§ 2.70.030. Removal from office.

A member of the municipal assembly may be removed from office for breach of the public trust following the procedures set forth in this section:

A.

For the purposes of this section actions constituting a breach of the public trust shall include:

1.

Acceptance of cash gifts from one doing business with the municipality;

2.

Violation of chapter 1.15;

3.

Perjury;

4.

Falsification of records;

5.

Filing false reports;

6.

Nepotism;

7.

Making personal use of municipal or school district property;

8.

Destruction of municipal or school district property;

9.

Official oppression;

10.

Unexcused absence from three consecutive meetings;

11.

Failure to attend 75 percent of meetings in a 24-month period; or

12.

Breach of a statutory or Charter-imposed duty.

B.

Proceedings for removal from office shall be initiated by delivery of an accusation document to the municipal clerk setting forth the grounds for removal. An accusation document may be submitted to the municipal clerk only by a two-thirds vote of the assembly or two-thirds majority decision of the municipal board of ethics and must allege specific actions by the assembly member in question which breach the public trust.

C.

A copy of the accusation document must be delivered by personal service to the member of the assembly who is the subject of the accusation document.

D.

The municipal attorney shall review the accusation document for legal sufficiency. The municipal attorney shall determine the legal sufficiency of the allegations within ten days of receipt of the accusation document. If the municipal attorney determines that the allegations are legally insufficient, the removal action shall be discontinued. The municipal attorney's determination, if it rejects the accusation document, may be appealed to the superior court. No interlocutory appeal is permitted from a determination by the municipal attorney that the accusation document is legally sufficient. Following a determination by the municipal attorney that the accusation document is legally sufficient, the municipality shall employ an attorney of the accused's choice, subject to the limitations of this subsection, to defend the charges. The attorney selected must be engaged in the active practice of law in the state. The fees charged by the attorney must be reasonable in both the rate and the amount of time expended. Reasonableness shall be evaluated in accordance with Alaska Bar Rule 35 and shall be subject to fee arbitration under the Alaska Bar Rules if the municipality disputes the reasonableness of the fees claimed.

E.

Within two weeks following the delivery of an accusation document, the municipal clerk shall request that six names be submitted as potential hearing officers by the American Arbitration Association. Three of the names submitted should be from the state and three from out-of-state. From these names the assembly and the accused shall agree upon a hearing officer, or, if no agreement is reached within ten days of distribution of the list of potential hearing officers, the municipal clerk shall select a hearing officer from the list who shall conduct a hearing concerning the accusations contained in the document filed with the municipal clerk and shall provide a recommendation to the assembly. If more than one assembly member is the subject of the accusation document or the alleged breach arises out of the same event, the same hearing officer shall hear those matters and may hold one consolidated hearing.

F.

A hearing conducted by the appointed hearing officer shall be held no later than 30 days following appointment of the hearing officer. The hearing shall be open to the public and, unless otherwise provided in this section, shall be conducted in accordance with the procedures set forth in chapter 3.60. Within ten days following the conclusion of the public hearing the hearing officer shall submit written findings and recommendations to the assembly. The recommendations shall include whether the officer should be removed.

G.

The standard of proof of the allegations in the accusation document to be applied by the hearing officer is proof by a preponderance of the evidence. The hearing officer shall evaluate the evidence relating to the accusations set forth in the accusation document and evaluate both whether the allegations are supported and whether those actions alleged constitute a breach of the public trust as set forth in subsection A of this section. Wrongful acts or admissions occurring while the officer was acting in a private capacity as opposed to his capacity as a public officer shall not constitute a breach of the public trust. Willful and knowing breach of duty or culpable indifference to official duties may constitute a breach of the public trust.

H.

Within ten days of receiving the hearing officer's recommendations, the assembly shall vote on whether to remove the member who is the subject of an accusation document. If more than one member is involved, a separate vote shall be taken on the question of removal of each assembly member who is the subject of accusations. Removal shall occur only on the concurrence of two-thirds of the fully constituted body.

I.

The decision of the assembly acting upon the recommendations of the hearing officer may be appealed to the superior court within 30 days of the assembly's decision. If the assembly's decision is for removal, the office shall be considered vacant beginning at 12:01 a.m. seven days following the decision unless the appellate court issues a stay of the removal pending appeal. In evaluating whether to grant a stay of removal pending appeal the facts that the removed member could miss important votes and that another individual may be seated to replace the removed member shall not constitute irreparable harm. If, after exhaustion of appeals, the final ruling reverses the removal, the removed member shall be reseated for the remainder of the term for which elected, and any replacement, whether appointed or elected at a special election, shall be displaced.

(AO No. 93-54(S-1), 5-5-93)

Charter reference

Procedure for removal of elected officials, § 7.01(b).