Loading...
HomeMy WebLinkAbout2D, Council VacancyARENHILLS Request for Council Review Prepared By: Patrick Klaers, City Administrator Worksession Date: November 15, 2010 Council Vacancy Discussion Topic: Staff is requesting direction on the process and timing for filling the vacant Council seat resulting from David Grant's election to Mayor. Supporting Documents: 1. Memorandum dated November 15, 2010 from Patrick Klaers. 2. League of Minnesota Cities Handbook excerpts. 3. League of Minnesota Cities article on Council vacancies. 4. State Statute 412.02, Subd. 2a regarding vacancies. EN HILLS MEMORANDUM DATE: November 15, 2010 TO: FROM: Patrick Klaers, City Administrator SUBJECT: Council Vacancy Honorable Mayor and City Council Members In January, 2011 after David Grant is sworn in as Mayor, there will be a vacancy on the City Council. This item is on the work session agenda so that staff can receive direction on the process and timing that the Council would like to follow in filling this vacant position. I have already received two inquiries regarding this upcoming vacancy. Attached for your review is some material from the League of MN Cities and the relevant subdivision of the State Statutes that discusses Council vacancies. Minn. Stat_ 412.02, subd. 2b. See LMC Information Memo, Official Conflict ofInterest for more information. Minn. Stat. 412.02, subd. 2. Minn. Stat. 351.07. Minn. Stat. 412.02, subd. 2a. A.G. Op. 59a -30 (July 24, 1996). See "Vacancies on a Statutory City Council," Minnesota Cities, Oct. 2000. Minn. Stat. 412.02, subd. 2a. A.G. Op. 471 -M (Oct. 30, 1986). HANDBOOK FOR MINNESOTA CITIES CHAPTER 6 7. 90 -day absence rule A vacancy in the office of mayor or councilmember may be declared by the council when the office holder is unable to serve in the office or to attend council meetings for a 90 -day period because of illness, or because of absence from or refusal to attend council meetings for a 90 -day period. If any of the preceding conditions occurs, the council may, by resolution, declare a vacancy and then fill it at a regular or special council meeting. The appointed councilmember will serve for the remainder of the unexpired term, or until the absent councilmember is again able to resume duties and attend council meetings, whichever is earlier. When the absent councilmember is able to resume duties and attend council meetings, the council shall, by resolution, remove the temporary office holder and restore the original office holder. 8. Qualifying for a second or incompatible office If an officer accepts a second office that is incompatible with the first, the first office is automatically vacated. (Section H of this chapter discusses incompatible offices in more detail.) 9. Expiration of elected term Generally, the vacancy occurring at the conclusion of an incumbent's term of office is filled immediately by the successor. If no one has been elected, the incumbent fills the office until the council appoints a successor and that person qualifies for the office. 10. Habitual drunkenness State law provides that the habitual drunkenness of any person holding office is good cause for removal from office. F. Filling vacancies While a council might identify and declare the facts giving rise to a vacancy, for all practical purposes they occur automatically and are not based upon any removal action. Because the council must fill vacancies in elective offices, it should determine whether a vacancy exists. After investigating the facts, the council should pass a resolution declaring a vacancy and then fill it as soon as possible. State law provides that statutory city councils make the appointment to fill a vacancy, except in the case of a tie vote when the mayor makes the appointment. That means all members of the council, including the mayor, can vote on the appointment. And as long as at least a quorum of the council is present, a majority vote of those present is sufficient to make the appointment. This chapter last revised 9/2010 6:7 Minn. Stat. 412.121; Minn. Stat. 471.46. Minn. Const. art. VII, 6. Minn_ Stat. 415.15. A.G. Op. 471 -M (Dec. 27, 1977). Minn. Stat. 412.02, subd. 2a. Minn. Stat. 412.02, subd. 2; A.G. Op. 471 -M (Nov. 23, 1999). Minn. Stat. 471.46. CHAPTER 6 State law does not place any limitation on a mayor's ability to make an appointment in the case of a tie vote. As a result, the mayor can appoint any qualified person willing to fill the vacancy even if that person was not the subject of the original appointment vote. If the vacancy is for the mayor's office and the council casts a tie vote, the acting mayor should make the appointment. The acting mayor may not, however, appoint himself or herself. The council may appoint any individual who is eligible for election to that office. Generally, to be eligible a person must be a U.S. citizen, a resident of the city, and at least 21 years old. The council is not obligated to appoint any candidate previously defeated in an election for the office. A retiring councilmember may not vote on the appointment of the successor to that vacancy. A councilmember who is elected mayor, however, may participate in the appointment vote to fill the vacancy in his or her former council position. Under certain circumstances, individuals appointed to fill council vacancies serve on a temporary basis, and the city