The Kenai Peninsula Borough has been in a legal battle over its invocation policy for months. Hearings in that case aren’t scheduled until early 2018, but the borough has settled another court battle. Kenai Peninsula Borough Assembly member Willy Dunne settled his lawsuit last week over a legal agreement Borough Mayor Mike Navarre entered, contracting legal services in the invocation case.
The legal saga of the Kenai Peninsula Borough’s contentious invocation policy has been a long one. The controversy began when Satanic Temple member Iris Fontana ended her invocation last summer with the words “hail Satan.”
The borough assembly reacted in October by passing a resolution restricting who could give invocations, replacing its previous first-come-first-serve policy. The American Civil Liberties Union of Alaska is suing the borough over the move.
Assembly member Dunne thought the policy shift was discriminatory, and he introduced an ordinance to do away with invocations in February.
The proposal failed in April. But, as the ordinance was under legal review, Dunne says Borough Attorney Colette Thompson alerted him he would need to submit any public commentary about his proposal or the invocation issue to the Alliance Defending Freedom, a Christian-based legal firm providing pro bono services to the borough. Dunne submitted an op-ed he was planning to publish in local and regional newspapers.
“That rubbed me the wrong way obviously, and I thought I shouldn’t be required to submit anything for prior approval,” Dunne explained. “I did it on the request of the borough attorney. Then I was informed that the Alliance Defending Freedom did not approve of my opinion piece and that I would not be allowed to publish it.”
Alliance Defending Freedom is representing the borough in the invocation case. According to the contract Mayor Navarre signed, the “client” or borough is not allowed to make any public comments without the firm’s approval.
Dunne also included Navarre in the lawsuit for entering the contract, alleging he never consulted with the assembly. The document doesn’t directly say who is considered a client, but Dunne says it restricted his rights.
“That contract inferred that I needed to have prior approval from the Alliance Defending Freedom for anything I discussed regarding the invocation issue. Our settlement makes it clear that I can speak freely,” he said.
The contract also says that in exchange for services, Alliance Defending Freedom can use the borough’s image and may require recorded testimonials for fundraising.
Navarre explains there was some confusion over Dunne’s op-ed, but adds the borough never told him he couldn’t publish his opinion piece. Navarre adds the borough preferred that he didn’t publish it, for fear it would undermine legal firm’s work.
“If somebody from the borough does something that hurts their ability to defend us, then it may impact the contract,” Navarre explained. “In fact, they may decide they don’t want to defend us anymore because we’re undermining their ability to defend us. That’s why that provision was in there.”
Navarre notes the borough was looking for the most cost effective way to handle the invocation when it decided to use the legal firm’s pro bono services. He says the legal document’s language is typical for these types of agreements and that assembly members are allowed to speak freely under that contract.
“In this case, it was an unfortunate misunderstanding, and it ended up costing the borough and Willie in order to find a resolution, but we found a resolution,” Navarre said.
The settlement states Dunne is not required to support Alliance Defending Freedom’s fundraising efforts, and the borough also agreed to pay Dunne $10,000 for his legal fees.
Dunne is still dissatisfied with the borough’s invocation policy, but does not have any plans to introduce another ordinance.
“However, five assembly members are up for election in October. We may have new faces on the assembly. I will assess that in the fall and see how we want to proceed,” he said.
As for the invocation case, Anchorage Superior Court Judge Erin Marston scheduled a trial week in late February next year.