Session 06-27, a Special Meeting of the Homer City Council was called to order at 10 a.m. by Mayor
James C. Hornaday at the Homer City Hall Cowles Council Chambers located at 491 E. Pioneer Avenue,
Homer, Alaska, and opened with the Pledge of Allegiance.
PRESENT: COUNCILMEMBERS: HEIMBUCH, NOVAK, ROBERTS, SHADLE, STARK, WYTHE.
STAFF: CITY CLERK CALHOUN
DEPUTY CITY CLERK JOHNSON
DEPUTY CITY CLERK JACOBSEN
CITY MANAGER WREDE
ATTORNEY FOR THE COUNCIL LW CUTLER
AGENDA APPROVAL The agenda was approved by consensus of the Council
PUBLIC COMMENTS UPON THE AGENDA
Public Comments on agenda item limited to 3 minutes.
Mayor Hornaday noted that this is a quasi judicial proceeding, introduced the Council's Attorney, for this
purpose, Ms. Louisiana Cutler from Anchorage. He advised the public that the only comments that the
Council may consider for the hearing are those given at the hearing. In order to testify at the hearing one
must be a complaining witness or called as a witness by one of the complaining witness.
Michael McCarthy, Homer resident 3243 Kachemak Drive, stated that he would like to say that it does
not matter who the personality is that he is addressing this to and that he will address it to any
Councilmember had they done the same behavior. Expressed his extreme displeasure with
Councilmember Stark's recent abuse of Homer's Code of Ethics dealing with the inappropriate use of
office or title, the pre election behavior was arrogant and condescending to the public he serves. The
denigrating letter that Mr. Stark authored proves that he is ethically challenged and therefore unfit for
service as a Councilmember. Mr. Stark most certainly violated Homer City Council Code of Ethics by
sending out a letter of support for Council candidates Val McLay and Brian Zak, under his signature as
Councilman. The only thing that would have made it more blatantly wrong would have been to write the
letter on City letter head stationary. When Mr. Stark was asked to account for his actions he further
demonstrated his arrogance by stating, I would be more concerned if it was people who were substantial
in the community. Mr. Stark said that he did nothing out of line except to put Councilman with his name.
If that were so, why didn't other Councilmembers or the other candidates take the same disrespectful
course of action. The answer is clear such behavior is unethical and not in keeping with the dignity of the
office of any City Councilmember. The City of Homer and the City Council are best served by
Councilmembers who heed the concerns of Homer Citizens. Mr. McCarthy requested that Doug Stark be
removed from office, as he has proven himself unfit for public service, and that it would seem that the
third highest vote recipient should be appointed to fill the newly vacated seat on the City Council. He
thanked the Mayor and Council.
Mayor Hornaday restated that this cannot be considered in the evidence. In response to Mr. McCarthy the Mayor advised that for his comments to be considered he must be called as a witness by one of the complainants. He reiterated that this is a quasi judicial proceeding.
Dan Lush, formerly Homer City Resident, put in a word for free speech, that there is a lot of political
rhetoric that goes on during political campaigns, good and bad. Stated that he is glad to live in a country
that does allow wide latitude of both the things that please and displease us related to political
campaigns, which is probably where the most rhetoric is seen. Maybe sometimes people would like to
take some of this back, but in the heat of the passion of their concerns, sometimes things are said or
causes supported to try to influence people in ways that they might have done differently in hind sight.
Glad the opportunity exists to make one's case and have a wide latitude to make it and let the voters
decide, this is one of the good things about this country is that it does not screw down and limit, too
much, what candidates say and lets the voters decide. God bless America.
Leonard Wells, City resident, made general comment on the ethics question, that it sounds like some
people are indicating that there is a Code of Ethics and if so then the City holds itself to a much, much
higher standards than the President, Congress, the Senate. Noting that in the last go around, both here
and elsewhere he saw many, many flyers with Senators and Congressman and even the President using
their elected title to garner support for their point of view, exactly what he would hope that the candidate
he votes for would do, to get as many like minded people, as themselves, on the Council. If that is
unethical then how could any moral person run for the Council.
Bob Shavelson, City resident, stated that he is just curious, since this is the first time that the Council has
dealt with these issues and are basically inviting a procedure that has not been made clear; What will be
the rules of evidence and what will be the admissibility of things?
Mayor Hornaday responded that these will be strictly enforced as they would generally be involved. He
will be making the decisions on relevance, on the basis of what he feels is appropriate pursuant to the
rules of evidence and the general proceeding. Each person testifying will be sworn in and any
complainant may call any witness they so choose.
Louisiana Cutler, asking everyone to please call her Lou Ann, responded to Mr. Shavelson's question
that all of the complainants and Mr. Stark received a letter in which the procedure was outlined and all of
those points were made in the letter. These are certainly public documents and anyone who has not
received that letter is entitled to receive it. As the Mayor indicated and as Mr. Shavelson knows from his
legal training, the formal rules of evidence do not apply in this proceeding, however, there will be an
effort to avoid unduly repetitious evidence and a relevant applied standard as the Mayor indicated.
Evidence needs to go to the actual allocations and the complaint.
Mr. Shavelson confirmed that he did receive this information in the mail and that he just wanted to clarify
and expressed appreciation of the process.
NEW BUSINESS
A. HEARING - Alleged Ethics Violation against Councilmember Stark.
Mayor Hornaday excused Doug Stark from the Council table at 10:10 a.m.
Mayor Hornaday stated that the issue that is before this quasi judicial proceeding is a letter, which Doug
Stark wrote dated 26, September 2006 and the Mayor read this into the record
Mayor Hornaday recognized that there are may complaints, that John Fenske was the original complainant and basically lays out the actual charges and the essence thereof. Claiming that the provision he refers to provides no official, elected or appointed, shall use the implied authority of their position for the purposes of unduly influencing the decision of others while promoting a personal interest within the community. He asked that comments be kept to those specific charges. He asked that everyone consider that there are a lot of people wanting to testify and to keep answers to the point.
Disclosures/Determinations of participation:
Mayor Hornaday noted that Councilmember Novak was criticized in the letter.
Attorney Cutler clarified this process with regard to ascertaining any bias with regard to this matter.
Noted that Mr. Novak was clearly one of the objects of Mr. Stark's letter, which is what this hearing is
about. Mr. Novak was quoted in the newspaper making the following statements which, if true, suggest
that he is biased and not probably capable of hearing this proceeding in an unbiased fashion. She read
some of the comments reflected in the newspaper and queried Mr. Novak regarding those statements.
Councilmember Novak responded that the statements represent an interpretation and are exact in some
places, but that this does represent his comments and thoughts suggested are in line with what he said.
Attorney Cutler noted that the procedure that is going to be employed is that the Mayor will make the
determination with respect to both bias and any exparte contact that Councilmembers may have had.
Depending on the results then it will be decided who is going to actually hear the evidence and make the
decision in this case. She recommended to the Mayor that in the instance where a person has said things
that they do not deny and are in print, that she thinks there is a clear bias and Mr. Novak should not
participate in making this decision.
Councilmember Novak noted that it is his job to be objective and unbiased in the proceedings at the
Council table. There are many issues that come before the Council that they might have feelings about,
but their job is to be objective, to try not to reflect a bias and to do what is best for the community. He
stated that this is what he tries to do and that this proceeding is no different than that.
Mayor Hornaday asked if any of the Councilmembers wanted to comment. There were none. The Mayor
ruled that Councilmember Novak's comments indicate bias and that he was disqualified, unless the
Council wants to over rule him. The Council did not.
Councilmember Novak was excused from the table at 10:24 a.m.
