When is a Term not a Term?

Thursday, February 28, 2008, 10:34pm
The ADN says that Dr. Peter Mjos is challenging the City Clerk's decision to let Dick Traini run for a fourth term because the charter says you can only serve for three consecutive terms. The City Clerk's decision is based on an opinion written by a hired attorney. The attorney concludes that partial terms were not intended to be counted in the term limit provision and since Traini's first term here (he had served prior to that and then was defeated by then future mayor George Weurch if I recall correctly.) There's lots here to chew on.

1. The political consequences of this lawsuit for this race and the next mayoral race
2. How good is the opinion of the hired attorney?

1. Political Consequences

1. For this race. If I understand it right, there are only two candidates. If Traini were deemed ineligible to run, then his opponent Elvi Gray would win. But it also seems to me problematic to have a candidate yanked off the ballot by the courts and for the voters to not have a choice. This could cause a backlash. What if the courts don't finish by election day, and Traini wins. Then the court says he shouldn't have run? The people voted for the term limit provision, but they also would have voted for Traini despite the term limit provision. They would be saying with their votes that the term limit provision doesn't include partial terms.
2. For the upcoming mayoral race. If, in fact, Mark Begich runs for the US Senate, (and that has gotten more likely while I was writing this) and gets elected, a big 'if', he would leave his mayoral position several months before the next mayoral election. If I remember right, the Assembly chair would become acting Mayor. It seems to me better to decide this issue now in an Assembly election than to have it still an open issue if we have a partial term mayor running.


On the one hand, if the law is ambiguous - and if it weren’t the City Clerk would not have asked for an opinion - it should be clarified. But ideally the timing for the clarification should be such that if a candidate is eliminated, others can run for that office. Levesque’s opinion is dated January 7, 2008. I don’t know when the Clerk made her decision or when it was made public - before or after the closing date for candidates to file. To that we must add the time it would take a citizen to decide to file a law suit, since that isn't a casual decision.

On the other hand, are the additional few months Traini served worth depriving his constituents a choice in the election? Shouldn't there be another way to challenge the meaning of the law so it could be done between elections when it doesn’t have immediate consequences on specific people and specific political races?

Does the motivation of the person filing - for political reasons or to clarify the law on principle - matter? Can we ever know the real motivations? Could it be a mix of both? If it is for political gain - to Elvi Jackson’s advantage if Traini were to be found ineligible - one could also say that Traini pushed the limits by running for a fourth term when there was a three year term limit. (He's not the first according to Levesque's analysis - Ossiander did it on the School Board and Daniel Kendall did it on the Assembly. That doesn't make it right, it just means no one challenged them.) Even if the ruling is technically in his favor, it would seem to violate the spirit of the charter. While an attorney’s opinion went in his favor, only a judge’s opinion or a charter amendment could - as I understand it - be legally binding.


2. Levesque's Opinion

Joseph N. Levesque, the attorney who wrote the opinion for the City Clerk concluded

A review of the language used in the MOA Charter term limit provisions reveals that the term limits for elected offices are for either two full consecutive three-year terms or three full consecutive three-year terms. The meaning of the language is clear and unambiguous, partial time served through either appointment or election does not count for the purpose of counting terms. Both the available legislation history and established precedent support this conclusion.

To write that the language is clear and unambiguous seems to suggest that his client, the City Clerk, is a little dim. If it's so clear and unambiguous, why does she have to hire an attorney to tell her that? But an attorney once told me that if he wrote an opinion, it would be a strong, firm opinion, whichever side of the issue he took. So maybe this just reflects that, once Levesque decided it should go for Traini's position, he went for it strong.

How does Levesque reach that conclusion? Partly by logic and partly by referring to the legislative history and intent. The logic doesn't work for me at all. The history and intent - at least the part he refers us to - is more supportive.

The "Logic"

I'll comment on a few things he writes, the whole opinion is here.

Quote 1: (Levesque cites McQuillin whom he describes as "a legal authority on municipal law")

Although an unambiguous statute prescribing the term of an officer will be construed as written, where the legal provisions prescribing the term is [sic] uncertain or doubtful an interpretation will be adopted that limits the term to the shortest time. (p. 2)

So if the Municipal Charter isn't clear on this, we should adopt an interpretation that limits the term to the shortest time possible. That would mean, not allowing someone to run for a fourth consecutive term even if one term was only a partial term. But Levesque comes to the opposite conclusion quoting McQuillin again as saying "the phrase 'term of office'... means the fixed legal period during which the incumbent may legally hold the office."

