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CITY COUNCIL AGENDA ITEM NO. 28

Meeting Date: January 11, 2005

Subject/Title: Approve a Resolution Accepting a Resignation and Declaration of Vacancy, Procedures Governing a Vacancy on the City Council, and Taking Any Related Action To Fill the Vacancy

Prepared by: Dennis Beougher, City Attorney

Submitted by: Dennis Beougher, City Attorney

PREVIOUS ACTION AND RECOMMENDATION
At its December 14, 2004, City Council meeting, Councilmember Petrovich read a prepared written statement announcing that he decided to resign his seat on the City Council on or about January 31, 2005. Staff recommends acceptance of Councilmember Petrovich’s resignation and declares a vacancy.

The City Council must take appropriate action to fill the vacancy by either: (a) appointing a successor; or (b) calling a special election so the voters may elect a successor. Staff seeks the City Council’s direction as to whether it will seek to fill the vacancy by an appointment of a successor or to call for a special election. After a determination has been made by a majority of the Council, staff will prepare an appropriate resolution for adoption.

If the City Council decides that a special election is appropriate, staff seeks direction as to whether it would like to see a draft ordinance placed on the January 25th City Council agenda that would allow the City Council to make an interim appointment to serve until a special election is held, the successful candidate of the special election will serve the remainder of the term.

BACKGROUND
The Council is legally required to take steps to fill the vacancy within thirty (30) days of the “commencement of the vacancy”. This would be the effective date of Councilmember Petrovich’s resignation or the date of the Council’s acceptance of the resignation and the Council’s declaration of the vacancy. (Gov’t Code section 36512(b).) Assuming the resignation is effective by the City Council’s acceptance and declaration of a vacancy, the City Council must act on appointment or call for a special election by February 10, 2005.

As it exists now, the Council has only two options under the law:

(1) appoint a successor; or
(2) call a special election so the voters may elect a successor.

A third option could be available if the City Council calls a special election. The City Council could enact an ordinance by which the Council would make an interim appointment to serve until a special election is held, the winner of the special election would serve the remainder of the term.

A discussion of each option follows.

Appointment.
If the Council chooses to proceed by way of appointment, it can do so by majority vote of the Council. The Council has flexibility in the process to be used. The appointment must be done at a public meeting. A person so appointed holds office for the unexpired term of the former incumbent. (Gov’t Code section 36512(a).) It should be noted that Councilmember Petrovich cannot be appointed to fill the vacancy created by his resignation. Government Code section 1752.

One procedure frequently used for appointments of this type is for the Council to decide that it intends to proceed by appointment and announce that those interested in being appointed should submit applications by a certain date; then review the submitted applications and make the appointment by majority vote at a public meeting; if the Council wishes to conduct interviews of the applicants, it can do so at the same public meeting or at another public meeting held before the meeting at which the appointment is made. In view of the fact that such an appointment in the present situation would be for a period of almost 4 years, following this or some similar procedure would minimize potential criticism that the Council acted with undue haste.

A benefit of appointing a successor to fill the vacancy is that the new Councilmember would take office almost immediately, and the Council would have a full complement of five members to carry out its work. A downside of proceeding by appointment is that the appointee would serve for almost a full 4-year term without being elected by the people.

Special Election.
Should the City Council decide to fill the vacancy by special election rather than appointment, the Council must call for a special election to be held on the “next regularly established election date” not less than 114 days from the call of the special election. (Gov’t Code section 36512(b).) That date would be June 7, 2005, as discussed below.

While Brentwood Municipal Code section 2.10.010 provides that the general municipal election date is on the same date as the statewide general election, Elections Code section 1000 provides that the “established election dates” for 2005 include March 8 (the first Tuesday after the first Monday in March) and June 7 (the first Tuesday after the first Monday in June). It is too late for a March 8 special election; however, there is time to call a special election for June 7 if a vacancy is declared no later than January 25th. A person elected holds office for the unexpired term of the former incumbent. (Gov’t Code section 36512(a).)