Attorney Cutler stated that, with regard to Ms. Roberts who is in a similar position as Mr. Novak also
being an object of Mr. Stark's letter, that she is not aware of any comment Ms. Roberts might have made
to the press..
Councilmember Roberts responded that she has not made any comment to the press other than to state
to either the radio or a newspaper that she did not think that it had any applicability to what was going
on and that she did not answer any more than that.
Attorney Cutler inquired of Ms. Roberts if she has had any contact with any of the complainants about
the merits of the complaints.
Ms. Roberts responded in the negative.
Attorney Cutler queried Ms. Roberts if she has had any interactions with others in the community about
the merits of the complaints as opposed to the procedure.
Ms. Roberts stated that she became a Councilmember on October 17th (1) and that she does not believe
that she has done anything since she received the advise from Attorney Cutler that it would be inappropriate.
Attorney Cutler asked Ms. Roberts how she feels about this, does she feel that she can be impartial and
unbiased given the fact that she was an object of Mr. Stark's letter.
Councilmember Roberts stated that she believes that she can be and that she believes these are two
separate issues, being an object of a letter is different than thinking about the fairness and ethics issues
that need to be considered today. Attorney Cutler advised the Mayor that she has no recommendation.
Mayor Hornaday queried Councilmember Roberts as to her certainty, in her own mind, that she is
convinced that she can be a fair and impartial determination maker here.
Councilmember Roberts responded in the affirmative.
Mayor Hornaday found that she is qualified and not disqualified.
Disclosure of any ex parte communications by Mayor or any other Council members.
Mayor Hornaday inquired if there were any other Councilmember that wishes to disclose a contact, if any
Councilmember had any contact with a complainant, make any comments to the newspapers or have any
qualms about sitting on this.
Councilmember Heimbuch stated that he has certainly made a comment to the news paper.
Attorney Cutler advised that she and Councilmember Heimbuch have had a conversations about comments that he made to the newspaper and had a conversation with one of her associates. She clarified that she does not think that this is necessarily talking about bias, at least not yet, this is about ex parte, outside of the record, contacts. She relayed her advice to the Council to go beyond just having ex parte conversations with parties, because of her understanding that this is a very controversial issue. In some sense lots of members of the public are complaining, even if not filing an official complaint. She stated that if a Councilmember has had ex parte comments about the merits of the matter as opposed to the procedure, with complainants then it needs to be determined whether or not that suggests a disqualifying bias as opposed to something that just needs to be disclosed. Then all of the complainants have an opportunity to respond, because of hearing evidence. There are two unusual issues, certain members of the public have filed written complaints, but lots of members of the public have the same concern. It needs to be sorted out which comments were made and then whether or not those comments disqualify members of the Council. She stated that Mr. Heimbuch said, reflected in the paper: The goal is not to establish a set of punitive actions but to establish a set of higher behavioral guidelines - which was not talking about the merits of this particular complaint and was just talking about the Ethics Code.
The newspaper stated that in one sense Heimbuch said that Stark has already been punished by voters rejecting the candidates he backed, its an attenuation of a person's political effectiveness, the punishment is there already.
What the Council might do as a result is signify its recognition of the public's uneasiness.
Attorney Cutler asked Mr. Heimbuch if those were true comments.
Councilmember Heimbuch responded that these are somewhat paraphrased, but believes that they
represent his sentiment.
Attorney Cutler inquired if Mr. Heimbuch has made up his mind that something should be done?
Councilmember Heimbuch responded that in a sense it is a hypothetical conversation with the newspaper
at the time about the entirety of the situation that was going on and that he did not have any
preconceived notions as to whether or not there had technically been an Ethics Code violation. He
advised that he was responding to the political and social unrest that had been cause about it, knowing
full well that implementation of an Ethics Code by Resolution probably had limited punishments. Council
will be talking about what might be done in a practical manner and that he has not changed his mind that
this is one of the logical outcomes of such a procedure like this, but that he is open to whatever the
Council decides or to whatever the legal system requires and does not back off from feeling that this
would be a reasonable outcome.
Attorney Cutler inquired if Mr. Heimbuch has had contact with the complainants or with Mr. Stark.
about the merits of this matter?
Councilmember Heimbuch responded in the negative.
Attorney Cutler asked if Mr. Heimbuch has had contact with other members of the public about the
merits of this matter?
Councilmember Heimbuch responded no, nothing, and that he has engaged in no conversations about
whether or not an ethics violation has occurred.
Attorney Cutler asked how about what should be done if an ethic's violation is found?
Councilmember Heimbuch responded that only hypothetically as he had just explained.
Attorney Cutler advised the Mayor that she has no recommendation.
Mayor Hornaday expressed concern with a statement by Councilmember Heimbuch, reflected in the
paper, that he has already been punished enough. He asked Councilmember Heimbuch if this were going
to affect his decision making process.
Councilmember Heimbuch stated that there is nothing in there that could be construed that I said this is
punishment enough or that in essence he said that. He said, direct quote, "In one sense.." That is an
interpretive evaluation of the situation.
Mayor Hornaday asked Councilmember Heimbuch if he is convinced in his own mind that he can be fair
and impartial.
Councilmember Heimbuch responded in the affirmative and that he fully intends to follow the advise of
Council's Attorney.
Mayor Hornaday found Councilmember Heimbuch qualified.
Attorney Cutler inquired if Mayor Hornaday has had any conversations with any of the complainants or
Mr. Stark about the merits of the matter.
Mayor Hornaday responded in the negative, advising that he was at the coffee table with John Fenske,
that the subject came up and was quickly dropped.
Councilmember Wythe responded to similar inquiry by the Mayor that she has not talked to anybody that
is on the complainant list, that she has never spoke with Mr. Stark regarding the proceedings and that, of
course, she has had comments from the public about the situation, but has endeavored not to engage in
the discussion. She advised that she did have one call from a Councilmember to discuss something else
and the Councilmember was entering in to telling her what the Councilmember thought and that she told
the individual that she did not want to know and did not really care.
Councilmember Shadle responded to the Mayor that he has had no contact with any of the complainants
nor had he spoke to Doug Stark about this matter.
Attorney Cutler recommended that none of the other Councilmembers be disqualified, including the
Mayor from presiding over the meeting.
Mayor Hornaday stated that he would follow that recommendation unless the Council wants to overrule.
There were no comments by the Council.
Mayor Hornaday thanked the City Clerk and her office, the City Council and the Attorney for all of the
extra work they have done on this process.
HEARING
Mayor Hornaday stated the process and reiterated his request to keep the comments to the issues that are before this hearing and reminded everyone that there are a number of people wanting to testify.
Opening statements are allowed before the evidence or one may be sworn in and testify now.
The list of complainants in chronological order are:
John Fenske, 10/2/06 at 10:28 a.m.
Kathy Smith, 10/03/06 8:31 p.m
Karen Marquardt McLellan, 10/03/06 at 8:14 a.m.
Jerry Scholand, 10/03/06 11:53 a.m.
Lance Peterson, 10/03/06 12:49 p.m.
Jacqueline W. McDonough, 10/03/06 2:22 p.m.
Lee Post, 10/03/06 3:48 p.m.
Thomas McDonough, 10/03/06 3:55 p.m.
Kathy Hill, 10/03/06 5:09 p.m.
Heather M. Renner, 10/03/06 6:38 p.m.
Dennis Gann, 10/03/06 no time noted
Sharon Gorman and Joe Spaeder, 10/04/06 5:57 a.m.
Luana Stovel, 10/04/06 8:07 a.m.
William and Marianne Schlegelmilch 10/04/06 8:19 a.m.
Mary Maly, 10/04/06 8:43 a.m.
