By Ken Smith
*Editor's Note: A mistake was made in the printed version of this article. It was reported in the printed article that Proposition 1 increases the property tax rate in Whittier from 5 to 8 percent. That is incorrect. The rate increase is from 5 to 8 millage. A correction was made in this online version.
The Whittier City Council met Tuesday, Oct. 18 for its regular meeting – but it was anything but regular. On the agenda, under new business, was a report submitted by the city’s attorney, Brooks Chandler. The report contained six questions that the council would vote on to determine whether the General Municipal Election held Oct. 4 should be certified.
After two hours of addressing the questions and much deliberation and conversation, the council ultimately determined that the election would not be certified for Seat F, won by Mayor Lester Lunceford, and that Proposition 1 to raise the property tax by 3 mill would also not be certified. The council decided to hold a special election tentatively scheduled for Dec. 6 to determine Seat F and Proposition 1.
The decisive question on whether ballot Proposition 1 was illegally supported in a city funded newsletter was the determining factor that led to a special election to be held. The council was deadlocked on whether to certify that Mayor Lunceford won Seat F, which led the council to include the contested seat along with Proposition 1 on a ballot to be voted on in a special election.
Before the city council could address the election challenges and the six questions to be voted on to determine the validity of the General Election, they first had to swear in the newest councilman, David Pinquoch, who won Seat E, one of the two city council seats open in the general election.
Once sworn in, Pinquoch took his seat, formerly held by Shannon Tolman, who decided to run for Seat F in the election, which was won by Mayor Lester Lunceford. Lunceford was the incumbent who held Seat F, but he decided not to run again; however, a write-in campaign changed all that, and he went on to win unofficially to win Seat F. That’s what led in part to the voters’ challenge of the election.
The council began the election challenge proceedings by investigating the allegations in the Notice of Election Contest by first listening to Chandler’s report, which was the result of an investigation requested by the council during an Oct. 13 hearing. The hearing was held in response to a challenge of the election by 17 voters, including a candidate for city council, Shannon Tolman, who submitted a Notice of Election Contest to the city council Oct. 11.
The council needed to consider six questions before certifying the election results for Seat F and Proposition 1. The questions were listed under new business, but as the meeting began, they were moved to the top of the meeting’s agenda.
Leading the election challenge was Whittier resident Craig Stark, a newcomer to Whittier, who moved to the city of about 160 residents a year ago with his wife. The couple also owns a house in Anchorage. Stark is a registered voter in Whittier and his wife is a registered voter in Anchorage.
Stark submitted several letters to the city and Chandler expressing his concerns for the election.
In the Notice of Election Contest, Stark outlined six reasons for the election certification to be denied by the city council. It was these six questions that the council deliberated and voted on at the regular meeting to determine whether to certify it.
At issue with Seat F was a list of complaints by Stark that Mayor Lester Lunceford ran an illegal last minute write-in campaign against two declared candidates, Shannon Tolman and Arnie Arneson for Seat F. Tolman was a councilman on Seat E prior to the election, but chose to run instead for Seat F.
Seat E included candidates Billy Collins, David Pinquoch and Peter Denmark. Pequoch won decisively with 90 votes, followed by Collins’ 56 votes.
As for Seat F, the notice of election contest stated that the mayor did not run his write-in campaign according to state and municipal election laws. The Notice of Election Contest outlined six challenges to declare his candidacy illegal.
First on the list was that Lunceford ran an illegal last minute write-in Campaign. Second, the Notice stated that the mayor did not run his write-in campaign according to state and municipal laws and regulations. Third, it was stated that his candidacy was not declared in time, and that he did not fill out a declaration of candidacy. Fourth, pen or ink or indelible pencil is to be used only in a write-in campaign, Lunceford had people vote using pre-printed stickers. The Notice stated that the stickers invalidated the votes cast for Lunceford.
Fifth, the Notice states that Lunceford issued a false and misleading campaign letter illegally endorsing his campaign and Proposition 1. This letter, the Notice states, was also used to advocate for a property tax increase, represented on the ballot as Proposition 1 – to raise the property tax in the city from 5 to 8 mill.
Stark’s Notice stated that the newsletter gave voters incorrect information and was advocating a political agenda for the adoption of the property tax rate to be increased and that it is illegal for the city to endorse a ballot.
The property tax was approved in the general election by a margin of only two votes, 66-64, with 31 ballots left blank. Seat F unofficially had Lester Lunceford winning by 13 votes with 69 total votes, Shannon Tolman came in second with 56, and Arlen “Arnie” Arneson third with 29 votes.
As was noted in Stark’s letter to Chandler, Lunceford publicly stated at a Whittier Chamber of Commerce meeting that after nine years of being mayor he did not reapply for the mayorship. The chamber minutes stated that Lunceford did say he was approached about a write-in campaign and he stated that if the support continued, he would accept the nomination.
A letter from Chandler to the city clerk stated that his office concluded that “the election officials should count write-in votes that were cast in favor of eligible persons even if the recipients of those votes were not officially nominated.” Chandler’s letter further stated that “We also recommend that votes cast by means of affixing a sticker to the write-in portion of the ballot be counted.”
