Whitefish derails bid for City Hall vote

The city of Whitefish has rejected a proposed petition requiring a public vote on Whitefish’s $14.8 million City Hall project, a maneuver that will buy the city enough time to get the new City Hall and parking structure built before a court battle plays out.

Last month Whitefish philanthropist Richard Atkinson began pushing for an initiative to allow Whitefish residents to vote on the City Hall project. In a statement to the press, Atkinson said he believes it is important that residents “have a say on a project of this permanence and significance.”

The initiative proposed to amend the city charter to require a public vote on City Hall projects costing more than $3 million.

The current City Hall at the northeast corner of Second Street and Baker Avenue is on track to be torn down in September to make way for a new City Hall and parking structure.

The Flathead County Election Department sent the city of Whitefish a sample initiative petition to review, as required by state law.

In response, Whitefish City Attorney Angela Jacobs Persicke wrote a letter to county Election Services Manager Monica Eisenzimer last week, stating that Whitefish had determined the sample petition is not subject to the power of an initiative because it is not within the legislative jurisdiction and power of a local government.

“The proposed initiative is administrative in nature, not legislative,” Persicke stated.

Kalispell attorney Duncan Scott, who represents Atkinson, said he believes the Whitefish city attorney is wrong.

“Montana law allows initiatives on legislative matters,” Scott said. “The proposed petition amends the Whitefish city charter. Amendments to a city charter unquestionably are legislative.”

Persicke based much of her opinion on a 1998 ruling in the town of Whitehall vs. Preece, in which the Montana Supreme Court ruled that under the state Constitution, the people retain the powers of initiative and referendum for legislative acts only.

Scott said Persicke’s opinion denying a public vote on the new City Hall is based on politics, not the law.

“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 said. “After we win in the state Supreme Court in two to three years we can start our petition drive, with the election on our proposed charter amendment in 2018 or so.”

By then, Scott said, the new City Hall will be built and the petition will be moot.

Scott said his client won’t sue the city, even though “we’re confident we’d win.”

Given the time frame of a court challenge, “we’re in an untenable situation,” he added. “By taking an illegal position, the mayor and city councilors have effectively kept the public from voting on the multimillion-dollar City Hall.”

Scott is the same attorney who represented four Whitefish-area residents who successfully challenged a referendum at the center of the long-running “doughnut” planning jurisdiction dispute between Whitefish and the county.

In that case, the Montana Supreme Court ruled that an interlocal agreement between the city and county was not subject to referendum, ultimately giving control of the planning jurisdiction to the county.

“This is the second time the city attorney has been wrong on petitions,” Scott said. “Four years ago, [Whitefish City Council member] Richard Hildner wanted a public vote on the legal settlement between Whitefish and Flathead County on the doughnut dispute. We warned the city attorney at the time that referendums were not allowed on contracts between government entities because contracts are not legislation.

“The city attorney approved the petition anyway because the mayor and others on the City Council wanted this public vote,” Scott said. “Both the local District Court and state Supreme Court said the Whitefish city attorney was wrong and declared the referendum illegal.”

Features editor Lynnette Hintze may be reached at 758-4421 or by email at lhintze@dailyinterlake.com.