must hold a special election to elect a permanent replacement to fill the vacancy. Two factors determine whether an election is required: first, whether filing has opened for the next regular city election, and second, the length of the unexpired portion of the :term at the time of the vacancy. If the vacancy occurs on or after the first day to file as a candidate for the next regular city election or if less than two years remain in the unexpired term, the city does not need to hold a special election, and the appointed person can serve out the remainder of the unexpired term. In the alternative, if the vacancy occurs before the first day to file as a candidate for the next regular city election and more than two years remain in the unexpired term, the city must hold a special election to fill the council vacancy at or before the next regular city election, and the person elected will serve out the remainder of the unexpired term. If the council chooses to hold a special election to fill a vacancy at a time other than at the regular city election, it must first adopt an ordinance specifying the circumstances under which such an election will be held. State law generally provides that the terms of elected city officials begin on the first Monday in January following the election. However, the attorney general has advised that a person elected to fill a vacancy is eligible to qualify and assume office upon receipt of an election certificate. G. Councilmembers ineligible to fill certain vacancies City councilmembers, including mayors and elected clerks, may not be considered to fill vacancies in other city elective offices if the council has the power to make the appointment to fill the vacancy. This rule applies even if a councilmember resigns the position on the council before the council makes the appointment. An exception to this rule is that the council may appoint one of its members to the office of either mayor or clerk. In such a case, the councilmember being considered for the appointment may not vote. 6:8 This chapter last revised 9/2010 HANDBOOK FOR MINNESOTA CITIES D Y O KNOW ne of your councilmembers sub- mits a written resignation. What do you do? This article answers some of the most frequently asked questions about vacancies on a statutory city council. State law provides that a council vacancy "shall be filled by council appointment" until a special election, if required, can be held (Minn. Stat. 412.02, subd. 2a) .The language of the state law is mandatory. As a result, a city must make its best effort to appoint a person to fill a council vacancy and cannot choose to leave a council position vacant until the term expires. State law does not require a council vacancy to be advertised. However, it is a good practice to provide some notice to the public before the council makes an appointment. This allows interested persons an opportunity to request consideration. Generally, a person must be a United States citizen, a resident of the city, and at least 21 years old to be eligible for appointment to fill a council vacancy. A city employee can be considered for appointment. However, if a city employee is appointed, it is possible that the two city positions may be incompatible. If a city employee is appointed to an incompatible office, he or she must resign from the other city position. A councilmember can be con- sidered for appointment to fill a council vacancy in the position of mayor as long as the councilmember being considered does not participate in the appointment vote. State law provides that the council makes the appointment to fill a vacancy, except in the case of a tie vote, when the mayor makes the appointment. That means all members of the council, including the mayor, can vote on the appointment. However, the council- Vacancies on a Statutory City Council By Susan Naughton member who submitted a written resignation should not participate in the appointment vote. As a practical matter, it may be useful to determine who the candidates for appointment are before voting takes place. As long as at least a quorum of the council is present, a majority vote of those present g :I 3'ez g�sZ' s''�'kvr,zy� f✓ `�XS'r 7' rs �f �s i x �tii s ^'7i� "The language of the state law i s mandatory. As a result, a city must make its best effort to appoint a person to 01 a council vacancy and canno choose to leave a council posh v acant u I the term expires is sufficient to make the appointment. State law does not place any limitation on a mayor's ability to make an ap- pointment in the case of a tie vote. As a result, a mayor can appoint any quali- fied person willing to fill the vacancy even if that person was not the subject of the original appointment vote. When is a city also required to hold a special election to fill a council vacancy? The answer depends on whether filing has opened for the next regular city election and how long is left in the unexpired portion of the term at the time of the vacancy. If the vacancy occurs on or after the first day to file as a candidate for the next regular city election or if less than two years remain in the unexpired term, the city does not need to hold a special election and the appointed person can serve out the remainder of the unexpired term. If the vacancy occurs before the first day to file as a candidate for the next regular