2021-08-16 Special MeetingPage
Kodiak Island Borough
Assembly Special Meeting Agenda
Monday, August 16, 2021, 6:30 p.m.
Assembly Chambers 710 Mill Bay Road
This meeting was called by the Mayor.
Streamed Live Online at www.kodiakak.us
And broadcasted on KMXT at 100.1 FM
1. Roll Call.
2. Citizens' comments. 1-907-486-3231 or Toll Free 1-855-492-9202.
(Limited To Three Minutes Per Speaker)
3. Consideration of matters in the call for the special meeting.
2-15 A. Discussion Of Assembly Member Duane Dvorak's Resignation
a August 16, 2021 Special Meeting - 2nd Memorandum Received
from Mr. Mel Stephens Re Procedure for Filing Assembly
Vacancy...
August 12, 2021 Work Session - Memorandum Received from
Mr. Mel Stephens Re Procedure for Filling Assembly Vacancy...
July 29, 2021 Special Meeting Agenda Packet
4. Executive Session
A. Discussion Concerning The Duration Of An Assembly
a Appointment To Fill The Vacant Seat Created On The Assembly
By Mr. Dvorak's Resignation.
16-18 B. Items handed out at the meeting.
fla *handouts are printed and made available to the public at the meeting
Title 7 Election Code Deadlines
Letter Read Into The Record - Ms. Rebecca Skinner
5. Adjournment.
Watch meetings live, online at www.kodiakak.us
Citizen Comment: 486-3231 or 855-492-9202 Page 1 of 18
AGENDA ITEM #3.A.
MELVIN M. STEPHENS. II
A PROFESSIONAL CORPORATION
ATTORNEY AT LAW
326 CENTER AVENUE, SUITE 90A
P.O. BOX 1129
KODIAK, ALASKA "ISIS
TELEPHONE (907) 486-3143
IAl1:11A,DI:T_101BOM
TO: Borough Mayor Roberts
Members of the Borough Assembly
FROM: Melvin M. Stephens;JW`,_ L�N 7—
RE: Procedure for Filling Vacancies Resulting From Resignation of an Assembly
Members
DATE: August 16, 2021
Thank you for promptly scheduling a special meeting to address issues raised by my memo
of August 12. Further review of the on-line audio of your special meeting of July 29 prompts me
to offer the following additional comments:
Assembly comments at the July 29 meeting reflected an erroneous belief that (i) Title 7 of
the Borough Code contained deadlines which had already passed or other requirements that it was
impossible to meet and that (ii) if there was a conflict what Title 7 said about elections and what
KIBC 2.25.060C said about how assembly vacancies were to be filled — e.g., by a vote of the
people at the next regular election — Title 7 necessarily governed how the assembly was to proceed
and required the assembly to appoint a successor for the entire remaining term of the vacant seat (at
the expense of the public's right to vote).
The following are examples of such statements:'
Scott Arndt
Basically, we have the Borough Code which says that we will advertise and we will go
through an appointment process there because it doesn't meet the borough standards to put
it on the ballot.
Julie Kavanaugh
Ideally, a vacant seat would be filled through the election process. And I definitely when
reading Dvorak's resignation letter see the desire for that process to happen and 1 would
I I am not a court reporter and may have missed a word or phrase here or there. These are
reproduced as accurately as possible, given the time constraints of producing this memo. In all
instances the emphasis is mine.
Page 2 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
Mayor and Assembly -2- August 16, 2021
have been in full support of that to happen. The way I initially read the code I initially
thought, "that's the way it's going to go" ... and after an in depth conversation with the
clerk where she said, "well you also have to read Title 7," umh there's deadlines and even
though we have done the best we can with the Supplemental Notice of Offices to be filled,
we haven't sent them out to the villages yet so we missed that deadline -- technically, I feel
like we've missed that deadline -- so if we were to do anything other than appoint somebody
to that vacant seat I think you would almost have to set aside some rules and then I wonder,
"then well that seems to be getting very complicated" like why are we doing that what is the
purpose of not following code and other than the desire to have the people make the
choice. anything else would not fit the bill for me for why to suspend the rules," like
there's not other reason. I am kind of a rule follower. * * * I'm going to support the
appointment process, the way it's written in the code.... I just really feel like in this instance
the appointment process is the proper way to go .. .
JAMES TURNER
I would have to agree with Ms Kavanaugh that in code it does state that the assembly is to
appoint somebody -- I wish there was some other way * * * Either way, I think that setting
aside the rules is something I don't like to do ....
