Spectrum

Who fills a vacancy on the assembly?

Title 29, Municipal Government, states, under Section 29.30.180, "Filling a vacancy, (a) If a vacancy occurs in a governing body, the remaining members shall, within 30 days unless a different period is provided by ordinance, appoint a qualified person to fill the vacancy." The Matanuska-Susitna Borough Code, 2.12.040 (A) states, "If a vacancy occurs on the assembly, the remaining members shall, within 30 calendar days, appoint a qualified person to fill the vacancy."

Now, with both Title 29 and the borough code clearly stating a vacancy on the assembly shall be filled by the remaining members, wouldn't you think that's how the vacancy should be filled? Oh, but no, there seems to be an over-riding trump card which has been used as recently as the Feb. 15 assembly meeting. That card is held by the mayor.

Chapter 2.08.040 Mayor, Duties, states, "the mayor shall (A) (1) preside at all assembly meetings. The mayor may take part in the discussion of matters before the assembly, but may not vote, except that the mayor may vote in the case of a tie." Under B of the same chapter, it states, "the mayor may veto any ordinance, resolution, motion or other action of the assembly." And what does "other action of the assembly" mean? Does a directive from an assembly member to have the manager bring forward an ordinance constitute "other action"? Could this request, or even a parliamentary motion, before final action, be vetoed at the discretion of the mayor?

Keep in mind that we are a second-class borough with a strong manager form of government which makes the mayor's office ceremonial.

Let's say the remaining six members vote on the appointment of a replacement to fill the vacancy and the vote is a tie. The mayor can either declare the motion dead because of a tie or he can break the tie by voting yes or no on the selection of a candidate.

Who really fills the vacancy? Let's go one step further. Let's assume the assembly voted on a replacement with a vote of 4-2. The mayor has veto powers and, if used, an over-ride requires a 2/3 vote of the number of seats designated, which is seven.

Therefore, a total of five assembly votes would be required to override the veto. Who really fills the vacancy?

In the past, legal opinion has ruled on the side of the mayor and from all indications, it seems like it will again in the appointment of an assembly member to fill the vacancy in District 2. While this is a long-standing problem, it has never been challenged in court.

This does not only apply to filling vacancies. The assembly, by code, hires three employees; the manager, the clerk and the attorney.

The mayor has no vote as to whom they appoint. But, under the current circumstances, if the assembly decided to hire or dismiss one of these three employees with a tie vote, the mayor, with his tie-breaking vote, could prevent this from happening.

So, once again, who really has the authority to fill vacancies on the assembly or prevent the hiring or replacement of the assembly personnel?

What do you think? If you feel Title 29 and the borough code, which provide for a process of filling a vacancy on the assembly and the authority of the assembly to appoint and dismiss their three employees should prevail, please contact your assembly representative and request that he or she begin the process of rewriting Section 2.08.040 under Title 2 of the borough code.

Jay Nolfi is a Big Lake resident, former assembly member and regular watcher of the borough assembly.