Details of election guidelines

Here are the details of the laws and procedures related to the handling of filling the council president vacancy.  Randy Staver was elected 6-0 to fill in as temp council president.  In short the position could in theory continue beyond the November elections so Mark, Sandra, and myself should not assume the role because we could lose our seat before we have a new president.  In addition, election laws would prevent us from having media appearances.  Ed was not interested in the position, which left Bruce and Randy.  I respect Randy and was happy to support him>

Edit: Additional clarification per a question asked by Cindy Maves in the comments section.

As it stand right now on election day we would have Council President on the ballot twice on November 6.  Once for the regular election to serve from January 2013 to January 2017 and a second time to serve from November 7, 2012 to January 2013.  Having the same position on the ballot twice would likely cause some confusion.  Randy Staver is the temporary Council President.  The charter amendment would just eliminate the special election and Randy would continue to serve for the extra 2 months.  Until January the council will have only 6 members.

 

OFFICE OF THE CITY ATTORNEY
MEMORANDUM

DATE:    June 29, 2012

TO:    Mayor and Common Council

FROM:    Terry L. Adkins – Rochester City Attorney

SUBJECT:Council Procedures and Election Ballot Issues

It is difficult for me to write this memo given my 13 years as Dennis Hanson’s colleague, co-worker, legal advisor, and friend.  But, there are procedures and issues that the Council and City must address following Dennis’ death, and so we press forward.  The purpose of this memo is to provide some answers to questions many in and out of City Hall are asking.

COUNCIL PROCEDURES

Section 3.06, subd. 2 of the City’s Home Rule Charter states the following:

Councilmember-at-large.  The common council shall call a special election if the office of councilmember-at-large becomes vacant.  The elected successor shall serve until the next regularly scheduled election for that office and until the successor is elected and qualified.  The common council shall elect from among its members an “acting councilmember-at-large” to discharge the duties of that position until the special election is called and the successor is elected and qualified.

I have drawn the following conclusions from this charter provision.

1.    The Council must elect from among the current members of the Council an “acting councilmember-at-large.”  This appointment remains in effect until someone is elected at a special election to fill the unexpired term of Dennis’ term of office.

2.    There must be a special election called to fill the unexpired term of Dennis’ term of office.  This must occur despite the fact that the office of councilmember-at-large will appear on the November 6, 2012, general election ballot.  The above charter provision makes no exception to the special election requirement when a vacancy occurs shortly before a regularly scheduled general election at which the office which is now vacant will appear on the ballot.

3.    I assume the special election that must be called will coincide with the November 6th general election.  (State law prohibits holding a special election between the state primary election and the state general election.)  If that is the case, the person elected at the special election will serve as councilmember-at-large until January 1, 2013, or that date in January when the elected person takes the oath of office, whichever occurs first.

4.    There may be considerable public confusion should the office of councilmember-at-large be the subject of two separate elections occurring on the very same day.

5.    Based upon these conclusions, the following results are likely to occur:

A.    The Council will appoint one of its own as acting councilmember-at-large who will serve until the person elected at the November 6th special election assumes the office;

B.    The person elected at the November 6th special election will serve as councilmember-at-large until about January 7, 2013;

C.    The person elected at the November 6th general election will assume the councilmember-at-large office on or about January 7, 2013; and

D.    The three persons mentioned in the above scenarios may be the same person, two separate individuals, or three separate individuals.

Is it possible to avoid that special election on November 6th, and its associated expenses and confusion, since the person elected would only serve a few weeks?  The answer is yes.  How would that be accomplished?  The Charter would have to be amended to provide that, in the case of a vacancy in the Councilmember-at-large office occurring prior to the general election when that office is scheduled to be filled, the council-appointed “acting councilmember-at-large” would serve until the person elected at that general election assumes the office.  The Commission would have to agree to recommend such an amendment and the entire Council would have to approve it.  And those steps would have to satisfy the tight timeline noted on the last page of this memo.  It is doable, but it is a tight timeline.  In order to meet this timeline, the Council would have to initiate the process at its July 2nd meeting.

Without any amendment to the Charter, there will be a special election and a general election on November 6th for the office of councilmember-at-large.

ELECTION BALLOT ISSUES

Dennis Hanson successfully completed the process to have his name placed upon the November 6th general election ballot for the nonpartisan office of councilmember-at-large.  State law does NOT allow his name to be removed following his death.  Because Dennis never withdrew his name from the nomination process, Minn. Stat. §204B.13, subd. 4 explicitly states, “the candidates’ names must appear on the general election ballot.”  The Secretary of State’s election division confirmed this fact.

Furthermore, state law no longer declares the death of a nonpartisan candidate to result in a vacancy that would allow the reopening of candidacy filings for those wishing to run for that office.   As such, there is no legal process by which the filing period for the office of councilmember-at-large can be reopened.  The Secretary of State’s election division also confirmed this fact.

As such, the November 6th general election ballot for the office of councilmember-at-large will contain two names.  Dennis Hanson will be one of those names.  As permitted by state law, write-in candidates can seek the office.  But, their names will not appear on the ballot.

What happens if Dennis receives a majority of the votes cast at the November 6th general election?  A vacancy would then occur in the office of Councilmember-at-large effective January 7, 2013.  The Council would then invoke the Charter provision requiring the calling of a special election to fill the vacancy.  I would expect that special election would occur in the Spring of 2013.

If Dennis does receive a majority of the votes cast at the November 6th general election, a vacancy is declared, and the Council schedules a special election in the Spring of 2013 to fill the vacancy, who serves as Councilmember-at-large?  If no change is made to the current Charter provision, the person elected at the November 6th special election continues to serve until the vacancy is filled.  If the Charter is amended as suggested above, the Council-appointed “acting councilmember-at-large” continues to serve until the vacancy is filled.

I hope this information is helpful to you.

Cc:    Stevan E. Kvenvold
Gary Neumann
Judy Scherr

TIMELINE

Monday, July 2nd :        Council directs City Clerk to publish notice of public hearing on expected Charter Commission recommended Charter Amendment.  The public hearing will occur on July 23rd.

Week of July 3rd :      Charter Commission meets in a special meeting and recommends Charter Amendment to the Council for adoption.

Monday, July 23rd :      Council meets, in either a recessed or special meeting, to hear and approve the proposed Charter Amendment, and, by the vote of all council members, approves the first and second readings of the ordinance adopting the proposed Charter Amendment.

Saturday, July 28th :      City Clerk causes the proposed Charter Amendment to be published.

Friday, October 26th :      Charter Amendment becomes effective.

One comment

  1. Please tell me if I am reading this correctly. If the City Council moves to approve the Amendment, a person (to be chosen by the City Council) will be appointed to the City Council member at large seat. This would fill the Council to its normal 7 seats?

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