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01-15-2013 - Options for Filling Vacancy of City Council Seat by Appointment or by Calling for a Special Election0 • City of West Covina Memorcr»dum AGENDA TO: Christopher J. Chung, City Manager ITEM NO. 7 and City Council DATE January 15, 2013 FROM: Susan Rush, Assistant City Cleric SUBJECT: OPTIONS FOR FILLING VACANCY OF CITY COUNCIL SEAT 13Y APPOINTMENT OR 13Y CALLING FOR A SPECIAL ELECTION RECOMMENDATION: It is recommended that the City Council review the options set forth and either fill the vacancy of the City Council seat by appointment or fill the seat by conducting a special election. DISCUSSION On January 7, 2013, Councilmember Michael Toulley submitted a letter of resignation from the West Covina City Council. Councilmember Touhey's resignation was effective immediately, thereby creating a vacancy on the City Council. This report will outline the options available to the City Council for filling the vacancy. The City is governed by California Government Code Section 36512 (Attachment A) which states: If a vacancy occurs in an elective office provided for in this chapter, the council shall, within 60 days fiom the conrimencement of the vacancy, either rill 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 far 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. I — 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 Touhey which will expire November 2013. This would require a majority of the 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 ,rill the unexpired term. If the City Council chooses to fill the vacant seat by appointment, it must be accomplished on or before March 8, 2013. 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 appointment must be filled within 60 days from the vacancy, no later than March 8, 2013. OPTION NO. 2 — CALL FOR A SPECIAL ELECTION AT THE NEXT REGULARLY ESTABLISHED ELECTION DATE If the City Council were to call for a special election and not make an appointment to till the unexpired term ending in November 2013, the above Government Code mandates that the special election be conducted in cogjunction with the next regularly established election date which is held no sooner than 114 days from the call of the special election. California Elections Code Section 1000 (Attachment B) defines established election dates. The nett, regularly established election date to conduct a special election that meets the above criteria is June 4, 2013. However, in order to conduct a special election and to meet the criteria of "no sooner than 114 days from the call of the special election" the City Council would be required to call the special election no later than February 9, 2013. Calling for a special election anytime after February 9, 2013 would put the election date of June 4, 2013 sooner than 114 days. If a special election were to be called for June 4, 2013, the person elected would fill the position for the rest of the unexpired term, through November 2013. Anyone meeting the eligibility requirements for office could run. The seat would remain vacant until the newly elected member is sworn into office. Should the City Council choose this option, staff would return with the appropriate resolutions at a subsequent meeting. While calling a special election by February 9, 2013 is only 33 days into the 60 day period in which the City Council must make a decision in filling the vacant council seat, there are no other established election dates in 2013 which would meet the criteria for a sl)ecial election "no sooner than 114 days from the call of the special election." The only remaining established election date in 2013 would be November 5, 2013 which is the City's next scheduled general municipal election. OPTION NO 3 — KEEP SEAT VACANT UNTIL NOVEMBER _5, 2013 If the City Council were to choose to leave the council seat vacant until the general municipal election held on November 5, 2013 they could take action (motion to be carried by -a majority vote) after February 10 but before March 8, 2013 to not fill by appointment and not call for a special election and the seat would then remain vacant until the November 5, 2013 election. If the City Council takes no action by March 8, 2013, the seat would remain vacant until the next regularly established election date being November 5, 2013. CONCLUSION Tile above three options are available for City Council review and deliberation. If the City Council does not take any action within 60 days from the date of the vacancy, the vacant council seat will remain vacant until the general municipal election held oil November 5, 2013 (GC 36512(d)(3)). ALTERNATIVE The following options are available for City Council's consideration: I. Fill the vacancy by appointment prior to March 8, 2013 and select an individual to fill the remainder of the term expiring November 2013; 2. Define a method to fill the vacancy by appointment (i.e., applications process, letters of interest, interviews, etc.) and direct staff accordingly, and to bring results to subsequent meeting for appointment to fill the remainder of the tern expiring November 2013; 3. Call for a special election no later than February 9, 2013 to fill the vacancy at a special election to be held on June 4, 2013. This option would leave the seat vacant until the newly elected couneilmember took office following certification of election results, at a meeting in July and fill only the unexpired term through November 2013. 4. Take action after February 9, 2013 to not make an appointment or call for a special election which would result in the council seat remaining vacant until the November 2013 general municipal election; or 5. Do nothing prior to March 8, 2013, which would also .result in the council seat remaining vacant until the November 2013 general municipal election. FISCAL IMPACT: There is no fiscal impact, if the vacancy is filled by appointment to serve the remaining unexpired term. A cost estimate to hold a special election consolidated with the Los Angeles County Election on June 4, 2013 for one council seat only has been requested but not received as of the date of this report. A projected estimate election cost could range from $119,000 (cost provided to conducted a possible special election in 2012) to $275,000 (actual 11/08/2011 election cost). Election costs vary by the number of agencies sharing costs of -an election date. Prepared by: Approved by: Susan Rush, Assistant City Clerk At cold Alvarez Glasman, City Attorney Attachment A: Government Code Section 36512 Attaclvnent B: Elections Code Section 1000 Attachment A Government Code Section 36512 36512. (a) If a vacancy occurs in an appointive office provided for in this chapter, the council shall fill the vacancy by appointment. A person appointed to fill a vacancy holds office for the unexpired term of the former incumbent. (b) If a vacancy occurs in an elective office provided for in this chapter, the council shall, within 60 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. (c) Notwithstanding subdivision (b) and Section 34902, a city may enact an ordinance that does any of the following: (1) Requires that a special election be called immediately to fill every city council vacancy and the office of mayor designated pursuant to Section 34902. The ordinance shall provide that 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. (2) Requires that a special election be held to fill a city council vacancy and the office of mayor designated pursuant to Section 34902 when petitions bearing a specified number of verified signatures are filed. The ordinance shall provide that the special election shall be held on the next regularly established election date not less than 114 days from the filing of the petition. A governing body that has enacted such an ordinance may also call a special election pursuant to subdivision (b) without waiting for the filing of a petition. (3) Provides that a person appointed to fill a vacancy on the city council holds office only until the date of a special election which shall immediately be called to fill the remainder of the term. The special election may be held on the date of the next regularly established election or regularly scheduled municipal election to be held throughout the city not less than 114 days from the call of the special election. (d) (1) Notwithstanding subdivision (b) and Section 34902, an appointment shall not be made to fill a vacancy on a city council if the appointment would result in a majority of the members serving on the council having been appointed. The vacancy shall be filled in the manner provided by this subdivision. (2) The city council may call an election to fill the vacancy, to be held on the next regularly established election date not less than 114 days after the call. (3) If the city council does not call an election pursuant to paragraph (2), the vacancy shall be filled at the next regularly established election date. Attachment B Election Code Section 1000 1000. The established election dates in each year are as follows: (a) The second Tuesday of April in each even -numbered year. (b) The first Tuesday after the first Monday in March of each odd -numbered year. (c) The first Tuesday after the first,Monday in June in each year. (d) The first Tuesday after the first Monday in November of each year.