Do you think the Charter Commission that wrote this language read McQuillin and knew that this was 'the' definition of 'term'? Levesque's opinion talks about 'terms,' 'full terms,' and 'partial terms." Each one uses the word 'term.' But let's move on.

Quote 2: Here Levesque is citing a case called Pope.

"No person shall be elected as a member of the city council for more than two four-year terms..." According to the courts [sic] reasoning, the words 'elect' and 'appointed' have different meanings and a 'four-year term' is not the same as a 17-month term. (pp. 2-3)

But in the Pope case the law specifically said 'elected' and in the Anchorage charter, the word is NOT 'elected' it's 'served.' "[a] person who has served on the assembly for three consecutive terms may not be reelected to the assembly until one full term has intervened."

Note: it says "three consecutive terms" (not full terms) but it also says, "until one full term has intervened." So when they were writing this, they were aware of the difference between full and not full terms. When they wrote about how many consecutive terms someone could serve, they didn't use the word full. But they did use it when they wrote about how much time must intervene before one can be reelected. I would guess this is the precise language on which Mjos is basing his challenge.


Quote 3 - I include this under logic rather than intent, because it is so logically flawed.

Morever, if the intent was for the term limits to include partial terms then language addressing partial terms would have been included. (p. 5)

Don't buy a used car from this guy. You could just as easily make the opposite argument: "If the intent was for the term limits to only be full terms, then language addressing full terms would have been included." This is pure sophistry. And since they did, as I pointed out just above, include 'full term' when talking about how long one had to wait before being elected again, one could logically imagine that they didn't intend the consecutive terms to be full terms or they would have said so.

Since Levesque himself uses the term ‘partial term’ and the charter talks about ‘three year term[s]’ and “two year term[s]” (for mayor), it would seem that the word ‘term’ means time spent serving as assembly member, however long that turns out to be. There could be partial terms, two year terms and three year terms, but all are ‘terms.’ Thus a partial term is a term. The charter prohibits three consecutive terms.


Legislative History and Intent

Levesque cites the original Charter Committee Report #4 and the Charter Review Commission Report to get to the intent of the ordinance. This is after citing legal precedence that legal intent trumps the literal meaning of the law.

He has two citations that logically support his position that one has to serve consecutive FULL terms before term limits apply. (Or should I say "full term" limits apply?)

Intent Quote 1: On page 6 of Levesque's opinion, he cites Committee Report #4:

The charter will limit the Mayor to two successive full terms. A policy question for the Commission is whether a limit on successive terms of Assembly members should be imposed...

He has already decided that what applies to the Mayor regarding full or partial also applies to the Assembly (and School Board) and that from this it means the Commission clearly intended it to mean full terms.

My problems with this are:

1. This is plucked out of Report #4. I'd have to know how many reports there were and what they said (did a Report #6 change its mind?) and read the context of this quote to be sure it means what he says it means. And given some of the other stuff he's written here, I'm not inclined to do that without checking.
2. If the Commission discussed full terms and partial terms and were conscious of this distinction, why, in the end, didn't they say 'full term' when they wrote the Charter? Perhaps at the end, they voted to strike the term 'full.' Of course, I'm playing devil's advocate here. The rest of the context may well support his contention.

Intent Quote 2: On page 8 Levesque writes:

The Charter Review Commission recommended that the term limit provisions be evaluated and voted on by the public, but that any adopted term limits be applied prospectively allowing any incumbent eligibility "to run for two additional full terms."

From this he concludes that they meant (for the Assembly) consecutive 'full' terms. I didn't know you could run for partial terms. And this is talking about what the limbo Assembly members (those serving when the rules were being changed) could do.

It's possible the Charter members did mean what Levesque says the meant, but it isn't possible logically, from these scraps of evidence to jump to the conclusion that Levesque presents:

A review of the language used in the MOA Charter term limit provisions reveals that the term limits for electd offices are for either two full consecutive three-year terms or three full consecutive three-year terms. The meaning of the language is clear and unambiguous, partial time served through either appointment or election does not count for the purpose of counting terms. Both the available legislation history and established precedent support this conclusion.

