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Buol, Roy, 2nd Ward Council seat & info Barry A. Lindahl, Esq. .Corporation Counsel Suite 330, Harbor View Place 300 Main Street Dubuque, Iowa 52001-6944 (563) 583-4113 office (563) 583-1040 fax balesq@cityofdubuque.org D~~~E ~~~ June 29, 2005 Mayor Terrance Duggan and Members of the City Council City Hall - City Clerk's Office 50 West 13th Street Dubuque, IA 52001 RE: 2nd Ward City Council Seat Dear Mayor and Council Members: City Council Member Roy Buol has submitted a letter of resignation to the City Clerk "effective December 31, 2005." A copy of the letter is enclosed. Upon receipt of the letter, City Clerk Jeanne Schneider, at my recommendation, contacted County Election Commissioner Tom O'Neill to discuss the effect of the resignation letter and the procedure for filling the vacancy in the 2nd Ward seat. It was my understanding from visiting with Council Member Buol about his letter of resignation and the December 31st date that it was his intent, if at all possible, to allow the 2nd Ward City Council seat to be on the ballot for the November general election to avoid the cost of a special election. Tom O'Neill has now provided Jeanne with an opinion from the Dubuque County Attorney's Office on June 28, 2005. A copy of that letter is also enclosed. It is the opinion of the Dubuque County Attorney, as well as the Office of the Secretary of State, that because there is no "vacancy" in the 2nd Ward seat until December 31, 2005, the seat cannot be on the November ballot. The only way that the seat could be on the November ballot is if Council Member Buol's resignation is effective and thus the "vacancy" occurs 73 or more days before the election under Iowa Code 969.12(1)(a). As a result, the 2nd Ward seat will not be vacant until January 1, 2006. The procedure for filling that vacancy is set out in Iowa Code 9372.13(2), which provides that the vacancy is filled, at the City Council's option, either by appointment or by a special election, and if the Council elects to fill the vacancy by appointment, a special election still may be required if a petition by a sufficient number of eligible electors is filed within the required time after the appointment is made. Service People Integrity Responsibility Innovation Teamwork Mr. Buol's resignation letter will be on the City Council agenda for City Council consideration at the July 18, 2005 City Council meeting. arry A. Lindahl, Esq. orporation Counsel BAL:tls Enclosure cc: Michael C. Van Milligen, City Manager Cindy Steinhauser, Assistant City Manager Jeanne Schneider, City Clerk , t Apri118,2005 City Clerk Jeanne Schneider City Hall 50 13 th Street Dubuque, IA 52001 Dear Ms. Schneider: The purpose of this letter is to notify the City of Dubuque, through you as City Clerk, that effective December 31,2005, I will resign my Second Ward City Council seat. This resignation is to be deemed irrevocable. Tuesday, April 19, 2005, I will officially announce my candidacy for the office of mayor of Dubuque. My intention to resign my Second Ward seat is to provide other Second Ward citizens the opportunity to consider public service in the upcoming election cycle. I believe the level of decision making that occurs by the City Council warrants a representative elected by her or his Ward constituents, rather than appointed by the Council, to complete the two years remaining on the Second Ward term. S7;'fl LI Roy D. Buol Dubuque City Council cc: Mike Van Milligen, City Manager Barry Lindahl, Corporation Counsel State of Iowa ) ) ss: County of Dubuque) ~_ _~-A On this LL... day of~ ,2005, before me, a Notary Public in and for said State, p.ersonally app ed-?Jt7"~ (3~C'/ , to me known to be the person named m and who executed the foregoing instrument, and acknowledged that he executed the same as his voluntary act and deed. -~ ~:4".I'\f ""',. .. . .... . . IOwT JEANNE F. SCHNEIDER COMMISSION NO. 709027 MY COMMiSSION EXPIRES 3/26/07 JUN-29-05 WED 06:53 AM DUBUQUE CITY CLERK FAX NO. 563 589 0890 P. 01 ~, County AttomllY Fred H. M,Caw ~ COllnty AIT()rn~s R~lph R. Potter, First Assistant Timothy J. Galla~her lean A. Becker ChrIstine O. eOl'ken Lyle R. GoUlart Michael ). Whalen Mark T. HO$t4ser Alisha A. Stach li.obert 1. Richter Vlaim and Witness A~~I<llincp JuliE C. Hornb Holly M. Elliott DUBUQUE COUNTY ATTORNEY June 28, 2005 ,,/ Tom O'Neill Commissioner of Elections Dubuque County Courthouse Dubuque, Iowa Re: City council resignation Dear Tom: You have submitted a question to me with regard to the effect ofa proposed resignation on the city cotU1cil. City Councilman, Roy Buol submitted a letter of resignation to the city clerk which states as follows: "The purpose of this letter is to notify the City of Dubuque through you as city clerk, that effective December 31,2005 I will resign my second ward city council scat. This resignation is to be deemed irrevocable." The letter tben goes on to explain the reason for the resignation. It