14 City Council Options for Filling of Council Vacancy.

Meeting Date: December 20, 2016

Note from TheGardeningSnail. This post may have been created by running a PDF Image File through a program that converts Image to Text. My apologies for any Textual Gremlins that may have crept in during the process. I may also have broken up some of the longer paragraphs.


AGENDA ITEM: City Council Options for the Filling of Council Vacancy.

MEETING DATE: December 20, 2016

PREPARED BY: Jose M. Sanchez, City Attorney




Discuss City Council options for the filling of Council vacancy and provide Staff with direction.


The City of Livingston held a consolidated general election on November 8, 2016. Up for election were three (3) City Council seats and the office of the Mayor. 1 The three persons elected to the City Council were: 1) Juan Aguilar, Jr., 2) Wapinder Kang and 3) Arturo Sicairos.

Jim Soria was elected Mayor.

On December 2, 2016, the City received a letter from Council Member-elect Kang informing the City of his decision not to serve as Council Member and therefore not be sworn in. Mr. Kang decided to remain in his current employment as a Livingston Police Officer. California Government Code section 53227 would have required Mr. Kang to resign from his employment prior to being sworn into office, or alternatively, having his employment automatically terminated upon his being sworn into office. Deciding not to serve as Council Member, and not be sworn in, will allow Mr. Kang to stay employed with the City.

Government Code section 53227(a) states as follows: "An employee of a local agency may not be sworn into office as an elected or appointed member of the legislative body of that local agency unless he or she resigns as an employee. If the employee does not resign, the employment shall automatically terminate upon his or her being sworn into office."

Mr. Kang’ s decision not to be sworn in will result in a City Council seat becoming vacant at the time of the installation of the new officers, which is currently scheduled for December 20, 2016. Since Mr. Kang was the second highest vote-getter, the office left vacant has a four (4) year term. The third highest vote-getter would not move up and become the second vote-getter. This is important because the City Council adopted Resolution No. 2016-14 declaring, pursuant to Government Code section 34906, that one Council Office subject to election at the November

2016 election would serve a two-year term in order to evenly stagger city council seats. The City Council chose to have the third highest vote-getter receive the two-year term.

The City planned for the installation of the new officers to occur on December 6, 2016, however, the County Registrar of Voters Office had not completed the official canvass of the November 8, 2016 Presidential General Election on that date. The City Council continued the installation to December 20th and directed staff to prepare a staff report explaining the City Council’s options related to the filling of the vacancy.



1 The Office of City Clerk and City Treasurer were also on the November 8, 2016 election.


Government Code section 36512 sets out the options and steps for how vacancies on the City Council are filled. It requires the Council, within sixty (60) days from the date of the vacancy, to either fill the vacancy by appointment or call a special election to fill the vacancy. 2 This would be sixty (60) days from the installation of the new officers on December 20, 2016.

Appointment to Fill Vacancy

The City Council may fill any vacant elective office in the City, including a vacant Council seat, by appointment.3

The only requirement is that the person appointed must be eligible to hold office.4

A person is eligible to hold office as a Council Member only if he or she is an elector of the City and a registered voter.5

An elector of the City is a United States citizen, eighteen (18) years of age or older, who is a resident of the City.6

There are no state laws or Municipal Code provisions establishing specific procedures to make an appointment. No formal application process is required, and the City Council may appoint any eligible person to the vacancy.

The City Council may decide to: 1) simply nominate individuals and vote on such nominations, or 2) decide to receive applications and interview interested residents as the Council did in 2015 to fill a vacancy.

Council Members are free to meet with potential candidates individually to discuss a possible appointment. However, these meetings may not include more than two (2) members of the City Council, as that would be a violation of the Brown Act. In addition, Council Members must-in conducting such meetings and other discussions relating to filling the vacancy-avoid using "a series of communications, directly or through intermediaries, to discuss, deliberate, or to take action on" the vacancy. 7

The appointment of a new Council Member requires the vote of a majority of a quorum at a properly noticed meeting.



2 Government Code § 36512(b).

3 Id.

4 Government Code § 36502.

5 Government Code § 36502 actually requires a person be "a registered voter at the time nomination papers are issued to the candidate as provided for in Section 10227 of the Elections Code." Because the situation here concerns an appointment and not an election, this standard mostly like does not apply.

6 Elections Code § 321.

7 Government Code § 54952.2(b)(l).

If the Council fills the vacancy by appointment, the person appointed to fill the vacancy will only hold office until an individual is elected to complete the term at the next general municipal election (November 6, 2018). 8 Because this vacancy is occurring during the first half of the term (within the first two (2) years) and it is at least 130 days prior to the next general municipal election, the law requires the appointment to only serve until the next general municipal election. The unexpired term of two (2) years would be on the ballot for the November 6, 2018 election.

Special Election to Fill Vacancy

The City Council may also choose to call a special election to fill the vacancy. 9

Calling a special election requires the vote of a majority of a quorum of the City Council. The special election would be held at the next regularly established election date, not less than one hundred and fourteen (114) days from the date the City Council calls the special election. 10

A person elected to fill a vacancy holds office for the unexpired term of the office. 11

If the Council chooses to call a special election, the City would incur the costs of the election, which are unknown at this time.

After City Council discussion and direction, Staff will prepare the necessary documents and agendize the item for a future Council meeting in accordance with Council direction.


1. California Government Code section 36512




8 Government Code § 36512(b)(2)(A). An election to fill the second half of the term is required when the vacancy occurs in the first half of the term and at least 130 (130) days before the next general municipal election. Id.

9 Government Code § 36512(b).

10 Government Code § 36512(b)(l).

11 Id.