GEOFFREY SMITH
I also support following the code and appointing somebody
AMIEE WILLIAMS
I also agree, especially because of Title 7 .. this isn't just setting aside the rules were not
talking about Robert's Rules and taking a bathroom break when we're not supposed to,
... this is actual law in code that we're talking about so I think the right path for us is to
stick with exactly how it's laid out in code.
The only person who actually got things right was Duane Dvorak, who said:
My intention — and I filed my resignation on July 15th at that time thinking that there was
time to submit the [inaudible] and go on he ballot ... my way of looking at the code [was]
if it's vacated with less than 90 days in the year it looked to me like it should go on the
ballot [but] I didn't take into account Title 7, Elections. But it looks to me like the clerks
have identified a path forward where, if the resignation is accepted tonight — before
August 1st, that it could go on the ballot. That's the way I understood the staff report. But
if it is the Assembly's perception that, you know, the resignation can't be accepted tonight,
you know, with a future date, like most resignations are ... if it means seeing it go on the
ballot, which is what I would prefer to see, I'd be willing to change my effective date to
tonight's meeting. I would kind of hate to do that because I've studied up on all the non-
profit stuff * * *
Page 3 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
Mayor and Assembly -3- August 16, 2021
The staff report presented to the assembly on July 29 observed that—
"Title 7 Elections has multiple required deadlines for notices for upcoming election. One
notice, the Notice of Offices to be Filled, must be posted in the paper at least 75 days
(July 22) prior to the election. In order to ideally notice the potentially vacant, one year seat,
a Supplemental Notice of Borough Offices to be Filled was noticed in the paper. This notice
was crafted by the borough attorney and printed in the Kodiak Daily Mirror on July 23,
2021. The Supplemental Notice of Borough Offices to be Filled has yet to be distributed
to KIB villages for proper posting, but will be distributed July 27, 2021.
The highlighted language appears to have misled the assembly into thinking that Title 7 contains a
requirement that the notice of offices to be filled had to be posted (it does not) and the failure to
mention that July 22 was a Sunday may have created the impression that the 75 day deadline for
publication of the notice in the paper had been missed. It hadn't.
The staff report included a copy of KIBC 2.26.060 but failed to highlight paragraph F
thereof: "Persons appointed to fill a vacancy shall serve until the next regular election, at which
time a successor shall be elected." This may have left the impression that the assembly had the
option of appointing someone to fill the entire remaining portion of Mr. Dvorak's term. It did not.
What does one do when there is in fact a conflict between a procedural requirement relating
to the conduct of elections and the mandate of KIBC 2.26.060F that, following the resignation of an
assembly member, a successor "shall be elected" at "the next regular election"? Initially, there was
no such conflict with respect to the vacancy resulting from Mr. Dvorak's resignation but we must
deal with the situation which now exists. Furthermore, the question is directly relevant to the
question of how to handle the vacancy arising from Ms. Kavanaugh's resignation (which is on the
agenda for this Thursday's meeting).
The answer is that one must carefully consider what the conflict actually is and that one must
make a reasoned decision based upon a balancing of the interests sought to be implemented or
protected by the two (or more) conflicting provisions. Most assuredly, the answer is not that the
deadlines and other provisions of Title 7 automatically prevail.
The provisions of Title 7 are designed and intended to promote orderly and efficient elections
and to encourage candidate and voter participation in them. E.g., a requirement that a notice of
offices to be filled be published at least 75 days before and election encourages potential candidates
to think about running.
Providing that a person appointed pursuant to KIBC 2.25.060 serve only until the next
regular election, at which time a successor shall be elected to fill the remainder of the unexpired term
protects a fundamental right of self government: the people themselves get to choose who governs
them.
The fundamental importance which our society assigns to the elective franchise will dictate
that mere rules of administrative convenience must be modified, or even dispensed with entirely, if
in a given situation strict enforcement of them would impair or deny voting rights. Thus, for
Page 4 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
Mayor and Assembly -4- August 16, 2021
example, an administrative requirement such as KIBC 7.20.030A — which will be impossible to
meet if, 75 days before a regular election, it is not yet known that a vacancy on the assembly will
arise — may not be used as an excuse to deny the right of the public to vote on who should fill that
vacancy. Faced with a late arising vacancy, you do the best you can — e.g., by publishing notice
as soon as possible — and move on.
Beyond such "balancing of interests" considerations, it important to recognize that the
public's right to choose a successor to fill the remainder of an unexpired term on the assembly is
enshrined in a of state statute; it is not merely found in the borough code. That statute reads as
follows:
AS 29.20.180. Filing 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. If less than 30 days remain in a term, a vacancy may
not be filled.
(b) Notwithstanding (a) o this section, if the membership is reduced to fewer than the
number required to constitute a quorum, the remaining members shall, within seven days,
appoint a number of qualified persons to constitute a quorum.