Personal Note

Anchorage is a small town. Dick Traini was a student of mine and I respect him and have voted for him. But Elvi Gray's positions are closer to mine and I have contributed to her campaign. Furthermore, I know Dr. Peter Mjos and even posted a picture of him on the ski trail not too long ago. I'm also trying to balance my desire to share all I know with my obligations to respect the confidentiality of personal conversations I've had with friends. The rules about sources are being debated for professional journalists, and as a citizen blogger, the trust of my friends and family trumps my obligations to my readers. I don't want my friends to stop talking to me if they fear I'll blog it. If I can find an independent source of information, I might use that but not confidential conversations.

I also don't believe in term limits. I recognize that the system tends to favor incumbents, but term limits imply the public is too dumb to vote right and so we have to prevent them from reelecting someone. But it is the law, and we should follow the law or change it. One way to do that is to challenge it when one has legal standing to do that.



My Conlusion

My conclusion is that this is not clearcut and that a hired attorney is not how we determine law. Getting this to a judge gives us a final decision. But it is also problematic that this decision is coming so late in the game that if Traini were determined to be ineligible, another candidate could not run. I also think that things could get seriously messy if the decision is not final before the election and/or Traini should win and then be declared ineligible. It would put a cloud over Elvi Gray if she got elected that way. It would be better for her to ask the voters, as part of her campaign, to show the meaning of the term limits by voting for her and not voting for a candidate who, if elected, could serve more than nine consecutive years, which would seem against the intent of the term limits.

But I think it will be messier if this issue is not resolved before the next mayoral election when there could potentially be a candidate running who will have served a partial term. If reelected, would that person be able to run for a third consecutive term? (Mayor is limited to two terms.) We need to get this cleared up. Unfortunately, it appears that the only way to do that is to challenge a candidate who is running for a fourth term.

In in the big scheme of things, if someone can serve an extra year, even two, it probably is no big deal. But I don't think that things are nearly as unambiguous as Levesque would have us believe.

Happy Birthday Mom

Just in case the card doesn't make it on time, I'll wish you a happy birthday from here. This is two years in a row I'm in Thailand on your birthday. The one thing that wouldn't have worked out well if you'd have come with J is that we live on the fourth floor and there's no elevator.

Well, at least J and J2 are together today. The rest of us are scattered, as you celebrate - I know you don't like me putting your age down so I'll just say, a birthday with two even numbers that add up to 14 and the larger number comes first.

Lineated Barbet and Mystery Bird

Thursday, Feb. 28, 2008 12:20am

At lunch at the same place as yesterday, the white crested laughing thrushes were gone, but this bird was there instead. But I can't figure out what it is.



I thought maybe a minivet, but the colors are definitely not right and I'm not sure of the shape. But it certainly modeled nicely for us, showing all sides for anyone who really knows their Thai birds.


When I got home, I heard a bird calling from not too far and there was this largish bird sitting on the bare tree top a 100 yards away or so. With the binoculars it was very clearly visible - yellow orange beak, yellow rings around black eyes, and the wings and back green like a parrot.
It was fairly easy to narrow this one down in the book. And when I then googled lineated barbet images, it was clear that was what it was. It was there quite a while, but just out of range for a good picture. Here's a picture showing the overall setting, and then one greatly enlarged.

Getting the Thai and English Together

As I try to read through the Thai in my organization's work plan, the words that I've put on my list are now recognizable. But as I work toward Monday's seminar with the people in the office, I realize that I have to use more of the Thai in my presentation and things I hand out. As I move to asking questions about how exactly they are determining whether they have reached their goals or not (and thus how they will write their next set of goals) I need to use the Thai. They do have a basic structure of goals and expected outcomes, which they needed for their Oxfam grant. So I've been reading the English and Thai and meshing the two. Without the English, I would be hard pressed to get the exact meaning of the Thai, but with the English, and Thai2English.com I can work it out. So that's what I've been been working on today.

Working Barefoot

One of the many things I like about where I'm working is that I can work barefoot.

