Riverbank City Council members gathered for a special meeting recently to amend an earlier adopted resolution and to clarify that by law they were defaulted into a special election to fill a vacant council seat. At the end of the day on Friday, Feb. 8 the time period expired to fill the seat by appointment, so by default, the council made the ‘de facto determination’ the vacancy should be filled by special election. That meant the city would need to hold a special election. Monday, Feb. 11 was the next business day and the city passed a resolution on their agenda that day, indicating they would request the services from Stanislaus County to hold a special election on June 4. The resolution did not adequately communicate that the special election was being held by default, said Riverbank City Manager Jill Anderson.
“Basically, it was an administrative oversight that we corrected with the special meeting on Feb. 20,” Anderson said.
The confusion apparently lies in the timing, with Stanislaus County officials indicating the city requested the election a day too late, and Riverbank officials believing they took the right steps, as the election was automatically called for when no appointment was made.
Government Code Section 36512 (b) states:
If a vacancy occurs in an elective office provided for in this chapter, the council shall, within 60 days from the commencement of the vacancy, either fill the vacancy by appointment or call for a special election to fill the vacancy. The special election shall be held on the next regularly established election date not less than 114 days from the call for the special election. A person appointed or elected to fill a vacancy holds office for the unexpired term of the former incumbent.
Former councilmember Richard O’Brien won the city’s Mayoral race in November, which left his council seat empty. O’Brien’s oath of office occurred on Dec. 10, 2012, which meant that the council had until Feb. 8 to either appoint an individual to fill out O’Brien’s unexpired council term, or call for a special election. The council failed to appoint an individual to fill the seat by Feb. 8, which by law led to the default decision to hold a special election to have the matter decided by the public.
The city submitted a request to the Stanislaus County Clerk Recorder and Registrar of Voters elections division for their services in conducting the special election, but they declined, explained Anderson. The Registrar of Voters sent the mayor and councilmembers a letter stating that they cannot recommend to the Board of Supervisors that the county elections office conduct the June 4 Special Election on behalf of the City of Riverbank, given that the call for the special election was made less than 114 days before June 4.
The City of Riverbank states that by operation of the law, they are required to hold the special election and the date this resolution occurred was on Feb. 9, which met the requirements by law. The Registrar of Voters is stating that they made the resolution to hold the special election on Feb. 11, 113 days before the election.
Since this is a legal matter, Anderson said she has been working closely with the city attorneys to advise them and make sure they are abiding by all the election laws.
Doug White, who has provided legal counsel to the City of Riverbank for a number of years, earlier this year formed a partnership with Steve Churchwell, called Churchwell White LLP. Churchwell is also an expert in elections law and has provided legal counsel in this matter.
“He is not somebody we went and searched for or hired specifically for this matter, it just so happened that he was available to us,” said Anderson. “We have no intention of holding an illegal election. Our efforts are to fully comply with the law.”
The nomination period to obtain or file papers for the office of councilmember remains open until this Friday, March 8, at 5 p.m.
Anderson expressed that the June 4 special election is still on unless the city is given “compelling information” to change it. They are moving forward based on legal analysis by Churchwell.
“Our reading of the law, the steps that we have taken to have it (special election), we believe that we are compelled to have it on June 4 and if we don’t we could be in violation of the law,” said Anderson. “So we want to be in full compliance with the law and we believe that is having the June 4 election.”
At this point if the county does not want to conduct the election, she noted, then the city will look into hiring a private firm or other government agency. They are researching different firms to see what options they have to bring in a firm to hold the special election if necessary.