(c) A person appointed under this section serves until the next regular election,
when a successor shall be elected to serve the balance of the term.
In cases of unavoidable conflict, a state statute will always prevail over a municipal ordinance. Thus
it is inappropriate and misleading for anyone to imply that Title 7 somehow overrides
KIBC 2.26.060.
It is in fact possible to put the vacancies associated with the resignations of both Mr. Dvorak
and Ms. Kavanaugh on the October 5 ballot. It may not be easy and certain compromises will have
to be made, but we are still 50 days away from the election day and we have almost a month before
the first day for early voting (which is Monday, September 14). It may be necessary to prepare
supplemental sheets to be included with the voter pamphlets to be mailed out by September 21 and
printing of the ballots may have to be delayed (or a supplemental ballot prepared). Everything
necessary can be done, however, if immediate action is taken. September 20th is the deadline under
KIBC 7.30.040A for the clerk to have possession of the ballots and they can be printed locally.
As suggested in my memo of August 12, the filing period for the vacant assembly seat(s) can
and should be extended. Write-in candidates can file up until the day before the election, but every
effort should be made to provide time for candidates to get their names on the ballot, and a financial
disclosure statement must be filed with the APOC no later than when the declaration of candidacy
is filed. The attached table is offered to assist you in visualize the deadlines associated with
the election process.
Please excuse the roughness of this memo, but I wanted to get it to everyone well before
tonight's special meeting. Let me also suggest that you consider relaxing the 3 -minute rule on
audience comments if it appears appropriate to do so.
Page 5 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
Page 6 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
DEADLINES RELEVANT TO BOROUGH ELECTIONS
#
Task
Deadline
Source
Notes
Days B4
Election/Date
1 ,
the clerk shall publish ...a notice of
75/Mon Jul 23
KIBC 7.20.030A
July 22 was a Sunday. Chapter
offices to be filled ... and the
7.20 is entitled Qualifications of
procedure for filing a declaration of
Voters and Candidates. KIBC
candidacy
7.20.030 is entitled Declaration of
Candidacy
2,
Filing for elective offices shall be made
August 1-15 Or
KIBC 7.20.030D
Write-in candidates have until 5:30
by filing a declaration of candidacy with
following Monday if
p.m. on the day before the election
the clerk
15th is on a
to file a declaration of candidacy.
See KIBC 7.30.125A.1 (by
weekend
implication; 5 pm) and
http://www.kodiakak.us/282/Filing-
f or -Candidacy: "A person may run
as a write-in candidate by filing a
declaration of write-in candidacy
form with the Borough Clerk by
4:30 p.m., October 5." (Should be
October 4).1 %%
3,
Packets containing declarations of
NLT day filing period
KIBC 7.20.0308
candidacy shall be available from the
Opens
clerk's office
4.
the clerk shall notify the candidate as to
w/i 4 business days
KIBC 7.20.030E
whether [his or her declaration] is in
after filing
proper form
5,
the clerk shall post a notice of each
30/Mon Sep 6
KIBC 7.10.060A
Sep 5 is a Sunday; The notice must
regular election in three public places
be published twice, the 30 -day
and publish it in the newspaper
deadline is for the first publication.
The deadline is 20 days for special
elections
6.
Earliest possible date for early voting in
21 /Tue Sep 14
KIBC 7.50.025B
The assembly may authorize early
person (i.e., before an election official)
voting up to 75 days prior to a
regular or special election. KIBC
7.50.025B.1
7,
the clerk shall publish ... the locations
20/Wed Sep 15
KIBC 7.30.0208
of the precinct polling places
$,
The clerk shall have possession of the
15/Mon Sep 20
KIBC 7.30.040A
ballots at least 15 days before each
regular election. At that time the ballots
may be inspected by any candidate ...
and any mistake discovered shall be
corrected immediately.
g.
First day upon which a person may
15/Mon Sep 20
KIBC 7.030A
apply for an absentee ballot in person
10,
the clerk shall mail one copy of the
14/Tue Sep 21
KIBC 7.60.010E
The election pamphlet is to contain
election pamphlet to every registered
sample ballots. KIBC 7.60.0108.2
voter household
11.
the clerk shall publish and post in three
1 /Mon Oct 4
KIBC 7.10.060C
public places sample ballots with
instructions
Page 6 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
AS 29.20.180. Filing 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. If less
than 30 days remain in a term, a vacancy may not be filled.
(b) Notwithstanding (a) o this section, if the membership is reduced to fewer than the number required to
constitute a quorum, the remaining members shall, within seven days, appoint a number of qualified persons to
constitute a quorum.
