Norfolk council vacancy update

In my post announcing that Daun Hester will be running for mayor, I said that I would get clarification on the vacancy rule. The reason for that was I had received information that council would not appoint a replacement and, instead, a special election would be held.

According to this article:

Once she files to run, city code calls for her to relinquish her council seat on June 30, City Attorney Bernard A. Pishko said. The council would then appoint a replacement to finish the remaining two years of Hester’s term, Pishko said.

While I was not aware of the June 30 date (I thought she had to resign immediately), the council appointing of a replacement was my understanding of the way things work. The City Charter, confusing at times, makes no mention of a special election.

In the charter, the last sentence of Section 19 reads:

A sitting member of council who files his or her candidacy for mayor or for election to a council seat other than reelection to his or her own seat and so appears on the ballot shall be deemed to have resigned his or her seat effective June 30 of the year in which the election is held whether or not he or she is elected to the new seat sought.

Now why this isn’t included in the section on vacancies, I don’t know. But that section – 7.1 of the charter – lays out the procedure whereby a vacancy is filled. It reads (emphasis mine):

Any vacancy in the council after July 1, 2006, except as otherwise provided in this Charter, shall be filled by the remaining members. Any person elected to fill an unexpired term for ward representative shall be elected only from among the qualified voters in the ward or superward where such vacancy exists. Any vacancy in the office of mayor shall be filled from among the qualified voters of the city at-large. No candidate shall be elected unless he receives at least five votes in his favor. If by reason of resignation, death, or other circumstances, except in the case of vacancies resulting from a recall election, five or more vacancies exist or occur at the same time in said council, then the members of the civil service commission shall at once convene a majority of said commission and, by a majority vote of the members of said commission present, forthwith make such number of appointments from the wards and superwards where such vacancies exist, or from the city at-large in the case of the mayor, as may be necessary to constitute a council of five qualified members, which five members shall at once proceed to fill the remaining vacancies with qualified members. And in any case the council shall fail to fill a vacancy therein for a period of thirty days after the occurrence of the vacancy, such vacancy shall be filled by said commission as provided herein. The city clerk shall act as the clerk of the commission so constituted, and shall cause his certificate of its action to be entered on the record of the council.

If the term of office so filled, either by the council or by said commission, does not expire for two years after the next regular election of council members following such vacancy, and such vacancy occurs more than one hundred twenty (120) days prior to that election, an additional council member shall then be elected at such election only by the qualified voters of the ward or superward where such vacancy exists, or in the case of the mayor from the city at-large and after the date of his qualification, succeed such appointee, and serve the unexpired term. When any vacancy is so required to be filled by election, the council or commission shall, within fifteen (15) days of the occurrence of the vacancy, petition the circuit court to issue a writ of election to fill the vacancy at the next general election of council members. In the event that more than one vacancy is to be filled by election, the same provision shall apply. The foregoing provisions of this section are subject to the further provision that any vacancy resulting from a recall election shall be filled in the manner provided in such case.

So, in effect, council appoints someone to serve until the next regular election of council, which occurs every two years.

Hester does not have to resign in order to run  – that part of my statement was incorrect – but as soon as she files, she has effectively resigned as of June 30. Council will be appointing her replacement, who will serve the remaining two years of her term. If council appoints (or promises to appoint – because essentially they can’t appoint until the seat is vacant) current vice mayor Anthony Burfoot to the seat, as is rumored, the question remains as to what he will do in conjunction with this May’s election.

If Burfoot runs for his Ward 3 seat and wins and is then appointed to Hester’s Superward seat, council will be able to appoint someone to his then-vacant seat, who will serve for two years. In that scenario, council would be appointing two members, a significant number on a eight-member council. (Note that this “two appointment” scenario plays out for any of the current council members in the five small wards.)

If Burfoot doesn’t run or is defeated, council only gets to appoint one person  – to Hester’s Superward seat.

With Hester’s resignation being effective on June 30, the other question is which council gets the right to appoint. The new council takes office on July 1. Does the new council or the old council make the appointment? Will the old council announce the replacement on June 30, who gets sworn in the next day, or will the new council make the appointment on July 1?

All I can say is that I hope Norfolk voters are paying attention.