council position vacant until the term expires. State law does not require a council vacancy to be advertised. However,
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Vacancies on a Statutory City Council By Susan Naughton
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ne of your councilmembers sub- mits a written resignation. What do you do? This article answers some of the most frequently asked questions about vacancies on a statutory city council. State law provides that a council vacancy “shall be filled by council appointment” until a special election, if required, can be held (Minn. Stat. § 412.02, subd. 2a). The language of the state law is mandatory. As a result, a city must make its best effort to appoint a person to fill a council vacancy and cannot choose to leave a council position vacant until the term expires. State law does not require a council vacancy to be advertised. However, it is a good practice to provide some notice to the public before the council makes an appointment. This allows interested persons an opportunity to request consideration. Generally, a person must be a United States citizen, a resident of the city, and at least 21 years old to be eligible for appointment to fill a council vacancy. A city employee can be considered for appointment. However, if a city employee is appointed, it is possible that the two city positions may be incompatible. If a city employee is appointed to an incompatible office, he or she must resign from the other city position. A councilmember can be considered for appointment to fill a council vacancy in the position of mayor as long as the councilmember being considered does not participate in the appointment vote. State law provides that the council makes the appointment to fill a vacancy, except in the case of a tie vote, when the mayor makes the appointment. That means all members of the council, including the mayor, can vote on the appointment. However, the council-
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member who submitted a written resignation should not participate in the appointment vote. As a practical matter, it may be useful to determine who the candidates for appointment are before voting takes place. As long as at least a quorum of the council is present, a majority vote of those present
“The language of the state law is mandatory. As a result, a city must make its best effort to appoint a person to fill a council vacancy and cannot choose to leave a council position vacant until the term expires.” is sufficient to make the appointment. State law does not place any limitation on a mayor’s ability to make an appointment in the case of a tie vote. As a result, a mayor can appoint any qualified person willing to fill the vacancy even if that person was not the subject of the original appointment vote. When is a city also required to hold a special election to fill a council vacancy? The answer depends on whether filing has opened for the next regular city election and how long is left in the unexpired portion of the term at the time of the vacancy. If the vacancy occurs on or after the first day to file as a candidate for the next regular city election or if less than two years remain in the unexpired term, the city does not need to hold a special election and the appointed person can serve out the remainder of the unexpired term. If the
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vacancy occurs before the first day to file as a candidate for the next regular city election and more than two years remain in the unexpired term, the city must hold a special election to fill the council vacancy at or before the next regular city election and the person elected will serve out the remainder of the unexpired term. If the council chooses to hold a special election to fill a vacancy at a time other than at the regular city election, it first must adopt an ordinance specifying the circumstances under which such an election will be held. If a special election to fill a council vacancy is held at the same time as the regular city election, the names of the candidates for the council vacancy should be placed on the election ballot under a separate heading indicating it is a special election. The election ballot should state the date the term expires and any other information necessary to distinguish the office. The published and posted election notices should include references to the special election to fill the council vacancy. Finally, state law provides that the terms of elected city officials begin on the first Monday in January following the election. However, the Minnesota Attorney General has advised that a person elected to fill a council vacancy in a statutory city is eligible to take an oath and assume office any time after receiving an election certificate.
Susan Naughton is research attorney with the League of Minnesota Cities.
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