Lutak Dock redesign
The borough has turned over a new page in the Lutak Dock saga, with litigation officially off the table for now, and a new design proposal back on it.
Earlier this spring, the borough was set to begin mediation with dock contractor Turnagain Marine. But in May, borough officials announced they had agreed with Turnagain to pause mediation and instead work with the contractor on developing a new, smaller design concept. Any new concept, interim manager Alekka Fullerton said at the time, was meant to fit within budget while still meeting borough requirements.
Now, those talks are complete and interim manager Alekka Fullerton has made public a design concept she said had been agreed on by both Turnagain and borough representatives. In addition, the ongoing litigation has now been dismissed. On Tuesday, the assembly authorized Fullerton to draw up a new contract with Turnagain to develop and build the revised concept. The vote was a unanimous yes, and a “yes yes yes” from assembly member Cheryl Stickler.
Along with the unanimous vote was a general feeling of relief in the room. “This feels like a compromise between too big and too small,” said assembly member Gabe Thomas. “Let’s get this thing built and stop fighting about it.”
The new concept is smaller in area than the originally design, but Fullerton and harbormaster Henry Pollan said it preserves all major functionality. Pollan said it is similar to design option 1B from the original process in 2017, encapsulating cells 15 through 11.
“My opinion is that this is the smallest useful footprint,” Pollan told assembly members on Tuesday. “It preserves the fuel transfer header in current location and secures cell 15 around (the roll-on-roll-off facility). It preserves a substantial amount of uplands and provides adequate access to Delta Western’s fuel transfer racks.”
The official GMP, or guaranteed maximum price, is $25,400,000, Fullerton said. When asked by assembly member Kevin Forster about a contingency plan for cost overruns, Fullerton responded that “Turnagain understands we do not have the money for overruns.”
Fullerton said instead of contingency funding for overruns, the design, encapsulating only five cells, is intentionally conservative. If more money becomes available or the project is under-cost an additional two cells will be encapsulated.
Next steps include assembly approval of a final contract, and then a design from Turnagain that Fullerton said will be somewhere between a 35% and 65% design. Once that design is delivered, Fullerton said she plans to schedule a town hall for community member discussion.
Legislation for removing elected officials
Even with Lutak Dock on the agenda, the most-discussed issue Tuesday night was a new piece of legislation, introduced by assembly member Mark Smith, that would expand the cases in which the assembly could vote to remove the mayor, or other fellow elected officials.
As it stands now, a supermajority of assembly members can vote to remove officials who have been found to have violated state regulations on corruption and election practices. Otherwise, the only mechanism for removal is a recall election initiated by voters.
Smith’s proposal greatly expand the grounds for assembly removal. If passed, that would include all misdemeanors, not just ones related to corruption and election practices, as well as violations of the new Assembly Code of Conduct.
Some public commentors and assembly members raised concerns about the expansion to all misdemeanors, but more expressed concern about the Code of Conduct provision.
Including the Code of Conduct would introduce a new power to the assembly. Whereas a ruling about a misdemeanor or felony would come from a court of law, the Code of Conduct is not law, and would not be heard by a court. That would leave the assembly responsible for determining when an action qualified as a violation.
And while state statutes are written in legal language with strict definitions for what exactly constitutes a violation, the Code of Conduct is more subjective. Guidelines in the Code of Conduct include phrases like “tough on problems, not on people.”
Currently, the Code of Conduct is tied only to less severe penalties. The document states that consequences for violation “include but are not limited to verbal caution, written warning, censure (and) removal from committees.”
“I think this notion of trying to increase accountability is commendable,” said assembly member Kevin Forster. “But if we put in the hands of this body the power to dismiss members of the body, there’s no doubt down the road that could be politically weaponized.”
Stickler, while not giving a definitive opinion on the legislation, expressed similar concerns. “This has to be vetted through legal,” Stickler said. “The electorate put the person (on the assembly), and in my understanding, the electorate can remove that person.”
Smith, however, seemed to have a different view of the effectiveness of the recall procedure. “This is not about overcoming the will of the people,” Smith said. “But at some point there needs to be an understanding of when you cross this line, you pay the price. And at that point, a recall won’t work because a recall is a popularity contest.”
Smith also said that in his time on the assembly this year, the number of “major violations” by elected officials has been “too numerous to count.” There’s no way of knowing just how frequently the new removal mechanisms would be used if put into place. But already this year, assembly member Craig Loomis has been charged with a misdemeanor for failure to obey a fire official.
Loomis asked Smith during the meeting if his intention was to allow for removal for past offenses. Smith said yes, before adding a disclaimer: “I never would’ve thought of that because I don’t have any past felonies or misdemeanors,” Smith said.
“Congratulations,” responded Mayor Tom Morphet.
The assembly has not yet voted to take up the legislation, instead choosing to refer it back to the assembly’s Government Affairs and Services Committee.
Board of Equalization Rules
The assembly discussed changes to Board of Equalization rules after the borough’s legal counsel said current rules could be in conflict with state law.
The most consequential proposed change was an adjustment to how the board handles conflicts of interest.
As it stands now, property owners filing appeals can unilaterally remove a board member from hearing their appeal, without having to give reason. That has been explained as a product of having a citizen volunteer board in a small town, where appellants and board members might have contentious histories with one another.
Forster summed up the reasoning he had heard for preserving the ability to strike board members without reason as avoiding “having to air all our dirty laundry of living in a small community.”
On the other hand, borough attorney Max Holmquist said earlier this spring that the process was unusual for a quasi-judicial body.
“Typically, if there is a specific issue with bias or conflict of interest, the panelist will either excuse themselves or the Board will approve a motion that they be excused,” Holmquist wrote in an email to Fullerton. “However, if there isn’t a conflict or bias issue, I don’t see a reason why appellants should be able to remove a panelist.”
Restricting the ability to remove a board member from a hearing without reason was defended by Fullerton and Stickler. Both said that board members deserved trust in their abilities to fairly judge cases.
“(Board members) take an oath saying they will set aside anything that will impede them from doing their job,” Fullerton said. “These people who have volunteered their time, have taken the effort and the oath to act in this authority — we need to take them at their word they will weigh things honestly.”
Before taking a final vote, the assembly passed two major amendments to the ordinance that removed the proposed changes to board removals altogether. That meant all that was left in the ordinance were a number of non-controversial, more administrative changes to the board process that had not been discussed by the assembly.
In the end, the full ordinance passed, 5-1, but with the major changes removed.