2025-10-27 Special MeetingKodiak Island Borough
Assembly Special Meeting Agenda
Monday, October 27, 2025, 6:30 p.m.
Assembly Chambers
This meeting was called by the Mayor.
This meeting is open to the public and will be broadcast on the Borough's YouTube Channel. Meeting
packets are available online. Please subscribe to get meeting notifications when meeting packets are
published. For public hearing and citizens comments, please call (907) 486-3231 or (855) 492-9202.
Any public documents related to the agenda that are received and shared with elected
officials after the initial agenda packet has been released will be included in the
Supplemental Materials section below. The deadline for releasing supplemental materials is
noon on the day of the meeting.
Page
1. ROLL CALL
2. CITIZENS COMMENTS
3. CONSIDERATION OF MATTER(S) IN THE CALL FOR THE SPECIAL
MEETING
A. Waive And Release The Attorney's Opinion Protected By
Attorney -Client Privilege Concerning The Mayoral Veto Submitted
Regarding The Appointment Of Assembly Member Roberts
4. ADJOURNMENT
5. SUPPLEMENTAL MATERIALS
A. Attorney's Opinion on Veto of Appointment 2-8
B. Meeting Materials 9 - 12
Page 1 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
To: Nova Javier, Borough Clerk
From: Scott A. Brandt-Erichsen, Borough Attorney
cc: Aimee Williams, Borough Manager
Jared Griffin, Borough Mayor
Borough Assembly Members
Date: October 21, 2025
Re: Veto of Appointment
CONFIDENTIAL ATTORNEY -CLIENT PRIVILEGE ER 503
Question:
I was asked to provide advice concerning the scope of mayoral veto powers as applied to
assembly appointment to fill a vacancy. You provided a number of specific questions. The
primary issues are whether an assembly decision appointing a person to fill a vacancy is subject
to the veto power; whether the veto here was effectively exercised; and, if the veto is effective,
what the assembly options are for responding to the veto.
Facts:
The Kodiak Island Borough (Borough) assembly (Assembly) appointed a person on
October 16, 2025, to fill the vacant Assembly seat created by the resignation of Assembly Member
Ryan Sharratt. The vacancy was advertised, and the desired candidate was selected following
the procedure in KIBC 2.30.040(A) as required by KIBC 2.25.060(D). The candidate selected by
a majority of the Assembly was identified, and the Mayor verbally indicated his intent to veto the
selection. The person was notified of the selection, and took and subscribed to the oath of office
on October 16, 2025, prior to the end of the meeting. On October 17, 2025, the Mayor delivered
a written veto message which provided, in relevant part: "During the Assembly meeting of October
16, 2025, the Assembly approved the appointment of Caroline Roberts to the Assembly. I hereby
exercise this veto before the next Assembly regular meeting of November 6, 2025..." The
message continued to state the reasons for the exercise of the mayoral veto.
Page 2 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
Brief Answer:
The Alaska Supreme Court has not addressed the issue of veto of appointments to fill
assembly vacancies. Accordingly, while I have a reasonable level of confidence that the courts
would concur with my advice, it is not a certainty.
On the facts here, I believe that a court would hold that the Mayor does have the power to
veto the Assembly decision to select a person to fill a vacancy, but that the veto must be exercised
before the person qualifies and takes the oath of office. After the member qualifies and has taken
the oath of office there is no longer a legislative decision subject to veto.
If the veto had been properly exercised prior to the events which made it inapplicable, the
Assembly could take up the veto and seek to override (without the person participating); or could
make a new appointment from among the existing applicants (including the person subject to the
veto).
I will address the various questions posed above after discussing the general rules for
scope and application of a mayoral veto.
Discussion:
A. The source of the veto power.
Under AS 29.20.270, the mayor has veto powers over ordinances, resolutions or motions
passed by the assembly. The statute regarding mayoral veto is set out in AS 29.20.270 which
provides:
"29.20.270. Veto.
(a) Except as provided in (c) - (e) of this section, the mayor
may veto an ordinance, resolution, motion, or other action of the
governing body and may strike or reduce appropriation items.
(b) A veto must be exercised before the next regular
meeting of the governing body and must be accompanied by a
written explanation of the reasons for the veto. A veto may be
overridden by vote of two-thirds of the authorized membership of
the governing body within 21 days following exercise of the veto, or
at the next regular meeting, whichever is later.