(c) A person appointed under this section serves until the next regular election, when a successor shall be
elected to serve the balance of the term.
Page 7 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
MELVIN M. STEPTIENS, 11
A PROFESSIONAL COAPORATION
ATTORNEY AT LAW
326 CENTER AVENUE, SUITE 90A
P.O. BOX 1129
KODIAK, ALASKA MIS
TELEPHONE X907} 466-3143
MEMORANDUM
TO: Borough Mayor Roberts
Members of the Borough Assembly
FROM: Melvin M. Stephens, I �� r---�
RE: Procedure for Filling Assembly Vacancy Resulting From Resignation of Former
Assembly Member Duane Dvorak
DATE: August 12, 2021
The procedure currently being pursued to fill the assembly vacancy arising from the
resignation of Duane Dvorak is inconsistent with governing law in that it assumes the remaining
members of the assembly may appoint a successor to serve out the entire remainder of Mr, Dvorak's
term. They have no such authority.
The assembly has the authority -- indeed, the duty — to appoint a qualified successor to Mr.
Dvorak and must do so no later than 30 days after the seat is declared vacant. Mr. Dvorak
submitted a resignation letter on July 15th stating the effective date of his resignation would be
August 501. The assembly accepted that resignation at a special meeting on July 29th. One could
argue about whether the vacancy arose on July 29th or on August 5th, but the code is clear that the
clerk was required to publish a notice of the vacancy and to receive applications from persons
interested in being appointed for 14 days after the date of first publication. The code is likewise
clear that the assembly is to appoint a qualified person from among the applicatants "[n]ot later than
30 days after the seat is declared vacant." (KIBC 2.25.060C). Thus the deadline for appointment
of a successor to Mr. Dvorak is either Monday, August 31st or Friday, September 4th, depending
upon when the vacancy is deemed to have arisen (August 29th having fallen on a Saturday).
The Borough Code is quite clear, however, that the person appointed "shall serve until the
next regular election, at which time a successor shall be elected to fulfill the remainder of the
unexpired term of office." (KIBC 2.25.060F). The "next regular election" after an appoint which
must take place no later than September 4, 2021 is the election scheduled for October 5, 2021.
Accordingly, a one-year seat on the assembly must appear an the October 5th ballot. The assembly
does not have the option of ignoring the election which will take place on October 5, 2021 and
appointing someone who will sit on the assembly until October of 2022. To do so would violate die
rights of every qualified voter in the borough (as well as the rights of all other borough citizens) and
would cast doubt upon the validity of all votes and other assembly actions in which the appointee
participates during the final year of the assembly term.
Needless to say, attempting to ignore die obvious legal weaknesses associated with the
Page 8 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
Mayor and Assembly -2- August 12, 2021
borough's current approach to this matter will only increase the likelihood of involving the borough
in costly and time consuming litigation of at best uncertain result. Fortunately, while the hour is
very late indeed and the situation has been exacerbated by less than exemplary action to date, it
should still be possible to put the one-year assembly seat on the October 5 ballot while substantially
complying with the mandates governing borough elections. Action must be taken immediately,
however, as there is absolutely no room for delay or "business as usual."
Title 7 of the Borough Code sets forth a number of deadlines and procedures which govern
borough elections, including the following:
KIBC 7.10.060 requires the clerk to post and publish a notice of each regular election at least
30 days beforehand and to publish a sample ballot and least one day before the election. Putting a
one-year seat on the October 5 ballot does not create a problem with meeting these requirements.
KIBC 7.20.030A requires the clerk to publish a notice of the offices to be filled at a regular
election at least 75 days beforehand and to describe therein the procedure for filing a declaration of
candidacy. The Supplemental Notice of Borough Offices to Be Filled published in the Kodiak Daily
Mirror on Monday July 23 establishes substantial compliance with this requirement insofar a the one-
year seat here at issue is involved.
KIBC 7.20.030B requires declarations of candidacy to be available from the clerk's office
no later than the day upon which the filing period opens. Here, that date was August 3rd. While
declarations for the two 3 -year assembly seats were available by that date, the borough's web site
stated or implied that the one-year seat was to be filled by appointment and the declaration or
application form for that seat was substantially different from that associated with the three-year
seats. This error is serious but can be remedied substantially by publishing and otherwise
announcing an immediate correction (while individually contacting any individuals who have filed
for, or are known to have inquired about, the one-year seat), and by extending, though appropriate
assembly action and for an appropriate short period, the deadline for filing a declaration of candidacy
(only) for the one-year seat, which declaration would be identical to that associated with the three-
year seats.
