Friday, January 23, 2015

Research Q of the Week: That Vacant Look (1/22/15)

Question: We are a statutory city and have a vacant council seat. How do we fill it?

Answer: It is hard enough to get city business done without being shorthanded. Alas, city council seats will occasionally become vacant—but they don't need to stay that way. State law sets a procedure for getting rid of that vacant look and getting back to full speed. Note: Charter cities may have different procedures for filling vacancies in their charters.

A council seat may become vacant for a number of reasons including:

•    Death of an office holder
•    Resignation of an office holder
•    Removal of an office holder
•    Termination of city residency by the office holder.
•    Failure of a candidate to qualify for office by taking the oath of office and obtaining an official bond
•    Conviction of an office holder of a felony or offense involving violation of the official oath
•    Failure of an office holder to participate in council activities for 90 days
•    Qualifying for a second or incompatible office by the office holder
•    Expiration of an officer holder’s elected term, if no one has been elected to fill the position. In that case, the incumbent fills the office until the council appoints a successor

After investigating the facts, if the council determines that a vacancy exists, it should declare a vacancy by resolution and appoint someone to fill the vacancy. A majority vote is enough to fill a vacancy. In the case of a tie vote, the mayor may appoint any qualified person to fill the vacancy. If the vacancy is in the office of mayor and there is a tie vote then the acting mayor makes the appointment.

A person must be a U.S. citizen, resident of the city, and at least 21 years old to be eligible for appointment to fill a vacancy. Some city councils have candidates apply to fill vacancies; others find candidates by word of mouth.

Special elections
A common area of confusion involves determining if a special election will be required to fill a vacancy. 

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 must be held at or before the next regular city election and the appointed person serves until a successor elected at the special election to fill the unexpired portion of the term qualifies for office.

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 serves until the qualification of a successor. In order to hold a special election at any time other than the regular city election, the council must adopt an ordinance specifying under what circumstances the election will be held.

For more information about city councils see the Handbook For Minnesota Cities Chapter 6 Elected Officials and Council Structure and Role.

Written by James Monge. 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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