Commission does not have the right to fill vacancy

To the editor,

Recently the City Commission determined it would appoint Leo Morris to the unexpired term of Gail Beil, who had resigned from the Commission and, sadly, passed away. It is my understanding that the Commission undertook this unprecedented step and extra charter action on the theory that the Commission can essentially interpret the City Charter how it wishes, in matters of ambiguity. However, there is clearly no ambiguity in the charter regarding unexpired terms on the Commission. A special election is called, and the district is represented by all of the sitting commissioners until a new commissioner is elected.

Neither our charter nor precedent allows for appointment to fill vacancies. In the past, when we had a death or resignation on the commission, the seat remained unfilled until the next available election date, where a special election is held to fill the unexpired term. This was the policy followed when Commissioner Katie Jones died in office. This was the policy followed when Commissioner Louis Brock resigned his seat. When Commissioner Jones died, her seat was filled at the next election. Gloria Moon was the only candidate who filed for the position, she was declared the winner, and the actual election was cancelled per state statute, because there was no opponent. However, she did not and could not hold office until after the official election date and oath of office. She did attend some of the meetings before the May election date and her swearing in to office. At those meetings, she asked to sit at the dais in order to better observe the meetings. The commission granted her permission to sit at the dais as a courtesy, but she was not allowed to participate in deliberations, or to vote on any matters before the commission.

Under the Charter, the commission only appoints to fill unexpired terms for vacancies of officers and appointees, such as officeholders serving on the Zoning Board. Filling the unexpired terms of commissioners is done by special election only. Since the legislature about two or three sessions ago eliminated the additional uniform election dates, there are now only two uniform election dates each year, in May and November. The next available uniform election date is May.

Below are pertinent charter sections, and underscored in bold the pertinent charter text as follows:

“· Sec. 32. — Resignation—Generally, tendering in writing, ordering, filling of vacancy.

All resignations by officers of said city shall be tendered in writing to the commission, and if such resignation is accepted, the commission shall order the vacancy filled by election of the people or by appointment as the case may be, in accordance with this charter and the laws of the city in such cases made and provided.

(Char. 1909, § 57) Cross reference— For additional provisions as to resignations, see §§ 34, 72.

· Sec. 33. — Same—By appointees.

Appointees to office by the commission wishing to resign, shall tend their resignation to the commission and if accepted, the said commission shall have the power to fill such vacancy by reappointment.

(Char. 1909, § 58)

· Sec. 34. — Filling vacancies—Providing therefor.

The commission shall, when vacancies occur in any office by resignation or otherwise, provide for the election or the appointment as the case may be, to fill such vacancies, such election or appointment to be for the unexpired term only.

(Char. 1909, § 53; Amended 1927) Cross reference— For additional provision as to filling vacancy, see § 32.

· Sec. 35. — Same—Election therefor.

In case of the vacancy of the office of any elective officer by death, resignation, failure or refusal to qualify, or for any other cause, the commission shall order an election to take place to fill such vacancy, at a date to be fixed, not later than thirty days after such vacancy occurs, and shall give ten days’ notice thereof, published in the official newspaper of the city. In case of a vacancy in the commission, the remaining commissioners shall do and perform all of the duties incumbent on such officer until the election and qualification of a successor. In case of a vacancy in the office of city secretary, the commission shall appoint some suitable person to perform the duties of such office until such city secretary is elected and qualified.

(Char. 1909, § 60)”

A careful reading of the charter provisions draws a distinction between elected officials, and other office holders and appointees on how to fill vacancies. This is the interpretation of past city commissions and city attorneys. Any action of the city outside of what is permitted by the charter would be null and void, and could call into question any votes of the commission in which an appointee participated.

Sincerely, Former Mayor Ed Smith