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12-07-2010 - Presentation of Options for Filling Vacancy of Cit - Item No. 15 (2).doc City of West Covina Memorandum A G E N D A ITEM NO. 15 DATE December 7, 2010 TO: Andrew G. Pasmant, City Manager and City Council FROM: Arnold M. Alvarez-Glasman, City Attorney SUBJECT: PRESENTATION OF OPTIONS FOR FILLING VACANCY OF CITY COUNCIL SEAT AND EITHER FILL THE VACANCY BY APPOINTMENT OR BY CALLING FOR A SPECIAL ELECTION RECOMMENDATION: City staff recommends the City Council review the options set forth in this Agenda Report and either fill the vacancy of the Council seat by appointment or fill the seat by conducting a special election. DISCUSSION Due to the vacancy created by former Councilmember Roger Hernández being elected to the State Assembly, this report will outline options available for the City Council in filling this vacancy. Set forth below are the alternatives that the City Council must review and analyze in filling this position. The starting point for this discussion rests with California Government Code Section 36512(b), which reads: If a vacancy occurs in an elective office provided for in this chapter, the council shall, within 30 days from the commencement of the vacancy, either fill the vacancy by appointment or call a special election to fill the vacancy. The special election shall be held on the next regularly established election date not less than 114 days from the call of the special election. A person appointed or elected to fill a vacancy holds office for the unexpired term of the former incumbent. Based upon this Government Code Section, the options available for the City Council are set forth below. OPTION NO. 1 - FILL THE VACANCY BY APPOINTMENT Pursuant to the above cited Government Code Section, the City Council has the opportunity to fill the vacancy by appointing a registered voter of the City of West Covina to fill the unexpired term of former Councilmember Hernández. This would require at least three of the four remaining Councilmembers to agree upon who should be appointed to fill this seat. It should be noted that the City Council cannot appoint one of its existing members to fill the unexpired term. If the City Council was to fill the vacant seat by appointment, it must be accomplished on or before January 5, 2011. Neither the Government Code, the Elections Code nor the West Covina Municipal Code defines a specific procedure to carry out the appointment process. There is no requirement to advertise the vacancy, take applications or conduct interviews. Additionally, the codes do not mandate that the vacancy be filled by any candidate who ran in a previous city election. In other words, the law leaves the manner, process and ultimate decision of who gets appointed solely to the remaining members of the City Council. The only requirement is that the appointee must be a registered voter of the City at the time of his/her appointment and that the appointment must be filled within 30 days from the vacancy. OPTION NO. 2 - CALL FOR A SPECIAL ELECTION AT THE NEXT REGULARLY ESTABLISHED ELECTION DATE If an appointment to the vacant office is not made, the City Council shall call for a Special Election. The above Government Code mandates that the special election be conducted in conjunction with the next regularly established election which is held no sooner than 114 days from the call of the special election. A strict interpretation of this statutory language would require that any special election to fill the unexpired term must be conducted at the next regular election date. California Elections Code Section 1000(a) provides that the next regularly established election date would be the first Tuesday of the first Monday of March in each odd-numbered year or the first Tuesday after the first Monday of June of each year. Since there are not 114 days before the March 8, 2011 statutory election date, if the City Council follows the language of the Government Code and the Elections Code, the special election to fill this vacancy would be held on June 7, 2011. Regardless of the option chosen, the appointee or the winner of a special election will only be filling Councilmember Hernández’s unexpired term of office which ends in November 2011. CONCLUSION The above two options are available for City Council review and deliberation. If the City Council does not fill the vacancy by appointment within the first 30 days of the vacancy, a special election must be held. If the City Council does not call for a special election to fill the vacancy, the Government Code automatically mandates that the vacancy shall be filled by an election to be held on the next regularly established election date, which would be June 7, 2011. ALTERNATIVES: The following options are presented for the City Council’s consideration: Fill the vacancy by appointment and select an individual to fill the unexpired term Determine that the vacancy should be filled by appointment and define a method of filling the vacancy; or Call for a special election to fill the vacancy. FISCAL IMPACT: There is no or limited fiscal impact if the vacancy is filled by appointment. It is anticipated that a special election would cost an estimated $125,000. Prepared by: (approved via e-mail) Arnold M. Alvarez- Glasman, City Attorney Attachments: Government Code Section 36512 Elections Code Section 1000