City lawyer

Mar 10, 2010 — The State

Adam Beam

Mar. 10, 2010 (McClatchy-Tribune Regional News delivered by Newstex) -- Columbia City Attorney Ken Gaines is recommending City Council hold a special election after April 6th to fill the unexpired term of Councilman E.W. Cromartie.

The State Election Commission told council members yesterday they had to schedule the election for April 6th in order to comply with state law.

But in an e-mail to council members obtained by The State, Gaines said state law would not apply "simply because of logistically not being able to get the names on the ballot."

"I would suggest that Council consider passing a resolution ordering a special election with the appropriate notice being given to 'insure that the will of the electorate is being fairly expressed,'" Gaines wrote in the e-mail. "This may be successfully challenged, but I think it is more defensible than the procedure which the election commission has proposed."

Mayor Bob Coble and Council members Tameika Isaac Devine and Sam Davis are on record saying they support an April 6 election. Council members Kirkman Finlay and Daniel Rickenmann are in favor of a special election after April 6th.

Councilwoman Belinda Gergel is the swing vote.

Council members voted unanimously to waive attorney client privilege and discuss the election law in public with Gaines.

The e-mail

City attorney Ken Gaines sent this e-mail to Columbia City Council members seeking advice about a special election to replace councilman E.W. Cromartie.

Subject: RE: Council Vacancy

I have been doing some further looking into and thinking about how the City might proceed in the event of a vacancy. As you know there is no definitive legal guidance on how to proceed.

As you know there are strong policy considerations of adequate notice being given to insure the will of the electorate being fairly expressed. (This is the actual language is contained in Section 7-13-1170). It is clear that Section 5-7-200 applies if there is a vacancy in office. The question is whether to have a short filing period and campaign period (as proposed by the election commission) or have a special election with the required 90 day notice (Ordinance 6-6). (5-15-50 requires at least 60 days notice. 7-13-35 requires a notice not later than 60 days before the election and the second notice not later than two weeks after the first notice. Also, Ordinance 6-4 requires the statement of candidacy with the election commission 60 days prior the date of the election.

The short filing period and campaign period are bothersome in light of the policy considerations. Also, I am bothered by the fact that at some point in time the provisions of "a vacancy in the office of mayor or council shall be filled for the remainder of the term at the next general election" would not apply simply because of logistically not being able to get the names on the ballot. Common sense dictates that it would apply all the way to the day of the election or not apply at all. Essentially, the logic is that if time permits it applies. If time does not permit, it does not apply. I am also bothered by the "throwing the required statutory notices to the wind". I also find it hard to believe that the Justice Department has approved the election commission proposal.

I would suggest that Council consider passing a resolution ordering a special election with the appropriate notice being given to "insure that the will of the electorate is being fairly expressed". This may be successfully challenged, but I think it more defensible than the procedure which the election commission has proposed.

Kenneth E. Gaines

City Attorney

Newstex ID: KRTB-0044-42768766