The Minor Offense Ordinance

- A New America Here At Home -
342

Kyle’s open letter of noteworthy points,
I never thought I would see the day when I discovered a darkness even darker than Nancy Peloci’s “We have to pass it so we can find out what’s in it” advice to Congress. But last night the Haines Borough Assembly just passed that mark. From Leftist to rightwing, men and women, wealthy businessmen and paupers, Mud Bay and Highway and towns people, persons of deep faith and serious dope smokers; a very impressive ensemble of notoriously contrarily opinionated Haines Citizens, whose votes are ALWAYS divided right down the middle, showed up last night to the Public Hearing at 6:30 in unprecedented solidarity to make very clear by attendance, as well as an impressively long string of three-minute speeches, declaring that the people do not want the Minor Offense Ordinance. Yet strangely it passed… and “strangely” is not nearly a powerful enough word, which we will get to near the end of this address. The list of shocking “in spite ofs” goes on-and-on even beyond the past three weeks of public hearings on this ordinance, and many citizens, both committee and privately, put their lives on hold to individually research and then compile their several mind’s work to address the assembly in written form, exposing advised precautions to consider, as well as the high volume of direct and indirect violations of U.S. Law, Alaska Statute, and Haines Borough Charter. Yet the Assembly plunged ahead with an equally unprecedented determination to pass this ordinance against all argument and against all reason, and in direct violation of their oath of office to “support the Constitution of the United States, the Constitution of the State of Alaska, and the Charter of the Haines Borough.” Borough Charter 2.04.040 (*1).
Allow me to short-list just a few of the many strange facts that brought this ordinance to life by less-than authorized means.

• By document and website, the Assembly chose to tell the people, whom they represent, that this ordinance was mandated by Alaska Court Order No 1797. But there is no mandate. Yet after being directly challenged on this fact, and even confessing this truth, they chose not to correct the lie.

• The Assembly chose to tell the people that this ordinance was about tabling existing infractions. Yet after being challenged on this beguilement they chose not to correct the deception:

• Although the public pointed out the UNCONSTITUTIONAL Charter-changing right-steeling concepts and wording such as in proposed 1.24.010, 1.24.060 and 1.24.070 among others, including phrases like: “It is not a defense to the charge that it was factually or legally impossible to commit the offence allegedly attempted…”, the Assembly chose to leave those lawless words and intents unremoved and unchanged.

• The alteration of our retained rights and the re-coding of our home rule infractions into State managed Minor Offenses by the nature of this charter-amending ordinance “determines the culture under which our government operates and is the enforcement mechanism for all of our public behavior and transactions” (Carol Tuynman), and therefore makes this a Charter amending ordinance by nature, requiring a public vote: “Proposed amendments [to the charter] shall be submitted to the voters…” Haines Borough Charter Article 17.02 (*2).

• This deceptively packaged ordinance is in violation of Charter Title 2.12.070 by combining administrative tabling and Charter changing elements. By unlawfully combining the two natures of this singular ordinance it confuses how it must be enacted: Article 3.02(c) “a simple majority vote of the total membership of the assembly may pass an ordinance” vs. Article 17.01 “This Charter may be amended by the Haines Borough electorate ratifying an amendment at a regular or special election,” and Alaska Statute 29.10.100 “A home rule charter may be amended as provided in the charter, except that no amendment is effective unless ratified by the voters.” Yet by this forbidden combination and the disguise of its true nature, the Assembly called it an administrative “tabling ordinance” and went about passing it by simple majority vote of the Assembly, keeping the choice of changing the nature of our chartered laws out of the hands of the people. This is a blatant ignoring of identifying a restrictive nature as to when the Agents can act and when they must let the people act: Borough Charter 2.12.090 “When an act is required by ordinance (this is) and the act may be done as well by an agent [i.e. Assembly] as by the principle [i.e. the people]…”
This act cannot be done as well by our agents as by our express will by vote.
Alaska Statute 44.62.312(3) confirms this concept by saying: “the people of this state do not yield their sovereignty to the agencies that serve them;” and (4) “the people, in delegating authority, do not give their public servants the right to decide what is good for the people…” Yet the Assembly did just that by passing this ordinance on their own, and in direct opposition to every voice of the people who spoke at every meeting held on this ordinance.