Laurel P. Epps, 10/04/06 9:01 a.m.
Valerie Connor, 10/04/06 9:10 a.m.
DeWaine and Jane Tollefsrud, 9:36 a.m.
Debbie Poore, 10/04/06 9:48 a.m.
Bob Shavelson, 10/06 no date or time noted, received prior to packet deadline on 10/04/06
E. L. De Armoun, 10/05/06 1:25 p.m.
Nina Faust, 10/13/06 8:33 a.m.
Opening Statements
Mayor Hornaday called for John Fenske, not present.
Mayor Hornaday called for E. L. De Armoun, not present.
Mayor Hornaday called for Karen Marquardt McLellan, not present.
Mayor Hornaday called for Kathy Smith.
Attorney Cutler clarified that this is the opening statement period, not in the collection of evidence. The
actual complaints do not have to be entered into evidence or Mr. Stark's letter. These will be the first
number of exhibits. Just anything additional, documentary or physical to put into evidence in addition to
the oral statements.
Kathy Smith was sworn in by Deputy City Clerk Johnson. Ms. Smith advised that she is a Homer
resident and lives at 4139 Kachemak Way and read a short letter into the record addressing the Mayor
and Council. The Code of Ethics states that no elected or appointed official shall use the implied
authority of their position for the purposes of unduly influencing the decisions of others or promoting a
personal interest within the community. That City Councilmembers will refrain from using their title
except when duly representing the City in that capacity. Believe that Doug Stark violated the Code of
Ethics when he sent out his letter, in order to influence voters and signed it in his official capacity as a
Councilman. The lack of integrity shown by this offence coupled with Mr. Stark's evident disregard for
his fellow Councilmen as demonstrated in his letter have led her to loose confidence in his ability to
function as an elected official on behalf of City residents. She thanked the Council for their consideration.
Mayor Hornaday asked Councilmember Stark if he had any questions.
Councilmember Stark stated that he has no questions.
Mayor Hornaday asked the Councilmembers if they had any questions to ask.
There were no questions of the Council.
The Mayor asked the Complainants if they were all going to follow the procedure that Kathy Smith
followed, stated that he saw heads nodding and that being the case he would ask that each be sworn in
before their opening statement. That being the case Mr. Stark is entitled to make an opening statement.
Councilmember Stark stated that his understanding is that the complainants make their opening
statements and then number two is his opening statement and that he would prefer to follow the agenda.
Attorney Cutler inquired if anyone on the complainant side wanted to make an opening statement as
opposed to just present evidence with respect to whether or not Mr. Stark has or has not violated the
Ethics Code.
Valerie Connor, City resident, made an opening comment: Really thanked the Mayor and Council for
their willingness to investigate this matter of Ethics Violations by Councilmember Stark. It is very
important that the public's confidence and trust is restored through today's proceedings. As
uncomfortable as it may be, encouraged the Council, more specifically Councilmember Stark, to resist
the temptation to deliberate in a private Executive Session. The allegations against Councilman Stark are
in the realm of the public's interest and therefore, the public should have the benefit of hearing how each
of the Council, public's representatives, weigh in on this important decision. Using a public forum for this
debate will ensure that the Council has the public's best interests in mind. She thanked the Mayor and Council.
Attorney Cutler asked if there were any other complainants that wish to make an opening statement as
opposed to present evidence on the record.
There were none.
Mayor Hornaday told Councilmember Stark that he could now make his opening statement.
There was a woman who requested permission to speak. She was denied that request since she is not a
complainant and was told that she may speak should a complainant call her as a witness.
Councilmember Stark stated that the issue before the Council is putting "Councilman" after his name on
the letter. Some object to his statement about the candidates, to which he responded that these
statements are factual. The Council makes important decisions and the candidates should run on their
voting record not on smiling or kissing babies. Some of the letters, particularly in the News Papers,
contain untruths and discussion of matters untrue from 15 years ago. He stated that he does not have the
time to rebut all of it, that he apologized to the Council and to the Community, and the continual rehash
in the local paper has been more punishment to he and his wife than anything the Council could
construct.
The opening statements were closed.
Presentation of evidence by each complainant who desires to present evidence
Mayor Hornaday called for - John Fenske, not present; E.L. De Armoun, not present; Karen Marquart
McLellan, not present; Kathy Smith - gave her testimony under Opening Statements.
Attorney Cutler asked if Kathy Smith wished to call any witnesses.
Kathy Smith responded that she does not wish to call any witnesses.
Councilmember Stark confirmed that he does not have any questions for Kathy Smith.
Mayor Hornaday called for - Dennis Gann, not present.
Mayor Hornaday called Jerry Scholand, who was sworn in by Deputy City Clerk Johnson
Jerry Scholand stated that he lives in Kachemak City. He recognized that most of the discussion revolves
around a letter that was included in their package. If it is allowed, he advised that his problem revolves
around a different letter that Mr. Stark sent to his home that he found quite disturbing. The Code of
Ethics states that no elected official shall use the implied authority of their position. He advised that the
letter he is referring to is not signed Councilman, it uses as an enclosure a City Ordinance, enacted by the
City Council. When he researched who this Mr. Stark was he found that Mr. Stark is a Councilman and
so it was implied that Mr. Stark was speaking as a Councilman or quite possibly for the Council.
Attorney Cutler inquired of Mr. Scholand when that letter was written with regard to the passage of the
Ethics Code, April 24, 2006.
Mr. Scholand responded that the letter is dated 17, July 2006.
Attorney Cutler suggested that if Mr. Scholand's complaint concerns the July letter and if he wants to
make a separate ethics complaint about that letter, in another proceeding, he has that ability to do that.
She stated that she is not clear whether or not he is trying to introduce the letter as relevant to whether
or not Mr. Stark violated the Ethics Code with respect to the letter he sent out 26, September 2006.
Mr. Scholand stated that his position is that for the same reason stated, shall not use their implied
authority of position, is evidenced in a second letter sent. Same issue, ie., violation of the Ethics Code,
different letter.
Attorney Cutler expressed her thought and suggested that it would not be fair to Mr. Stark to bring that
letter into this proceeding, because he does not have notice that is going to be part if this proceeding. She
did want to make sure that Mr. Scholand understands that if he would like to make another ethics
complaint about the other letter that he had the right under the Ethics Code to do that. She further
elucidated the reason and process for not considering the July letter in this proceeding.
Mr. Scholand inquired, as a non Homer City resident, if he still has.....
Attorney Cutler stated that there is no requirement in the Ethics Code that one be a Homer resident to
make a complaint under the Ethics Code.
Councilmember Stark questioned Mr. Scholand regarding the July 17th letter, if there were anything in
there.... and was stopped so that the Mayor and Attorney could clarify something with Mr. Scholand.
Mr. Scholand, in response to Mayor Hornaday and Attorney Cutler, stated that he did send an email
stating that he thought that it should be investigated whether or not there were an ethics violation, but
that in his heart of hearts he made this based on the July letter that he received.
Mr. Scholand was thanked for his honesty and thanked for coming.
Attorney Cutler responded to inquiry and for clarification that the scope is not just use of the title
Councilman it is the letter itself and whether or not sending the letter violates the Ethics Code. She
elucidated a little further on the exchange with Mr. Scholand; his email says remove Doug Stark from his
position on the City Council for violating the Code of Ethics, nobody had noticed from that email that
Mr. Scholand was talking about a completely different letter, and he has been very honest. The concern
about not bringing that letter into this proceeding is that it is not fair to Mr. Stark, because he does not
have the notice of that. However, Mr. Scholand certainly has the right to file another ethics complaint
about the other letter, not saying it cannot be heard just not fair to bring into this proceeding. She
confirmed that it is proper for people to give testimony on why writing a letter is poor behavior and how
the letter violates the Code. She affirmed that the Council should disregard Mr. Scholand's testimony.
