Election decision will wait to January

Last tied election in 1995 had parallels with today’s events

By RICHARD HANNERS / Whitefish Pilot

Voters will have to wait until Jan. 7, 2008, to find out if Turner Askew or Martin McGrew will sit on the Whitefish City Council next year.

City attorney John Phelps said he looked into the tied council election after he returned from vacation and found that state law had changed since he ruled on a tied city council vote 12 years ago.

Phelps said he advised the council then — and he advises them now — that the newly elected council must choose the winner. There was some disagreement between Phelps and the Montana Secretary of State’s office in 1995, and the sitting council at that time decided to pick a winner rather than wait until January.

“I was a brand new city attorney at the time, and they were just getting used to me,” Phelps said. “They listened to the Secretary of State instead.”

Phelps said a Montana Supreme Court ruling since then treated a tied election like a vacancy on the council. In that view, the council cannot choose a replacement until the vacancy actually exists — after the new year begins.

Furthermore, the appointment will only last two years, at which point the seat will be up for re-election.

The 1995 election in some ways paralleled this year’s election, with impacts of growth and a controversial ordinance dominating the campaign.

Voters who chose a new mayor and three councilors in 1995 also narrowly approved a 2 percent resort tax. More than 40 percent of registered voters cast ballots — a significant increase from the last city election in 1992, when 27 percent of registered voters cast ballots.

Another parallel between 1995 and today — the Whitefish City-County Planning Board had been holding hearings on the city’s master plan, and candidates were divided by their views on growth. The planning board approved the master plan two weeks after the election.

Gary Stephens, who defeated councilor Phelps L’Hommedieu in the mayoral race by a 2-1 margin, said his goal was “to get a handle on growth,” and the margin of victory gave him “a mandate for that.”

But voters did not neatly split over growth and the resort tax. Both Stephens and Don Nelson, who won a seat on the council by a wide margin, were vocal opponents of the resort tax, which the voters approved. Incumbent Jan Metzmaker was also elected.

The vote for the third council seat ended up in a 487-487 tie between Ken Williams and Jody Fonner. Whitefish was not alone — three other Montana cities had tie votes that year, and all four cities awaited a decision from Montana Secretary of State Mike Cooney over what to do next, the Whitefish Pilot reported a week later.

The issue was whether the sitting council or the newly-elected council should decide the winner. Kay Beller, who was the Whitefish city clerk at the time, said both options were legally defensible.

The city council made its decision at its Dec. 4 meeting after a vigorous debate about whether the winner should be decided by a coin toss.

“The citizens of Whitefish decided that it was a toss-up, and it should go to the flip of a coin,” councilor Victor Workman said.

Councilor L’Hommedieu disagreed, saying a coin toss was unfair.

The council then cast secret ballots, but when the vote ended in a 3-3 tie, mayor Jim Welsh was left in a predicament — how could he cast a secret ballot?

Williams, a longtime planning board member, was announced the winner. Fonner crossed the council chambers and offered her congratulations, adding that there were no hard feelings.

Coin tosses are not uncommon in deciding city council elections, as a Google search quickly reveals. A flip of the coin decided the Groveland, Fla., city council race in 2004 and this year’s Grosse Pointe, Mich., city council race. The Deltona, Fla., city charter spells out the use of a coin toss to decide tied elections.

But a coin toss can be too objective. A woman who died on election day last year was chosen by a coin toss to sit on the school board in Adak, Alaska. State law called for tie votes to be settled after a recount, and the Aleutian village was simply following the rules.