• On Sept. 8, 2015 at the Public Hearing, the Assembly allowed an Assemblyman to speak on a topic that had already been closed. This violated Charter Title 2.10.060B: “Every member while speaking shall speak only to the subject under debate.” That violation speech resulted in a likewise violating vote that spawned an impressive chaos of following violating votes and reconsiders that eventually resulted in eliminating the previous rightfully established third public hearing-- with its extended date for cause-- and unlawfully enacted a vote of passage at the next scheduled Public Hearing time-slot (see Borough Assembly Minutes 9/8/15 p2 of 4 for a very interesting read).

• At that next scheduled meeting, of Sept. 22, 2015-- last night-- after a very impressive public turnout that-- at least for those who spoke-- TO THE PERSON, stood firmly against the passage of this ordinance, and by solidarity the silent-attending agreed, it was declared by two Assembly persons that although maybe one-hundred strong, our united voice against this ordinance was a small percentage of the 1700 citizens of the Haines Borough. They declared that they were enacting this ordinance in the name, and by the wishes of, the silent population that elected them. It seems apparent that while the exact ratio is admittedly debatable, they utterly reject the universally recognized concept declaring that each individual who acts or votes, accurately represents a far larger number of those who do not. 1 to 10 is not at all outside the scope of an easily accepted ratio. And so, since all of the “100” persons who acted have declared by appearance, written submission, or speech, that this ordinance is not of the will of the people, it cannot be reasonably assumed that the silent majority was not heard decidedly. The fact that there was not a single contrary opinion among them boosts those ratios enormously.

• After the lengthy three-minute public speeches, acting Chair; Madam Lapham, berated the public by saying, as close as I can remember; “I don’t know why the people site; Police State and Nazism, and Communism… the public need to chose their words more wisely,” “I take offense...” Her context and wording and tone expressly told the public that she did not believe we believed what we were saying and therefore dismissed our speeches as insignificant blather and not the real concerns of the people to be received. She even berated one speaker, who said reading this ordinance was reminiscent of what he experienced in East Germany before the wall came down, by accusing him of not living through Communism and so not knowing what was and was not Communistic. This dismissive reaction to the public speeches given in the time slot of “being heard” is an untenable violation of the law. This directly and offensively violates the “reasonably heard” laws as well as the tenor of her commission as pubic servant.

• Only at this last meeting, when the vote was to be cast, did Assemblyman Case expose to the public that his medical condition interfered with his ability to read. Normally I would not even mention such an infliction in the effort to respect the individual who suffers what he did not bring upon himself, but because of how this vote went down this bit of information becomes legally important. Both Alaska Statute and Borough Code makes clear that the people have a very important and foundational right to be heard by those who represent them. Alaska Statute 29.20.020: “The governing body shall provide reasonable opportunity for the public to be heard at regular and special meetings,” and Haines Borough Code 2.08.060A: “The public shall be provided a reasonable opportunity to be heard.” There is no way that three-minutes to speak can be construed to be a reasonable opportunity to be heard on matters of this importance. But the public is allowed to write letters and emails to the Assembly conveying their concerns, so this may be construed as to fulfill that meaning even if it doesn’t accurately conform to the letter, and possibly even the intent. So after spending many hours carefully researching and wording each letter, the public has gone to great lengths in the effort to be heard so that the assembly can grasp their concerns to be applied when they vote. Yet now we learn too late, by his own confession, that Mr. Case cannot physically read the import of the public, and therefore has failed to provide a lawfully required and very important element of being an actual representative of the people. And, while I have long suspected that many of the Assembly does not read the presentations of the people, we have solid evidence that says at least two of the six members of the assembly votes without hearing the public’s concerns.