Mayor Hornaday called Bob Shavelson who was sworn in by Deputy City Clerk Johnson
Bob Shavelson stated that he is a resident of the City of Homer and that the issue is fairly
straightforward, did Councilman Stark violate the Ethics Policy with his September 26 letter. When he
looks at the facts in the law he comes to one of two conclusions; 1) Mr. Stark knew what the Ethics
Policy was and deliberately and intentionally violated it and 2) Mr. Stark did not know what the policy
was in which case he was either grossly negligent or reckless. In either case there has to be a finding that
there is a violation of the Ethics Policy. He added that to him this is on unchartered ground and what is
the enforceability of the policy. He disagreed with one of the comments in Mr. Stark's opening statement
- that he has received more punishment than anything the Council could construct. Mr. Shavelson stated
that he thinks that the Council can take a wide range of actions, including removal. He stated that he did
not want that to color the proceeding. He requested that the July 17, 2006 letter discussed by Jerry
Scholand be entered into evidence for the purpose of showing; 1) that Mr. Stark has engaged in a pattern
of inappropriately using his influence and his title, 2) also shows, because that letter was dated July 17,
that this occurred after the passage of the Ethics Policy. Mr. Stark did not sign his name Councilman and
so clearly understood the distinction between using the title Councilman not in one letter versus the one
that is the subject of this complaint.
Mr. Shavelson responded to Attorney Cutler request for some clarification by citing the Ethics Policy,
under Prohibited Acts, that states that no official elected or appointed shall use the implied authority of
their position. He submitted the letter as Exhibit 2.
The September 26, 2006 letter is Shavelson Exhibit 1.
The July 17, 2006 letter with an enclosure that includes Ordinance 01-16 from the Homer City Council,
is Shavelson Exhibit 2.
Mayor Hornaday, at the request of Attorney Cutler, called for a recess at 11:01 a.m. so that copies of the
July 17, 2006 letter could be made for Mr. Stark and the members of the Council. Mayor Hornaday
reconvened the meeting at 11:08 a.m.
Mr. Shavelson inquired if this were an appropriate time to call witnesses, and called Mr. Stark.
Councilmember Stark was sworn in by Deputy City Clerk Johnson. He stated his name, Doug Stark,
Homer, Alaska.
Mr. Shavelson asked Mr. Stark the following: If he could describe how and why the Ethics Policy arose?
If there were anything specific that prompted that policy to be introduced? If there were any discussion
during the consideration of the policy that pointed to specific acts that raised concerns that caused the
policy to come under consideration? If he read the policy before voting on it? If Mr. Stark understood
the policy before voting on it? If he voted to approve the policy. Why he wrote the letter on September
26, 2006? How many people received that letter? How many days before the municipal election was that
letter sent out. Did he send that letter to the Council people or the candidates that were mentioned in that
letter? Why he signed that letter Councilman Stark? Mr.Stark just testified that he knew and understand
the Ethics Policy when he voted on it and so did he deliberately violate that policy when signing his name
Councilman. Regarding the letter to the Kachemak Bay Residents when Councilmember Stark did not
sign his name, Mr. Shavelson asked how he would distinguish? How are the situations different?
Mr. Stark responded the following in the same order as the questions: That it was sponsored by Councilwoman Wythe. That Mr. Shavelson is asking the wrong person. Not to my best recollection.
Yes. Yes. To give his recommendation for the upcoming election. Approximately 600. About six days.
No. Inadvertently and also, thinks that it was clear in the letter that it was his view and that in the letter,
he recommended what he thought. He stated that it gave it credence that his recommendations were
based on knowledge of the things that he was recommending not that he was representing the Council,
but that he knew whereof the things that he wrote. No. Councilmember Stark stated that it was a
different situation and that there is nothing in that letter that indicated that he had anything to do with the
Homer City Council, in fact that he was representing some residents from Kachemak City, which was
stated in the letter. One was for the people in Kachemak City to take an action and the other was through
the voters in Homer to take an action.
Mr. Shavelson called Dennis Novak.
Dennis Novak, Homer Resident, was sworn in by Deputy City Clerk Johnson.
Mr. Shavelson asked Mr. Novak the following questions: Was Mr. Novak involved in the consideration
of the Ethics Policy in April 2006? Did he recall why that was brought to bear on the City Council? What
was it in April 2006 that prompted the Council to adopt the formal policy? The Code of Ethics purpose
section states that the purpose is to set reasonable standards of conduct for elected City Officials, was
that the understanding, did he believe that others felt that this was a reasonable set of ethics guidelines?
During the deliberation on this policy were there any specific instances that arose, any specific acts that
were outlined that the Council felt needed to be addressed, that should no longer continue? When did he
first learn about Mr. Stark's September 26th letter? If he were running for re election? How did he feel
when he saw that letter? Did he feel he had a fair opportunity to respond based on the timing of this letter
prior to the election? Did he feel that this was an effort to influence the outcome of the election? In the
discussion by the Council in April on the Ethics Policy, under prohibited acts in the section in question,
which states - Councilmembers will refrain from using their title except when duly representing the City
in that capacity, was that any discussion about that, any question about what meant?
Dennis Novak responses: Yes. There were questions on various procedures and policies that they went
through on the Council that caused them to feel that they needed to establish an Ethics Policy to give
them some guidelines for behavior at the Council level. Council adopted the policy to state an intent for
the ethics that they wanted to operate by and send a base line for further activity that might be engaged
on by a person so that they would have a reference. Yes, they did. There were allusions to activities that
different people had conducted or had followed in the past. He did not recall a specific instance that, in
itself, caused them to make the Ethics Resolution part of their policy. Learned about the letter the final
week before elections, about Wednesday prior to the election on Tuesday. Confirmed that he was
running for reelection. He stated that he felt it was certainly inappropriate and out of character with what
he would like to see from a fellow Councilmember. It did not, necessarily, surprise him, but he was not
pleased with it and that it bordered on personal slander. He stated that he was not intended to have a
copy of the letter or to know about it in advance, there was obviously no attempt to provide for rebuttal.
Commented on the Newspaper policy to allow rebuttal. This was certainly intended to produce a certain
outcome without the opportunity of rebuttal. This was clearly not campaign literature. The letter was
brought forward by others and allowed for others to rebut and express opinion. Had a brief opportunity
to express opinion. Unquestionably. When this was drafted the intent was that this Resolution would
apply to and the contents therein, would apply to elected and appointed officials in the City. To his
understanding there was no discussion or attempt to take portions of this Resolution and make it
applicable to a particular type of person. Council meant for everything in the Resolution to apply to
elected and appointed officials; advisory commissioners and boardmembers.
Mr. Shavelson responded to Attorney Cutler that the section of the Code of Ethics he referred to is listed
under prohibited acts, inappropriate use of office title/authority.
He continued questioning Mr. Novak: Was there any confusion to your recollection by any Council
person on the language, Councilmembers will refrain from using their title except when duly representing
the City in that capacity?
Mr. Novak responded, No.
Mr. Shavelson stated that he has no further questions or evidence to submit at this point.
Councilmember Stark questions of Mr. Novak: The issue is whether I signed Councilmember by my
name, but some other issues have come up such as Mr. Novak's concern about what was said about him
in the letter. Do you agree that the statements about you were factually correct? What is it you disagree
with? Is what I said in that paragraph about you true? Further questioning along the same line. Stated
that he has gone through the minutes.