KIBC 7.20.035 requires candidates for elective office to file a financial disclosure statement
with the clerk at the time of filing a declaration of candidacy. Extending the filing deadline for the
declaration should automatically provide time for compliance with this requirement.
Extending the deadline for filing declarations of candidacy for the one-year seat will
necessarily reduce the time available to have ballots printed and distributed to all village polling
places. This process will simply have to be expedited. That may well increase the cost of printing
and distributing ballots but increased election costs should not be advanced as an excuse for curtailing
citizens' voting rights, especially when the increase in question is caused by administrative error or
inaction.
I was not born yesterday. I fully understand that there will be a good deal of resistance to
altering the manner in which it has been decided (improperly, I would submit) to fill the current one-
year vacancy on the assembly. Some will claim that it is impractical or impossible to accomplish
Page 9 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
Mayor and Assembly -3- August 12, 2021
a change of course at this late date and others will suggest that the legal issues set forth above are
not as clear or critical as I have stated them to be. My response to all such individuals is the same:
You are bound to implement the law as written. You are not entitled to ignore it, or parts of it,
when compliance is inconvenient. Furthermore, you are dealing here with the most sacred political
right a democracy bestows upon its citizens: the right personally to select their political
representatives by casting votes at the ballot box. So don't waste time trying to justify or excuse the
situation in which you have placed this community; just get on with fixing it. If you think the matter
will go away if you simply hunker down and ignore it, you are likely only to make matters worse.
Page 10 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
Page
AGENDA ITEM #3.A.
Kodiak Island Borough
Assembly Special Meeting Agenda
Thursday, July 29, 2021, 5:30 p.m.
Assembly Chambers 710 Mill Bay Road
This meeting was called by the Mayor.
Streamed Live Online at www.kodiakak.us
1. Roll Call.
2. Citizens' comments. 1-907-486-3231 or Toll Free 1-855-492-9202.
(Limited To Three Minutes Per Speaker)
3. Consideration of matters in the call for the special meeting.
2 - 5 A. Formal Resignation Of Assembly Member Duane Dvorak
Letter of Resignation, Assembly Member Duane Dvorak - Pdf
4. Adjournment.
Watch meetings live, online at www.kodiakak.us
Citizen Comment: 486-3231 or 855-492-9202
Discussion Of Assembly Member Duane Dvorak's Resignation
Page 1 of 5
Page 11 of 18
AGENDA ITEM #3.A.
AGENDA ITEM #3.A.
KODIAK ISLAND BOROUGH
STAFF REPORT
JULY 29, 2021
ASSEMBLY SPECIAL MEETING
SUBJECT: Formal Resignation Of Assembly Member Duane Dvorak
ORIGINATOR: Borough Clerk, Alise Rice
RECOMMENDATION:
Move to accept notice of resignation of Assembly Member Duane Dvorak.
This action, if passed by the assembly, will need an additional motion to instruct the Clerk to begin the
process of filling the vacant seat.
Move to instruct the Clerk to begin the process of filling the vacant seat per the procedure agreed upon
by the assembly.
DISCUSSION:
KIBC 2.25.060 Declaring and filling vacancies.
If less than 90 days remain in a term, the vacant seat shall not be filled. If a seat is declared vacant and
more than 90 days remain in the term, then the clerk shall publish reasonable public notice of the vacancy
and, for 14 days after the first publication thereof, receive applications from persons interested in being
appointed to the vacant seat. The assembly shall review the applications and may interview applicants.
Not later than 30 days after the seat is declared vacant, the assembly shall appoint from among the
applicants a qualified person to fill the vacant seat.
Assembly member Dvorak stated in his resignation letter: "By leaving now, the assembly has time to
accept this resignation and thereby make my seat and remaining one year of the term available to be
filled on the October 2021 ballot."
Should the resignation be accepted by the assembly on July 29, 2021, the amount of days remaining in
Assembly member Dvorak's seat is 462. This date is calculated from July 30th 2021 to November 4,
2022. The first regular meeting in November has been the traditional date for certification and
administration of the oath of office. With the intent of the members' first official date of service being the
next day.
Title 7 Elections has multiple required deadlines for notices for upcoming election. One notice, the Notice
Of Offices To Be Filled, must be posted in the paper at least 75 days (July 22, 2021) prior to the election.
In order to ideally notice the potentially vacant, one year seat, a Supplemental Notice Of Borough Offices
To Be Filled was noticed in the paper. This notice was crafted by the borough attorney and printed in the
Kodiak Daily Mirror on July 23, 2021. The Supplemental Notice Of Borough Offices To Be Filled has yet
to be distributed to KIB villages for proper posting, but will be distributed Tuesday July 27, 2021.
