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Filling a Vacancy in the Office of First Ward City Council MemberCopyrighted J uly 8, 2020 City of Dubuque Special Meeting Action Items # 1. IT E M T I T L E:F illing a Vacancy in the Office of F irst Ward City Council Member S UM M ARY:City Council to discuss and determine the process for filing a vacancy in the Office of First Ward City Council Member as a result of Council Member Brett Shaw's resignation. 1. RE S O L UT IO N I ntent to Fill a Vacancy in the Office of F irst Ward City Council Member by A ppointment 2. RE S O L UT IO N I ntent to Fill a Vacancy in the Office of F irst Ward City Council Member by Special E lection S UG G E S T E D D I S P O S I T I O N: Receive and F ile; A dopt Resolution #1 O R #2.Suggested Disposition: AT TAC H ME N TS: Description Type Staff Memo - City Attorney UD ATE D 7/8/20 Supporting Documentation Staff Memo - City Attorney Staff Memo Resolution - Filling Mid-Term Vacancy by Appointment with Public Notice of Meeting Resolutions Resoluttion - Filling Mid-Term Vacancy by Special Election Resolutions OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 589-4381 / FAX (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org C R E N N A M . B R U M W E L L , E S Q. C I T Y A T T O R N E Y TO: MAYOR ROY D. BUOL AND MEMBERS OF THE CITY COUNCIL DATE: JULY 7, 2020 RE: MIDTERM VACANCY ON CITY COUNCIL Background With the resignation of Council Member Brett Shaw, I am providing a summary of the state law requirements and options for filling the vacancy. A vacancy occurs upon any of the following: Officeholder’s death On the date the officeholder no longer lives in the city or ward in which the officeholder was elected Officeholder submits a resignation, if the resignation is effective immediately On a specific date, if the resignation of the officeholder is effective at a future date Removal of an officeholder from office A vacancy cannot be filled until it occurs. Councilmember Shaw’s resignation was effective at midnight on July 7, 2020. The vacancy created by the resignation of Councilmember Brett Shaw is considered a mid-term vacancy. Mid-term vacancies can be filled by: 1) Appointment by the City Council, or 2) Special election These options are outlined in Iowa Code 372.13(2) (emphasis added): 372.13 The council. ….. 2 2. A vacancy in an elective city office during a term of office shall be filled, at the council’s option, by one of the two following procedures: a. (1) By appointment by the remaining members of the council, except that if the remaining members do not constitute a quorum of the full membership, paragraph “b” shall be followed. The appointment shall be made within sixty days after the vacancy occurs and shall be for the period until the next regular city election described in section 376.1, unless there is an intervening special election for that city, in which event the election for the office shall be placed on the ballot at such special election. If the council fails to make an appointment within sixty days as required by this subsection, the city clerk shall give notice of the vacancy to the county commissioner and the county commissioner shall call a special election to fill the vacancy at the earliest practicable date but no fewer than thirty-two days after the notice is received by the county commissioner. (2) If the council chooses to proceed under this paragraph, it shall publish notice in the manner prescribed by section 362.3, stating that the council intends to fill the vacancy by appointment but that the electors of the city or ward, as the case may be, have the right to file a petition requiring that the vacancy be filled by a special election. The council may publish notice in advance if an elected official submits a resignation to take effect at a future date. The council may make an appointment to fill the vacancy after the notice is published or after the vacancy occurs, whichever is later. However, if within fourteen days after publication of the notice or within fourteen days after the appointment is made, there is filed with the city clerk a petition which requests a special election to fill the vacancy, an appointment to fill the vacancy is temporary and the council shall call a special election to fill the vacancy permanently, under paragraph “b”. The number of signatures of eligible electors of a city for a valid petition shall be determined as follows: (a) For a city with a population of ten thousand or less, at least two hundred signatures or at least the number of signatures equal to fifteen percent of the voters who voted for candidates for the office at the preceding regular election at which the office was on the ballot, whichever number is fewer. (b) For a city with a population of more than ten thousand but not more than fifty thousand, at least one thousand signatures or at least the number of signatures equal to fifteen percent of the voters who voted for candidates for the office at the preceding regular election at which the office was on the ballot, whichever number is fewer. (c) For a city with a population of more than fifty thousand, at least two thousand signatures or at least the number of signatures equal to ten percent of the voters who voted for candidates for the office at 3 the preceding regular election at which the office was on the ballot, whichever number is fewer. (d) The minimum number of signatures for a valid petition pursuant to subparagraph divisions (a) through (c) shall not be fewer than ten. In determining