Mr. Novak Responses: No, I do not. Continually voted for raising taxes, issued a sales tax in February,
2005 on a 4/2 vote, and against lowering taxes, this last year's property tax reduction failed in May on a
4/2 vote. Next year's property tax reduction passed last week on a 4/2 vote. That he supported initially
lowering property taxes from 5.5 to 4.5. Had the sales tax not passed, the mill rate would have had to be
raised to bring in the revenue, he elucidated further regarding the taxation issues and matters. He did not
support lowering the property tax, but am in favor of lowering it if they can but not prior to establishing
the 2007 Budget. The allusion to the fact that he is just all for raising property taxes is quite wrong. On
the spot forming of motions is challenging, other Councilmembers struggle to form a motions.
Sometimes motions get seconded, sometimes they don't. To imply that he has a problem in that area
would be incorrect. That is not correct. Don't have the information before us to see what actually
happened, i.e., resolutions, ordinances, minutes.
Mayor Hornaday inquired if there was anything further.
Mr. Shavelson apologetically, after having stated he had no further, requested that the October 4th, 2006
letter from Mr. Stark to City and Borough clerks throughout the state who are involved in the Alaska
Municipal League (AML) be included. This is a letter that highlights Mr. Stark's activities and what
makes him fit to be Vice President of AML.
Attorney Cutler inquired about the relevancy of this October 4th letter.
Mr. Shavelson responded that he is trying to understand whether there's a pattern of behavior, and that
there may be some things in the letter that are not true.
Mr. Stark and Mr. Shavelson were asked to approach and spoke with the Mayor and Attorney Cutler at
approximately 11:35 a.m. and returned to the address table at about 11:36 a.m.
Mayor Hornaday relaxed the rules and allowed the letter as the next exhibit.
Attorney Cutler inquired if anybody else had anything documentary to enter into the record and if so to
bring it up with a copy for Mr. Stark.
Mr. Shavelson stated that he had nothing further.
Mr. Stark queried Mr. Shavelson: How did you receive this letter of September 26th? Does this have any implication that I am a Councilmember? To Exhibit 2, the letter to Kachemak City residents, is there anything in that letter that has any implication that I'm a member of t he Homer City Council? What is the date on Ordinance 01-16 that accompanies this letter? But 01-16 would imply
that it was adopted in 2001, to the best of your knowledge? The letter, Exhibit 3, what is in there that
you thought was not truthful? Do you have any information that either is incorrect?
Mr. Shavelson responses: Through e-mail from Bill Smith. No. I don't not have it in front of me, so I
don't know. To the best of my knowledge, yes. I received a letter with a sticky note on it with no
signature, it was dropped on my chair when I came into the office, and it had circled on it that you had
been active in the Alaska Municipal League for 38 years, which sounded like a long time, and there were
also marks next to your claim that you were the state district engineer for Western Alaska. No. Affirmed
that it could be correct. He stated that he did not know where the letter came from.
Council had no questions of Mr. Shavelson or Mr. Novak?
The Mayor called for Jacqueline W. McDonough. who was sworn in by Deputy City Clerk Johnson
Jacqueline McDonough, Homer City resident, stated that this is her first time speaking in the chambers. She noted that she is also representing her husband Thomas McDonough, who had to go home and who is also a Complainant. She stated that she'd like to think, in spirit, that she is also representing a lot of citizens of Homer who are probably at home taking care of their kids like she should be, or at work at this time of the day. She asked for the City Council to thumb down the brass tacks here. The specific content of this letter is pretty much irrelevant. Look at the basic facts here. First of all, this September letter was written. Mr. Stark did sign it "councilman." He has admitted to that, pretty much an established fact. Just look at the Code of Ethics and look at the prohibited acts. Underneath inappropriate use of office title and authority, it does say: Council members will
refrain from using their title except when duly representing the City in that capacity. Unless duly appointed by the Mayor and/or the Council to represent the interests of the full Council, Council members shall refrain from implying their representation of the whole by the use of their title. Looking under political activities, limitations of individuals, it does say that appointed officials may not take an active part in a political campaign or other matter to be brought before the voters when on duty, and by signing that letter he was in substance making himself on duty. The Code of Ethics is very short. It's very clear, and well-written. She stated that she and her husband were both a little surprised by the recusal of Mr. Novak simply for agreeing with these two basic facts with the newspaper, but Mr. Heimbuch, who actually even hypothetically advanced a possible judgment was
not recused.
There were no questions.
Attorney Cutler noted that this is not to make statements about actions. This is to present evidence that
either shows or does not show that Mr. Stark violated the Ethics Code. It's not about anything else.
Mayor Hornaday called the following who were not present: Lee Post, Effie Hill, Heather M. Renner.
Sharon Gorman. Joe Spader. Luanna Stovall. William Schlegelmich. Marianne Schlegelmich.
Mayor Hornaday called Valerie Connor, who was sworn in by Deputy City Clerk Johnson
Valerie Connor, from Homer, Alaska. submitted written testimony and evidence, without copies noting
that she does not have a copy machine in her pocket.
Mayor Hornaday called for a short break to provide for making copies at 11:46 p.m., reconvening the
hearing at 12:01 p.m.
Mayor Hornaday called Mary Mally, to provide Ms. Connor more copying time.
Deputy City Clerk Johnson swore in Mary Mally.
Mary Mally, Homer City resident, stated that she is not here because of politics or as a politician, but that she is a concerned Homer City resident and voter. She stated that Mr. Stark has clearly violated the provisions of the Homer City Council's Ethics Code of Resolution 06-51 as quoted in the official Complaint filed by Mr. Fenske, by having written, what appears to be, a campaign letter and distributing that to a large number of Homer City voters in his capacity as City Councilmember.
It is apparent that this campaign letter was clearly for no other purpose but to excessively influence the decision of those voters. Not only is this letter a violation of the local Council's Code of Ethics, but the question has also been raised that it might possibly be a violation of Alaska campaign laws.
This matter is not seen as a simple, innocent slip of the pen or as only the issue as to whether or not Mr. Stark should or should not have used the word "Councilman" after his signature at the bottom of the letter, but a violation is also the content of the letter itself and its purpose that breaks the
principles of appropriate conduct. She stated that she cannot accept the explanation that this letter was
merely a citizen exercising his right to free speech. This is unacceptable behavior by a Councilperson, and
it calls for retribution greater than a slap on the wrist, and a City Council forced apology. She stated that
after learning about this breech of ethics on the part of Mr. Stark and then reading other allegations of
misconduct against him that she has become even more concerned by his inappropriate behavior and
attitude, neither of which is conducive to good leadership and have no place on City Council. She
implored the City Council to take this matter as a serious infraction on the part of Mr. Stark, and to do
their sworn duty to this community and take appropriate action.
Mr. Stark asked Mrs. Mally how she got a copy of this letter.
She responded that she received a copy of this letter in the packet that she received from the City, but
that she had heard about and read about it in the newspaper.
Mayor Hornaday called Laurel P. Epps who was not present.
Mayor Hornaday called Duane Tollefsrude, who was sworn in by Deputy City Clerk Johnson
Duane Tollefsrude stated that he is a proud resident of the City of Homer. He greeted the Mayor and
Council and stated that, with all due respect to Councilman Stark, he and his wife, who is not present,
believe that the facts really speak for themselves. 1. The political activities as outlined under the
prohibited acts section of the Council's Operating Manual, part of the record, reads that appointed
officials may not take an active part in a political campaign, when on duty, and otherwise they may not
conspicuously represent the City. That's the Code of Ethics. It's very clear and straightforward, and Mr.
