A.
Whenever a vacancy on the assembly occurs, the assembly shall meet on or before the next regular meeting and decide whether to fill the vacancy by special election or appointment, or both, in accordance with Charter section 7.02. If the assembly calls for a special election, the special election day shall be held in accordance with Title 28 and not more than 60 days after the occurrence of the vacancy. Filling a vacancy by appointment shall be conducted in accordance with subsection B. The assembly's action to fill a vacancy is in relation to the date of the next regular election or special election at which time the vacant seat is on the ballot as follows:
1.
Fewer than 30 days remain in the term. If the vacancy occurs when fewer than 30 days remain in the term of the vacated seat, the vacancy shall not be filled, except under circumstances in subsection A.4.
2.
Between 30 days and six months before the next regular election. The assembly may, but is not required to, appoint a qualified person to fill the vacancy within 30 days. The person appointed shall serve until the next regular or special election, at which time the vacant seat will be on the ballot and a successor shall be elected to serve the balance of the term, if any, or to a new term. Additionally, the assembly may, but is not required to, call for a special election.
3.
More than six months before the next regular election. If the vacancy occurs more than six months before the next regular election, the assembly shall call for a special election to fill the vacancy. Additionally, the assembly may, but is not required to, appoint a qualified person to fill the vacancy within 30 days.
4.
Fewer members than quorum. Any time the membership is reduced to fewer than a quorum, within seven days the remaining members shall appoint a number of qualified persons sufficient to constitute a quorum. The remaining members shall determine the process for this appointment.
B.
When the assembly fills a vacancy by appointment, it shall set a deadline for submission of applications and designate the assembly meeting at which voting on the appointment will occur. This meeting must take place within 30 days of the vacancy.
1.
Announcement and invitation to apply. After the assembly decides to appoint, the municipal clerk shall publish notice of the vacancy as soon as practicable and invite any qualified person to submit an application for appointment prior to the stated deadline. The notice of vacancy, invitation to apply for appointment, and the deadline for submission of applications shall be published in accordance with the definition of "publish" in section 1.05.020, for five days.
2.
Applications. Applications for appointment shall be in a form determined by the municipal clerk and contain sufficient information to determine if the applicant is qualified. The clerk may request additional information from an applicant to assist in this determination. An applicant shall be notified in writing if the application is deficient, similar to the provisions of section 28.30.030, and given notice of the applicant's right to appeal the municipal clerk's decision to superior court. All applicants meeting the qualifications of the vacant office prescribed by law shall be considered nominees for appointment to the office.
3.
Interviewing applicants. The assembly may interview applicants at a work session, committee meeting, or at any regular or special meeting. The assembly is not required to interview all applicants, or to ask applicants the same questions. The assembly is not required to take public testimony at any interview. An applicant may withdraw his or her application at any time prior to appointment.
4.
Procedural rules. At the assembly meeting set for voting on the appointment, the action to fill the vacancy shall be in the special orders section of the agenda, and subject to motions to change the order of the day. The assembly shall commence voting on the appointment immediately after a motion and second to fill the vacancy. After the motion and second, only privileged and incidental motions, motions to call the previous question, and motions to reject all applications shall be in order. Any other motions are out of order. The assembly shall conduct no other business at any meeting until an applicant is appointed or after passage of a motion to reject all applicants, in which case the vacancy shall not be filled.
5.
Voting. Voting for appointment shall be in the following manner:
a.
The municipal clerk shall prepare and distribute a paper ballot to each assembly member with the names of the qualified applicants for the vacant seat.
b.
Upon a motion and second to fill the vacancy or to call the previous question, each assembly member shall vote for one applicant on the paper ballot. If an assembly member is participating telephonically the member shall not cast a voice vote per section 2.30.075B.4. Instead, the member shall communicate their vote to the municipal clerk, who shall mark a ballot on behalf of that member.
c.
