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.