Resolution Filling the Vacant Seat on the City Council by Appointment.

Meeting Date: January 17, 2017

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

STAFF REPORT

AGENDA ITEM: Resolution Filling the Vacant Seat on the City Council by Appointment

MEETING DATE: January 17, 2017

PREPARED BY: Jose M. Sanchez, City Attorney

 
 

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RECOMMENDATION

Adopt Resolution filling the vacant seat on the City Council by appointment.

BACKGROUND

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 (3) 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. Mr. Kang’s decision not to be sworn in resulted in a City Council seat becoming vacant at the time of the installation of the new officers, which happened on December 20, 2016. The office left vacant has a four (4) year term.

On December 20, 2016, the City Council discussed the Council’s options for filling the vacancy. 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.

The Council decided to continue with the process of filling the vacancy by appointment instead of calling for a special election. The Council directed Staff to place the appointment on the January 17, 2017 Council Meeting for discussion and appointment of a new Council Member. The Council also directed staff to contact the individuals that ran for City Council, but were not elected, at the November 2016 election and ask them whether they would be interested in serving as Council Member in case they were appointed.

Alex McCabe, Mario Mendoza and Jason Roth indicated they would be interested in serving. Adanan Bath was not interested in the position at this time.

ANALYSIS

 
 

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

2 Government Code § 36512(b).

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. On December 20, 2016, the City Council decided to move forward with the process of appointing by simply nominating individuals and voting on such nominations.

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

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). 7

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.

Given Council’s direction on December 20, 2016, Staff has prepared the attached Resolution appointing an individual to fill the vacancy on the City Council. The Resolution has blanks that will be filled in with the appointed individual’s name.

ATTACHMENTS:

1. Resolution No. 2017-_ of the City Council of the City of Livingston Appointing

to Fill a Vacancy on the City Council.

2763429.2

 
 

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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 § 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.

RESOLUTION NO. 2017—-

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON APPOINTING TO FILL A VACANCY ON THE CITY COUNCIL

WHEREAS, on November 8, 2016, the City of Livingston held a consolidated general election; and

WHEREAS, up for election were three (3) City Council seats and the office of the Mayor. The three (3) persons elected to the City Council were: 1) Juan Aguilar, Jr., 2) Wapinder Kang, and 3) Arturo Sicairos. Jim Soria was elected Mayor; and

WHEREAS, 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. Mr. Kang’s decision not to be sworn in resulted in a City Council seat becoming vacant at the time of the installation of the new officers, which happened on December 20, 2016. The office left vacant has a four (4) year term; and

WHEREAS, Government Code section 36512(b) sets forth the procedure for filling vacancies in an elective office and provides that the City Council shall, within sixty (60) days from the commencement of the vacancy, either fill the vacancy by appointment or call a special election to fill the vacancy; and

WHEREAS, on December 20, 2016, the City Council discussed the Council’s options for filling the vacancy. The Council decided to continue with the process of filling the vacancy by appointment instead of calling for a special election; and

WHEREAS, pursuant to Government Code section 36512(b)(2)(A), 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 individual appointed will 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; and

WHEREAS, if the City Council decided to call a special election to fill the vacancy, the individual elected would serve for the entire term; however, the City would be responsible for paying for the special election, the cost of which is unknown at this time; and

WHEREAS, the City Council has determined that it is in the City’s best interest to fill the vacancy on the City Council by appointment; and

WHEREAS, the City Council has determined that ———– is a qualified individual and is eligible to fill the vacancy. –

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livingston as follows:

1. clip_image006The City Council hereby appoints to serve in the City Council seat vacated effective December 20, 2016, by the decision of Council Member-elect Kang not to be sworn in and serve as Council Member.

2. In accordance with Government Code section 36512(b),

shall carry out all of the duties and responsibilities of a City Council Member of the City of Livingston, and shall serve until the election and installation of a Council Member for this position resulting from the November 2018 general election, in accordance with applicable law. 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.

3. The City Clerk is hereby authorized and directed to administer the oath of office to and to carry out all actions necessary and appropriate to permit to take office as a City Council Member of the City of Livingston in accordance with applicable law.

4. This Resolution shall take effect immediately after its passage.

Passed and adopted this 17th day of January, 2017, by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT :

Jim Soria, Mayor of the City of Livingston

ATTEST:

I, hereby certify that the foregoing resolution was regularly introduced, passed, and adopted at a regular meeting of the City Council of the City of Livingston this 17th day of January, 2017.

 
 

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Antonio Silva, City Clerk

of the City of Livingston