ALTERNATIVES:
Not accept the resignation.
Kodiak Island Borough
Page 2 of 5
Formal Resignation Of Assembly Member Duane Dvorak
Page 12 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
AGENDA ITEM #3.A.
KODIAK ISLAND BOROUGH
STAFF REPORT
JULY 29, 2021
ASSEMBLY SPECIAL MEETING
FISCAL IMPACT:
OTHER INFORMATION:
Kodiak Island Borough Code Title 2 Administration and Personnel
Chapter 2.25 Borough Assembly, Sections 2.25.060 Declaring and filling vacancies
2.25.060 Declaring and filling vacancies.
A. The assembly shall declare an assembly member's seat vacant when the assembly member:
1. Fails to qualify or take office within 30 days after election or appointment;
2. Is physically absent from the municipality for 90 consecutive days unless excused by the
governing body;
3. Resigns and the resignation is accepted;
4. Is physically or mentally unable to perform the duties of office as determined by a two-thirds
vote of the governing body;
5. Is convicted of a felony or of an offense involving a violation of the oath of office;
6. Is convicted of a felony or misdemeanor described in AS 15.56 and two-thirds of the
members of the governing body concur in expelling the person elected;
7. Is convicted of a violation of AS 15.13;
8. No longer physically resides in the municipality and the governing body by a two-thirds vote
declares the seat vacant; this subsection does not apply to a member of the governing body
who forfeits office under AS 29.20.140(a); or
9. If a member of the governing body misses three consecutively held regular meetings and is
not excused.
B. If a member of the governing body misses one-half of the meetings held in any year of his or her
term of office, each year between November 1st and October 31st, the seat shall be automatically
vacated.
C. If less than 90 days remain in a term, the vacant seat shall not be filled. If a seat is declared
vacant and more than 90 days remain in the term, then the clerk shall publish reasonable public
notice of the vacancy and, for 14 days after the first publication thereof, receive applications from
persons interested in being appointed to the vacant seat. The assembly shall review the applications
and may interview applicants. Not later than 30 days after the seat is declared vacant, the assembly
shall appoint from among the applicants a qualified person to fill the vacant seat.
D. In appointing a person from among the applicants, the assembly shall utilize the voting
procedures specified in KIBC 2.30.040(A) for the election of the deputy presiding officer.
E. Notwithstanding subsection C of this section, if the membership of the assembly is reduced to
fewer than four assembly members, then the remaining assembly members shall appoint as many
qualified persons to the assembly as is necessary to once again constitute a quorum. The assembly
shall utilize any procedure which is reasonable under the circumstances in making the appointments
required by this subsection and shall make said appointments not later than seven days after the
quorum was reduced to less than four assembly members.
F. Persons appointed to fill a vacancy shall serve until the next regular election, at which time a
successor shall be elected to fulfill the remainder of the unexpired term of office.
Kodiak Island Borough Code Title 7 Elections
Kodiak Island Borough
Page 3 of 5
Formal Resignation Of Assembly Member Duane Dvorak
Page 13 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
AGENDA ITEM #3.A.
KODIAK ISLAND BOROUGH
STAFF REPORT
JULY 29, 2021
+ ASSEMBLY SPECIAL MEETING
Chapter 7.20 Qualifications of Voters and Candidates
7.20.030 Declaration of candidacy.
A. At least 75 days before each regular election, the clerk shall publish in one or more newspapers
of general circulation in the borough a notice of offices to be filled at the election and the procedure
for filing a declaration of candidacy.
B. Packets containing declarations of candidacy shall be available from the clerk's office no later
than the day the filing period opens. Declarations of candidacy shall be submitted in original form
and may be submitted electronically; provided, that the original is received by the clerk before the
close of the filing period.
D. Filing for elective offices shall be made by filing a declaration of candidacy with the clerk from
August 1st through August 15th, 4:30 p.m. Should August 15th fall on a Saturday or Sunday,
candidates shall have until 4:30 p.m. on the first Monday following to file their declaration.
Kodiak Island Borough
Page 4 of 5
Formal Resignation Of Assembly Member Duane Dvorak
Page 14 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #3.A.
AGENDA ITEM #3.A.
Page 5 of 5
Formal Resignation Of Assembly Member Duane Dvorak
Page 15 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
Kodiak Island Borough
Mayor and Assembly
C/O Borough Clerk, Alise Rice
710 Mill Bay Road
Kodiak, AK 99615
July 15, 2021
Subject: Resignation from Kodiak Island Borough Assembly
Dear Mayor Roberts and Borough Assembly,
After giving the matter a great deal of thought, I have decided to resign from the Kodiak Island Borough
Assembly upon adjournment of the August 51^ regular meeting. It is with great reluctance that I have
come to this decision, however I believe that it is the right thing to do under the circumstances.
