be legally redefined by an initiative applying to one municipality.
What ACT meant by the phrase "membership structure" was also unclear, Thompson said.
"Presumably this means something other than a change in districting, composition, or due to apportionment or the term would be meaningless, contrary to the rules of statutory construction," she said.
Nevertheless, in the June 25 memo, Thompson went on to say that the lack of clarity was not, by itself, sufficient to block the initiative signature drive.
A separate state statute also could become a factor should a successful proposition be challenged. Subsection (b) of AS 29.20.140 allows municipalities (by ordinance) to require a period of residency of up to three years before a person is eligible to run for municipal office.
Regarding that clause, however, the Alaska Supreme Court has found three years to be "an unacceptably long time to burden the right of local voters to make their own decisions." The clause still exists in the law, though is likely unenforceable.
It is another clause (d) within that same statute that appears to support ACT's propositions. It states that limits can be set, by ordinance, on the total number of terms or consecutive terms a person may serve on an elected municipal body. At question is whether the court would rule on section (d) as it did on section (b).
"The court," said Borough Deputy Attorney Holly Montague in a June 15 memo, "may in the future hold that this statutory authority to limit the number of terms a voter may serve is unconstitutional. However, no such ruling has been made to date in Alaska."
Still another issue is the effect the mere possibility that an incumbent candidate could win re-election yet be unable to serve might have on a candidate's decision to run, as well as on a voter's decision about whom to vote for on election day, Thompson said.
School board candidate Sunni Hilts, of Seldovia, could face just such a circumstance. She recently noted that her constituents could choose her overwhelmingly, yet find their votes negated by a successful boroughwide vote on the board term-limit proposition, bringing into question whether voter rights would be violated.
Hal Spence can be reached at hspence@ptialaska.net.
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