A benefit of holding a special election is that Councilmember Petrovich’s unexpired term is for almost four (4) years, and some may consider an election to be the most appropriate way to decide who is to occupy the office for that length of time. In the interim, the City Council will be operating with only four members. An additional downside element of holding a special election may be the potential out-of-pocket cost to the City. According to the Contra Costa County Elections Department, the estimated cost of a special election is $4 per voter. The City has approximately 18,500 registered voters, so the estimated cost of a special election would be $75,000.

Enact Ordinance Providing For Interim Appointment Subject to Special Election, Make Interim Appointment and Call Special Election.
A special statutory procedure governs in the event the Council would like to call a special election and appoint an interim Councilmember to serve until the special election is held. Government Code section 36512(c)(3) authorizes the Council to enact an ordinance providing that a person appointed to fill a vacancy on the Council holds office only until the date of a special election called to fill the remainder of the term; under the present circumstances, the special election would be held on June 7, 2005.

As is evident, this is a somewhat more complex process than either (a) or (b) above. Its benefits include allowing an interim appointee to fill a vacancy until a successor is elected in June 2005. Its drawbacks include requiring passage of an ordinance providing the appointment is for an interim period and calling a special election.

If the Council wishes to proceed with this option, I recommend it make the appointment only after the ordinance is enacted and becomes effective. In such event, a truncated appointment process could be utilized given the short duration the appointee would hold office. While not entirely clear, Gov’t Code section 36512(c)(3) can be reasonably interpreted to authorize the Council to utilize a single ordinance both to call a special election and to specify that any appointee to fill the vacancy would hold office only until the special election is held. Although typically ordinances do not become effective until 30 days after passage, this does not apply to “an ordinance calling or otherwise relating to an election.” (Elections Code section 9235(a).) Thus, once the Council passes such an ordinance, it could proceed to make the interim appointment without waiting thirty (30) days. If the Council wishes to proceed on this course, I will prepare an ordinance to authorize such an interim appointment.

FISCAL IMPACT
If the City Council decides that a special election is appropriate, the City Clerk has received an estimate of $4 per voter from the Contra Costa County Elections Department. Based on this rate, it would cost the City approximately $75,000 to hold the special election.

CITY COUNCIL RESOLUTION NO. 05 –

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD ACCEPTING THE RESIGNATION OF COUNCILMEMBER MILAN PETROVICH AND DECLARING A VACANCY

WHEREAS, at the City Council’s regularly scheduled meeting on December 14, 2004, Councilmember Milan Petrovich read a prepared written statement announcing his decision to resign his seat on the City Council and gave the written statement to the Mayor and such statement has become part of the records of the City Council maintained by the City Clerk; and

WHEREAS, Councilmember Petrovich stated that the resignation would occur on or about January 31, 2005 to give the City Council time to decide how to fill the vacancy; and

WHEREAS, the City Council is required to take steps to fill the vacancy within thirty (30) days of the commencement of the vacancy; and

WHEREAS, the City Council has three options to fill the vacancy, as follows:

(a) appoint a successor; or
(b) call a special election so the voters may elect a successor; or
(c) enact an ordinance by which the Council would make an interim appointment to serve until a special election is held, the winner of which would serve the remainder of the term; and

WHEREAS, Elections Code section 1000 provides that the established election dates for 2005 shall be March 8, June 7, and November 8 (the first Tuesdays after the first Mondays in March, June, and November); and

WHEREAS, it is too late for a March 8, 2005, special election, therefore the next election date is June 7, 2005; and

WHEREAS, the next date available after June 7, 2005 for a special election is November 8, 2005; and

WHEREAS, the City Council must act on or before February 10 to call a special election for June 7, 2005, should it choose that course in order to fill the vacancy created by Councilmember Petrovich’s resignation.

NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Brentwood hereby finds and determines that:

1. It accepts the resignation of Councilmember Milan Petrovich.
2. Upon the City Council’s acceptance of Councilmember Petrovich’s resignation, a vacancy has occurred as of January 11, 2005.
3. The City Council will proceed in accordance with the law to fill the vacancy within 30 days, which is on or before February 10, 2005.

PASSED by the City Council of the City of Brentwood on January 11, 2005, by the following vote:

AYES: Councilmembers
NOES:
ABSENT
ABSTAIN:

Mayor

ATTEST:
______________________________________
 

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