Prosecution Responds to Kohring's Requests

Brendan Joel Kelley reports in the Anchorage Press website about the prosecution's response to Vic Kohring's motion for a retrial and the recusal of Judge Sedwick. Here's an excerpt:

The government refers to Federal Rules of Criminal Procedure that—barring newly discovered evidence—any motion for a new trial would have had to been filed no later than November 12, 2007, within seven days of the guilty verdict.

The government also aggressively argues that Kohring’s supposed discovery that the Sedwicks were related—7 to 10 days after his conviction—doesn’t constitute new evidence.

“Assuming for a moment that a ‘deep animosity’ truly existed between Kohring and Mrs. Sedwick in or around 1998, it is illogical and unreasonable for Kohring to suggest that he did not realize the familial relationship between Mrs. Sedwick and the assigned trial judge during the several months prior to his trial or, at the latest, when Mrs. Sedwick was reportedly in the courtroom near the end of the trial,” a portion of the government’s argument reads. “Kohring’s ‘new evidence’ argument might have some air of plausibility had Mrs. Sedwick’s last name been Jones or Smith, but Sedwick is a surname that is not commonplace within Alaska.”

I had pretty much the same reaction when I heard about this in early February:

And it never occurred that Judge Sedwick might be related to this Sedwick who he says was "worst political rival and enemy" until the end of the trial? How many Sedwicks do you know? I certainly would be asking questions if the judge hearing my case had the same name as my worst political rival and enemy. I wouldn't wait until a few days before my sentencing to bring it up.

[A few minutes later: Phil Munger's report on on Kohring's response to the prosecutors' filing is worth reading. A real scoop.]

Work, birds, running, French movie, laundry, NY symphony in Pyongyang

Spent most of the day working on my seminar. Preparing a presentation in Thai and English with pictures to help get the points across. My Thai is frustrating. On a basic level - market Thai - I’m fine. But when I wander off to try to explain things of a more complex level (and some things not so complex) I stumble, my tones are terrible, and I feel kind of stupid. I really need a good teacher who can diagnose my Thai and design a lingual and cognitive therapy that will get the most improvement in the shortest time.

At lunch, Bun and I walked over to Wat Ramphoeng and ate in the lovely garden. A pair of striking white crested birds with a black band through the eye hopped around in the trees around us taunting my Canon.
My shots are great, but you can see them. It appears that one was much more black and white, the other had a lot more brown. After going through the Thai bird book, I’ve decided that they must have been White Crested Laughing Thrushes. (And in the lobby with internet connection, I've confirmed it.)


The temple dragon was much a more cooperative photo model.

After work, I rode my bike over to the track at Chiengmai University - maybe a kilometer a way at most - and finally ran. Time, traffic, heat, and particularly dogs have been my excuses for not running. But I pushed myself over there and did eight slow laps around the track. I’m guessing I did a little over two miles. That’s ok for the first time in weeks. And I hate going around the track - it’s so easy to stop. When you go off on a run, once you get out there, you have to come back. But going around the track you can stop at any time. But it was very pretty. Here’s a shakey picture of Doi Suthep from the track.


Rode through the campus afterward to the main gate and had dinner at the vegetarian restuarant we ate at yesterday for lunch. Very good. When I got back to the southern gate, it was locked. There was enough room to walk through between the posts, but the handle bars wouldn’t fit. I was seeing if I could lift the bike high enough for the handle bars over the poles - I could but I couldn’t get through the narrow opening holding the bike - when a guard showed up and unlocked the gate to let me out.

Did some laundry and watched a French movie with English subtitles. I’ll post about television here soon. We have a wide choice of national televisions. Watched Hong Kong television with Japanese news programing in English covering the New York Philharmonic Orchestra playing in Pyongyang. This was a very political event, with the announcer speculating on the timing a day after the new, hard-line toward North Korea, South Korean president Lee Myung-bak's inauguration. With China, the first event was ping-pong, here it’s the symphony. Who says orchestras are apolitical?

The internet isn’t working again, so I’ll go downstairs and use the wifi and then go to bed. It’s Tuesday and J won’t be back until Friday morning. The manager offered me his car to go pick her up, but I don’t think it’s worth it for that one short trip. The soi is very narrow and you drive on the left side. But it was a very nice offer. He has a sticker to go through the Air Force compound so it’s just a quick shot.