Stark did sign. Mr. Stark was part of the council when they approved the Code of Ethics. 2. Mr. Stark
did sign the letter "councilman.". Therefore, they believe, Mr. Stark was using the influence of his office
to give weight to his letter and was, indeed, acting in his official capacity as the Homer City Councilman.
Mr. Stark disagreed that it was pretty straightforward.
Mayor Hornaday called Debbie Poor, who was sworn in by Deputy City Clerk Johnson
Debbie Poore stated that she is a resident of Homer, Alaska and thanked the Council for holding this
proceeding. She noted that with the emphasis Homer City government has put on the Alaska open
meetings processes and ethics, and taking into consideration Mr. Doug Stark's 38 years' involvement in
Alaska governmental procedure, it is very clear that he knowingly disregarded the Code of Ethics with
his September 26th letter to hundreds of Homer voters. He knows and understands the rules. As a senior
Councilmember, his actions compromised the integrity of City government. Ethics and honesty are
significant and indispensable values in this community. Mr. Stark's behavior and attitude are not befitting
a Councilmember. We don't want this kind of representation for Homer.
Mayor Hornaday called Lance Peterson who was sworn in by Deputy City Clerk Johnson.
Lance Peterson stated that he has been a resident of Homer since 1969. Commented on his on the job
training in ethics and about some state positions he has held. He requested that the, after clarification,
City Council's Operating Manual, which contains the Code of Ethics, be entered into evidence since it
had not been submitted. He stated that he too believes this is a relatively uncomplicated judging of what
the Code of Ethics is and that it is spelled out rather specifically, as others have pointed out. What the
letter does, it is not just the signature of Councilman, but in the last sentence, it implies actions which can
only be taken by a Councilmember.
Mayor Hornaday called Nina Faust who was not present.
Mayor Hornaday called Valerie Connor back to the table.
Valerie Connor stated that she submitted, as evidence, all the articles in both local papers concerning this
subject, which have been distributed.
Mayor Hornaday allowed the evidence as the next exhibit, 4-5.
Ms. Connor was advised that the complainant letters are part of the record. She read her comments:
Councilman Stark clearly violated the City of Homer's Code of Ethics by sending a letter to over 600
Homer voters endorsing certain candidates and propositions. His intention to use his name and title to
influence the outcome of the October 3rd Election is strictly prohibited by Code. Even more damaging
was his malicious and deliberate misrepresentation of Councilman Novak and his partisan and naive
assessment of Candidate Roberts, both of whom he must now continue to work with at the Council
table. Mr. Stark's actions have compromised both the community and the Council. This is right from the
Code: Ethics involves the commitment to take personal responsibility in creating a government that has
the trust and respect of its citizens. This latest action by Councilman Stark has had the opposite effect.
Mayor Hornaday stated that this concludes the Complainant's evidence.
Mr. Stark called Jacqueline Dentz as a witness. Ms Dentz was sworn in by Deputy City Clerk Johnson.
Ms Dentz advised that she is a Homer resident.
Mr. Stark asked if Ms. Dentz had a statement.
Ms. Dentz responded that she does: As a resident of Homer, I have set about my thoughts of the
situation, and I would pray that you would allow me to read them to you. I'm an eight-year resident of
Homer, and I own three businesses here. I pay and generate through my residency and businesses a lot
of tax revenues to this city. I'm an elected South Peninsula Hospital service area board member and have
been for the past six years. I'm very active through many community service projects for the benefit of
Homer citizens. I have known Sandy and Doug Stark for several years. I believe that Councilman Stark
has no hidden or personal agenda. I have found him to have the utmost integrity, high ethical standards
and believe that he personally brings to the Council and fights for the true concerns and desires of our
citizens whom he serves. I am furious that my tax dollars are being wasted on attorney fees and extra
Council sessions by a Complaint issued by a former Councilman, John Fenske, not to mention time
wasted on ridiculousness that could be better spent on crucial serious problems facing this community.
My question of the 25 reported complaints: How many of those 25 Complainants received the actual
letter from Councilman Stark? If the Complainants did not receive the letter from Councilman Stark, then
who put them up to complaining? This country was founded on freedom of speech. Isn't Doug Stark's
letter written in the first person? Not as a collaborative or voice of the Council. Doesn't Doug Stark's
letter state his perceptions, thoughts and facts of the candidates? Doesn't Doug Stark have the right to
endorse candidates he believes will benefit the citizens of Homer? All other politicians can be seen or
heard daily on TV, radio, in newspapers and flyers endorsing or recommending candidates. Councilman
Stark sent a letter to 600 people out of, what, 5,000 or so possible, factually advising and recommending
his thoughts for people who would move Homer ahead. He signed his name followed by "Councilman."
That, to me, does not violate the Code of Ethics Resolution. It says he is passionate about letting the
taxpayers and citizens make informed decisions and that he personally endorsed those he felt had the
experience and would respect the citizens' desires in this hamlet by the sea. On a personal note,
everywhere in this country there are problems, but there shouldn't be any problems in this small
community. We should be a model town for the entire country. Instead, our beautiful hamlet by the sea
is fast becoming the garbage pit of the sea. Stop apathy. Get a handle on our youth. Stop the
ever-growing drug and alcohol problem. Realize that half this town is for sale and ask why. There are
very few year-around jobs. Stop burying our heads in the sand and stop the stupidity of doing the same
thing over and over again and expecting different results. She expressed frustration and that on many
days she just wants to sell everything and get as far away from here as she can. She stated, but God help
her, she believes we can make a difference. So she won't bolt and will continue the fight. She expressed
her true love and belief in the Sandy and Doug Starks of the world. Doug is a simple man. He is a real
person and only wants what is best for his community. How dare anyone suggest that Doug Stark, who
stands by his oath of office, who only cares about his community would willfully violate a Code of Ethics.
Mr. Shavelson stated that he had questions for Ms. Dentz: Is that a factual statement that one Councilmember has been on the right side of a great majority of issues? Somebody continually voting for raising taxes, is that fact or opinion? Continually voted? When Mr. Stark described someone as strongly and consistently supporting something, is that fact or opinion? So the words
"strongly" and "consistently" are adverbs and you would describe them as facts?
Ms. Dentz' responses: That's his opinion. Fact. Affirmed. Fact. Describing the act, that's a fact.
Mr. Stark inquired of Ms. Dentz: Did you review your testimony with me or receive any request to do
this, or is this entirely on your own?
Ms Dentz responded that she did this entirely on her own.
Mayor Hornaday inquired if the Complainants wish any further cross? If there were any more evidence?
Mr. Stark stated that he thought it was interesting that he did not send any of the 25, who objected, the
letter. He stated that everyone knows that this community is split 43 percent to 57 percent in favor of
development. That when he got on the Council, four years ago, the City survey, polling 2,000 voters, had
just come out. Two top requests from the citizens were a signal at Lake and Sterling and construction of
a Fred Meyer. He noted that these became his two top priorities and that John Fenske was one of those
on the Council who always voted in opposition. When there was the major shift in Council membership,
two years ago, both priorities were approved. The signal became known as the Stark light. He stated that
what he has tried to do the last four years is the will of the people. He emphasized that he is, of course,
action-oriented and confident that his projects benefit the citizens. He listed some of the other things that
he has done. He stated that he, obviously, made a mistake in signing the letter and that a sure way to
never make a mistake is to never do anything, which is not his style.
Mayor Hornaday asked if Council had any questions of Mr. Stark or of any of the Complainants? There
were no cross examinations by complainants.