After each assembly member has voted, the municipal clerk shall gather the ballots, tally the votes, and announce the total votes for each applicant.
d.
A majority vote of all assembly members is required to appoint in voting under subsections B.5.b through B.5.d. If no majority is cast for any applicant, the applicant or applicant(s) receiving the lowest number of votes shall be eliminated. The assembly may resume debate or discussion and may interview applicants further. Then another round of voting shall be conducted with the names of the remaining applicants on new ballots. Each assembly member shall vote for one applicant. Subsections B.5.c. and B.5.d shall be repeated until there are only three applicants remaining, or until three rounds of voting are completed.
e.
The assembly may resume debate or discussion and may interview applicants further. Then, the municipal clerk shall distribute a ballot to be used for ranked choice voting with only the remaining applicants' names.
f.
Each assembly member should then rank each applicant on the ranked choice ballot by writing "1" next to their first choice, "2" next to their second choice, and so forth until all applicants on the ballot have been ranked. After each member has ranked the applicants, the municipal clerk shall gather all ballots.
g.
The municipal clerk shall tally the results with each ballot representing one vote for the highest-ranked applicant on that ballot. Inactive ballots as described in subsection B.5.h are not counted. If an applicant has a majority, that applicant is appointed. If no applicant has a majority, applicants shall be eliminated as follows:
i.
The municipal clerk shall eliminate the applicant(s) with zero first-ranked choices, when applicable, and the applicant with the least amount of votes. If two or more applicants are tied, the clerk shall determine which one is eliminated as described in subsection B.5.g.i(A).
(A)
In the event of a tie between applicants, the one with the least original second-ranked choices is eliminated. If the second-ranked choices are also tied, this process shall repeat with lower original rankings until the tie is broken. If there is still a tie after all ranks have been exhausted, the applicant to be eliminated shall be determined by coin flip.
h.
An inactive ballot is one that does not rank any remaining applicant, contains an overvote at the highest continuing ranking, or contains two or more sequential skipped rankings before its highest continuing ranking. An overvoted ballot is one with two or more applicants assigned the same rank, and that rank is the highest on that ballot for a remaining applicant.
i.
The municipal clerk shall retain all ballots cast as public records to be available only after concluding the appointment process.
(AO No. 87-139; AO No. 95-148, § 1, 7-25-1995; AO No. 2009-134, § 1, 1-12-2010; Ord. No. 2019-89(S), § 1, 11-5-2019)
A member of the municipal assembly may be removed from office for breach of the public trust following the procedures set forth in this section:
A.
Willful and knowing breach of duty or culpable indifference to official duties may constitute a breach of the public trust. For the purposes of this section actions constituting a breach of the public trust shall include, but are not limited to:
1.
Acceptance of cash gifts from one doing business with the municipality;
3.
Perjury;
4.
Falsification of records;
5.
Filing false reports;
6.
Nepotism;
7.
Making personal use of municipal or school district property;
8.
Destruction of municipal or school district property;
9.
Actual or attempted official misconduct, as defined by state law;
10.
Unexcused absence from three consecutive meetings;
11.
Failure to attend 75 percent of meetings in a 24-month period; or
12.
Substantial breach of a statutory-, Code-or Charter-imposed duty.
B.
Proceedings for removal from office may only be initiated by delivery of an accusation document to the municipal clerk setting forth the grounds for removal and specifying if delivery is to the assembly or the board of ethics. An accusation document may be submitted to the municipal clerk only by a majority vote of the assembly or decision of the municipal board of ethics and must allege specific actions by the assembly member in question which breach the public trust.
C.
After a successful vote to submit it, the municipal clerk shall cause a copy of the accusation document to be delivered by personal service to the member of the assembly who is the subject of the accusation document and a copy delivered to the municipal attorney.
D.
