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HomeMy WebLinkAboutminutes.council.19780117 ~ Special Meeting Aspen City Council January 17, 1978 Mayor Standley called the meeting to order at 7:15 p.m. with Councilmembers Behrendt, Johnston, Parry, Wishart, and Van Ness, and City Manager Mahoney and City Attorney Nuttall present. Mayor Standley explained the reason for calling the special meeting was that Councilwoman Johnston and City Attorney Nuttall has expressed interest in trying to figure out a way to put the appointment for the vacant Council seat to an election as opposed to the interview process. Mayor Standley stated that at the last Council meeting, Councilman Wishart had indicated he thought that was the way to go. Mayor Standley agreed. Mayor Vacant Council Standley pointed out that there is concern on the part of some of the Councilmembers seat - appoint that this appointment is for 3½ years and the party is not responsible to the electorate. The person becomes an appointee of the Council. Mayor Standley pointed ~t that any ~ or election ~ person that fills the seat because they are appointed is absolutely not responsible to anybody except the Council. Council should not have people responsible to them except for the administration. City Attorney Nuttall submitted a memorandum to Council outlining whether an election may be called to fill the vacant council seat. Ms. Nuttall pointed out the Charter provisions o~uz~x ~v~ning Aspen City Council January 17, 1978 dealing with this question. Sec. 3.8 states stated within 30 days after a vacancy occurs, the remaining councilmen shall choose by majority vote a duly qualified person to fill such vacancy. This date will be January 29 or 30. The next applicable charter provision is Sec. 5.7 which allows Council to submit any proposed question to a vote of the electorate. Ms. Nuttall stated she felt it was fair to say Council has the discre~tion to decide what questions ought to be submitted. Sec. 3.5 states that Council shall be the judge of election and qualifications of its own members. As far as the options go, Ms. Nuttall stated, the Council could simply appoint. This is in strict conformance with the Charter. Anything else the City does involves some legal risk. If the Council goes for an election, there are several alternatives. The Council may appoint someone temporarily to fill the Council seat with the agreement they would resign. The City can go ahead and hold an election; whoever wins the election will fill the seat. This is fairly contrived. This is the safest of the options to go through an election. This way the City would be within all the time limits, notice provisions, nomination petitions, etc. This has the least legal iml~tions. Along these lines, Council could appoint someone with the agreement that if a Charter amendment is passed, they will submit to the next vote. The charter amendment question could be passed in the interim. This avoids some, but not all, of the problems. Finally, Council could disregard the 30 day period in which they are required to fill the vacant seat, and hold an election and appoint the winner the successor. This has the most serious legal implications. Ms. Nuttall stated that if Council chooses to go through an election, there are some legal consequences. This could be a very risky situation; and no matter which way Council chooses to go, they need to be forewarned. There could be a taxpayers' suit alleging expenditure for election was illegal in violation of Charter requirement. The City could be liable about spending taxpayers' money. The second consequence is someone could bring mandamus action, making Council do what the Charter says they have to do. Councilwoman Johnston asked if instead of appointing a person, is there any case law which would allow them to appoint a Mr/Ms X who could be elected by the people at the special election. Ms. Nuttall answered that within a 30 day period Council could appoint such person who wins the election to be held at specified date. Council has appointed someone but the identity is not know at this time. Ms. Nuttall stated if the Council decides to have an election, she would want to go that way. It would mitigate against some of the problems. There is Colorado authority on both the taxpayers' suit and the Mandamus action which would in fact get a case into court. Ms. Nuttall stated she could not avoid a motion to dismiss on these. They are old cases and might be subject to challenge but they could get into court. Ms. Nuttall pointed out another possibility; an election to fill a vacancy that is illegaly, it is possible that the appointment is void. The person does not exist on Council; what happens to his votes. There is general authority for this, but no Colorado authority. If someone did sue the City on this, it would cause considerable confusion for the government. Ms. Nuttall stated if Council decided to 4o through an election, maybe