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.
…..
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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
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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
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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
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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
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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
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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.
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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
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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.
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