Council: Since the newspaper articles have been admitted in evidence, there is a statement attributed to
Mr. Stark that he would have felt more concerned if people of substance had been his accusers. Inquired
of Mr. Stark that as a representative on the Council of members of this community, what, in his opinion,
identifies an individual as a person of substance? Do he believe that in our community there are those that
are of substance and those that are of less substance? If he believes that his freedom of speech entitled
him to use his title of Councilman when he signed his letter, would he consider his position title to be a
freedom of speech issue? Was it his intent in using his title to strengthen his ability to influence people's
decision? Was the use of his title intended to substantiate? Would the presence of basis and experience be
intended to influence their decision? Does he want them to believe that because he is a seated
Councilmember he has further experience than maybe an unexperienced person, therefore, the statements
he is making have more validity? Does he believe using information out of context is truthful even if it's a
statement of fact, if it's out of context is it, indeed, truthful information? Further question about taking an
individual's response out of context. He was asked about the second to last sentence of his letter, about
favoring the three-quarter percent road part of the sales tax and if it passes, we'll try to reduce it by one
percent, which will give us enough road funds, but will not affect the general government take of sales
tax income, but will reduce what people pay by one-half percent, that it sounds like the only person that
could do that is a City Councilperson.
Mr. Stark stated that at that time there were only a few complaints, adding a couple of interjected
comments about pornography being in the eye of the beholder, and that this particular statement has been
twisted around. Some have said that it refers to all the citizens of Homer, and that is not correct. That's
obviously correct, the Mayor is a person of substance, and not everybody is the Mayor. No, that was
inadvertent, but some people feel otherwise, that he should be able to do that. It was merely to indicate
that what he had stated in the letter had some basis in experience. That's correct, but the Ethics Code is
referring to not using the title so that you're not representing the Council and in no way was that the case
here. You'd have to look at the particular statements. If you're referring to the statements in the letter
about Councilman Novak, there was specific references to what he had voted on and to particular votes.
Disagreed about taking out of context, City the newspaper as an example when they refer to what the
vote was and who voted and when the vote is tallied, regardless of how one voted, the matter either
passes of fails. Well, anybody can try to do that, but a Councilman has more ability to affect that, adding
that it takes four votes to do anything.
Mayor Hornaday commented on the process of questioning and rebuttals.
Attorney Cutler asked Mr. Stark, if he were aware of the contents of the ethics code? And you're
familiar with the inappropriate use of office provision? Well, did you read the Ethics Code before you
voted in favor of the Resolution? But my question was not whether or not you agree with it or not, but
whether or not you read it before you voted for it and whether or not you understood it. What do you
mean when you say you inadvertently put your name at the bottom of the letter? Did you recall the rest
of the Ethics Code? But could you answer my specific question, please? Did you recall what was
required of you as a result of that section of the code, even if you didn't recall the exact words, did you
know how you were supposed to behave? Can you answer my specific question, please? If you don't
want to answer it, that's fine, but...I'll just ask it one more time - Whether or not you recall what behavior
you were supposed to exhibit because of what that provision of the code says? Even if you don't recall
the exact words, did you recall how you were supposed to act as a result of having voted for that
particular section in the code?
Mr. Stark's responses: Yes, ma'am. I am. Everything else in the City Code and the thousands of pages of
material that we process. I'm sure I did, but I don't particularly agree with that particular sentence. I
agree completely that the Councilman should not represent himself as representing the City as
representing the Council. I disagree with the prohibition of using your title. I'm sure I did read it and
understood it. It means that I didn't recall that the Ethics Code prohibition. He affirmed that he did not
intentionally violate the Ethics Code. I did not recall the part about putting the title after may name. I am
familiar with the general subject. I would assume that it says you're supposed to behave ethically. It's not
that I am trying not to answer it; it's that I'm not sure what you want me to say. I doubt that the code
says how you're supposed to act other than ethically.
Mayor Hornaday called for recess at 12:23 p.m., reconvening the hearing/meeting at 12:46 p.m.
Councilmember Wythe had additional questions of Councilmember Stark: Going back to the development of the Code of Ethics language in itself. Questions were asked of Dennis Novak relating to that, which were not answered. Do you recall the activities in March or February of that year that maybe you had been involved in that would have preceded implementing the Ethics Code?
As the author of the Code, very specifically I would be speaking to the petition to annex Kachemak City. Several complaints from members from Kachemak City regarding activities that you were engaged in at that time, which resurfaced again in the letter that was issued -- or that you had sent out in July. Do you recall after the letter in July an activity that the Council took as an immediate response to that letter to provide assurance to our neighbors in Kachemak City? Do you recall that Resolution? What was the nature of that Resolution and intent of that Resolution in July? At that time, did any of those activities or would they have made you consider going back and looking at the Code of Ethics? At the time that Council issued that Resolution, it did not give you pause to go back and look at the Ethics Policy to determine why Council would have felt inclined to need to put forth such a comment/Resolution to the community? In the absence of the Code, would you have
felt that it was appropriate to use your title as the intention to lend support to your letter? In the absence of the Code, would that be a willing decision to use your title intending that it would sway the decision of people? Regarding the letter and endorsement of candidates, signed Councilmember, would your intention of using your title be to influence the decision that someone may make as they were going to vote, to further support your recommendation? If using the title lends credence to the
statements that you're making, is not using the title intentionally to lend credibility to the statements
you're making?
Mr. Stark response: None whatsoever. Merger. Yes, ma'am. To say that the City of Homer is not pursuing merger with Kachemak City, and when Kachemak City comes to Homer, that we will consider the issue. I don't really see that as related to the Code of Ethics. There's a lot of things that people aren't aware of. One of them is that the Local Boundary Commission's rules say that those people that signed the petition are the petitioners, not whoever assists in circulating it. Those who signed the petition are residents of Kachemak City, and there's been no question to the citizens of Homer. In fact, the petition is to be completed first by the requisite number in Kachemak City, as spelled out in state law and in the regulations of the Local Boundary Commission. He asserted that he was acting at the request of citizens of Kachemak City, giving them technical advice on how to proceed, because it's extremely complicated. I don't think there's any relationship. The only way it might sway them is in a negative manner. I don't think there's any relationship. The people that are supporting this and moving this action are citizens of Kachemak City. No, I don't think using the title would particularly get them to follow my recommendations. The only thing the title does would be to say that the statements and facts in the letter had some basis in the facts. Yes, but I could have
left the title off and it wouldn't have made that much difference.
Councilmember Heimbuch questions of Attorney Cutler: Do you believe there's a clear state law
interpretation as to whether or not an elected official can send private letters recommending a political
course of action or engage in activities that have a political course of action as an outcome? Our ability
to use our Ethics Code undoubtedly rests on the State being able to support it if push comes to shove;
wouldn't that be correct? Our Ethics Code and any laws that we make are subject to a higher authority,
are they not? Regardless of what the venue is here that it's just local at this point. It's impossible for us
not to have this also be a referendum on the advisability of our own Ethics Code, knowing that there are
issues of free speech involved. Council is trying to make a determination on people's testimony not only
evaluating our Code of Ethics. There are larger issues involved that cannot be escaped. Asking Council
to conscribe it within this small area seems rather unfair since we're all pretty much aware of the right to
free speech. Expressed concern and discomfort about latitude being allowed in this proceeding and that
the Code of Ethics does not address the general behavior of an elected official being engaged in political
activities outside of his duty.