For the past year I have been traveling to Washington State with increasing frequency in order to
support my aging parents. Up until now, I have been able to largely work around the assembly meeting
schedule, however it has still resulted in a substantial loss of focus on borough business which is not fair
to the people of the borough that I serve. That being said, my priority is to my family. I feel that it is
time to devote more of my time and energy, without reservation, towards helping them face their
current life challenges.
I have debated whether this resignation is premature, but in the end, I think the timing is right. My
parents need for support is increasing and it is inevitable that I would leave the assembly sometime in
the next several months. By leaving now, the assembly has time to accept this resignation and thereby
make my seat and remaining one year of term available to be filled on the October 2021 ballot.
It has been my privilege to serve the people of Kodiak on this assembly and I thank all those who have
supported and encouraged me along the way. For my colleagues remaining on the assembly, I wish you
all the best as you tackle the myriad challenges facing the borough now and in the future.
Best R ga�lrr s,
Duane Dvorak
415 Cedar Street
Kodiak, AK 99615
Page 5 of 5
Formal Resignation Of Assembly Member Duane Dvorak
Page 15 of 18
Discussion Of Assembly Member Duane Dvorak's Resignation
AGENDA ITEM #4.B.
Title 7 Election Code Deadlines
Not less than 14 days before the election, the clerk shall mail to every registered voter household one
copy of the pamphlet. (September 21, 2021)
A typical print job is a 6-8 week turn around. Under the current code deadlines the turnaround time
for the printing of the ballots and pamphlet is 5 weeks. (4,500 pamphlets / 3,200 Ballots)
Historically ATT Publishing and Print Works have worked with KIB to make this deadline. Last year
ATT Publishing had a computer board fry and fouled our pamphlets. As a result an emergency
ordinance was passed to allow for the pamphlets to be delivered past the code deadline.
Early Voting opens on September 201h. Pamphlets and ballots have to be to the Clerk no later than
the 16th of September to facilitate this.
If the candidacy period is pushed out by 3 or 4 days:
• the printer will only have 3 weeks to complete the job
• voters will not receive their pamphlet in the mail by the 14 day deadline
• an emergency ordinance will have to be passed to allow for the code exception
• ballots will not arrive in time for early voting
July 22nd
KIBC 7.20.030(A) At least 75 days before each regular election the clerk shall publish in one or more
newspapers of general circulation in the borough a notice of offices to be filled at the election and the
procedure for filing a declaration of candidacy.
• Because the village communities are more isolated, historically the notice of procedure for
filing for office and offices to be filled is mailed to the village communities 1 week early to
ensure they have notice for the same amount of time as those on the road system. This year
we mailed notice to the villages July 9th. (13 days early)
• The supplemental notice of possible office and the procedure to file for declaration was sent
to the villages on July 26th. When I spoke with the villages on the 111h, several villages
communicated they had only just now received the notice and were going to post it per code
requirements.
August 1st to 16th 4:30 p.m.
KIBC 7.20.030 (B) Packets containing declarations of candidacy shall be available from the clerk's
office no later than the day the filing period opens. Declarations of candidacy shall be submitted in
original form and may be submitted electronically, provided that the original is received by the clerk
before the close of the filing period.
(D) Filing for elective offices shall be made by filing a declaration of candidacy with the Clerk from
August 1 through August 15, 4:30 p.m. Should August 15th fall on a Saturday or Sunday, candidates
shall have until 4:30 p.m. on the first Monday following to file their declaration.
September 21st
KIBC 7.60.010 (E) Not less than 14 days before the election, the clerk shall mail to every registered
voter household one copy of the pamphlet. Additional pamphlets may be obtained from the borough
offices.
(14 days before the election is September 21, 2021)
September 5th
KIBC 7.10.060(A) The clerk shall post a notice of each regular election in three public places and
publish at least twice in one or more newspapers of general circulation in the borough, the first such
Page 16 of 18
Items handed out at the meeting. *handouts are printed and made availabl...
AGENDA ITEM #4.B.
publication to be accomplished at least 30 days prior to the election.
September 15th
KIBC 7.30.020 (B) No later than 20 days before each regular and special election, the borough clerk
shall publish in one or more newspapers of general circulation in the borough the locations of the
precinct polling places. Such publication shall be repeated at least once no later than the day prior to
the election.
September 15th
KIBC 7.10.060(A) The clerk shall post a notice of each regular election in three public places and
publish at least twice in one or more newspapers of general circulation in the borough, the first such
publication to be accomplished at least 30 days prior to the election.
