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Bainbridge change of government vote still in the works

It’s possible that islanders may vote for a mayor – and whether to keep the mayoral position – on the same November 2009 ballot.

According to an informal opinion from the State Attorney General’s office, the change of government petition brought forward by Bainbridge citizens would have to to be decided in the November 2009 general election – the same time island residents will choose a mayor.

The issue, however, is far from settled because of some persistent arguments for the city to continue to push ahead with a February vote despite the informal opinion from the Attorney General’s office. Proponents of the initiative, and some council members, are hoping for a February special referendum to avoid voter confusion and to give a clear view of the running field for potential mayor candidates.

The change of government initiative, if signatures are approved by the Kitsap auditor’s office, would turn the current mayor/council form into the council/manager system. In the latter system, a professional administrator hired by the council would replace the mayor. Both are approved forms of government under Washington State law.

The correspondence from the Attorney General’s office – which is not an official Attorney General opinion – was dated June 16, 2008 and given by the Deputy Solicitor General Jeffrey Even. It states that a vote on a change in government can be held only during a general election in an odd-numbered year.

However, at last week’s City Council meeting, the question was raised about the city’s legal position if the council continued to pursue a special referendum despite the opinion.

“I can’t imagine the state interfering with local government directives for a ballot measure on a petition coming forward – that is the basis of our democracy,” said council Chair Bill Knobloch.

A representative of the Attorney General’s office, who consulted Jeffrey Even on the opinion, said the state would not directly intervene if the city pushed ahead with a February election.

“It is basically legal advise from the State Attorney General. The fact is that that is a non-binding opinion,” said spokesman Dan Sytman. “We don’t have enforcement if the city were to hold a referendum (outside of November).”

The real concern, Sytman said, is not with the intervention of the state in the matter, but in the city opening itself up to lawsuits by individuals who would contest the results.

“If the city were to push it through outside of (the November 2009 election), it could potentially open them up to a lawsuit by an interested party,” Sytman said. “That could be a voter or a politician; anyone is free to file a lawsuit, anyone who wants to contest the results.”

Who would legally oppose a mandate by the voters is uncertain and, said council member Barry Peters, filing a lawsuit against the vote would be unwise for any potential mayor candidate.

“A key question is, if the city merely wants to give voters a choice, would anyone really want to legally challenge giving voters a choice? It seems hard to imagine,” Peters said. “If no one has an interest, perhaps we could get comfortable with offering that choice at a sensible time.”

Peters feels that putting the issue to the voters in February will resolve a lot of issues surrounding the November 2009 ballot.

“We were aware of the recommendation to use a November election date, (but) the problem is that it is such an impractical idea,” Peters said. “It is a shame to put an issue like this on a November ballot at the end of a year when people are campaigning for the very office that might be eliminated by the ballot measure - it seems that the state would think that is not the best way to do that.”

Dennis Vogt of the Bainbridge Island Institute, who first started the petition, was originally hoping for a February election. Vogt had consulted with a municipal law attorney regarding the issue of election dates before beginning the petition. He was advised that the relevant state statute had clarity problems and a plausible argument could be made for a special voter referendum on either November 2008, February 2009 or November 2009, and that no court had ever made a ruling regarding the matter.

However, according to Vogt, things have changed since the city looked into the legality of a special referendum in February.

“The mayor and the city attorney have changed this dynamic,” Vogt said in a released statement. “They effectively took the election date choice away from the council in May by asking the State Attorney General’s office for an opinion on the matter.”

City Attorney Paul McMurray believes the council should adhere to the informal opinion issued by Attorney General’s office.

Sheryl Moss, a representative of the Secretary of State’s office, agreed with McMurray, saying that Bainbridge didn’t “have a choice even though it would make more sense” regarding a special referendum on the issue. She did concede it would be up to the Attorney General’s office to pursue the matter if the council pushed ahead with a February election.

However, Vogt believes there is still good argument for having a November 2009 vote, citing many people who wouldn’t sign the petition because they might think ousting the mayor before her term expired would be unfair. If the measured passed in February 2009, the mayor would hold a seat on the council until her term expired at the end of 2009.

Vogt also believes the mayoral candidates will have a difficult debate going into the November 2009 election, because they will “have to fully explain why he or she will be a better alternative to hiring a fully accountable professional city manager to administer the city.”

Officials at the Kitsap County Auditor’s Office said that the signatures on the petition for change of government had not yet been reviewed, but that the process should be complete by Oct. 17. Once certified, the petition would be remain valid for November 2009.

State law at one point allowed for a special referendum on change of government within 180 days of a city council vote or a verified citizens petition. However, those rules were lost when the State Senate adopted new regulations in 2004 that were meant to improve the efficiency and cost effectiveness of elections for local municipalities.

This is not the first time Bainbridge Island has had the option for a change of government.

In 1993, two years after the island was incorporated as a city, Bainbridge citizens voted on a change of government referendum approved by the council, which brought the measure to voters after fact-finding reports and lobbying efforts by the League of Women Voters. The League argued that the council/manager form of government would make the city government more effective.

On May 18, 1993, Bainbridge citizens resoundingly rebuffed that proposal 2,887 to 1,802 - a 62 percent defeat.

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