Attorney Cutler response: The question goes a little beyond what Council is dealing with here. The question is whether or not Mr. Stark's letter and his intentions in sending the letter and the facts and circumstances that surround the letter constitute a violation of the Homer Ethics Code. The Ethics Code is a source of, a rule for conduct and whatever decision Council makes here could arguably be subject to a appeal of some sort, there is no procedure. The question is so broad regarding being subject to a higher authority? Does the State require a particular thing? An Ethics Code is what it is. Council is here to assess the facts and determine whether or not Mr. Stark violated the Code and if he did, what to do about that. Whether or not it gets appealed and what a court does with it or some other appellate body is a different question and an answer cannot be given as to whether or not what Council does would be upheld in a court of law. Council is not here to determine whether or not the Ethics Code, generally, is a good idea and whether or not it unfairly interferes with somebody's free speech rights, et cetera. Council is here to determine whether or not a behavior in question violated the Ethics Code. There is some latitude in this proceeding, the laws of evidence being relaxed. Disagreed, stating that no evidence has been inappropriately allowed into the record.
She reiterated the purpose of this hearing. Disagreed with Councilmember Heimbuch's analysis.
There were no further questions of Mr. Stark.
Mayor Hornaday called for rebuttal from the complainants.
Jacqueline McDonough stated that she has tremendous respect for her neighbor, Ms. Dentz, but that she
just wanted to say that she was not put up to this by anybody. She noted that she is the most apolitical
person here and that she is just standing up for what she thinks is the ethics of Homer's City Government.
No questions of Ms. McDonough.
Bob Shavelson stated that he just wanted to go to the issue that had been raised in earlier questions.
Mr. Stark said that he had no idea what precipitated the adoption of the Ethics Ordinance in April, 2006. He asked Mr. Stark if he would like to revise that statement in light of the information that's come in that it appeared to be precipitated at least partly by the issues surrounding the Kachemak
City annexation and Mr. Stark's role in that? To Mr. Stark, So you're saying that you just didn't
remember that one of the central issues that prompted the Ethics Policy was the issue surrounding the
Kachemak City annexation?
Mr. Stark responded, in the negative, adding that it totally escaped him, probably because to him there is
no relationship between the two. It never came up during the discussion of the Ethics Code.
Mayor Hornaday asked if there were further rebuttal testimony by any of the Complainants?
There were none
Mayor Hornaday asked Mr. Stark if he had an rebuttal.
Mr. Stark stated that the Resolution states that one should refrain from using the title. The preceding
sentence to that statement is that one should not represent the Council. Anyone reading the letter knew
that it was his views only. People make mistakes, noting that recently the manager violated the Homer
City Code twice in purchasing furniture and computers for the library. He stated that he does not object
to that, but it happened.
Mayor Hornaday inquired if there were any cross, any questions from Council.
There were none.
Mayor Hornaday inquired if any of the Complainants had closing arguments.
Mr. Shavelson stated that the facts have been heard surrounding this and these seem fairly clear-cut. The
language in the Ethics Policy is also clear-cut. What is at issue here is the interpretation of the
enforcement provisions of the Ethics Policy and specifically the terms knowingly and willfully, and that is
with what this Council is asked to judge Mr. Stark's behavior. Those are high standards, and the fact that
it's not only willful, but also knowing requires that Mr. Stark knew that the Ethics Policy prohibited
certain conduct and then he went forward and violated that in any case. There's been evidence presented,
letters without his title that show he clearly understood that using his title would be inappropriate. Why
did Mr. Stark use his title on the September 26th letter, there's a number of reasons. Mr. Shavelson
stated that he believes that Mr. Stark has a very strong desire to influence political outcomes in this
town. Interjecting that he has never heard anyone refer to the stoplight as the Stark Light, which points
to the fact that Mr. Stark sees that the most important thing in late September was to influence the
outcome of the election and that he knowingly chose to put his Councilman title there to have a greater
influence on the 600 residents to which he sent that letter. Mr. Stark knowingly violated the Ethics Policy
because in July, 2006 he knowingly didn't.
Mayor Hornaday asked if there were any Final Argument from any other Complainant? Hearing none he
asked if Mr. Stark had any Final Argument.
Mr. Stark stated that he has written a lot of letters wherein he has not used is Councilman title. Many feel
that using the Councilman title is an important form of full disclosure, which in a sense is the opposite of
what the Ethics Code says, but that's an interesting concept to consider. He noted that the Mayor and
Council all have city-furnished business cards with your name and Councilman on them, suggesting that
he guessed they'd now have to shred these. In conclusion he suggested: 1) Since the Ethics Resolution is
unenforceable, Council should adopt it as an Ordnance. 2) Follow the City Manager's suggestion of six
weeks ago and have the City Attorney, the State's foremost ethics expert, conduct training for all City
employees, including the Council, on ethics. It could be done in one day.
Deputy City Clerk Johnson, at the Mayor's request, advised that there are Five, four exhibits.
Mayor Hornaday inquired if Jimmy Cobb were present, and he was not.
HEIMBUCH/SHADLE - SO MOVED TO CLOSE THE HEARING.
There was no discussion. There was no objection.
VOTE: YES: ROBERTS, WYTHE, SHADLE, HEIMBUCH.
Motion carried.
Mayor Hornaday noted that now there is the question of deliberating in closed session or in open session.
He asked Attorney Cutler to elaborate on her advice.
Attorney Cutler stated that because this is a quasi-judicial hearing, the Open Meetings Act does not apply
to the deliberation portion of the proceedings, the deliberation portion of a quasi-judicial session can be
done in private. The Council is not required to go into closed session. She expressed her opinion that it
would be helpful to do some if not all of the deliberations in private. She responded to Council inquiry
that because she has given Council attorney-client privileged information which, Council can waive, that
she thinks there are a lot of legal issues wherein a closed session would be helpful to sort out things. She
emphasized that the normal rules for executive session just do not apply, AS 44.62.310(d), a
governmental body performing a judicial or quasi-judicial function when holding a meeting solely to
make a decision in an adjudicatory proceeding... This is a judicial proceeding.
SHADLE/WYTHE - MOVED THAT WE MOVE TO CLOSED SESSION.
Brief discussion in favor of the prudence of going into closed session.
VOTE: YES: HEIMBUCH, ROBERTS, WYTHE, SHADLE.
Motion carried.
Mayor Hornaday recessed the meeting to closed session at 1:15 p.m., reconvening the meeting at
2:43.27 p.m.
Councilmember Wythe stated that the Council deliberated with their attorney and have provided
direction to her to prepare a draft decision which reflects their preliminary deliberations. Council will
need to review this with its Counsel, and once satisfaction is resolved with the written decision, it will be
made public and Council will take a public vote on acceptance of the findings.
AUDIENCE COMMENTS
Leonard Wells commented that he thought it was an interesting quasi-judicial proceeding, but that
the evidence presented didn't seem to be to the statutes. The statute doesn't provide for not signing
"Councilmember", it says unduly influence. What's unduly? It would have to be an activity from the
Council to prohibit the use of one's title. If one is a Councilmember, and it is know that person is a
Councilmember then that person could never write a letter, because it is known who he is.
COMMENTS OF THE CITY ATTORNEY
Attorney Cutler had no comment.
COMMENTS OF THE CITY CLERK
Comment of City Clerk had no comment.
COMMENTS OF THE CITY MANAGER
Comments of City Manager was not present.
COMMENTS OF THE MAYOR
Comments of Mayor had no comment.
COMMENTS OF THE CITY COUNCIL
There were no comments from the City Council.
ADJOURNMENT
There being no further business to come before the Council the meeting was adjourned 2:46.15 p.m. The
next regular meeting is scheduled for Monday, November 27, 2006 at 7 p.m. The next Committee of the
Whole is scheduled for Monday, November 27, 2006 at 4 p.m. A Special Meeting is scheduled for
Monday, November 20, 2006 at 7 p.m. All meetings are scheduled to be held in the Homer City Hall
Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.
___________________________________________
MARY L. CALHOUN, CMC, CITY CLERK
Approved: _________________________
1. Actually took office on October 16, 2006 during a Special meeting.