Whitefish rejects petition for City Hall vote

The city of Whitefish has rejected a petition calling for a public vote on the City Hall project, a move that effectively kills the opposition’s effort to cap spending on the $14.95 million city facility and attached parking structure.

In a memo to the Flathead County Election Department, newly appointed city attorney Angela Jacobs Persicke says the ballot initiative proposed in the petition is administrative in nature and fails to meet compliance standards.

While Persicke lays out a lengthy list of arguments backing her decision, the attorney representing the petitioner claims the rejection is based on politics, not the law.

The proposed petition was brought forth this summer by Whitefish philanthropist Richard Atkinson. In a letter to the Pilot, Atkinson said it's important for Whitefish residents to “have a say on a project of this permanence and significance.”

His petition aimed to create a ballot initiative amending city law to require a public vote on City Hall projects costing more than $3 million.

Earlier this month, Whitefish City Council approved a permit to construct a new City Hall and parking structure at the corner of Baker Avenue and Second Street. Work is expected to begin as early as this fall.

The new City Hall is set to cost $6.6 million, while the parking structure is set at $8.3 million. The city is planning to spend $14.95 million on the entire project, including lease of temporary office space. Tax-increment funds are being used to finance the project.

By state law, the city attorney is required to review any petitions for initiative to amend city code.

Persicke cites the 1998 case of Whitehall vs Preece as the basis for her rejection. That case determined that the power of initiative and referendum are only for legislative acts, not administrative.

Persicke says actions that are “temporary or limited in effect” are considered administrative.

While the proposed initiative seeks to prevent occupancy of City Hall projects costing more than $3 million without a public vote, Persicke notes that city council has already approved construction costs in excess of that amount.

“As a result, the petition is administrative in nature because it is limited in effect to the occupancy of this City Hall project,” Persicke said.

She also contends the initiative is administrative because it requires voters to have specialized training in city government and intimate knowledge of the city budget in order to make an informed decision.

“The voter would need to evaluate the use of impact fees and tax-increment financing already set aside for the City Hall project, a special improvement district, long-term indebtedness and bonding measures,” she wrote.

Persicke goes on to argue that the initiative deals with only a portion of the overall project — the cost — also making it administrative.

“The city council, through extensive legislative action and with the community through the public process, has conducted hearings and made decisions to approve the location, plans, cost and funding for the City Hall project,” she said. “Opponents to the City Hall have complained about the costs of the City Hall project.”

Kalispell attorney Duncan Scott, who represents Atkinson, bluntly responded that Persicke’s arguments are wrong. He questions the motive behind the rejection and raises accusations of political maneuvering.

“The proposed petition amends the Whitefish city charter,” Scott said. “Amendments to a city charter unquestionably are legislative.”

He claims rejection of the petition on City Hall is a stalling tactic that reeks of politics. His client won’t bring forth a lawsuit, he said, because it would only lead to a lengthy court battle that plays out while City Hall is constructed.

“The mayor and city council know that by refusing to approve our petition, we must sue Whitefish to get court approval for the petition,” Scott wrote. “After we win in the state Supreme Court in two or three years, we can start our petition drive, with the election on our proposed charter amendment in 2018 or so. But by then, the new City Hall will be done and the mayor and city councilors will be happy in their new luxurious chambers. The petition will be moot.”

“In other words, by taking an illegal position, the mayor and city councilors have effectively kept the public from voting on the multi-million dollar City Hall,” he added.

Scott said this is the second time Whitefish has been wrong on petitions, and noted the referendum in the city’s planning “doughnut” dispute with Flathead County.

In 2011, a petition was approved for a public vote on whether to keep or reject a revised agreement for the doughnut zoning area. Whitefish voters easily passed the ballot referendum, which became the subject of a lawsuit between the city and county.

“We warned the city attorney at the time that referendums were not allowed on contracts between government entities because contracts are not legislation.”

The Montana Supreme Court ultimately ruled the referendum was illegal, giving jurisdiction of the doughnut to Flathead County.

Scott claimed the city attorney approved the doughnut referendum petition “because the mayor and others on the city council wanted this public vote.”