Ethics complaint dismissed against Homer council members

Affirming what had been suspected happened when a Heartbeat of Homer spokesperson broke confidentiality, an ethics complaint against three Homer City Council members filed on July 5 was dismissed by an administrative law judge and hearing officer in August, a public records request has revealed.

On Monday, City Clerk Melissa Jacobsen suggested that the Homer News refile a previous request and ask for “any public documents related to the Heartbeat of Homer ethics complaint.” The Homer News did so and the city made public and released hearing officer Andrew Lebo’s Sept. 21, 2017, Notice of Case Closure that said the Heartbeat of Homer complaint had been dismissed.

In that notice, Lebo wrote “because the complainant violated the confidentiality requirements of Homer City Code (HCC) 2.80.040, the complaint was dismissed by order dated Aug. 29, 2017, pursuant to the mandatory dismissal requirement found in the same HCC provision.”

Lebo referred to a press release released on July 3 by Heartbeat of Homer spokesperson Sarah Vance, now a candidate for Homer City Council. Vance sent a copy of the complaint prepared by Heartbeat of Homer’s attorney, Stacey Stone, to KBBI News Director Aaron Bolton. Bolton reported on the complaint, posted a copy on the KBBI website and shared a copy with the Homer News. Stone later told the Homer News that she did not release the complaint.

Although KBBI reported that Vance had made the complaint public, the city could neither confirm nor deny that it had received the complaint. Heartbeat of Homer named council members Donna Aderhold, David Lewis and Catriona Reynolds in its complaint, alleging they should not have voted to accept the Canvass Board results of the June 13 recall election in which an attempt to recall the three failed by near-landslide percentages. Heartbeat of Homer, a political group registered with the Alaska Public Offices Commission to advocate for the recall, said that the three should have declared a conflict of interest and not voted on Resolution 17-064 that accepted the Canvass Board results.

As respondents, Aderhold, Lewis and Reynolds could elect to make the July 3 complaint public. They did so last week and that made it possible for the city clerk to grant the Homer News public records request.

“We felt that it would be fair to talk about it,” Andy Haas, the attorney representing the three council members, said about why they wanted the complaint made public. “People would want to know what happened to it.”

Haas said Vance’s action clearly violated confidentiality requirements of the city’s ethics code.

“She did that release even before it got to city hall,” he said.

Aderhold said she asked for the July 3 complaint to be made public to settle questions about what happened to it.

“The merits of the first complaint were never discussed,” she said. “We were getting questions from you (the Homer News), from KBBI, questions from the public, ‘What is this?’ Here it is. Here’s the full discussion. Everyone can see what the process is.”

Reynolds said she asked for public release of the complaint because “it paints a true picture of what’s going on with that complaint,” she said.

“As you know, it is Sarah Vance who is one of our candidates and has been one of the most vocal recall supporters,” Reynolds said. “She was the one who broke confidentiality.”

An almost identical ethics complaint also was filed by recall supporter Larry Zuccaro. Dated July 31, it claims the council members should have declared a conflict of interest under HCC 1.18030(b)(1), which says “no city official or the City Manager shall participate in any official action in which: 1) the party is the applicant, a party or has a substantial financial interest in the subject of the official action.”

On Sept. 15 at a case planning conference, the three council members elected to make Zuccaro’s complaint public.

However, city attorney Holly Wells previously told the Homer News that city code also says the council “shall certify the results of an election following completion of the canvass by the Canvass Board.” City code also says a city official is allowed to participate “in official actions on behalf of the city when the city itself is the applicant subject of the action.”

Aderhold said she welcomed a discussion and deliberation of the Zuccaro complaint.

“The reason to make this public is that everybody understands what the process is and if it is reasonable or not,” she said. “I want to hear what the other side has to say and I want to hear what the hearing officer finds. I find this actually interesting.”

In other news regarding the recall, at the Sept. 25 council meeting, City Manager Katie Koester submitted Memorandum 17-125, Mid-year Budget Amendments, to accompany Ordinance 17-34, making adjustments to the 2017 budget. That included $60,000 more for “Mayor/Council professional services” to the city attorney. The council introduced the oridinance in the consent agenda, and it will be up for public hearing at its next meeting.

“The city had unexpected legal fees in 2017 due to both the extraordinary amount of legal research that was involved with the certification of the recall petition and the ensuing legal defense from American Civil Liberties Union,” Koester wrote, referring to a civil suit filed by Aderhold, Lewis and Reynolds challenging the merits of the recall election on First Amendment grounds. The memo did not elaborate on how those legal fees broke out.

Both sides in the complaint will exchange briefs and submit it to the hearing officer. They also will get a chance to rebut the other side. A conference call on the complaint will be held telephonically about Oct. 19. If the three council members should have declared a conflict of interest and not been allowed to vote, it’s not clear if there would have been a sufficient quorum to accept the canvass board results. There is a rule of necessity that can allow the remaining council members to vote. If a vote to accept the canvass board results could not have happened, the effect would have been the same — the recall vote would not be approved and the three would have remained in office. An email was sent to Vance and Stone seeking comment, but they did not reply by press time.

Reach Michael Armstrong at michael.armstrong@homernews.com.

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