Who's on first?
This question may apply to the current Bluffton council and mayoral situation. Given the potential resignation on June 2 of Dennis Gallant, Bluffton mayor, a complex set of circumstances will take place. These circumstances affect the make up of Bluffton council and the potential for persons to seek future seats on council and as mayor.
Stephen Chamberlain, Bluffton village solicitor, addressed this issue at the May 19 council session.
He told council: "Given the recent announcement of the mayor to move from the village for professional opportunities and thereby leave a vacancy in his office, and the questions that have been put to me by several members of the council, I believe it is necessary to put forth my legal opinion on the manner of succession to the office of mayor and council members. My opinion is based exclusively on Ohio Law and the Ohio Revised Code."
Chamberlain's memorandum follows:
MEMORANDUM REGARDING THE SUCCESSION OF MAYOR UPON RESIGNATION, APPOINTMENT OF MEMBERS OF THE VILLAGE COUNCIL AND OFFICE OF PRESIDENT PRO TEMPORE (COUNCIL PRESIDENT) UPON VACANCY
Given the recent announcement of the Mayor to move from the Village for professional opportunities and therebhjy leave a vacancy in his office, and the questions that have been put to me by several members of the Council, I believe it is necessary to put forth my legal opinion on the manner of succession to the office of Mayor and Council Members.
My opinion is based exclusively on Ohio Law and the Ohio Revised Code.
It is important to recognize that the sequence of events will govern much of the procedure that will be followed. Also there is flexibility in the order of procedures depending upon the order in which the Village Council votes (by simple majority) to deal with the various issues raised.
PART I: Mayor Resigns
1. MAYOR AFTER RESIGNATION: The Vacancy in the Mayor’s Office is filled immediately by the president of council. (president pro tempore in legislative language). Therefore, upon the effective date of the Mayor’s resignation, the current president of council shall be Mayor of the Village of Bluffton, Ohio at that time by operation of law.
2. TERM FOR COUNCIL PRESIDENT AS MAYOR (SUCCESSOR MAYOR): The Successor Mayor shall be Mayor until a new Mayor is elected and qualified. Since the Mayor Gallant’s resignation is more than 40 days prior to a municipal election (November, 2015) and since there would be more than one (1) year left of the current term of office, the election would be for the unexpired term.
3. THE PRESIDENT OF COUNCIL’S VACANT COUNCIL SEAT: The President of Council becoming Mayor creates a unique situation since he/she is a sitting member of council and has several years on their term.
A. Since the vacancy has occurred because the Mayor has resigned and the council president must serve as Mayor, the Village Council fills the vacancy ONLY for the time that the Council President serves as Mayor.
B. If that person runs for Mayor and wins the next election to serve the unexpired term in 2015, in that event, the council seat becomes vacant and the Council will appoint a successor for that member’s unexpired Council term.
i. The person who appointed to fill in is NOT automatically allowed to fill the remainder of the term on council but would have to be reappointed to fill the unexpired term.
C. If President of Council does not run for Mayor, or, if he runs and is defeated in the election, in that event, the President of Council returns to his seat on Council to fill out the remainder of his term.
i. The person who was appointed to fill the President’s seat while he served as Mayor would then no longer be a member of council.
PART 2: Resignation by Council Member
1. RESIGNATION OF COUNCIL MEMBER: Upon the resignation of a council member, the Village Council has a vacancy (I can find no authority for the proposition that the Council has to declare a vacancy for resignations). Thereafter, the Ohio Revised Code states that the Village Council shall elect a new member for the unexpired term of the resigning member. If Council does not do this within 30 days, it becomes the appointment of the Mayor.
A. There is no requirement or restriction on who can be elected to fill the vacant seat as long as the person appointed would otherwise be qualified to run as a candidate. That requires only that the person be an elector and a resident for a period of one year.
B. There has been a past practice to advertise and interview potential candidates for a vacant seat, however, there is no legal requirement or mandate to do so.
C. The election would be by majority vote of the council members remaining as long as there is a quorum.
D. There is no requirement for a “nomination” process as such. That would be up to Council to determine on a case by case basis. The only requirement that I can see is that before the vote, it must be clear who the proposed nominees are to all members of council entitled to vote and then a vote can be taken. It can be by voice vote, roll call or secret ballot at the decision of council as a whole.
2. EFFECTIVE DATE OF NEW COUNCIL MEMBER: Any person appointed and sworn enters into the office of member of council immediately.
PART 3: Resignation of President of Council
1. PRESIDENT OF COUNCIL RESIGNS: The only statue that deals with the appointment of election of a president of council states that the president has a one year appointment and that the election be from one of the members of council.
A. A resignation would cause a vacancy in that office and, absent any other controlling statute, would be filed by the original appointing authority, in this case, the council as a whole by majority vote.
B. There is no statutory guidance as to when or how long a vacancy in the office of president of council may exist.