the minimum number of signatures required, if at the last preceding election more than one position was to be filled for the office in which the vacancy exists, the number of voters who voted for candidates for the office shall be determined by dividing the total number of votes cast for the office by the number of seats to be filled. b. (1) By a special election held to fill the office for the remaining balance of the unexpired term. If the council opts for a special election or a valid petition is filed under paragraph “a”, the special election may be held concurrently with any pending election as provided by section 69.12 if by so doing the vacancy will be filled not more than ninety days after it occurs. Otherwise, a special election to fill the office shall be called by the council at the earliest practicable date. The council shall give the county commissioner at least thirty-two days’ written notice of the date chosen for the special election. The council of a city where a primary election may be required shall give the county commissioner at least sixty days’ written notice of the date chosen for the special election. A special election held under this subsection is subject to sections 376.4 through 376.11, but the dates for actions in relation to the special election shall be calculated with regard to the date for which the special election is called. However, a nomination petition must be filed not less than twenty-five days before the date of the special election and, where a primary election may be required, a nomination petition must be filed not less than fifty-three days before the date of the special election. (2) If there are concurrent vacancies on the council and the remaining council members do not constitute a quorum of the full membership, a special election shall be called by the county commissioner at the earliest practicable date. The remaining council members shall give notice to the county commissioner of the absence of a quorum. If there are no remaining council members, the city clerk shall give notice to the county commissioner of the absence of a council. If the office of city clerk is vacant, the city attorney shall give notice to the county commissioner of the absence of a clerk and a council. Notice of the need for a special election shall be given under this paragraph by the end of the following business day. An appointment or special election cannot occur until after the vacancy occurs. Appointment Appointment requires certain publication requirements be met. The City Council is required to publish notice the body intends to appoint an individual to complete the council 4 term at least four (4) but no more than twenty (20) days before the appointment will occur. The published notice must also include certain language notifying citizens of their right to request a special election by filing a petition. The notice published must be in a newspaper of general circulation. If the City Council opts to appoint someone to fill the mid-term vacancy the appointment must be made within sixty (60) days after the vacancy occurs. If the City Council doesn’t appoint someone to the vacant seat on the City Council within sixty (60) days, the City Clerk must notify the County Auditor. The County Auditor is required to call for a special election as soon as possible, but not sooner than sixty (60) days after the notice from the City Clerk as the City of Dubuque has a primary election provision in the Code of Ordinances. Any person the City Council will consider for appointment is required to meet the same qualifications as a candidate seeking to run for the office. This means in the case of the vacancy created by Brett Shaw’s resignation, the individual appointed must be a resident of Ward 1. Iowa Code §39.27 Note: Submission of a petition with 157 signatures from residents in Ward 1 per the Iowa Code requirements would trigger holding a special election to fill the vacancy. For example, in order to fill the vacancy by appointment prior to City Council Goal Setting in August, a time line could look like this: July 7-13, 2020 Special meeting of City Council to opt for appointment July 14, 2020 Publication of Intent to Appoint (4 & 20 days) August 3, 2020 Appointment made at a regular City Council meeting, swear- in appointed member August 10, 2020 City Council Goal Setting Special Election I was asked whether this mid-term vacancy could be placed on the regular election ballot to be held November 3, 2020. No, the vacancy cannot appear on the November 2020 regular election ballot as there is a prohibition on having a special election to fill a vacancy four (4) weeks before and four (4) weeks after a general election: October 6 – December 1, 2020. Iowa Code §39.2 (1)(a). A special election can occur on any Tuesday outside of the October 6 – December 1, 2020 time frame. However, there is a complication I want to mention. The City of Dubuque is a primary city. Depending on the number of individuals who file to fill the 5 vacancy a primary may be necessary before the special election. This has implications for the time frame to fill the vacancy. I have reached out to the County Elections office to determine if the primary could be held prior to the blackout with the special election after the blackout or whether both the primary and special election would have to be held after the blackout. I’m still waiting on a response. County Elections Discussion It should be noted in discussing this matter with the County Elections representatives, they indicate a preference