Democracy v. Capitalism - Discovery Channel Takes Taxi to Dark Side

Anchorage folks had the opportunity to see this year's Academy Award winning feature documentary , Taxi to the Dark Side, before it was released to theaters. The Anchorage International Film Festival showed it here in December.

It was my choice for best documentary, but an arctic themed movie won that title here.

But while Taxi beat out Sicko for the Oscar Sunday night, it turns out director Alex Gibney has sold the broadcast rights to the Discovery Channel because they told him, “Look, we love this film. We’re going to give it a broad and very prominent airing.”

Now they are putting it on the shelf because it is "too controversial." Below is an excerpt from a Democracy Now interview (where you can get the whole interview) earlier this month:

ALEX GIBNEY: Well, it turns out that the Discovery Channel isn’t so interested in discovery. I mean, I heard that—I was told a little bit before my Academy Award nomination that they had no intention of airing the film, that new management had come in and they were about to go through a public offering, so it was probably too controversial for that. They didn’t want to cause any waves. It turns out, Discovery turns out to be the see-no-evil/hear-no-evil channel.

AMY GOODMAN: They bought the rights, though.

ALEX GIBNEY: They did.

AMY GOODMAN: So they own it.

ALEX GIBNEY: They own the rights for the next three years. They own the broadcast rights. It’s currently playing in theaters, where people can see it, but we had hoped that it would have a broad airing on television. And indeed, you know, one of the reasons I went with Discovery was because they had told me, “Look, we love this film. We’re going to give it a broad and very prominent airing.”

AMY GOODMAN: But if they still own the rights, can they just not air it for three years and keep you from airing it anywhere else?

ALEX GIBNEY: Yes, they can. That’s their right, because they paid for it. Now, we’re hoping that they’ll agree to sell it to somebody else, you know, maybe for a profit, if they need to do that. But I’m hoping at the very least that they’ll allow somebody else to take it on so it can be shown to the American people.

While this appears to be a strictly business decision -

"that new management had come in and they were about to go through a public offering, so it was probably too controversial for that. They didn’t want to cause any waves"

- there's a real possibility that Taxi never had a chance to get on the Discovery Channel, because Discovery also owns the Military Channel which joined with the Department of Defense program "America Supports You." From a news release dated October 10, 2007:

America Supports You recognizes and facilitates citizens’ support for our military men, women and families, and communicates that support to members of our Armed Forces at home and abroad. The Military Channel and America Supports You first worked together in support of the 2006 Freedom Walk in Washington, D.C. to mark the fifth anniversary of Sept. 11 and honor veterans, past and present.

“We are so pleased that the Military Channel has joined the America Supports You team,” said Deputy Assistant Secretary of Defense Allison Barber, architect of the America Supports You program. “With their capacity to reach large audiences on an ongoing basis, the Military Channel will help broaden national awareness about America Supports You and connect many more people to the ways they can support and serve the troops and their families.”

The Military Channel brings viewers compelling, real-world stories of heroism, military strategy, technological breakthroughs and turning points in history. The network takes viewers “behind the lines” to hear the personal stories of servicemen and women and offers in-depth explorations of military technology, battlefield strategy, aviation and history. As the only cable network devoted to military subjects, it also provides unique access to this world, allowing viewers to experience and understand a world full of human drama, courage, innovation and long-held traditions of the military. Visit the Military Channel online at www.military.discovery.com.

While I thought that Taxi did a good job of taking "viewers “behind the lines” to hear the personal stories of servicemen and women," somehow, I don't think Taxi to the Dark Side tells the story that the Defense Department wants large audiences to see.


The idea of wealthy people and organizations buying silence for ideas they don't like, or buying accolades as Exxon did with the Anchorage Concert Association last Saturday, is contrary to the free and open debate of ideas that our Constitution was intended to promote. In Confessions of an Economic Hitman we also heard about how the author was paid very well NOT to write a book about what he knew.

