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CITY COUNCIL AGENDA ITEM NO. 16

Meeting Date: February 8, 2005

Subject/Title: Procedures Governing a Vacancy on the City Council, and Related Action To Fill the Vacancy

Prepared by: Marguerite Mary Leoni, Special Counsel

Submitted by: Marguerite Mary Leoni
Nielsen, Merksamer, Parrinello, Mueller & Naylor

RECOMMENDATION
On December 14, 2004, Council Member Petrovich declared his intention to resign from the City Council on or about January 31, 2005. A resignation creates a vacancy by operation of law. (Gov’t Code § 1770.). The City Council must take appropriate action within 30 days of the vacancy by either: (a) appointing a successor; (b) calling a special election so the voters may elect a successor; or (c) enacting 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.

After a determination has been made by a majority of the Council, staff should be instructed to prepare an appropriate resolution for adoption.

If the City Council decides to proceed by way of special election, it should also give direction to staff as to whether the Council would like to see a draft ordinance placed on the next Council agenda that would allow the City Council to make an interim appointment to serve until a special election is held, the successful candidate at the special election would 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 the resignation. (Gov’t Code section 36512(b).)

The Council has only two options under the law, unless it enacts an ordinance as described below:

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

As a third option, the City Council could enact an ordinance under 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 unexpired term of Council Member Petrovich.

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).)

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.

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 consideration in proceeding by appointment is that the appointee would serve for almost a full four-year term without being elected by the people. If the Council chooses this option, it should also design a procedure that it believes would be appropriate in light of the length of the appointed term.

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).) The next date for such special election 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 occurs no later than February 10th. The next established date for an election after June 7, 2005 would be November 8, 2005. 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 the unexpired term is for almost four 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 until the election, 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. I am informed that, 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. If the special election is delayed until the November, the cost could be shared with another election, but we do not know yet whether there will be a statewide special election in November. We may not know that until late April.

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 could be held on June 7, 2005 or November 8, 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. Its drawbacks include requiring passage of an ordinance providing for appointment 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 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.” (Elec. 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, an ordinance will need to be prepared authorizing such an interim appointment.

FISCAL IMPACT
If the City Council decides that a special election is appropriate, I am informed that 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 in June. If the special election is placed on the November 8, 2005 ballot, there is a possibility the costs would be approximately half of the estimated June election costs.

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD DECLARING A VACANCY

WHEREAS, on December 14, 2004, Council Member Petrovich declared his intention to resign from the City Council on or about January 31, 2005; and

WHEREAS, a resignation creates a vacancy by operation of the law; 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) if a special election is approved, to 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 established election dates are June 7, 2005; and November 8, 2005; and

WHEREAS, the City Council must act on or before February 10, 2005 to call a special election for June 7, 2005, should a vacancy occur before February 10, 2005.

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

1. Upon the resignation of Council Member Petrovich a vacancy exists on the Brentwood City Council.
2. The City Council will proceed in accordance with the law to fill the vacancy within 30 days.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 8th day of February, 2005 by the following vote:
 

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