City attorney: recall is ‘mired in confusion’

Editor’s note: The name of Mark Zeiset has been removed from the list of people who signed the recall petition application. While Zeiset did sign the application, in a March 9 email to City Clerk Jo Johnson, he asked that his name be removed from the recall petition application, saying he thought he was signing a petition against Resolution 17-019, and that he did not support the recall petition.

As Homer City Clerk Jo Johnson this week prepared petitions for a citizen group seeking to recall Homer City Council members Donna Aderhold, David Lewis and Catriona Reynolds, the city attorney at Monday’s council meeting provided guidance on the recall process.

While the technical requirements are explicit, attorney Holly Wells said state law and court rulings don’t provide clear guidance on interpreting the validity of a complaint. She also cautioned that the alleged grounds for recall “exposes the city to constitutional challenges based upon protections afforded speech under the Alaska and United States Constitutions.”

“The recall process is mired in confusion,” Wells wrote in a memorandum on March 9 and presented to the council at Monday’s meeting. “There is a lot of ambiguous, missing information. We’re going to do the best we can with the law that exists and the legislative intent,” she added at the meeting.

On March 6, a citizen group led by sponsors Michael Fell, Larry Zuccaro and Larri Fancher filed an application for recall against Aderhold, Lewis and Reynolds. Last Friday, March 10, Johnson, in consultation with Wells, determined their application met the technical requirements for a recall: it had 10 signatures of qualified Homer voters, had the name of a contact person and it stated with particularity in 200 words of less the grounds for the recall.

Certification of an application moves forward the next phase of a recall, issuing petition booklets for the organizers to start collecting petitions. Johnson said on Wednesday petition books had been prepared and were ready for pickup or mailing. Twelve sponsors can circulate petitions.

In Memorandum 17-037 and at the council meeting, Wells said the certification of application focused on the technical requirements of the process and not the veracity of the complaint filed. The Alaska Legislature takes a position of “only permitting recall for cause, but liberally applying the standards for showing cause,” Wells wrote.

The recall petitioners have 60 days from the issuance of the petition to gather 373 signatures, or 25 percent of the 1,490 people who voted in the last city election. Three recall petitions, one each for Aderhold, Lewis and Reynolds, have been prepared, and signatures would have to be collected for each petition. The recall election cannot be held within 75 days of the Oct. 3 regular election.

However, because Lewis and Reynolds are up for re-election in October, under city code a petition must be received within 180 days, or April 11, of the end of the elected official’s term. Lewis told the Homer News on Monday that he does not plan to run for re-election.

The recall group alleges that “Aderhold, Lewis and Reynolds are each proven unfit for office, as evident by their individual efforts in preparation of Resolution 16-121 and 17-019, the text of which stands in clear and obvious violation of Homer City Code Title 1.” It also claims misconduct in office “by the irreparable damage done by draft Resolution 17-109 being made public and widely distributed on social and news media.”

The resolution allegation refers to the council members’ support of 16-121, supporting the Standing Rock Lakota tribe and opposing the Dakota Access Pipeline, and 17-019, “A resolution of the City Council of Homer, Alaska, Stating That the City of Homer Adheres to the Principle of Inclusion, and Herein Committing This City to Resisting Efforts to Divide This Community With Regard to Race, Religion, Ethnicity, Gender, National Origin, Physical Capabilities, or Sexual Orientation, Regardless of Those Efforts, Including From Local, State or Federal Agencies.”

Resolution 16-121 passed, with Aderhold, Lewis and Reynolds voting in favor and Mayor Bryan Zak voting yes to break a tie vote. Resolution 17-019 failed 5-1, with only Reynolds voting yes.

At the public comment period at the end of the Monday council meeting, Zuccaro spoke of emails among Aderhold, Lewis and Reynolds he had seen after filing a city public records request for correspondence relating to Resolution 17-019. After being asked by the Homer News about the recall after Monday’s meeting, Zuccaro on Tuesday provided a written statement to the Homer News.

“I think once everyone sees these email correspondence, it will be clear to all that nothing short of a recall process would be acceptable,” Zuccaro wrote, “This is a sad time for Homer, but this is something that must be stopped now through this process before more damage is done to our city, our reputation and our way of life.”

The application cites Title 1 of city code prohibiting a city official from taking “an active part in a political campaign or other political activity when on duty” as well as the oath of office.

In her memo, Wells notes the recall group’s allegation of political activity. She cited another section of city code defining political activity as “any act for the purpose of influencing the nomination or election of any person to public office, or for the purpose of influencing the outcome of any ballot proposition or question.” Wells wrote that the resolutions were presented after the national election and were not directed at any candidate or ballot proposition.

“Based on my review of the allegation, it does not appear that the Recall Petition Application states a violation of the council members’ oaths of office,” Wells wrote. “I have serious concerns regarding the legal basis for the grounds stated.”

She also wrote that “it is unclear if the circulation, distribution and reaction to that resolution (17-019) can be identified as misconduct by them directly,” she wrote.

If the recall organizers get sufficient petitions on time for all three council members, the clerk would then review those petitions to see if they meet the technical requirements of having sufficient signatures by qualified voters. If the signatures are valid, Wells wrote that “the much more difficult question facing the City Clerk will be whether or not the Petition is sufficient as to the grounds on which it is based.”

At the council meeting, Wells also advised the Aderhold, Lewis and Reynolds that because a potential election issue was on the table, they and other council members should be careful about what they say at meetings. Discussing the process would be appropriate, such as when to set a recall election.

“But to the extent council members are offering defenses or engaging in discussion, I have advised them that is not appropriate,” she said. “We are in what is arguably an election process.”

Reynolds and Lewis were the top vote getters in a four-person race in 2014, winning with 62 percent and 57 percent. Aderhold was the top vote getter in a seven-person race in 2015, winning with 44 percent on the first ballot.

In addition to Fell, Zuccaro and Fancher, the other people signing the recall application were Joe Singleton, Terry Wilson, Blynn Dahlhamer, Jack Niemi, Betty L. Snow (no relation to a Betty Snow who died in 2012), Jack Packer, Justin Wickstrom, Randall Parrett and Cindy Frazier.

Michael Armstrong can be reached at