Thanks to Battlefield of a Peaceful Warrior for the link to this story. Peaceful Warrior also provides a link to the Discovery Channel to urge them to air the movie. (Beware, you have to fill out a lot of information first and it is really designed to get questions about their current shows. Trying to find other ways to contact Discovery proved difficult. The corporate website is impenetrable - its a very slick, but real-information-free site. You can read about the various corporate officers (26 listed, five women, none in program related positions). But there is no contact information at all. No business information.)

However, the America Supports You news release does give us phone numbers and email addresses for two Discovery Channel employees.

Contact:
Jill Bondurant
Discovery Communications, Inc.
(240) 662-2927
Jill_Bondurant@discovery.com or
Kate Hawken
(240) 662-2947
Kate_Hawken@discovery.com

The idea of buying a film or book of current political relevance and then locking it away so no one can see it (not quite the situation here since it is in theaters now) is clearly in conflict with the idea of free speech. One could say that Gibney didn't have to sell, or should have had a clause in the sale that gave him back the film if it didn't get airplay. But Gibney is a film maker, not a business man or an attorney. People who have great skill in one field, usually don't have the time or aptitude to develop skills in other areas. But given his film topics, he is politically savvy, but still got taken in here.

What would you do if you were offered $1 million for rights to your important political work? (I have no idea what Discover paid, the million is purely hypothetical.) Would you just take the money? Or would you stick by your principles?

I recall when a friend got hired by Alyeska Pipeline. They paid him way more money than he'd ever made before. But there was an expectation that they were buying his loyalty and silence too. How many people get that kind of job, then get subtly pressured into moving to a better neighborhood and living a spendier lifestyle? To the point where they are now just getting by, even at that much higher income?

That's when you become ethically susceptible - where the loss of your job jeopardizes your mortgage, your health insurance, your kids' college education, or even just the glitzier life style and the new 'friends' that come with it. If you buy into that, then they can get you to do things that compromise your basic values, compromise what you deep down know is right, to protect your new life style. If you've been coopted cleverly enough, you might actually believe it all.

Blogging Notes - What I learn from Sitemeter Data

A few observations about visitors to the site from Sitemeter.

• All hits from Thailand list Bangkok as the location. I know that people from Chiang Mai have been here, so I suspect everything gets routed through Bangkok.
• "Victor Lebow" and "famous people born 1908" (and variations thereof) continue to be Google search words that bring in a fair percentage of hits.
• Someone at Naussau Insurance Company got here googling "how often do pirates take over cruise ships" Hmmm, was that just idle curiousity or is something happening?
• "Taxi to the Dark Side" got a bump from winning the Oscar for best documentary
• "Maytag A207" gets a couple of hits a week, suggesting there are others trying to keep their old washing machines alive

[Later, and this one hurts: From Istanbul, Turkey "writing rejection letter to a person in need of charity"]

๋ีMonday - random shots

I got a good look at a Koel this morning. It had been kuuuuwow- ing in the tree, but I couldn't see it. Then it flew out and over the building. Unmistakable. But gone to fast to even think about the camera. I pass this temple on the way to work. It's Wat Pa Daeng, where we went to Macha Bucha. Then you saw the stais from the top.



As we got into the pickup to go for lunch, I was told that the vegetarian restaurant we'd been to before was closed because of Macha Bucha. So we went to another vegetarian restaurant north of the Chiang Mai University campus. By the main entrance.






It was really good - B160 - a little over a dollar a piece.
I took this picture to help me remember where this place was. That's the entrance to Chiang Mai University in the background,



And this T shirt was for sale in a shop next to the restaurant.


At the office I'm working on a seminar to kick off my actual management coaching - I'm working on a Keynote (Mac's powerpoint) presentation. This allows me pictures, the words written to help people understand them better, as well as Thai words for key terms that I can't remember, because I never knew them. While I'm not a Powerpoint fan in general, if you do it right, especially when there are language barriers, the written word helps considerably, as will the Thai words and the visuals.


On my way to work and back, I pass this huge property with two houses that you can see from the road. We stopped at my apartment on the way home after lunch so they could see it. They thought it was overpriced. But we went back by the large property, so I pointed it out. It belongs, they gold me, to former prime minister Thaksin's younger brother. Thaksin was ousted by a military coups and exiled. Rumors say he's coming back soon, now that his party won the last election.



Here's a glimpse at the main house

And this is the front gate.