none of this would happen. It is the City Attorney's position to point this out. Councilwoman Johnston asked if contrivance were illegal. Ms. Nuttall answered that the Courts take a dim view of it. Councilman Wishart asked if she thought someone would sue the City. Ms. Nuttall answered there is no way to know; the election may be accepted as the best decision possible. Councilman Wishart said he liked the last option; and if Council went with that, Councilman Wishart said he did not think Council should appoint anybody who is goih~ to run. Council~ man Wishart said he thought this was a good option and allowed Council a chance to have an election. Mayor Standley outlined the election schedule and said the first available election date would be March 28. Councilman Van Ness~aid he loved elections, but on the other hand it seems that the Chartez says the remaining Councilmen~ers shall choose period. It is the letter of the law and the clear intent of the Charter. Councilman Van Ness stated it was obvious to him what the Charter intends the Council to do. Councilman Van Ness said he is not for worming around, as much as he thinks the Charter is wrong, the Council is stuck with it. Council~ man Van Ness pointed out he took an oath to uphold the Charter and he has to do it. Councilman Van Ness stated if Council pulls this one by the Charter, the whole Charter is meaningless. Councilwoman Johnston stated her concern was the responsbility of the appointee for 3½ year term. The appointee will not be responsible to anybody. Councilman Wishart agreed this particular provisions is a bad one. Bill Dunaway pointed out that the Council was elected to run the City and to abide by the Charter. The people who elected the Council had faith in them. Council should not surrender their authority by not abiding by the Charter and not making the appointment. Dunaway stated he did not think the Council shoul~ spend money for an unnecessary election. Council should have confidence in their ability to select a replace for Hershey. Council has the knowledge and wisdom to make a good selection. Councilman Behrendt stated the list of applicants looks like a good cross section and like people who would run for office. Councilman Behrendt stated he was confident that Council can pick a good person. Councilman Behrendt said Council was abrogating their duties in not making an appointment. Councilman Wishart stated all the people he had talked to were in favor of an election. Councilman Wishart said that an election would not cost more that $1500. Mayor Standley pointed out the figures quoted Were around $750 for an election. 2345 Special Meeting Aspen City Council January 17, 1978 Councilwoman Johnsson pointed out that when the Charter was written, no one ever antici- pated that someone would quite within six month. Councilwoman Johnston said she has Vacant Council talked to many people and they are enthusiastic about an election. Councilman Van Ness seat asked if there were any criminal statutes for willfully not following the Charter. Ms. Nuttall answered that, yes it is a misdemeanor and there are conceivable criminal possi- bilities. Councilwoman Johnston said Council's concern has got to be for the good of the City. For a 3½ year term, it seems important that people have a choice in the people who are leading them. Dunaway stated a democracy works on certain persons being elected and those elected officials making choices they were elected to do. Mayor Standley suggested having the appointment made by resolution or ordinance and having a public hearing. If 70 or 80 per cent of the people don't like the process, Mayor Standley said he would vote for an election. Councilman Behrendt moved that Council proceed as directed by the established City Charter and follow the program outlined earlier; to continue with the appointment process, inter- view people in the next two nights and appoint at the next Council meeting; seconded by Councilman Van Ness. Mayor Standley asked Councilman Behrendt to include that the City Council will submit to whichever comes first, special election or next regular election, a Charter change for the process of selection to fill a position on vacant Council seat. Councilman Behrendt said he felt that would happen anyway. Councilman Parry said he was prepared to make a decision and prepared to interview people as the Charter say. All in favor, with the exception of Councilmembers Wishart and Johnston. Motion carried. Councilwoman Johnston moved that Council interview all the people who have applied; seconded by Councilman Wishart. All in favor, motion carried. Council set the interview for January 18 and 19 and decided they would interview for half an hour and without city administration. Council set an executive session luncheon for Monday, January 23. Councilman Van Ness moved to adjourn at 8:10 p.m.; seconded by Councilman Behrendt. All in favor, motion carried. ~ Kathr ~H'a~t'er, City Clerk