Thursday, July 17, 2014

Research Q of the Week: Starting a New Chapter After a Council Vacancy (7/16)

Question: Things are good. The sun is shining. The birds are chirping. But a councilmember just left their council seat and it feels like trouble is looming on the horizon.  Now what do we do?

Answer: First, some basics. A vacancy occurs when a councilmember resigns, moves from the city, or for any of the other reasons in Minnesota Statute § 351.02 can no longer serve. Once the position has been vacated, the council must use a resolution to declare the seat vacant and begin work to appoint a successor to the seat in accordance with Minnesota Statute § 412.02,subd. 2a. 

Many cities choose to openly advertise the vacancy to ensure that high quality candidates can be found and to eliminate any appearances of closed dealing. A successor can be any individual that is eligible to vote in a municipal election. After candidates have been found, the remaining members of the council vote to appoint a successor. If there is a tie vote, the mayor may appoint any qualified individual and is not limited to the list of successor candidates.

Yeah but, how long do they serve?
Minnesota law plainly requires the council to appoint a successor, but the law is less clear about how long the appointed successor will serve.  In some cases the appointee will complete the full length remaining in the vacated term, and in other cases the appointee will only complete part of the remaining term.  How can you know what to do? 

—Let's try a "choose your own adventure" tactic to get your answer. Please note that these scenarios assume that the vacated position was initially elected to a four-year term and that the word “councilmember” includes mayors.

Was your vacancy ...

During the first year?
Then: Council appoints a successor to temporarily fill the position.  The city must also hold a special election at or before the next municipal election to elect a successor.  The appointee holds the position until the elected successor qualifies, at which point the elected successor will complete the remaining term.

During the second year?
Then: Council appoints a successor to fill the position and, depending upon when the vacancy occurred, there might or might not need to be a special election.  This is determined by the date a vacancy occurs in relation to the first day to file an affidavit of candidacy in the next municipal election. … Got that? Here’s a tip: this date changes slightly from year to year, but is generally between late May and late July depending upon whether or not the city has a primary election. For 2014, that date is May 20 for cities with a primary election and July 29 for cities without a primary election.

If the vacancy occurs before the first day to file an affidavit of candidacy then the appointee will serve temporarily until an elected successor qualifies after winning a special election at or before the next municipal election.  The elected successor will complete the remaining term. 

If the vacancy occurs on or after the first day to file an affidavit of candidacy then there does not need to be a special election and the appointee will complete the remaining two years of the term. 

During the third or fourth year?
Then: Council appoints a successor to fulfill the remainder of the term. 

For cities in which the mayor has a two-year term, an appointee may complete the remaining term without a special election.

So go enjoy the rest of your day. Vacancies happen, but Minnesota cities have a process in place to handle them, rain or shine.

For more information, check out the League’s Calendar of Important Dates, Cities Special Elections memo, or contact the Research Department.
Written by Jake Saufley. Contact the League's Research and Information Service staff by emailing research@lmc.org, or by calling (651) 281-1200 or (800) 925-1122.

This blog post conveys general information. It’s not legal advice. Please check with your city attorney before acting on this information. 


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