September 20'
KIBC 7.50.030 (A) Any person may apply for an absentee ballot in person from the clerk or an
absentee voting official 15 days before an election, up to and including the day before the date of the
election during regular office hours, by completing an absentee in person envelope.
October 4th
KIBC 7.10.060(C) At least one day before the election, the clerk shall publish in a newspaper of
general circulation and in at least three (3) public places in the borough sample ballots with
instructions to voters. Sample ballots shall be substantially similar to the official ballots and shall be
marked "sample ballot' in place of the words 'official ballot".
Page 17 of 18
Items handed out at the meeting. *handouts are printed and made availabl...
AGENDA ITEM #4.B.
Alise Rice
From: Skinner Law Office, LLC <skinnerlaw@gci.net>
Sent: Monday, August 16, 2021 6:11 PM
To: 'Mayor Bill Roberts'; 'Bill Roberts'
Cc: Clerks
Subject: Letter to read into record tonight
Hello, can this letter please be read into the record at tonight's meeting?
Letter from Rebecca Skinner
I urge the Assembly to take action tonight to ensure the vacancy created by Duane Dvorak's resignation is filled at the
Regular Election on October 5, 2021. This may require an ordinance to extend the deadline for declaration of candidacy,
and to extend the deadline for mailing election pamphlets or pushing back the start of early voting. In my view these are
small concessions, compared to being denied the ability to vote for Mr. Dvorak's replacement.
State law, and Borough Code, clearly state that this seat should be voted on at the next regular election (October 5th). I
reviewed the July 30, 2021 Clerk's Memo regarding filling this vacancy, which included language from Borough Code,
2.25.060 Declaring and Filling Vacancies. However, I note that the Memo omitted Section F, which states that, "Persons
appointed to fill a vacancy shall serve until the next regular election, at which time a successor shall be elected to fulfill
the remainder of the unexpired term of office." The July 29, 2021 Staff Memo regarding the vacancy also neglected to
mention this requirement that Mr. Dvorak's seat appear on the ballot at the next regular election.
Mr. Dvorak's letter of resignation is dated July 15, 2021, which clearly left ample time to ensure his seat be included on
the ballot. At this point, it will probably be necessary to adjust several timelines, similarly to how they were adjusted
during last year's election, but these are not insurmountable problems.
I urge you to take whatever steps are necessary to ensure Mr. Dvorak's seat is on the ballot for the upcoming election
Thank you.
Rebecca Skinner
SKINNER LAW OFFICE, LLC
PO Box 1132
Kodiak, Alaska 99615
Phone/Fax: (907) 512-0467
CONFIDENTIALITY STATEMENT
This electronic message transmission contains information from Skinner Law Office, LLC, PO Box 1132, Kodiak, Alaska,
99615, (907) 512-0467, and is confidential or privileged. The information is intended to be for the use of the individual or
entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of
the contents of this information is prohibited. If you have received this electronic transmission in error, please notify us
by return email. Thank you.
Page 18 of 18
Items handed out at the meeting. *handouts are printed and made availabl...
Kodiak Island Borough
Assembly Special Meeting Agenda
Monday, August 16, 2021, 6:30 p.m.
Assembly Chambers 710 Mill Bay Road
This meeting was called by the Mayor.
Streamed Live Online at www.kodiakak.us
And broadcasted on KMXT at 100.1 FM
1. Roll Call.
2. Citizens' comments. 1-907-486-3231 or Toll Free 1-855-492-9202.
(Limited To Three Minutes Per Speaker)
3. Consideration of matters in the call for the special meeting.
A. Discussion Of Assembly Member Duane Dvorak's Resignation
4. Executive Session
A. Discussion Concerning The Duration Of An Assembly
Appointment To Fill The Vacant Seat Created On The Assembly
By Mr. Dvorak's Resignation.
Move to convene into executive session under the authority of
KIBC. 2.30.030 (F)(1)(a) to discuss potential litigation to which the
Borough would be a party, specifically concerning the duration of
an Assembly appointment to fill the vacant seat created on the
Assembly by Mr. Dvorak's resignation, and to receive advice form
the Borough Attorney.
Move to invite the Mayor and Assembly into Executive Session
as well as the Borough Attorney, the Borough Administrative
officer and the Borough Clerk.
5. Adjournment.
Watch meetings live, online at www.kodiakak.us
Citizen Comment: 486-3231 or 855-492-9202
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KODIAK ISLAND BOROUGH
Meeting Type: S�eG 1 Date:
Please PRINT your name legibly Please PRINT your name legibly
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