to avoid special elections during the ongoing pandemic as a matter of public health and safety. Conclusion I am available for questions and discussion. Depending on the questions, I may need to consult further with the City Clerk and County Elections staff. Two resolutions are provided for your consideration. One for appointment and one for special election. cc: Michael C. Van Milligen, City Manager Barry Lindahl, Senior Counsel Kevin Firnstahl, City Clerk Jenny Hillary, Dubuque County Deputy Commission of Elections 2 2. A vacancy in an elective city office during a term of office shall be filled, at the council’s option, by one of the two following procedures: a. (1) By appointment by the remaining members of the council, except that if the remaining members do not constitute a quorum of the full membership, paragraph “b” shall be followed. The appointment shall be made within sixty days after the vacancy occurs and shall be for the period until the next regular city election described in section 376.1, unless there is an intervening special election for that city, in which event the election for the office shall be placed on the ballot at such special election. If the council fails to make an appointment within sixty days as required by this subsection, the city clerk shall give notice of the vacancy to the county commissioner and the county commissioner shall call a special election to fill the vacancy at the earliest practicable date but no fewer than thirty-two days after the notice is received by the county commissioner. (2) If the council chooses to proceed under this paragraph, it shall publish notice in the manner prescribed by section 362.3, stating that the council intends to fill the vacancy by appointment but that the electors of the city or ward, as the case may be, have the right to file a petition requiring that the vacancy be filled by a special election. The council may publish notice in advance if an elected official submits a resignation to take effect at a future date. The council may make an appointment to fill the vacancy after the notice is published or after the vacancy occurs, whichever is later. However, if within fourteen days after publication of the notice or within fourteen days after the appointment is made, there is filed with the city clerk a petition which requests a special election to fill the vacancy, an appointment to fill the vacancy is temporary and the council shall call a special election to fill the vacancy permanently, under paragraph “b”. The number of signatures of eligible electors of a city for a valid petition shall be determined as follows: (a) For a city with a population of ten thousand or less, at least two hundred signatures or at least the number of signatures equal to fifteen percent of the voters who voted for candidates for the office at the preceding regular election at which the office was on the ballot, whichever number is fewer. (b) For a city with a population of more than ten thousand but not more than fifty thousand, at least one thousand signatures or at least the number of signatures equal to fifteen percent of the voters who voted for candidates for the office at the preceding regular election at which the office was on the ballot, whichever number is fewer. (c) For a city with a population of more than fifty thousand, at least two thousand signatures or at least the number of signatures equal to ten percent of the voters who voted for candidates for the office at 3 the preceding regular election at which the office was on the ballot, whichever number is fewer. (d) The minimum number of signatures for a valid petition pursuant to subparagraph divisions (a) through (c) shall not be fewer than ten. In determining the minimum number of signatures required, if at the last preceding election more than one position was to be filled for the office in which the vacancy exists, the number of voters who voted for candidates for the office shall be determined by dividing the total number of votes cast for the office by the number of seats to be filled. b. (1) By a special election held to fill the office for the remaining balance of the unexpired term. If the council opts for a special election or a valid petition is filed under paragraph “a”, the special election may be held concurrently with any pending election as provided by section 69.12 if by so doing the vacancy will be filled not more than ninety days after it occurs. Otherwise, a special election to fill the office shall be called by the council at the earliest practicable date. The council shall give the county commissioner at least thirty-two days’ written notice of the date chosen for the special election. The council of a city where a primary election may be required shall give the county commissioner at least sixty days’ written notice of the date chosen for the special election. A special election held under this subsection is subject to sections 376.4 through 376.11, but the dates for actions in relation to the special election shall be calculated with regard to the date for which the special election is called. However, a nomination petition must be filed not less than twenty-five days before the date of the special election and, where a primary election may be required, a nomination petition must be filed not less than fifty-three days before the date of the special election. (2) If there are concurrent vacancies on the council and the remaining council members do not constitute a quorum of the full membership, a special election shall be called by the county commissioner at the earliest practicable date. The remaining council members shall give notice to the county commissioner of the absence of a quorum. If there are no remaining council members, the city clerk shall give notice to the county commissioner of the absence of a council. If the office of city clerk is vacant, the city attorney shall give notice to the county commissioner of the absence of a clerk and a council. Notice of the need for a special election shall be given under this paragraph by the end of the following business day. The City Council can publish notice of its intention to appoint or call for a special election before the vacancy occurs, but an appointment or special election cannot occur until after the vacancy occurs. 