(c) The veto does not extend to
(1) appropriation items in a school budget ordinance;
(2) actions of the governing body sitting as the board
of equalization or the board of adjustment;
(3) adoption or repeal of a manager plan of
government.
(d) The mayor of a second class city has no veto power.
2
Page 3 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
(e) The veto does not extend to an ordinance adopted under
AS O4.11.501. This subsection applies to home rule and general
law municipalities."
The general veto requirements are also set out in KIBC 2.20.060. The Borough code
(Code) mirrors the state statute, AS 29.20.270. Both require a veto to be exercised before the
next regular meeting. To exercise the veto, the Mayor must have a veto message which sets out
in writing the explanation of the reasons for the veto. While not spelled out, the veto message is
normally provided to the clerk who distributes it to the Assembly. The Assembly then has the
later of 21 days or the next regular meeting to take up and override the veto. If the Assembly fails
to timely take up the veto, or fails to override the veto, then the veto stands.
B. The scope of the veto.
The veto power is a negative legislative power. It is the power to amend or negate a
legislative measure before it passes completely out of control of the governing body and becomes
effective.' As a negative power, it cannot be used to enact law or make an additional
appropriation, it can only be used to subtract from or negate what the legislative body has
approved. Further, it will apply only to legislative measures, not adjudicative measures.'
The veto will apply to any Assembly legislative action, whether ordinance, resolution or
motion, so long as it is not excluded. This includes contract awards, budget amendments, and
any manner of non -adjudicative actions. Generally, the veto is an up or down rejection of the
entire measure approved by Assembly vote. It will not extend to individual amendments adopted
prior to the final vote approving the measure. For budgets and appropriations only, the Mayor
has an expanded veto power to strike or reduce individual items in a budget or appropriation
measure, referred to as a "line -item veto".
The veto power, like the legislative action of seeking reconsideration, does not extend to
measures which have passed out of the control of the legislative body. For example, if a contract
has been awarded, signed, and actions taken in furtherance of the contract (such as if the
' See State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975, 981 (1974) (citations omitted) "The
power of partial veto is the power to disapprove. This is a negative power, or a power to delete or destroy
a part or item, and is not a positive power, or a power to alter, enlarge or increase the effect of the remaining
parts or items... Thus, a partial veto must be so exercised that it eliminates or destroys the whole of an item
or part and does not distort the legislative intent, and in effect create legislation inconsistent with that
enacted by the Legislature, by the careful striking of words, phrases, clauses or sentences." See also Rush
v. Ray, 362 N.W.2d 479, 482 (Iowa 1985) ("[T]he governor's power is a negative one that does not allow
him to legislate by striking qualifications in a manner which distorts legislative intent."); Welden v. Ray, 229
N.W.2d 706, 713 (Iowa 1975) ("'It is obvious that the item veto power does not contemplate striking out
conditions and restrictions alone as items, for that would be affirmative legislation, whereas the governor's
veto power is a strictly negative power, not a creative power."') (quoting Note, Item Veto Amendment to the
Iowa Constitution, 18 Drake L.Rev. 245, 249-50 (1969)).
2 See Saunders Properties v. Municipality of Anchorage, 846 P.2d 135, 140 (Alaska 1993) (Concluding that
quasi-judicial decisions by the municipal assembly are not subject to mayoral veto.) See also 5 Eugene
McQuillin, The Law of Municipal Corporations, section 16.42 at 240 (3rd Ed. Rev. vol. 1989); and see AS
29.26.270(c)(2).
3
Page 4 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
contractor has ordered the materials) then the award of the contract cannot be reconsidered.'
The veto does not extend to adjudicative or quasi -adjudicative actions. The veto does not extend
to administrative actions such as personnel matters .4
1. Veto of appointments.
The appointment of a person to fill a vacancy could arguably be characterized as an
administrative or personnel type matter and outside the scope of a veto based on the reasoning
in Ross v. City of Sandpoint. The alternate argument looks at whether the decision is subject to
legislative discretion as compared to decisions which are applying rules to a specific fact situation
in an adjudicatory context, or are administrative matters not subject to legislative discretion.
Courts in other jurisdictions have held that a legislative appointment is an exercise of legislative
power and is subject to mayoral powers to veto legislative decisions .5
The process here calls for an Assembly vote, albeit one that does not follow the normal
rules for votes under AS 29.20.160 which requires votes of each member to be recorded as yes
or no unless it is unanimous. The process also provides for the Mayor to vote in the event of a
tie.' Where there is a vote and the Assembly has the discretion to choose from among options,
there is a substantial likelihood that a court would hold that it is a legislative action within the
scope of "other action of the Assembly" subject to veto.
