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March 16, 2004 > City Council Vacancies - How are they handled?

City Council Vacancies - How are they handled?

The recent primary election victory by Newark City Councilmember Alberto Torrico brings up an interesting question. What happens when a city council seat is vacated prior to the expiration of the elected term of office? The question was posed to Newark City Attorney, Gary Galliano, since the City of Newark may face this issue. If Mr. Torrico is elected to represent the 20th Assembly District of California, the remainder of his term would need to be filled by another citizen...or would it?

According to Mr. Galliano, vacancies can occur for many reasons including death, resignation, an inability to perform the duties of office or obtaining an incompatible office, or a "whole list of reasons."

Newark is a "General Law" city meaning that it operates under government codes that regulate the operations of the city rather than a unique set of rules defined by a "charter."

Galliano: When a vacancy occurs, the government code gives the city council an option. The city council may either appoint someone to fill the vacant seat for the balance of the unexpired term or may call a special election on one of "specified" dates. The key to that is that the code provides that from the date of the call of the election, there has to be at least 114 days to the election. The code does not establish a priority for either option.

State law not only sets the date you can have a special election, but it also provides the "window" of time in which an election can be called. Looking at the calendar, if the election is called on January 1st, the soonest regularly established Election Day is the first Tuesday of March. That is too soon, since 114 days will not have expired at that time. The next established election date is in June of an odd numbered year.

The other option for the council is to appoint someone to fill the vacancy for the unexpired term. In the case of Mr. Torrico, if he vacated his seat on the Newark City Council, his term on council would normally expire November '05 and someone could be appointed to fill the seat for the months remaining.

TCV: If the council is evenly divided over which course of action they prefer, what happens?

Galliano: This would mean that a motion to appoint would not pass and there would not be an appointment. An election would have to be called to fill the unexpired portion of the term. If there is an appointment, it must occur within 30 (thirty) days of the vacancy. If there is no decision by the council within that period, than a special election will be held on the next regularly established election date so long as it is not sooner than 114 days from the date of the call of the election.

TCV: Can someone hold more than one office simultaneously?

Galliano: There is a general doctrine of what is called the "incompatibility of offices." If the duties and responsibility of the offices are "inimical" (injurious or harmful) presenting the potential for conflicting duties, they are deemed incompatible. For example, a member of the city council cannot be a member of the School Board at the same time.

TCV: So holding a state assembly office might have effects on the city as well and therefore be incompatible.

Galliano: Yes, the California Attorney General has twice rendered formal opinions that the offices of state legislator and city council member are incompatible.

The City of Newark has had some experience with a vacancy when Councilmember Boggs moved from Newark during her term and voluntarily resigned her seat. The timing was close to the end of her term. There was neither an election nor an appointment in that case because the next regularly scheduled election date was not until November when the term expired and [the seat was open for election anyway].

TCV: During a period when only four councilmembers are seated, can council business be conducted?

Galliano: A quorum is three, so business can be conducted as long as three members are present. For most votes, a majority vote will carry a motion; conceivably, a vote of two to one could mean approval. If there was one vacant seat and two council members were absent due to illness, for example, there would be a problem since the remaining two council members would not constitute a quorum.

There are some things that require four affirmative votes, but generally you can do business with a quorum. An example where four votes would be necessary is the condemnation of property since on a five member council, four votes out of five seats are necessary to achieve the two-thirds majority required by law. Therefore with only four on the council, all would have to vote affirmatively.

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