4 Appointment Appointment requires certain publication requirements be met. The City Council is required to publish notice the body intends to appoint an individual to complete the council term at least four (4) but no more than twenty (20) days before the appointment will occur. The published notice must also include certain language notifying citizens of their right to request a special election by filing a petition. The notice published must be in a newspaper of general circulation. If the City Council opts to appoint someone to fill the mid-term vacancy the appointment must be made within sixty (60) days after the vacancy occurs. If the City Council doesn’t appoint someone to the vacant seat on the City Council within sixty (60) days, the City Clerk must notify the County Auditor. The County Auditor is required to call for a special election as soon as possible, but not sooner than sixty (60) days after the notice from the City Clerk as the City of Dubuque has a primary election provision in the Code of Ordinances. Any person the City Council will consider for appointment is required to meet the same qualifications as a candidate seeking to run for the office. This means in the case of the vacancy created by Brett Shaw’s resignation, the individual appointed must be a resident of Ward 1. Iowa Code §39.27 Note: Submission of a petition with 157 signatures from residents in Ward 1 per the Iowa Code requirements would trigger holding a special election to fill the vacancy. For example, in order to fill the vacancy by appointment prior to City Council Goal Setting in August, a time line could look like this: July 7-13, 2020 Special meeting of City Council to opt for appointment July 14, 2020 Publication of Intent to Appoint (4 & 20 days) August 3, 2020 Appointment made at a regular City Council meeting, swear- in appointed member August 10, 2020 City Council Goal Setting Special Election I was asked whether this mid-term vacancy could be placed on the regular election ballot to be held November 3, 2020. No, the vacancy cannot appear on the November 2020 regular election ballot as there is a prohibition on having a special election to fill a vacancy four (4) weeks before and four (4) weeks after a general election: October 6 – December 1, 2020. Iowa Code §39.2 (1)(a). A special election can occur on any Tuesday outside of the October 6 – December 1, 2020 time frame. However, there are a couple complications I want to mention. The first 5 is that the City of Dubuque is a primary city. Depending on the number of individuals who file to fill the vacancy a primary may be necessary before the special election. This has implications for the time frame to fill the vacancy. Another layer of complication presents itself with the pending Five Flags Referendum which I will discuss. Five Flags Ballot Issue Complication The City Council has already verbally indicated the Five Flags referendum scheduled for September 8, 2020 will be postponed. A new date for the ballot issue has not been set. This is important to note as setting a date for the Five Flags ballot issue would trigger placement of the Ward 1 City Council vacancy on the same ballot, even if the City Council opts to appoint to fill the vacancy. Iowa Code §372.13. The specific language contained in the Iowa Code reads: The appointment shall be made within sixty days after the vacancy occurs and shall be for the period until the next regular city election described in section 376.1, unless there is an intervening special election for that city, in which event the election for the office shall be placed on the ballot at such special election. Councilperson Brett Shaw’s seat is set to appear on the ballot in November 2021. The possible 2021 dates for the Five Flags special City election are: First Tuesday in March Second Tuesday in September First Tuesday after the first Monday in November If the City Council opts to appoint someone to the mid-term vacancy created by Councilperson Shaw’s resignation but schedules the Five Flags ballot issue before November 2021, then the Ward 1 City Council vacancy must appear on the ballot with the Five Flags referendum. The implication looks a little like this, assuming the City Council opts to appoint to fill the mid-term vacancy: Councilperson Shaw’s term ends: July 6, 2020 Vacancy Created: July 7, 2020 July/August 2020: Council takes applications/appoints March 2021 Five Flags Special Election: Ward 1 vacancy on ballot The possibility exists the City Council Ward 1 seat could have four (4) different individuals representing the ward between July 2020 and January 2022: Representative 1: Councilperson Shaw through July 6, 2020 Representative 2: Appointed Person, August 2020 -- March 2021. Representative 3: Special Election winner, March 2021 – December 31, 2021 Representative 4: November 2021 winner begins service in January 2022 6 A similar situation is created by a September 2021 Five Flags Ballot issue, but the time frames are slightly different: Representative 1: Councilperson Shaw through July 6, 2020 Representative 2: Appointed Person, August 2020 – September 2021 Representative 3: Special Election winner, September 2021 – December 31, 2021 Representative 4: November 2021 winner begins service in January 2022 The examples outlined for March and September Five Flags referendum dates assumes a City Council appointment without the filing of a petition for a special election. In the event a petition for a special election is received after an appointment the City Council must have a special election. A primary may also be necessary depending on the number of individual who file for the vacant position. County Elections Discussion It should be noted in discussing this matter with the County Elections representatives, they indicate a preference to avoid special elections during the ongoing pandemic as a matter of public health and safety. Conclusion I am available for questions and discussion. Depending on the questions, I may need to consult further with the City Clerk and County Elections staff. cc: Michael C. Van Milligen, City Manager Barry Lindahl, Senior Counsel Kevin Firnstahl, City Clerk Jenny Hillary, Dubuque County Deputy Commission of Elections Prepared by Crenna Brumwell. Esq., 300 Main St., Ste. 330, Dubuque IA 52001-6944, 563-583-4113 Return to Kevin Firnstahl, City Clerk, 50 W. 13th St., Dubuque, IA 52001, (563) 589-4100 RESOLUTION NO. 205-20 INTENT TO FILL A VACANCY IN THE OFFICE OF FIRST WARD CITY COUNCIL MEMBER BY APPOINTMENT Whereas, there is a vacancy in the Office of City Council Member for the First Ward; and Whereas, Iowa Code § 372.13(2)(a) allows the vacancy to be filled by appointment by the remaining members of the council for the period until the next pending election; and Whereas, the council must publish notice in the manner prescribed by Iowa Code § 362.3, stating that the council intends to fill the vacancy by appointment but that the electors of the ward have the right to file a petition requiring that the vacancy be filled by a special election; and Whereas, the council has elected to fill the vacancy in the Office of City Council Member for the First Ward by appointment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF DUBUQUE, IOWA AS FOLLOWS: 1. The City council hereby elects to fill the vacancy in the Office of City Council Member for the First Ward by appointment following the publication of the required notice. 2. The City Clerk is directed to publish the attached notice in the manner prescribed by Iowa Code § 362.3. Passed, approved and adopted this 8th day of July 2020. Roy D Attest: Kevin Firnstahl, ity erk uol, Mayor CITYOF DUBUQUE, IOWA OFFICIAL NOTICE NOTICE OF INTENT TO FILL A VACANCY IN THE OFFICE OF FIRST WARD CITY COUNCIL MEMBER BY APPOINTMENT Pursuant to Resolution No. _________, notice is hereby given that the City Council intends to fill the vacancy in the Office of City Council Member for the F irst Ward by appointment as provided by law. The appointment is for the remaining balance of the unexpired term, until the next regular city election. The appointment will be made following the publication of this notice. The electors of the First Ward have the right to file a petition requiring that the vacancy be filled by a special election. If within fourteen days after publication of this notice or within fourteen days after the appointment is made, there is filed with the City Clerk a petition with the required number of signatures which requests a special election to fill the vacancy, the appointment to fill the vacancy is temporary and the C ity Council will call a special election to fill the vacancy for the remaining balance of the unexpired term. Dated _______________________________ Kevin S. Firnstahl, City Clerk Kevin Firnstahl From:Kevin Firnstahl Sent:Thursday, July 9, 2020 10:09 AM To:Jenny Hillary Cc:denise.dolan@dubuquecounty.us; Crenna Brumwell; Tracey Stecklein Subject:City of Dubuque Resolution 205-20 Filling a Vacancy by Appointment for First Ward Attachments:Resolution 205-20 Filling a Vacancy by Appointment_Dubuque.pdf Hi Jenny, For your records. Please contact me if you have questions. Thank you. Kevin S. Firnstahl, City Clerk th 50 W. 13 Street Dubuque, IA 52001 kfirnsta@cityofdubuque.org 563-589-4100 563-589-4121 Please note: I am currently working between City Hall and home. You may continue to contact me using the above listed information. My hours of work are Monday – Friday, 8:00 a.m. to 5:00 p.m. CST. Are you interested in how the City of Dubuque is responding to COVID-19? Please visit www.cityofdubuque.org/dubuquecovid19response HERE FOR YOU: The City of Dubuque is committed to and prepared for providing all essential services to our residents during the Coronavirus (COVID-19) pandemic. Most City of Dubuque offices and facilities are closed to the public until further notice, but staff are still working. We are continuing to provide services to the public electronically, by phone, by mail, and when/if necessary, by appointment.  For contact information and service delivery changes for all departments, visit www.cityofdubuque.org.  To report a concern or submit an online service request, visit www.cityofdubuque.org/citizensupport.  For the latest local information on COVID-19, visit www.cityofdubuque.org/covid19 or call 563.556.6200. 1