2. The effect of the veto.
Once exercised, the veto suspends the effectiveness of the measure and the matter
stands as if no action whatsoever had been taken.' This means that if the veto is timely made in
the proper form, it negates the legislative action as if it were never taken. A veto cannot create
law or make a decision, it can only erase a decision made by the legislative body. The legislative
body then can decide whether to override the veto or take some other action.
3. The veto right expired when the appointment decision was implemented.
The fact pattern here is that the appointment was made by a majority vote of the Assembly,
and the person subscribed to and took the oath of office on October 16, 2025. AS 29.20.170,
regarding vacancies, includes a situation where the person "(1) fails to qualify or take office within
30 days after election or appointment." This indicates that the appointment is a separate action
from taking office. AS 29.20.600 requires subscribing to an oath of office prior to taking office.
No other requirements are identified are steps to begin a term of office as an appointed member.
Thus, an appointee who has qualified and taken and subscribed to the oath of office within 30
days of appointment has done all that is required to assume the office.
' See, For example, Robert's Rules of Order, Newly Revised, 101h edition, section 37, page 307, (a motion
to reconsider cannot be applied to, among other things, a vote whose provisions have been partially carried
out; a motion in the nature of a contract where the party to the contract has been notified of the outcome;
or a vote which has caused something to be done that it is impossible to undo.)
4 See, for example, Ross v. City of Sandpoint, 952 P2d 274 (Alaska 1998).
5 See, for example, Woodhull v. Manahan, 204 A.2d 212 (New Jersey 1964). See also Scott v. Stater,
707 So.2d 182 (Miss. 1997) (recognizing authority to veto appointment of a municipal judge.) These sorts
of decisions tend to be dependent on the statutory provisions at issue. Statutes which only allow veto of
ordinances may not allow veto of legislative appointments.
6 See KIBC 2.30.040(B)(5).
' See, for example, City of Madison v. Shanks, 793 So. 2d 576 at 578 (Miss. 2000).
4
Page 5 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
While the Mayor verbally indicated the intent to exercise a veto, the written veto message
was issued on October 17, 2025, setting out the reasons for the veto as required by KIBC
2.20.060(B). A verbal statement of intent to veto is not effective to exercise the veto. The veto
must be in writing and state the reasons for the veto in order for the veto power to be properly
exercised. When the veto was exercised here, the Assembly action approved had moved beyond
the point where legislative action could be taken because the decision had been implemented by
the qualification and taking of the oath of office of the person appointed. Accordingly, I believe
that a court faced with the question would hold that the veto was untimely and did not negate the
appointment.
What if the veto was valid?
If the veto were effective, then the status would be that a vote was made for an
appointment and it was voided by the veto. Unless there is an override by five of the non -vetoed
members within 21 days, it will stand and the Assembly would need to make a new decision,
which then could be subject to veto. The veto does not negate the entire process, nor preclude
consideration of all candidates. It only rejects the specific vote taken.
C. Specific questions with responses in bold:
• Are appointments to the Assembly, assuming there were no procedural issues, subject to
mayoral veto? I believe a court would hold that those appointments are subject to a
possible veto.
• If the appointee was validly voted in and has been sworn into office, does a subsequent
mayoral veto still legally nullify the appointment? I believe that a court would hold that
a person validly sworn into office is not removed by a veto of their appointment.
The opportunity for veto has passed because the appointment decision has been
implemented.
• We need some clarity, by that logic, could the mayor also veto the Assembly's certification
of elections? Certification of elections is not a legislative decision on which the
Assembly has discretion to choose between options. The Assembly is determining
whether the election is validly held, which is an adjudicative function, and if it was
validly held there is no discretion to reject the results. I believe a court would hold
certification of elections is not subject to a veto.
• Does the administration of the oath confer any legal standing or vested rights that limit or
override the effect of a veto? Or is the "swearing in" merely ceremonial, therefore not an
action of the Assembly? The swearing in is a requirement of office. See AS 29.20.170
and AS 29.20.600. When the person has completed all steps to qualify and assume
the office then the appointment has been implemented, and would not be subject
to reconsideration or veto.
