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.
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(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
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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:
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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:
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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.
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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