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Filling a Vacancy in the Office of Fourth Ward City Council MemberCity of Dubuque City Council Meeting Action Items # 3. Copyrighted December 6, 2021 ITEM TITLE: Filling a Vacancy in the Office of Fourth Ward City Council Member SUMMARY: City Council to discuss the process for filling a vacancy in the Office of Fourth Ward City Council Member as a result of Mayor -elect Brad Cavanagh's resignation. SUGGESTED Suggested Disposition: Receive and File; Council DISPOSITION: ATTACHMENTS: Description Type Staff Memo Staff Memo Cavanagh 4th Ward Resignation Letter Supporting Documentation THE CITYF DUijB- E Masterpiece on the Mississippi To: Mayor Roy D. Buol and Members of the City Council FROM: Adrienne Breitfelder, City Clerk Crenna Brumwell, City Attorney DATE: November 3, 2021 RE: Midterm Vacancy on City Council Dubuque AII•Ameriea City w 1 FK_I . 2007-2012.2013 2017*2019 With the election of a current Council Member as mayor we were asked to provide a summary of the state law requirements and options for filling the vacancy as the resignation by either mayoral candidate will create a midterm vacancy on the City Council. 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 actually occurs. For example, even though the election is November 2, 2021, the mayor -elect does not have to resign from the Council position until the first meeting in January 2022 when the individual will be sworn in as mayor. For purposes of this memo, a resignation needs to be submitted, in writing, by the mayor - elect by January 2, 2022 at the latest, and the vacancy exists from that date. A letter can be sent to the City Clerk either on or after November 15, as this concludes both the November 8th Board of Supervisors canvas of votes and the November 12th deadline to request a recount. When the letter of resignation is received, the City Clerk will place it on the next City Council agenda, along with this memo, for discussion by the City Council. The vacancy which will be created by the resignation of mayor -elect Brad Cavanagh will be 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 371.13(2) (emphasis added): 372.13 The council. 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. 2 (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 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 3 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 actually occurs, but an appointment or special election cannot occur until after the vacancy occurs. This would allow the Council to opt in November or December 2021 to choose appointment or special election and initiate either process to fill the upcoming vacancy. While any required processes (decision, notice to the public, etc.) could begin in November and December 2021, the appointment could not happen until after the resignation of the mayor -elect. If City Council decided to fill the vacancy by special election, the seat must remain vacant until the election. Iowa Code does not authorize temporarily filling the seat until the special election. 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 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 Council will consider for appointment is required to meet the same qualifications as a candidate seeking to run for the office. This means the appointee to complete the remainder of mayor -elect Cavanagh's term must be a resident of Ward 4. Iowa Code §39.27 Note: Submission of a petition per the Iowa Code requirements would trigger holding a special election to fill the vacancy. The signatures required to trigger a special election following an appointment is: 51 Ward 4 Seat: 136 signatures An appointment is for the period until the next pending election. This is important due to the possible Five Flags Referendum in 2022. Pursuant to Iowa Code §69.12(1)(a)(4), a vacancy shall be filled at the next pending election if it occurs sixty or more days before the election, if it is a special election. If the City Council decides to hold a Five Flags referendum in 2022, the only option is September 13, 2022 to comply with the authorized Iowa Code dates for cities in even numbered years. If a Five Flags Referendum proceeds in September 2022, the City Council Member vacancy would automatically appear on that ballot, even if City Council made an appointment to the vacancy prior to that date. The individual elected in September would begin service immediately and serve through December 31, 2023. Special Election There is a statutory framework for when special elections may occur in Iowa. Additionally, the City of Dubuque is a primary city. Depending on the number of individuals who file to fill a vacancy a primary may be necessary before a special election. This has implications for the time frame to fill the vacancy. The election can occur on any Tuesday before May 3rd or after June 7th. There is a prohibition on having a special election between May 3rd and June 7th in 2022 due to the primary for State Offices, U.S. Senate, and U.S. House of Representatives. Upon receipt of a resolution calling for the special election by the County Elections Office, the office selects the date most practical. As an example, the Deputy Commissioner of Elections Jenny Hilary used an example of March 29 for the special election, with a primary occurring on March 1 if needed. An additional note on the 2020 census impacts; redistricting from the census may impact the election of a vacant seat, as Iowa Code §49.7(5) states that any redistricting done pursuant to the census this year does not become effective until January 15, 2022. Any special election after any updated precinct boundaries take effect are subject to the updated precincts. This would not affect a mid-term special election for an at -large seat but would impact a Ward specific mid-term special election. For historical reference, included are summaries of two (2) previous City Council vacancies in which City Council acted: NIN81 1) A vacancy in the Office of City Council Member for the First Ward occurred effective July 7, 2020. The term expired in December of 2021. 2) At the July 8, 2020, special meeting, Council adopted a resolution to fill the vacancy by appointment. 5 3) Council published notice on July 14, 2020, of the intent to fill the vacancy by appointment. 4) Electors interested in being considered for the appointment submitted letters of interest/resumes to the City Clerk's Office by 12:00 p.m., Monday, July 20, 2020. 5) Council conducted individual interviews at a special meeting on July 23, 2020. 6) Council appointed Kevin Lynch as City Council Member for the First Ward at the July 27, 2020, special meeting. 7) A petition for a special election was filed with the City Clerk on August 10, 2020. 8) The primary for the Ward One term took place on February 2, 2021. 9) The special election took place on March 2, 2021. For reference purposes, the costs for the special election process were: February 8, 2021, primary: $10,242.20 March 2, 2021, special election: $8,816.04 Total 2021 special election costs: $19,058.24 2011 1) A vacancy in the Office of City Council Member for the Fourth Ward occurred effective February 8, 2011. The term expired in December of 2011. 2) At the February 22, 2011, City Council meeting, Council adopted a resolution to fill the vacancy by appointment. 3) Council published notice on February 25, 2011, of the intent to fill the vacancy by appointment. 4) Electors interested in being considered for the appointment submitted letters of interest/resumes to the City Clerk's Office by 5:00 p.m., Monday, March 7, 2011. 5) Council conducted individual interviews at a special meeting on March 12, 2011. 6) Council appointed Lynn Sutton as City Council Member for the Fourth Ward at the March 21, 2011, regular meeting. 7) No petitions for a special election were filed with the City Clerk within fourteen days after publication of the notice nor fourteen days after the appointment was made. ('.nnrli minn Staff is available to answer questions and for discussion. Depending on the questions, it may be necessary to consult further with the County Elections Office. CC' Michael C. Van Milligen, City Manager Jenny Hillary, Dubuque County Deputy Commission of Elections 0 November 15, 2021 Adrienne N. Breitfelder City Clerk City of Dubuque 50 W 13" St. Dubuque, IA 52001 Dear Ms. Breitfelder, RECEIVED 21 NOV 16 AM B: 07 City CierK s Office Dubuque, IA I am writing to submit my resignation from the position of 4`h Ward City Council Representative effective 11:59 PM on January 2"d, 2022. Sincerely, Brad Cavanagh 4`h Ward City Council Representative 565 Fenelon PI Dubuque, IA 52001 cc: Crenna Brumwell, City Attorney Michael C. Van Milligen, City Manager Roy D. Buol, Mayor