For City Council Meeting January 14, 2025
TO: Honorable Mayor and City Council
FROM: G. Michael Milhiser, Interim City Manager
AUTHOR: Eric S. Vail, City Attorney
Title
Request City Council to Consider Draft Ordinance to fill vacant elected offices and provide direction to the City Attorney necessary to finalize the ordinance.
(ACTION)
Body
RECOMMENDATION
Staff recommends consideration by the Council of the draft ordinance for the filling of Elected Officer positions and provide direction to the City Attorney on the finalization of the draft ordinance.
INTRODUCTION
At Council’s direction, the City Attorney’s Office has prepared a draft ordinance (attached) for Council consideration regarding filling vacancies in elected offices (e.g. mayor, councilmembers, city clerk, and city treasurer). This staff report also includes the result of research into which cities have ordinances to fill vacancies in the elected offices. The proposed ordinance provides for appointment to a vacant seat of the next highest “vote-getter” in the most recent election for the position, and a procedural outline in case such a person is not available. The City Attorney seeks direction to finalize the draft ordinance.
BACKGROUND
Sections 36512 and 34902 of the Government Code articulate the procedures for the filling of vacant elected offices (city council, city treasurer, and city clerk) and elected mayor seats, respectively. Both procedures default to appointment but require councils to call an election to fill the vacant office if no appointment is made within 60 days of the office becoming vacant. The special elections are to be held at the next established election date occurring not less than 114 days from the date of the vacancy. How much of the remaining term the appointee can serve depends on whether the seat being filled is the elected mayor or other elected officer, and when during the term the vacancy is filled.
The state law does not provide any specific procedure for the appointment of vacancies, other than timelines, thus leaving the process within the discretion of the City Council that affords the Council with flexibility to choose the appropriate method to fill each vacancy. In the alternative, Government Code section 36512 allows cities to adopt a local ordinance proscribing a preferred method of filling vacancies, provided the ordinances are consistent with state law.
Most general law cities do not have an ordinance addressing vacancies and rely on the Government Code without codifying the procedures (e.g. Fontana, Ontario, Rancho Cucamonga). The few cities that have adopted ordinances simply refer to the relevant government codes (e.g., City of Claremont, City of Suisun City). The City of Thousand Oaks adopted an ordinance mandating that city council vacancies be filled by special election. Several charter cities (e.g. Pomona) have more detailed ordinances on filling vacancies.
ANALYSIS/DISCUSSION
When an City Council seat or office of the City Clerk or office of the City Treasurer becomes vacant, the City Council must, within 60 days of the seat being vacated, fill the seat by appointment or call an special election to fill the vacancy to be held on the next established election date not less than 114 days thereafter. In circumstances where the vacancy occurs in the first half of the term, an appointee may only hold office until the next general election when the remaining term must be filled by election. When the vacancy occurs in the first half of the term, but less than 130 days from the next general election, or the vacancy occurs in the second half of the term, then the appointee holds office for the remainder of the term. (Gov. Code § 36512.)
A slightly different rules applies to a vacancy in the position of an elected Mayor. When an elected Mayor’s seat becomes vacant, the City Council must appoint someone to fill the seat within 60 days, and if the City Council fails to do so, it must call an election to fill the vacancy to be held on the next established election date to be held not less than 114 days thereafter. A person appointed or elected to fill a Mayor vacancy holds office for the unexpired term of the former incumbent. A sitting Councilmember can be appointed to the vacant Mayor seat, but that will create a vacancy in the Councilmember’s seat which must then be filled. (Gov. Code §§ 34902, 1752.)
State law also provides that, alternatively, a City Council may choose to enact an ordinance to fill all elected office vacancies by special election, including an elected Mayor vacancy. (Gov. Code §§ 34902, 36512.)
The draft ordinance reflects the state law, and proposes, as requested by the Mayor, that the City Council will appoint the “next highest-vote getter” for the specific seat or office. Because the City also has an elected City Treasurer and City Clerk, the ordinance adopts code sections that cross-reference the procedure established for appointment of a vacant City Council office.
Bear in mind that this process is only suggested for purposes of Council discussion and further direction. Council has a significant degree of freedom in designing its appointment process, provided that the resulting process is consistent with state law.
In brief the suggested process would be as follows:
• The seat or office becomes vacant.
• Within 60 days of the vacancy beginning the City Council would make an appointment to fill the position.
• The person receiving the second (2nd) highest verified vote tally for the position in the most recent election would be appointed, provided that the person does not refuse the position and is still legally eligible to hold the seat (i.e., the person lives in the City of Rialto and is registered to vote within the City of Rialto).
• If the person refuses the position or is not legally eligible to hold the position, then the person with the third (3rd) highest verified vote tally would be appointed provided they do not refuse the position and are legally eligible.
• If for any reason the second and third vote recipients refuse the position or are no longer legally qualified, then the city council would by minute order or resolution determine an appointment process to be carried out within the 60 day period.
• The ordinance includes required state law provisions, including the circumstances when a position must be filled by special election, and a prohibition on a majority of the membership of the city council being appointees.
We seek direction on the following:
1. Does the council agree with appointment, or does it prefer to fill all vacancies by special election?
2. Is the process utilizing the second and third highest vote tallies acceptable?
3. Would the Council like to include vote tally threshold requirements such as a minimum number of votes obtained, or a minimum percentage of votes, in order to qualify for appointment?
4. Is there a preferred appointment process if the second and third vote tally holders refuse or are ineligible?
5. Would the council like to make write-in candidates who may fall into the second or third position ineligible for appointment?
6. As an alternative approach state law allows a City to have an ordinance that defaults to appointment, unless petitions bearing a specified number of verified signatures by Rialto residents are timely filed, in which event the vacancy would be filled by special election. Is the Council interested in such an approach?
ENVIRONMENTAL IMPACT
The proposed actions do not constitute a “project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(b), a project does not include organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
GENERAL PLAN CONSISTENCY
This action is consistent with Guiding Principle 3A of the General Plan:
Our City government will lead by example, and will operate in an open, transparent, and responsive manner that meets the needs of the citizens and is a good place to do business.
LEGAL REVIEW
The City Attorney prepared and approved this staff report and draft ordinance.
FINANCIAL IMPACT
Operating Budget Impact
Adopting the proposed Ordinance as proposed will have no impact on the Fiscal Year 2024-2025 operating budget.
Capital Improvement Budget Impact
This action will have no impact on the current capital improvement budget.