MEMORANDUM

TO: Timothy Navarre, Assembly President

Members, Kenai Peninsula Borough Assembly

FROM: Colette Thompson, Borough Attorney

DATE: July 10, 2001

SUBJECT: Ordinance 2001-23, placing a binding proposition on the ballot regarding the private prison

At the request of Assembly Member Merkes, this memorandum is to describe for you the differences between the proposed Navarre, Popp Substitute of Ordinance 2001-23 and the original ordinance. In all, the changes are designed to increase the similarity between this ordinance and the initiative petition ordinance.

The first new Whereas, which is inserted as the third Whereas on page 1 of the substitute, explains in part why the borough is involved in the pending prison project. It describes the state legislature's actions demonstrating its preference for using private prison operators to operate new prison facilities and that the state administration has required local governments to be involved in privately operated prisons.

The second and third new Whereas clauses, inserted as the fourth and fifth Whereas clauses in the substitute, clarify that the borough's involvement to date is within the scope of statutory authority.

In the proposed new ninth Whereas, the assembly makes a finding that defeating the proposed proposition in the ordinance would have a substantially similar effect as passing the initiative proposition. Both actions would prevent the borough from contracting with a private for-profit prison operator for two years in the Kenai Peninsula Borough. As a practical matter, it is likely that the only way a private for-profit prison operator could operate in the borough is through the Kenai Peninsula Borough's involvement.

The last Whereas is deleted regarding the ability of the petitioners to meet the time deadlines for the regular October 2, 2001 ballot as there is insufficient information available to support this conclusion.

Section 1 of the ordinance is amended to revise the proposition language so that if it is defeated the effect would be similar to the effect of passing the initiative petition. Substituting the word "shall" for "may" in the first sentence clarifies that if the proposition passes, the borough is not required to contract with the State of Alaska, recognizing that other matters may prevent it from proceeding. The term "for-profit" is inserted in the second line to better align this question with that contained in the initiative petition. Similarly, the terms relating to House Bill 149 and the design and construction of a prison facility are deleted from the proposition in order to expand the question beyond the one pending project. The maximum of 1,000 beds is inserted to clarify that the authority requested is for a maximum 1,000-bed facility rather than a larger facility.

Section 2 is amended to clarify that if the proposition passes then the borough is authorized by the voters to proceed with the necessary steps to complete the prison project. It clarifies that steps are necessary to do so including without limitation reaching an agreement with the State of Alaska. It also provides that if the proposition does not pass, then the borough will not proceed with the prison project for a period of two years. The two-year period is designed to mirror the statutory requirement that the effect of an ordinance passed through the initiative process may not be modified for two years from the date the initiative is passed.