City attorney recommends appointment, and not special election, to fill Moss' commission seat

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Despite voters two weeks ago overwhelmingly saying they prefer elections to appointments, City Attorney Claudia McKenna is recommending that commissioners fill the sudden District 5 vacancy caused by Bill Moss' death by appointment.

At Thursday's agenda review meeting, McKenna said she consulted with numerous election lawyers and decided the charter calls for a year-long appointment, followed by an election in March 2013.

Two weeks ago, 85 percent of voters said they want elections over appointment. But that only affected commissioners who resign their seat to run for another office, because in that scenario, the regularly scheduled March commission meeting is only a few months away. The charter still calls for a death to be filled by appointment.

But the charter does not directly address a commissioner who hasn't been sworn into office yet. Moss' sixth term was set to expire next week, and Commissioner Kimberly Mitchell said that because Moss will never be sworn into a seventh term, the vacancy should be filled by special election.

However, McKenna's opinion is that the charter does not allow that, even though the charter is vague about when commissioners' can call special elections. The state's Division of Election said state law also doesn't address this.

McKenna, who choked up while discussing the vacancy, said the charter does address the vacancy, and that it calls for an appointment. She said it's about the office of the commissioner, not the commissioner himself, and that the charter calls for the vacant office to be replaced by appointment.

"The city's charter provides a straight-forward procedure for filling a vacancy in the office of city commissioner that occurs ‘for any reason.' That procedures requires appointment of a successor to serve until the next general municipal election," McKenna wrote in her official opinion.

McKenna said the only way a special election can be called to fill the vacancy is if voters' amend the charter. To avoid two special elections, McKenna said the city would have to hold a provisional election, meaning District 5 residents could run for the vacancy, but the winner would only be seated if voters' simultaneously agreed to alter the charter to allow for the special election in the first place.

Mitchell was not at Thursday's meeting. Commissioners' will officially make a decision at Monday's commission meeting.

"I'm comfortable sticking with the charter," Commissioner Keith James said. "The only difference is the timing of Bill's demise. If he had been in office two months and then passed, it wouldn't even be a close call."

An appointment would give the appointed commissioner a huge advantage of having been an incumbent for a year before he or she has to run for the seat. Commissioner Sylvia Moffett was appointed to her District 1 seat after being lobbied by former Mayor Lois Frankel. It took just two votes (James and Moss) for Moffett to earn her seat, and she faced little competition when she ran for the office earlier this month. Mayor Jeri Muoio was also appointed to the city commission in 2006.

"I think there are certainly pros to (a special election), but also some cons," Muoio said. "If we had two commissioners leave in one year, we could have two special elections in one year and have to assume the cost of two special election. I always get a little nervous about making a decision like this, a big decision on charter change, in a very emotional time like this. If in fact that's direction we want to go, we need to think about it, the unintended consequences of a charter change."

City officials say that a special election can cost up to $100,000. Moss defeated attorney Dodger Arp by 16 points in the March 13 election.

If commissioners' agree to an appointment, the city would begin taking applications after the April 5 swearing-in ceremony. An appointment would take place within 30 days. If the appointed commissioner wants to then run for the seat, he or she would have to run for a 1-year term in March 2013, and then a full two-year term in March 2014.


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