CITY COUNCIL AGENDA ITEM
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
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
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.
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.
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
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.
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: