Mayor Dave Bronson vetoed AO 60, the ordinance designed by leftist members of the Assembly to give themselves a fast-track way to get rid of the mayor if he crosses an indeterminate line they define as “breach of the public trust.”
“Since its adoption in 1975, the Anchorage Charter largely preserves to the voters the power to install and remove government officials who serve in the highest levels of Municipal government. A very narrow carve-out from that retained power is found in Charter Section 7.01, which provides that an elective office holder may be removed from office, by means other than the ballot box, if that office holder has breached the public trust,” the mayor’s press release said.
When drafting the Charter, the Charter Commission recognized that there needs to be a procedure through which a determination can be made as to whether a “breach of the public trust” has occurred.
Consequently, the Charter requires the Assembly to develop such a procedure “including provision for notice, a complete statement of the charge, a public hearing conducted by an impartial hearing officer, and judicial review.”
The Charter does not authorize the Assembly to create additional substantive offenses for which an elected official may be removed from office. Nor does it authorize the Assembly to violate other Charter provisions or otherwise act unconstitutionally, the mayor said in his veto message.
Almost certainly the Assembly leftist leadership has the votes to override the veto and this matter will end up in court to determine if there has been an overreach of power by the Assembly into the authority of the Executive Branch and the people themselves, who elect the mayor.
“I am aware that Assembly members have used this Ordinance as a vehicle to try to send chills through the current administration, and that some members have publicly acknowledged that the Ordinance was introduced as a means to erect boundaries intended to circumscribe the legitimate exercise of executive power. I have heard the arguments and discussions that were presented for and against the ordinance, and well understand the disdain that was repeatedly expressed during public testimony. I sympathize with the public’s frustration, however, this is not a reason for my decision to veto this legislation. Nor do I veto this Ordinance because the optics are bad or because other elected officials sometimes act in bad faith. I do not veto because the Ordinance arises from a partisan effort to attack the executive branch and certain policies with which various Assembly members disagree. To the contrary, I veto AO 2022-60(S), As Amended because it creates specific conflicts with the Municipal Charter, and is therefore unconstitutional.”
The conflicts with Municipal Charter include the following, as described by the Bronson Administration:
Inconsistent Assertions/Definitions with the use of “breach of public trust”
- The Ordinance crosses the line by stating that a breach of the public trust could happen regardless if the failure to execute a directive is substantial or insubstantial or if the directive for the theoretical mayor to follow is unconstitutional.
- The Ordinance states that different conduct is determined for different officials which reveals that it is impractical, and not merely just for of breaches of the public trust. The threshold for the theoretical mayor is not the same for an Assembly member or member of the School Board.
- The Ordinance is illogical and impulsive when it defines specific conduct as a breach of the public trust only when committed by specified elected officials but not others. The constitutional requirements of equal protection cannot be ignored.
Delegation of Power Conflict with Municipal Attorney
- The Ordinance goes against Municipal Charter that states that the municipal attorney “shall advise and assist the municipal government on legal matters”. This Ordinance is in conflict with Charter Section 5.04 and the separation of powers doctrine.
- I have no doubt that the Assembly may hire its own counsel to provide it with advice when it is carrying out its own duties. What it may not do is require that the Municipal Attorney stand aside while some outside counsel is arbitrarily substituted for the Municipal Attorney for the purpose of reviewing an accusation prepared by either the Board of Ethics or the Assembly.
- It might be argued that some procedures are needed to address situations in which a Municipal Attorney has a conflict of interest. However, the Ordinance does not deal with instances in which there is a conflict of interest, but rather merely assigns to the Assembly the power to hire an attorney of its choosing to substitute for the Municipal Attorney. That delegation of power is in conflict with Charter Section 5.04.
- Heightened due process considerations introduced by Assembly members in this Ordinance are inconsistent with the Assembly amending current Code to reduce the vote to submit an accusation from two-thirds to a simple majority.
The Assembly has ignored its obligation under Charter Section 7.01 for 47 years. Clearly, where the Assembly leadership continually reports to the press that they have no intention to actually use this Ordinance any time soon, there is no basis upon which the Assembly can assert that there is a pressing need to get this legislation into Code, or to continue to be divisive in the process. The Assembly needs to step back and critically examine their effort, taking whatever additional time may be necessary to develop an ordinance that fully complies with the Charter. After 47 years, that amount of time will be insignificant by comparison.