city election and more than two years remain in the unexpired term, the city must hold a special election to fill the council vacancy at or before the next regular city election and the person elected will serve out the remainder of the unexpired term. If the council chooses to hold a special election to fill a vacancy at a time other than at the regular city election, it first must adopt an ordinance specifying the circum- stances under which such an election will be held. If a special election to fill a coun- cil vacancy is held at the same time as the regular city election, the names of the candidates for the council vacancy should be placed on the election ballot under a separate heading indicating it is a special election.The election ballot should state the date the term expires and any other information necessary to distinguish the office. The published and posted election notices should include references to the special elec- tion to fill the council vacancy. Finally, state law provides that the terms of elected city officials begin on the first Monday in January following the election. However, the Minnesota Attorney General has advised that a person elected to fill a council vacancy in a statutory city is eligible to take an oath and assume office any time after receiving an election certificate. ir Susan Naughton is research attorney with the League of Minnesota Cities. OCTOBER 2000 MINNESOTA CITIES 19 412.02, 2010 Minnesota Statutes Page 2 of 3 Subd. 2a. Vacancy. Except as otherwise provided in subdivision 2b, a vacancy in an office shall be filled by council appointment until an election is held as provided in this subdivision. In case of a tie vote in the council, the mayor shall make the appointment. If the vacancy occurs before the first day to file affidavits of candidacy for the next regular city election and more than two years remain in the unexpired term, a special election shall be held at or before the next regular city election and the appointed person shall serve until the qualification of a successor elected at a special election to fill the unexpired portion of the term. If the vacancy occurs on or after the first day to file affidavits of candidacy for the regular city election or when less than two years remain in the unexpired term, there need not be a special election to fill the vacancy and the appointed person shall serve until the qualification of a successor. The council must specify by ordinance under what circumstances it will hold a special election to fill a vacancy other than a special election held at the same time as the regular city election. Subd. 2b. Inability or refusal to serve. A vacancy in the office of mayor or council member may be declared by the council when the officeholder is unable to serve in the office or attend council meetings for a 90 -day period because of illness, or because of absence from or refusal to attend council meetings for a 90 -day period. If any of the preceding conditions occurs, the council may, after it has by resolution declared a vacancy to exist, fill the vacancy at a regular or special council meeting for the remainder of the unexpired term, or until the person is again able to resume duties and attend council meetings, whichever is earlier. When the person is again able to resume duties and attend council meetings, the council shall by resolution remove the temporary officeholder and restore the original officeholder. Subd. 3. Clerk, treasurer combined; audit standards. (a) In cities operating under the standard plan of government the council may by ordinance adopted at least 60 days before the next regular city election combine the offices of clerk and treasurer in the office of clerk treasurer, but such an ordinance shall not be effective until the expiration of the term of the incumbent treasurer or when an earlier vacancy occurs. After the effective date of the ordinance, the duties of the treasurer and deputy treasurer as prescribed by this chapter shall be performed by the clerk treasurer or a duly appointed deputy. The offices of clerk and treasurer may be reestablished by ordinance. (b) If the offices of clerk and treasurer are combined as provided by this section and the city's annual revenue for all governmental and enterprise funds combined is more than the amount in paragraph (c), the council shall provide for an annual audit of the city's financial affairs by the state auditor or a public accountant in accordance with minimum auditing procedures prescribed by the state auditor. If the offices of clerk and treasurer are combined and the city's annual revenue for all governmental and enterprise funds combined is the amount in paragraph (c), or less, the council shall provide for an audit of the city's financial affairs by the state auditor or a public accountant in accordance with minimum audit procedures prescribed by the state auditor at least once every five years, which audit shall be for a one -year period to be determined at random by the person conducting the audit. (c) For the purposes of paragraph (b), the amount in 2004 is 150,000, and in 2005 and after, $150,000 adjusted for inflation using the annual implicit price deflator for state and local expenditures as published by the United States Department of Commerce. https: /www.revisor.mn.gov /statutes ?id= 412.02 11/10/2010