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By Brian Hews
For the second straight council meeting, Vice Mayor Cheri Kelley and Councilman Leonard Shryock once again voted for legislative gridlock and inexplicably voted against the appointment of a councilperson to fill the seat vacated by Marcel Rodarte.
Rodarte resigned from his seat June 30 of this year to take the Executive Director position for the California Contract Cities Association.
Their action could spur a lawsuit against the City.
Councilmen Mike Mendez and Luigi Vernola, clearly frustrated, tried to negotiate an appointment process, but Kelley and Shryock would have nothing to do with it.
Kelley made the motion to block the appointment and Shryock immediately seconded the motion.
Vernola told Hews Media Group-Community News, “It does not make any sense they (Kelley and Shryock) are not making an effort. We either have to appoint or hold a special election, what do they want to do cost the city thousands of dollars? It would cost nothing to appoint a candidate.”
Vernola himself was appointed years ago and then successfully won re-election.
“I was not asking to appoint one person, council should accept resumes or applications and interview qualified individuals to fill the vacant position. There are many capable people out there.”
Mayor Mike Mendez told HMG-CN, “It would be nice to give someone an opportunity but the other two (Kelley and Shryock) don’t agree, they have the right to vote that way, but what could it hurt to consider appointees instead of costing the City money?”
Former Mayor and Councilman Gordon Stefenhagen was mentioned in both conversations HMG-CN had with Vernola and Mendez and both agreed Stefenhagen would a great choice.
“That would be seamless,” said Mayor Mendez, “and he would not run in March.”
California Government Code 36512 provides that the council must, within 60 days from the date of the vacancy, either fill the vacancy by appointment or call a special election to fill the vacancy. A person appointed or elected to fill a vacancy holds office for the unexpired term of the former incumbent.
If the city council chooses to fill the vacancy through a special election – or if the council seeks to fill the position by appointment but does not do so within 60 days of the vacancy – the special election must be held on the next regularly established election date not less than 114 days from the call of the election.
Government Code section 36512 provides the city council with another option. The council may choose to adopt an ordinance to govern the process for filling a vacancy.
The ordinance may adopt any of the three following approaches for filling vacancies:
1. It may require that a special election be called immediately to fill every city council vacancy. The ordinance must provide that the special election will be held on the next regularly established election date not less than 114 days from the call of the special election.
2. It may require that a special election be held to fill a city council vacancy when petitions bearing a specified number of verified signatures are filed. The ordinance must provide that the special election shall be held on the next regularly established election date not less than 114 days from the filing of the petition. A city council that has enacted such an ordinance may also call a special election without waiting for the filing of a petition.
3. It may provide that a person appointed to fill a vacancy on the city council holds office only until the date of a special election which shall immediately be called to fill the remainder of the term. The special election may be held on the date of the next regularly established election or regularly scheduled municipal election to be held throughout the city not less than 114 days from the call of the special election.
Because a decision has not been made, any new vote between July 16th and August 29th will push the election to the next established election date, which is March 7, 2017, and the City’s regularly scheduled election. Consequently, the March ballot could now list three City Council seats; two full four-year terms and one two-year term.
A final option is for a person or organization to file a lawsuit and compel the council to act.
HMG-CN contacted Corona based attorney Chad Morgan, an election law specialist, who confirmed the time frame to either appoint or hold a special election.
“Quite frankly, I have never heard of this happening,” Morgan said. When asked if a person or organization can sue the City for failing to appoint a replacement councilperson Morgan said, “they can file a Writ of Mandate which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. The court will order a hearing and consider the evidence on the writ and afterwards either issue the writ or deny the petition.”
If they issue the writ, the court can compel the City to appoint a councilmember or hold a special election per election code 36512.
“I would suspect if they cannot come to a consensus, that the judge would order a special election, but the judge could also compel them to try to appoint one more time, then if there is not a consensus, he can order a special election.”
In a brief statement, signalling that she is willing to wait seven months to fill the vacancy or incur a lawsuit, Vice Mayor Kelley told HMG-CN, “the “Special” election you refer to would be held on March 7, 2017 which is the regular city election. The cost is already in the budget.”
That comment is consistent with what Kelley said during the council meeting. “We do not want to appoint someone for seven months, they would spend their time running for election.”
Texts into Shryock went unanswered.
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