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Home My WebLink About246-17 RESOLUTION113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 246-17 File Number: 2017-0686 ELECT KYLE SMITH CITY COUNCIL MEMBER FOR WARD FOUR, POSITION TWO: A RESOLUTION TO ELECT KYLE SMITH AS CITY COUNCIL MEMBER FOR WARD FOUR, POSITION TWO OF THE CITY OF FAYETTEVILLE WHEREAS, a vacancy in the office of the Council Member of Ward Four, Position Two has just occurred in the City of Fayetteville; and WHEREAS, the City Council pursuant to A.C.A. § 14-43-411(b) has voted to elect Kyle Smith as the replacement City Council Member for Ward Four, Position Two. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby elects Kyle Smith to the office of City Council Member of Ward Four, Position Two in the City of Fayetteville pursuant to A.C.A. § 14-43-411(b) to serve the remainder of the previous Council Member's term. PASSED and APPROVED on 11/21/2017 Page 1 Attest: Sondra E. Smith, City Clerk 'I T R A��r FAYETTLVILLL. {�4 /« l( { 1 110% 1s�St�w Printed on 11130117 City of Fayetteville, Arkansas Text File File Number: 2017-0686 Agenda Date: 11/21/2017 In Control: City Council Meeting Version: 1 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Status: Passed File Type: Resolution A RESOLUTION TO ELECT KYLE SMITH AS CITY COUNCIL MEMBER FOR WARD FOUR, POSITION TWO OF THE CITY OF FAYETTEVILLE WHEREAS, a vacancy in the office of the Council Member of Ward Four, Position Two has just occurred in the City of Fayetteville; and WHEREAS, the City Council pursuant to A.C.A. § 14-43411(b) has voted to elect Kyle Smith as the replacement City Council Member for Ward Four, Position Two. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby elects Kyle Smith to the office of City Council Member of Ward Four, Position Two in the City of Fayetteville pursuant to A.C.A. § 14-43-411(b) to serve the remainder of the previous Council Member's term. City of Fayetteville, Arkansas Page 1 Printed on 1113012017 Legistar ID No.: 2017-0686 AGENDA REQUEST FORM FOR: Council Meeting of November 21, 2017 FROM: City Attorney Kit Williams ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A RESOLUTION TO ELECT KYLE SMITH AS CITY COUNCIL MEMBER FOR WARD FOUR, POSITION TWO OF THE CITY OF FAYETTEVILLE APPROVED FOR AGENDA: City Attorney Kit Williams Date OFFICE or THE CITY A'I'ToRNEY DE ARTiMENTAL CORRESPONDENCE TO: Mayor Jordan City Council CC: Don Marr, Chief of Staff FROM: Kit Williams, City Attorney r DATE: November 21, 2017 RE: Motion and Resolutions for Aldermen Vacancy Kit Williams City Attorney Blake Pennington Assistant City Attorney Rhonda Lynch Paralegal To facilitate the parliamentary procedure for the City Council to address the vacancy for the Council Member in Ward 4, Position 2, I have attached two Resolutions. One Resolution would call for a Special Election to elect a new Council Member on February 13, 2018. The other Resolution would elect a replacement Council Member by City Council vote tonight. The first issue that should be addressed is the City Council's choice between electing a replacement Council Member or referring the decision to a Special Election. This should be done by a City Council Member moving either: (1) To elect a Council Member by the City Council to serve the unexpired term of former Council Member Alan Long; or (2) To call for a special election to elect a new council member to replace former Council Member Alan Long. This initial motion is an internal motion such as a motion to table and is dependent upon members of the council present and voting. Thus, because of the vacancy of Long's position and the absence of another Council Member that motion will require only four votes to pass. The Mayor may as usual vote if "the Mayor's vote is needed to pass any ordinance, by-law, resolution, order or motion." A.C.A. § 14-43-501(b) Either Resolution, however, shall continue to require five affirmative votes to pass pursuant to A.C.A. § 14-55-203 Voting requirements for passage. "To pass any by-law, ordinance or resolution... , a concurrence of majority of the whole number of members elected to the council shall be required." This is slightly altered by A.C.A. § 14-43-411(b)(1) which requires a "majority vote of the remaining members elected to the council.... " As "this language would include the Mayor since he is an ex