The municipal attorney shall review the accusation document for legal sufficiency. The municipal attorney shall determine the legal sufficiency of the allegations within ten days of receipt of the accusation document. If the municipal attorney determines that the allegations are legally insufficient, the removal action shall be discontinued. The municipal attorney's determination, if it rejects the accusation document, may be appealed to the superior court within 30 days. No interlocutory appeal is permitted from a determination by the municipal attorney that the accusation document is legally sufficient. Following a determination by the municipal attorney that the accusation document is legally sufficient, the municipality shall employ an attorney of the accused's choice, subject to the limitations of this subsection, to defend the charges. The attorney selected must be engaged in the active practice of law in the state. The fees charged by the attorney must be reasonable in both the rate and the amount of time expended. Reasonableness shall be evaluated in accordance with Alaska Bar Rule 35 and shall be subject to fee arbitration under the Alaska Bar Rules if the municipality disputes the reasonableness of the fees claimed.
E.
Within two weeks following the delivery of an accusation document, the municipal clerk shall request that six names be submitted as potential hearing officers by the American Arbitration Association. Three of the names submitted should be from the state and three from out-of-state. From these names the assembly and the accused shall agree upon a hearing officer who shall conduct the hearing concerning the allegations in the accusation document. If no agreement is reached within ten days of distribution of the list of potential hearing officers, the hearing officer shall be selected by each side exercising preemptory challenges to the six potential names in turn until only one remains. If more than one assembly member is the subject of the accusation document or the alleged breach arises out of the same event, the same hearing officer shall hear those matters and may hold one consolidated hearing.
F.
A hearing conducted by the appointed hearing officer shall be held no later than 30 days following appointment of the hearing officer. The hearing shall be open to the public and, unless otherwise provided in this section, shall be conducted in accordance with the procedures set forth in chapter 3.60, however the hearing officer shall expedite the matter within the required times set forth in this section and chapter 3.60 and shall grant extensions only for good cause. Good cause must be based upon matters either beyond the control of the party making application or conditions which would create a significant hardship if a continuance is not granted. Within ten days following the conclusion of the public hearing the hearing officer shall submit written findings and recommendations to the assembly. The recommendations shall include whether the officer should be removed.
G.
The standard of proof of the allegations in the accusation document to be applied by the hearing officer is clear and convincing evidence. The hearing officer shall evaluate the evidence relating to the accusations set forth in the accusation document and evaluate both whether the allegations are supported and whether those actions alleged constitute a breach of the public trust as set forth in subsection A of this section. Wrongful acts or admissions occurring while the officer was acting in a private capacity as opposed to his or her capacity as a public officer shall not constitute a breach of the public trust.
H.
Within ten days of receiving the hearing officer's recommendations, the assembly shall vote on whether to remove the member who is the subject of an accusation document. If more than one member is involved, a separate vote shall be taken on the question of removal of each assembly member who is the subject of accusations. Removal shall occur only on the concurrence of two-thirds of the fully constituted body.
I.
The decision of the assembly acting upon the recommendations of the hearing officer may be appealed to the superior court within 30 days of the assembly's decision. If the assembly's decision is for removal, the office shall be considered vacant beginning at 12:01 a.m. seven days following the decision unless the appellate court issues a stay of the removal pending appeal. In evaluating whether to grant a stay of removal pending appeal the facts that the removed member could miss important votes and that another individual may be seated to replace the removed member shall not constitute irreparable harm. During a stay, unless otherwise ordered by the court the seat is considered vacant and shall be filled in accordance with Charter 7.02(b) and section 2.70.020 pending the outcome of the court case. If, after exhaustion of appeals, the final ruling reverses the removal, the removed member shall be reseated for the remainder of the term for which elected, and any replacement, whether appointed or elected at a special election, shall be displaced.
J.
The assembly shall submit specific written findings for the record showing good cause in the event that the assembly intends to reject the hearing officer's recommendation.
(AO No. 93-54(S-1), 5-5-1993; AO No. 2022-60(S), § 4, 7-12-2022)