• Several points of the law regarding process were submitted by Mr. Denker and read, and some even referenced by assemblyman Campbell at this meeting before the vote was taken. In the composition of those laws are specific requirements of access to information before a meeting, which the Assembly was still missing, as well as information which the public was guaranteed timely but not yet provided. The several laws state clearly that this information must be in place: The Haines Borough Charter Preamble and Bill of Rights (*3) declares “The right to access a well maintained public record of all actions of public officials in accordance with this charter, so that the citizens of the borough may retain control over the affairs of their government.” Borough Code 2.60.120 states; “The minutes shall be filed in the office of the clerk as soon as feasible, but in no case later than two weeks following the committee meeting, and shall be a public record open to inspection by any person.” Borough Code 2.10.030(A) states: “The mayor, with assistance from the clerk, shall arrange [the committee information] according to the order of business and the clerk shall furnish each member of the assembly, the mayor, the manager and the chief fiscal officer with a copy of the same in packet form five calendar days in advance of the assembly meeting.” Yet in spite of Assemblyman Campbell’s efforts to caution the Assembly against voting on a subject of which all pertinent information was not available, as obligatory by law, Madam Lapham as the acting Chair moved forward with the determination to have the vote anyway.

• Assemblyman Campbell then earnestly asked the question; “Why is it so important that we pass this now, especially since it won’t be implemented until January?” To which he did not receive an honest answer to his question, but did receive some mocking replies. Assemblyman Campbell earnestly pleaded with reason to delay the unlawful vote, but he was harshly overruled by the Chair as being out of order.

• In a last-ditch desperate attempt to do as much quick patching of a heinously flawed document that was obviously about to be passed, Mr. Campbell made several successive motions to amend the proposed ordinance by including in bulk the recommendations of various committees that had been heard but ignored. Some of his motions carried while others were defeated. Eventually, after the Chair unofficially belittled Mr. Campbell for his seemingly “unending” attempts to do his best to at least diminish the flaws of the document before it went to vote, the vote was called for, and taken…… and Mr. Campbell refused to vote, on the grounds that the missing information made the vote unlawful according to requirements of the Charter itself.

• Not being deterred from her note-worthily unexplainable determination, the Chair utterly ignored his claims of unlawful vote, and, with the Clerk, began immediate explorations of the charter for options to force Mr. Campbell to vote. They tried portions of Code 2.10.200: “All assembly members present shall vote unless the presiding officer, for special reasons, permits a member to abstain.” But neglected to allow for the part of the same Code that reads: “or is allowed to abstain by law.” He stood firm and refused to vote, again declaring it violates the law. Eventually after a recessed deliberation with the Clerk, and the Mayor by teleconference, the Chair determined that Mr. Campbell’s refusal to vote would be considered as a “presumed” vote.

• So in a true-life fulfillment of the gnat-straining-camel-swallowing proverb, the blaring fact of declared lawlessness of the Assembly was utterly ignored, and a confusion ensued as to just how to count his vote. To stem the confusion the question presented by Assemblyman Berry then became: “Which form of rules should be followed; Roberts Rules of Order, or the Borough Charter?” (Title 2.10.050): By the one set of rules his “presumed vote” would have to go with the majority and make it a 2-4 vote to pass the ordinance, but under the other set of rules his “presumed vote” would have to be deemed a descent and therefore make it a 3-3 tie vote. By Assembly deliberation the Borough Charter won over the Roberts Rules, and the Mayor by teleconference voted in favor to break the tie, and the ordinance was unlawfully and strangely passed 3-4 with one member not voting.

And that, my friends, is a very short list of the many details in how your Assembly chose to represent you, the silent majority. I bet you didn’t know that you wanted to be stripped of your Habeas Corpus rights, or your right to Trial by Jury, or your previously maintained right to adjudication by your piers, or your right to expect your Assemblymen to adhere to the law, or…


Sincerely,


- Kyle Ponsford, counted among the unsilent.
(address and phone number removed)
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(*1) NOTE: All information and links of existing Borough Code in this address will be based on established Code current through ordinance 15-07-417 last accessed on 9/23/15. Subsequent changes to the Code in these links after this date may not represent the evidences as described and or copied in this address. Such example accessed for confirmation on 9/29/15 is as follows in note (*2):

(*2) “Title 17
(Reserved)
The Haines Borough Code is current through Ordinance 15-07-417, passed August 11, 2015.
Disclaimer: The Borough Clerk's Office has the official version of the Haines Borough Code. Users should contact the Borough Clerk's Office for ordinances passed subsequent to the ordinance cited above.”

(*3) The Preamble and Bill of Rights are artfully buried at the bottom of the Table of Contents page as if it were not actually a part of the Charter.
*