officio member of the council," Gibson v. City of Trumann, 311 Ark 561, 562, 845 S.W.2d 515, 516 (1993); the Mayor must also be counted when determining the number of "remaining members elected to the council" which would be eight. Thus, five affirmative votes (which could include a vote by Mayor Jordan) would be needed to pass either Resolution. Please keep in mind that the state statute says: "at the first regular meeting after the occurrence of the vacancy, the city council shall proceed to either elect... or call...." A.C.A. § 14-43-411(b)(1) (emphasis added). Therefore, the City Council has a mandatory duty to either elect a new council member or call a special election at this meeting. 2 RESOLUTION NO. A RESOLUTION TO ELECT __ AS CITY COUNCIL MEMBER FOR WARD FOUR, POSITION TWO OF THE CITY OF FAYETTEVILLE WHEREAS, a vacancy in the office of the Council Member of Ward Four, Position Two has just occurred in the City of Fayetteville; and WHEREAS, the City Council pursuant to A.C.A. § 14-43-411(b) has voted to elect as the replacement City Council Member for Ward Four, Position Two. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby elects to the office of City Council Member of Ward Four, Position Two in the City of Fayetteville pursuant to A.C.A. § 14-43-411(b) to serve the remainder of the previous Council Member's term. PASSED and APPROVED this 21St day of November, 2017. APPROVED: By: LIONELD JORDAN, Mayor ATTEST: SONDRA SMITH, City Clerk/Treasurer RESOLUTION NO. - A RESOLUTION TO CALL A SPECIAL ELECTION TO FILL A VACANCY OF CITY COUNCIL MEMBER FOR WARD 4, POSITION 2 OF THE CITY OF FAYETTEVILLE WHEREAS, a vacancy in the office of the Council Member of Ward Four, Position 2 has just occurred in the City of Fayetteville; and WHEREAS, pursuant to A.C.A. § 14-43-411(b) the Fayetteville City Council has voted to call a special election to fill this vacancy. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Seetioii 1. That the City Council of the City of Fayetteville, Arkansas hereby calls a special election to fill a vacancy for a Council Member in Ward 4, Position 2 of the City of Fayetteville for February 13, 2018. The deadline for filing as an independent candidate for this position shall be December 11, 2017 at the 2:00 p.m. The period of time that petitions for independent candidacy may be circulated is November 22 until December 11, 2017 at 2:00 p.m. The date for drawing for ballot position shall be December 13, 2017 at 2:00 p.m. The date that the election shall be certified by the county board shall be no later than March 13, 2018. PASSED and APPROVED this day of __ . 2017. APPROVED: ATTEST: By: ---- By: -- LIONELD JORDAN, Mayor SONDRA SMITH, City Clerk/Treasurer 4 DEPARTMENTAL CORRESPONDENCE OFFICE CF THE CITY ATTORNEY TO: Mayor Jordan City Council CC: Sondra Smith, City Clerk Don Marr, Chief of Staff Paul Becker, Chief Financial Officer,,-- FROM: Kit Williams, City Attorney C DATE: November 20, 2017 RE: Former City Council Member Alan Long's Resignation Kit Williams City Attorney Blake Pennington Assistant City Attorng Rhonda Lynch Paralegal This morning at 7:56 a.m. I received an unsigned, but apparently authentic, scanned "Letter of Resignation" from Alan Long to "Mayor Jordan (submitted through Sondra Smith, Fayetteville City Clerk)" with a "CC: City Attorney." This letter was dated "November 18th 2017." I believe this letter has clarified that the Office of Council Member from Ward Four, Position Two is now vacant. As I warned in you in my November 2, 2017 memo, A.C.A. § 14-43-411(b)(1) requires: "at the first regular meeting after the occurrence of the vacancy, the city council shall proceed to either elect by majority vote of the remaining members elected to the council an alderman to serve for the unexpired term or call for a special election.... " That "first regular meeting after the occurrence of the vacancy," is tomorrow, November 21, 2017. The City Council must then either elect a replacement Council Member or call for a special election pursuant to A.C.A. § 7-11-105(a). The first motion on this issue should be one either moving to elect a new Council Member by Council Member vote or a motion to call for a special election. Once either the election by City Council versus special election option is selected, the appropriate procedure for either option can begin. The state