is my understanding that he intends to run for mayor of Dubuque. The city would like to place Mr. Buol' 5 seat on the ballot in November. Obviously this would save money by having the eJection for his seat take place at the same time as the normal city elections. I am in a.greement with the opinion given to you by the Secretary of State's office. I do 110t believe that we may hold an election for Mr. Buol's second ward seat in November, There is no vacancy in the office of the second ward at the present time. As is pointed out in the opinion from the Secretary of State, vacancies in city offices are filled according to Iowa Code Section 372.l3(2)(a)(b). Paragraph b then refers back to Iowa Code Chapter 69 in how those vacancies are filled by special election or the next pending election. A vacancy is defined in Chapter 69.2 of the Iowa Code. At the present time none of the situations listed in 69.2 is covered under these set of circumstances. The basic question presented in this circumstance is whether a vacancy occurs h1 this office when the resignation does not take effect until December 31) 2005. As earlier indicated, I agree with the Secretary of States' reasoning in its opinion. My research would also support that opinion. A ] 904 Attomey General's opinl.on spoke directly to the question at hand. It stated: Dubuque Count)' Courthouse, Dubuque, Iowa 52001-7057 rrrn ~oo A.d7(\ c,,, rr;,t;<:l t;R9~4477 JUN-29-05 WED 06:53 AM DUBUQUE CITY CLERK FAX NO. 563 589 0890 p, 02 "a person resigning his office is privileged to name the date upon which the resignation takes effect and until that date is reached, there is 110 vacancy in tbe office. A resignation is not consummated wlless there is an intention to relinquish accompanied by the act of relinquishment." Op.Atty.Gen. 1904 page 343. Mr. Buol has made his resignation effective on December 31 st, That date is when the vacancy occurs. Further support for this position comes from an ALR 2nd article. The article is written at 82 ALR 2nd page 750. It states as follows: "there appears to be a fair amount of confusion on the question whether a public officer may withdraw or recall his resignation where it is so worded as to become effective on a date later than the one on which it is tendered." 82 ALR supra at 751. The article cites a Nevada case for the following proposition: 'We are unable to see the force of the argument that the same question of public policy is involved in the withdrawal ofa prospective resignation as would exist in the case of an immediate resignation. In the later case a vacancy is at once created in the office resigned. In the former case there is no present surrender of the office. The public is only interested in having the office filled by some competent person. Ifbefore the vacancy actually exists the officer who has been duly elected or appointed, elects to rescind his prospective resignation, it is not clearly apparent where the public is liable to suffer any injury". 82 ALR 2nd at 752, The Nevada case was being cited by an Oklahoma court. A similar position is taken in the state of Ohio. Citing language very similar to the Iowa Attorney General's Opinion) the Ohio court stated in State ex reI. Staley v. Lakewood, 47 Ohio App. 519, 19341 That to constitute a complete and operative resignation, there must be an intention to relinquish a portion of the term of the office, accompanied by the act ofrclinquishmcnt, so that where the office holder has not physically relinquished his office, he may withdraw his resignation prior to the date when it to be come effective even against the will of the body to which it is tendered and which accepts it. What the cases do clearly indicate is that there is a division of opinion as to whe1her or not a person could withdraw such a resignation. Thus, there is question as to whether a vacancy exists. We will err on the side of safety on tIns matter. I believe it inappropriate to be holding an election for an office in which there is serious question as to whether a vacancy exists. I do not believe a vacancy does exist and would agree with the opinions I have cited above. In addition to the previous arguments, however, there is another argumcnt that should be addressed. Section 279.6 oftbe Iowa Code specifically allows JUN-29-05 WED 06:53 AM DUBUQUE CITY CLERK FAX NO, 563 589 0890 P. 03 the type of election which is being requested in this case. However, it docs so only in school board elections, 279.6 states in part "a vacancy shall be filled at the next regular school election if a member of the school board resigns from the board not later than 45 days before the election and the notice ofresignation specifies an effective date at the beginning ofllie next term of office for elective school officials", Thus the Iowa legislature has recognized the ability to create such a vacancy but only in school bDard elections. By specifically designating a procedure in school board elections the legislature has sho\Vl1 