• While the veto process works its way through, does the appointee assume her position on
the assembly until the veto issue is settled at the next regular meeting? (that is, is the veto
not official until it's, well, official?) If the veto were effective then Ms. Roberts could
not participate and vote because a properly exercised veto creates a situation
where it is as if she was never appointed.
Page 6 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
Can Ms. Roberts serve in a de facto status? For instance, since the Assembly appointed
someone and she's sworn in, in a de facto status, she should be able to vote to override
the mayor's veto. Or is the whole thing procedurally unsettled during the veto window?
The de facto status is based on implied authority, and Ms. Roberts now has implied
authority to act as an Assembly member, if not de jure (legal) authority.
Accordingly, her votes on decisions would be valid due to de facto authority even
if the validity of her appointment were later challenged and it was determined by a
court that she was not properly appointed. This does not apply to consideration of
the attempt to veto her appointment, because a veto which was not timely made is
not properly before the body for consideration or override because it was void from
the beginning.
Is this procedure valid: where the new incoming mayor (Jared Griffin) can call a special
meeting next week to "reconsider" the appointment? That way, the Assembly can vote
with a simple majority to reconsider the appointment. And if the vote falls in the
appointee's favor, then the previous Mayor's veto of the initial vote is moot? The issue
cannot be reached by reconsideration for the same reason it cannot be reached by
veto, it has been at least partially carried out and is no longer reachable by
legislative action.
Or how about this procedure: Section 35 of Robert's Rules regarding "rescinding a
motion". Can the Assembly call a special meeting to rescind or nullify the appointment?
Then the new Mayor can put a new vote on another Special Meeting agenda the following
week or the next Regular meeting. Will that work? Like reconsideration, rescinding is
not available when something has been done as a result of the vote on the main
motion which it is impossible to undo, in this case, the act of assuming the office
by taking the oath of office is an action which cannot be undone. Robert's Rules
includes a reference to when the person is present and has been notified of the
action when it is in the context of acceptance of a resignation. The same concept
should apply here, and here there was both notice and action in reliance on the
appointment.
• If the Assembly has completed the appointment process (including a valid motion, vote,
and swearing -in) and the Mayor subsequently issues a veto of the final appointment vote,
does that veto:
a) Void only the vote, requiring the Assembly to simply vote again from among
previously considered candidates? If the veto were after the appointment but prior to taking
the oath of office then it would result in a situation where the Assembly could choose to
override the veto or treat the rejected appointment vote as if it had never occurred. They
could decide whether to choose from the other candidates or choose the same candidate
or initiate a new process. The veto only negates the specific action vetoed. It does not
limit the Assembly discretion to act on the topic. At times, such as if the item vetoed was
award to the low bidder, other factors may preclude selection of another contractor. Here
the Assembly has several options to choose from as to how to proceed.
b) Or does it nullify the entire process, requiring the Assembly to begin the
selection and vetting process anew? No, it does not nullify the process. The Assembly has
discretion as to what to do next if there is a valid veto.
Page 7 of 12
AGENDA ITEM #5.A.
CONFIDENTIALITY WAIVED BY THE KIB ASSEMBLY ON 10/27/2025
• Does a mayoral veto of the outcome have any legal effect on the process by which the
Assembly arrived at that decision, particularly where:
✓ the Assembly's only prior action was to declare the seat vacant; and
✓ the remainder of the process (soliciting applications, interviews, deliberations) was
carried out administratively or informally, and not via formal Assembly action?
In other words: can a Mayor's veto of the final vote be construed as retroactively
invalidating a process that he has no statutory authority to veto? No. The process required is
guided by the code and statutes, and if not prescribed is up to the Assembly's discretion.
The veto cannot alter the rules for that process, it only negates the specific vote taken.
Under our municipal code's requirement that a veto be accompanied by a "written explanation of
the reasons," what is the legal scope and effect of the Mayor's statements in the veto message?
• Can the Mayor, via the veto memo, director "order" the Assembly to restart the
appointment process? No. The veto only negates the specific vote, not the process.
It also cannot compel any particular Assembly action.
• Can the Mayor prescribe a specific outcome, such as stating that the Assembly must
appoint a different candidate or reopen applications? The Mayor can indicate what his
desired result might be, but that is not binding on the Assembly. They have
discretion to decide to proceed as they see fit.
• Does the veto message carry any binding authority beyond invalidating the specific
Assembly action to which it applies? No.