statute is silent about what Council Members should do prior to electing "by majority vote" the new Council Member. In the past when we had plenty of time to plan such election, persons applied and were often interviewed by the City Council during the meeting. Then a public vote was taken to elect the replacement. I do not know if attempting to get applications would be feasible tomorrow night with so little time for persons to apply. Please think about how you would like to proceed. I believe the procedure is almost totally discretionary with the City Council. I do recommend that this be the last order of business so as not to delay citizens appearing for items already on the agenda. Additionally, any applicant should experience at least one night's City Council meeting before being appointed to such an important position. The statute refers to A.C.A. § 7-11-101 to fill a vacancy by special election. My review of that subchapter reveals a special election could be held on February 13, 2018. I will prepare a call for a special election resolution in case this is what the majority of the City Council votes to do. 2 Z� DEPARTMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan City Council Sondra Smith, City Clerk CC: Don Marr, Chief of Staff Paul Becker, Chief Financial Officer r FROM: Kit Williams, City Attorney Ll- DATE: November 2, 2017 RE: Recent Litigation Kit Williams City Attorney Blake Pennington Assistant City Attorney Rhonda Lynch Paralegal In light of a recent verified Complaint's allegation of improper residency of a sitting Council Member, I believe I need to reissue nay memo of July 13, 2016 (attached) entitled "Alderman Vacancy". A,C.A. § 14-43-411 requires a decision by the remaining City Council Members "at the first regular meeting after the occurrence of the vacancy.... " 1 take no position on the correctness of the allegations, but since they were sworn to as correct, I have asked the Council Member's Attorney for a proper and clear response. It is possible that the City Council would be statutorily required on November 7, 2017 to decide whether to appoint a replacement Council Member or call a special election pursuant to A.C.A. § 7-11-101 to fill a potential vacancy. If a special election is called for on November 7, 2017, the Special Election would have to be scheduled and "shall be held on the second Tuesday of any month." A.C.A § 7-11-105(x). "(T)he special election shall be held not less than sixty (60) days following the date established... for drawing for ballot position." A.C.A. § 7-11-105(d)(2). Depending on when the City Council would provide for the drawing for ballot position, the Special Election (if one is needed) could be scheduled for January 9 or February 13, 2018. 1EA 01;k--Tcf. ()F rlif Ci i,v A r roi� -,_:� DEPA TiN.tE TAS, .,ORRES.Pt. NDENCU, kit Willialris t_%T}� 13i��:i F'Ci3{Y111`;;�lII3 TO: Mayor Jordan ;t:<< .;z, c;;r,.• ;tu , , Don Marr, Chief of Staff FROM: Kit Williams, City Attorney ..rL� DATE: July 18, 2016._ RE: Alderman Vacancy A.C.A. § 14.43-411 proscribes what the City Council must do if an alderman leaves his or her elected -position for any reason (moving out of the ward, assuming another elected position and resigning the alderman position, death, etc.) "If the unexpired portion of the term of alderman exceeds one (1) year, at the first regular meeting after the occurrence of the vacancy, the city council shall proceed to either elect by majority vote of the remaining members elected to the council an alderman to serve for the unexpired term or call for a special election to be held in accordance with § 7-11- 101 to fill the vacancy." If the unexpired term is less than one year, then the City Council will appoint a new alderman to fill the unexpired term. If the office of the Mayor becomes vacant, a special election must be called unless less than one year remains in the Mayor's term. A.C.A. g 14-43-401. If the office of any other "elected officer" (City Attorney, City Clerk) becomes vacant, such vacancy will be filled by the City Council and there will be an election at the next general election (even if the term of office would not normally end at that time). A.C.A. § 14-43-412. As opposed to appointments by the Governor (judicial, quorum court members), any person appointed by the City Council is not prohibited from running for reelection.