that they are aware of the possibility of our " situation and have chosen in that limited class of election to classify that as a vacancy. No such wording or procedure exists under city elections. In summary, I do not believe it would be an appropriate interpretation of the Iowa Code to call Mr, Buol's resignation, effective in December, a vacancy for purposes of holding an electiDn fDr his seat on the city council. It would not be in the interest of the county auditDr to be calling an election when a selious question exists as to whether a vacancy even exists. I do not believe we are not here to litigate the matter at a later time. In addition, I could not support that litigation since I also believe that no vacancy exists at the time of our election in November. Thank you. Sincerely yours, ~~ J/J~ Ralph R. Potter First Assistant County Attorney RRP/sjb ~. JUN-29-05 WED 09:55 AM DUBUQUE CITY CLERK FAX NO. 563 589 0890 P. 01 Page 1 of2 Tom O'Neill From: To: Sent: Subject: "Steinbach, Sandy [80S]" <sandy@sos.state.ia.us> "Tom O'Neil (E-mail)" <election@dbqco.org> Wednesday, May 25, 2005 10:36 AM City vacancies Tom, Vacancies in City offices are filled according to Iowa Code section 372.13(2) a and b. Paragraph a says that vacancies in elective city offices may be filled by appointment. If the council chooses to appoint, the appointment shall be made within 40 days after the vacancy occurs. Council must publish notice of its intent to appoint and the right of the voters to petition for a special election to fill the. vacancy. The council may publish notice in advance if an elected official submits a resignation to takc effect at a later date. The council may make the appointment after the notice is published, or after the vacancy occurs, whichever is later. This paragraph makes a distinction between the submission of a resignation and the effective date. It equates the occurrence oftha vacancy with the effective date of the resignation. Paragraph b says that vacancies may be filled by special election or at the next pending election pursuant to Iowa Code section 69.12. 69.12(1)"a" says that a vacancy shall be filled at the next pending election ifit occurs (subparagraph 2) 73 or more days before a regular city election (in cities which may be required to hold a primary election). There is noting in 372.13 or in 69.12 that provides a method for filling a vacancy before the incumbent has vacated the office. The only Code section that r am aware of that provides for filling a vacancy at an election held before the vacancy occurs is rowa Code section 279.6. This section applies only to school board vacancies. This is the response fiOln Chris Scase about a similar situation in 2004: 5/26/2005 JUN-29-05 WED 09:56 AM DUBUQUE CITY CLERK FAX NO. 563 589 0890 P. 02 Page 2 of2 As you note 279.6 applies only to vacancies on school boards and appears to be unique to school boards. The general rule, cited in the 1994 opinioll~ as well as several prior opinions, is that when a resignation is submitted with a future effective date a vacancy in the office does not exist until the effective date offhe resignation. The primary reason for this rule is likely the fact that under some circumstances a resignation may be withdrawn by the officer after its submission but prior to that effective date. Subsection 372.13(2)(b) requires a special election to fill a vacancy in elected city office to be held "concurrently with any pending election as provided by section 69.12 ifby doing so the vacancy will be filed not more than ninety days after it occurs." 69.12(1)(a)(2) also limits use of a regular city election to fill a vacancy to situations where the vacancy occurs before the election. Bottonlline, the vacancy on the council will not occnr until January 2,2004. I don't believe the city can use the regular election to fill a vacancy which has not yet occurred. I hope this helps, Sandy 5/26/2005 . 372.13 The council. 1. A majority of all council members is a quorum. 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. 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 for the period until the next pending election as defined in section 69.12, and shall be made within forty days after the vacancy occurs. 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: (1) 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) 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. (3) 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. (4) The minimum number of signatures for a valid petition pursuant to subparagraphs (1) through (3) 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. 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 at the earliest practicable date. 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 at the earliest practicable date. The council shall give the county commissioner at least sixty 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 eighty-five 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.