• Or is the memo strictly explanatory in nature, with no operative legal force beyond voiding
the action being vetoed? Yes. The veto must be written and must explain the reasons
for the veto, and may not be properly exercised if it is missing these elements, but
the substance of the reasons is not material beyond helping the Assembly decide
whether to seek to override. It is the Mayor's opportunity to try to convince the
Assembly it made a mistake. It has no independent legal force.
Page 8 of 12
AGENDA ITEM #5.B.
To: Kodiak Island Borough Assembly
Through: Borough Clerk's Office
710 Mill Bay Road
Kodiak, AK 99615
From: Ryan B Sharratt
PO Box 753
Kodiak, AK 99615
RE: Carolyn Roberts Appointment
Assembly Members,
Provided by Ryan Sharratt on 10.20.2025
10.20.2025
I am writing this letter in support of Carolyn Roberts and hope that, as the vacating seat
holder, this letter carries credibility.
First, I want to apologize for stepping down a year earlier than planned. Due to my son's
passing, my priority has been my family. Second, I'd like to explain how I entered the
Assembly —initially through an appointment, then by running in a general election. I had
little government experience when I started and learned on the job. My desire to serve the
Kodiak community isn't because I've lived here for a longtime, but because I genuinely
care about Kodiak. I believe Carolyn Roberts will fulfill the duties of an Assembly Member
in a way that meets the expectations of Kodiak's citizens and can progress down a similar
path that I took in appointment, then seeking electoral support.
Thank you for the last two and a half years of the Assembly. I truly appreciate each of you.
If you have any questions, please contact me.
Respectfully,
Ryan B arratt
907.94 44
Page 9 of 12
v
cQ
m
0
O
N
/ KODIAK ISLAND BOROUGH ASSEMBLY ROLL CALL SHEET
Regular Special `' Date: /O L7 LS
Convened: lam. fi I^n• Recessed: Reconvened: Adjourned:
BY:
SECOND:
VI
BY: S I(V\luuc
SECONDU
�GNO
BY: S \�
SECOND: iJ�
BY:
SECOND:
BY:
SECOND:
ILYIESSNU
YES
NO
YES
NO
YES NO
Mr. Ames
Mr. Ames
Mr. Ames
Mr. Ames
Mr. Ames
Mr. Gardner
aer
Mr. Gardner
Mr. Gardner
Mr. Gardner
Mr. Johnson
Mr. Johnson
I/
Mr. Johnson
Mr. Johnson
Mr. Johnson
Ms. Roberts
Ms. Roberts
Ms. Roberts
Ms. Roberts
Mr. Smiley
Mr. Smiley
Mr. Smiley
Mr. Smiley
Mr. Smiley
Mr. Whiteside
Mr. Whiteside
Mr. Whiteside
Mr. Whiteside
Mr. Whiteside
Mr. Woods
Mr. Woods
Mr. Woods
Mr. Woods
Mr. Woods
OULD
TOTAL:
ANYONE LIKE TO CHANGE
THEIR VOTE? WOULD ANYONE
LIKE TO CHANGE THEIR
VOTE?
TOTAL:
TOTAL:
TOTAL:
TOTAL:
The mayor may not
vote except in the case where only six members of the assembly are present and there is a three/three tie vote of the assembly.
Mayor Griffin
I V 0,Mayor
Griffin
Mayor Griffin
Mayor Griffin
Mayor Griffin
AGENDA ITEM #5.B.
KODIAK ISLAND BOROUGH
Meeting Type: Assembly Special Meeting Date: October 27, 2025
Please PRINT your name legibly Phone number
Page 11 of 12
AGENDA ITEM #5.B.
Kodiak Island Borough
Assembly Newsletter
Vol. FY2026, No. 09 October 28, 2025
At Its Special Meeting Of October 27, 2025, The Kodiak Island Borough Assembly Took The Following
Action. The Next Regular Meeting Of The Borough Assembly Is Scheduled On Thursday, November 6,
2025, At 6:30 p.m. In The Borough Assembly Chambers.
WAIVED AND RELEASED The Attorney's Opinion Protected By Attorney -Client Privilege Concerning
The Mayoral Veto Submitted Regarding The Appointment Of Assembly Member Roberts
View our website: Visit our Facebook page:
www.kodiakak.us 91 www.facebook.com/KodiaklslandBorough
Page 12 of 12