Recall group considers next move against lawmaker

State rejected petition, said criteria weren't met.

Anchorage Daily NewsOctober 12, 2011 

Backers of an attempt to recall Ketchikan Rep. Kyle Johansen will meet Thursday night and decide whether to mount a legal challenge of the state's refusal to allow the recall election.

The Alaska Division of Elections rejected the recall petition Monday on the advice of the state attorney general's office, which opined that Johansen's actions didn't meet the definition of "incompetence" or "neglect of duties" under the state recall law.

"We're disappointed and I personally disagree," said Dick Coose, the leader of the recall movement and head of the Republican Party in Ketchikan. "These are things the representative did on his own for his own personal reasons and it had an effect on this district. He was elected by us and he is responsible to us ... He broke a trust."

Johansen, a Republican, held the influential position of state House majority leader before walking out of the majority caucus last fall. Johansen left after the caucus refused to give a seat on the Finance Committee to Anchorage Republican Rep. Charisse Millett, who had also walked out.

Johansen and Millett, who have a close relationship, asked to be allowed back into the Republican-led majority caucus, where policy decisions are made and the committee chairmanships awarded. They were rejected and spent the last legislative session in diminished roles with a caucus composed of just the two of them. Johansen has denied they are romantically involved.

DIFFICULT TO RECALL IN ALASKA

In most states, any registered voter can launch a recall effort against an officeholder for any reason. Alaska is one of only eight states in which specific grounds are required under the law. The four grounds for recall possible under Alaska law are lack of fitness, incompetence, neglect of duties and corruption. It's not an easy process and an Alaska legislator has never been recalled.

The 2004 recall effort against then-Palmer Sen. Scott Ogan was the first against a sitting legislator in the state's history. Ogan was targeted by a group contending he used his legislative position to help an energy company that employed him as a consultant. The state allowed the recall to proceed but Ogan resigned before the recall election could happen.

Two years later, the state refused to allow a recall election of then-Sen. Ben Stevens, rejecting the argument that Stevens' job as a consultant for the oil field service company Veco was corrupting and therefore met the criteria for a recall.

An effort to recall then-Wasilla Rep. Vic Kohring was launched in 2007 after he was indicted in the Veco scandal. Kohring resigned.

WASJOHANSEN 'INCOMPETENT?'

The attorney general's opinion in the Johansen recall said giving up his leadership position in the Legislature didn't rise to the level of "incompetence" alleged by sponsors of the recall petition, even if he did it for a legislator from another district..

"Holding the position of House Majority Leader is not part of a legislator's required duties. Most legislators will never hold that position and there is no requirement that they do so. Further ... there is no provision of law that prohibits Representative Johansen from trying to force his colleagues to elect another representative to a committee, proposing to forfeit his position to secure that appointment, or walking out of a meeting," said the opinion by Assistant Attorney General Elizabeth Bakalar.

"Nothing about this conduct exhibits a lack of ability on the part of Representative Johansen to perform his required duties," Bakalar concluded.

Her opinion cited a 1993 Superior Court ruling over an effort to recall then.-Lt. Gov. Jack Coghill. The judge in that case decided that recall grounds of "incompetence" relates to a lack of ability for a public official to perform required duties.

That was the only time an Alaska court has ever reviewed an allegation of "incompetence" in a case about an effort to recall a state official.

'MOVING AHEAD'

The Johansen recall sponsors also allege "neglect of duty," asserting that Johansen had been absent from his district and unavailable to constituents.

The state rejected that as well.

"No Alaska law requires legislators to hold published public meetings in their districts or to be conspicuously present and available to their constituents," Bakalar wrote. "While a failure to do these things might affect a legislator's re-election, they are not legislative duties by law."

Bakalar cited the court case over the Ogan recall, saying "neglect of duty" has been interpreted to mean nonperformance of official duties.

Johansen posted his response to the state's decision to squash the recall in a post on his blog entitled "Moving Ahead."

"I realize I have work to do with a number of District One constituents who supported the recall," Johansen wrote. "I started that process quite a while ago and have had several personal discussions with former supporters of that effort. All I can do is continue to communicate, work hard for District One and move ahead on issues and challenges we face."

Johansen wrote that it is time to "move ahead" and focus on things like building state ferries in Ketchikan and developing local hydro and road projects.

Recall sponsors have 30 days to appeal the state's decision to the Superior Court. Recall leader Coose said the main question is how long an appeal would take and if it would leave time to oust Johansen before the legislative session begins in January.

The other option is to wait for the next primary election on Aug. 28, he said.

"Maybe practically we just make sure that he doesn't get anybody's support if he tries to run for re-election," Coose said.


Reach Sean Cockerham at scockerham@adn.com or 257-4344.

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