Chandler’s letter added that it is recommended that the city amend and address the issues contested by Stark for future elections. Chandler stated that the Whittier Code never mentions the use of stickers used in a write-in vote but it is prohibited in state law. Chandler recommended the city write a more comprehensive code clarifying the legal use of write-in stickers.
As the city council meeting continued, Chandler addressed the standing room only public audience, stating that “The code does not have a lot of guidance in what you should do…but again it is your investigation.”
The first question the council addressed was the write-in legitimacy of Lunceford.
Councilman Pinquoch said, “the ballot is outdated…there is no declaration option in the city code, it’s black and white.”
“We’re trying to adhere to the laws, so the rules are the same for each candidate and the community,” followed councilman Dan Blair. “There’s an opportunity to make changes so that it’s better.”
“It doesn’t seem to me that just because it’s not in our code, it’s okay, that’s like saying marijuana is not in our code, so it’s okay,” said councilwoman Shawni Phillips. “There’s no argument that has been presented to us that says it’s okay and that we can change it.”
“We need a lot of work on our ordinance,” responded Blair.
“We’re a city of under 1,000, and they (codes) are written loose so we can have self-rule,” said councilman Jerry Vandergriff. “We’ve always counted the ballot for anybody that is written in.”
Stark raised an objection at this point in the councils’ discussion whether Mayor Lunceford should participate in the conversation after Lunceford spoke out on the matter. He said he is on the council and has a right to weigh in on the issue.
Chandler offered a point of order in the matter, instructing the council to conduct a roll call to determine whether Lunceford should be allowed to vote and participate in the discussion of the election challenge.
A motion by Phillips was put forward for a vote and the council voted 3-3. Lunceford then voluntarily withdrew from the discussion to avoid a conflict of interest, given that he was the candidate being challenged.
The council then proceeded to address the six questions and challenges of the election.
The first question was addressed: Was the write-in candidacy of Lester Lunceford illegal due to his failure to file a declaration of write-in candidacy with he city clerk within five days of the election? The council deliberated and then voted 3-3.
The second question was the legitimacy of Lunceford’s pre-printed name stickers being used and whether they should be allowed under Title 2 code, which does not state that it is illegal to use them under Whittier’s city code.
Before the vote, Stark spoke out saying, “I think that what happened here is that it simply wasn’t fair…an incumbent candidate says he is not going to run for re-election and then throws his hat in at the last minute to simply divide the vote. No matter how you vote on this, I think there’s going to be a legal challenge.”
The council then voted: 4 “no” and 2 “yes.”
Chandler next presented the “Back to the Future” newsletter circulated and mailed in the city. The question raised was whether the letter supported Lunceford’s candidacy, a property tax increase, and whether it presented supportive material of city projects and developments.
Chandler detailed some of the main subjects covered in the letter, and left it up to the city council to decide whether the letter was unfairly published before the election.
One point of contention was the reference to $35 million mentioned in the newsletter stating that the mayor secured the funding for the Head of the Bay development and whether the statement was accurate.
The council voted 3-3 on the third question: Did the “Back to the Future” newsletter contain any false or misleading statements?
The fourth question was whether the newsletter promoted Lunceford for elective office. The council voted 4 “no” and 2 “yes.”
The fifth question asked whether the newsletter promoted or advocated a “yes” vote on ballot Proposition 1. The vote was unanimous; 6 “yes”.
And finally, question six asked if the newsletter was promoting a “yes” vote on Ballot Proposition 1, had the city council specifically appropriated funds to promote a “yes” vote on Proposition 1.
The council voted unanimously “no” on question six.
With one question of the six being upheld, Chandler then advised the council as to the options they had available.
Regarding the vote upholding question 5, Chandler told the council that the vote sustains the election challenge, and the city can support the disqualification of the vote or hold another election for Proposition 1.
“The appropriate action may to be hold a new election,” he advised.
The council voted unanimously to hold a special election on the first Tuesday in December for Proposition 1.
In addressing the unresolved questions, Chandler said, “You ultimately have the authority to undue the election results. I would suppose one way to resolve the unresolved questions number 1 and number 3 is to determine whether Seat F is approved as voted on or should there be a special election?”
Chandler also suggested the final decision could be heard by a judge in the election office, which could take 8 months or more, he said.
“The role the council is to play here is to be unbiased and objective,” Chandler said. “The potential I see is it eliminates more litigation to let the public vote again in a special election,” added councilman Blair.
“Whether it’s a general election or restricted to the existing candidates must be decided,” responded Chandler.
A motion was made to vote on whether to certify Lester Lunceford to Seat F. The council voted 3-3. The council then moved to hold a special election Dec. 6 to determine the winner of Seat F with the three top candidates to be listed on the ballot; write-ins would also be allowed.
Chandler said a city ordinance could be written and voted on prior to the special election to clarify the voting process and rules for future elections.
A final motion was made to hold a special election with all three candidates for Seat F listed on the Dec. 6 ballot. The council unanimously voted in favor.