Monday, June 15, 2015

Filling a Vacancy on City Council by Appointment

At Monday night's meeting, the Richardson City Council is scheduled to appoint a person to fill a vacancy in the Place 5 position on the council.

Some people just can't let go of the false idea that filling a vacancy by appointment instead of special election is a violation of the Texas State Constitution. And that the city charter itself gives the city council the option of calling a special election. By some people, I mean specifically local gadfly Cheri Duncan-Hubert. She's been corrected before, including here, but in a (long) Facebook thread she demonstrates a remarkable persistence of willful ignorance. So here we go again.

Cheri Duncan-Hubert says the Texas Constitution trumps the city charter. Well, yes it does. No one argues otherwise. The argument is over what the Texas Constitution requires. Cheri misinterprets it. Here's the section on which she hangs her argument.
Texas Constitution, Article 6, Sec. 3. MUNICIPAL ELECTIONS; QUALIFICATIONS OF VOTERS. All qualified voters of the State, as herein described, who reside within the limits of any city or corporate town, shall have the right to vote for Mayor and all other elective officers.
What this means: whenever there's an election, *all* voters can participate, not just whites, not just those who can read and write, not just property owners, not just men. *All* qualified voters who reside in the city. If there's an election. In other words, it specifies *who* can vote in elections, not that elections must be held.

What this does not say: that there *must* be an election to fill a vacancy (or for mayor, for that matter). There are other sections of the state election code that make this perfectly clear. Notice the wording for filling vacancies in the state legislature.

Sec. 203.001. APPLICABILITY OF CHAPTER. This chapter applies to the offices of state senator and state representative.

Sec. 203.002. VACANCY FILLED AT SPECIAL ELECTION. An unexpired term in office may be filled only by a special election in accordance with this chapter.
"only by a special election." Pretty clear. No appointments to fill vacancies in the legislature. But notice the different wording used for vacancies in local government.



Sec. 201.051. TIME FOR ORDERING ELECTION. (a) If a vacancy in office is to be filled by special election, the election shall be ordered as soon as practicable after the vacancy occurs
"If a vacancy in office is to be filled by special election." That word "if" clearly specifies that under some conditions a special election does not happen. Otherwise, the wording used in the specific case of vacancies in the legislature ("only by special election") would have been used in the case of vacancies generally.

So, if a special election in local government does not always happen, then who makes the decision in each city? Well, the voting public, when they adopt their city charter. And Richardson's voting public clearly decided not to use special elections to fill vacancies on the city council.
Section 3.07. - Councilmember vacancies.
Vacancies in the city council, where the same do not exceed two (2) at any one time, shall be filled by a majority vote of the remaining members of the council

When all else fails, Cheri Duncan-Hubert falls back on a novel legal theory, that because all governments derive their powers from the consent of the governed, that governments are allowed to ignore the law provided they call a special election to get the voters' approval. There's not a single case in American history where this legal theory was applied and accepted. There's a reason for that. This novel legal theory has no basis in law. In Richardson's case, if the city council wanted to call a special election, they would first have to get the voters to change the city charter to authorize a special election. That hasn't happened (yet).

To repeat, the Texas Constitution and state election code do *not* require cities to hold special elections in case of a vacancy, but *if* they choose to do it that way, then Section 201 of state election code spells out the rules. Richardson voters chose not to do it that way. All perfectly permissible by state law. Richardson's city charter specifies how a vacancy is to be filled: by appointment. It's not optional. The council can't call a special election if they want to. Or if public opinion as expressed on Facebook wants them to. The voters have ultimate power, but even they have to follow the rules they agreed to. If the city council were to call a special election, it would be violating the law. Frankly, I'm shocked that Cheri Duncan-Hubert, who has in the past excoriated the city council for allegedly violating the law, would so cavalierly urge them to do so in this case.


Sassy Texan said...

I was quite amused, heartily laughing at the dramatic
prose Eric used in the article. Loved it actually.

And Mr Steger, you have your own moments of MR GADFLY
right here on this page in many instances. I have even
with many of your statements! ha

One again....I said....its a choice the council can make.
Special elections can be used for special situations and
unusual circumstances. Vacancy is one of them.

Secondly, the charter is a social contract with the people
of this community. The people of this community are the
only ones with the vote these elected people want to be in
office. Its a partnership not a dictatorship.

Third, I said the council has a wide berth of authority via
home rule city statutes. That wide berth gives the same
authority as the Texas Constitution in many ways. It is the
ability to self govern. That means choices. The council
almost always has the choice to send anything back to the

Fourth, the statutes are to limit the authority of home rule.
It is been published many times and the Texas Supreme Court has
opines to that.

. In Forwood v. City of Taylor, the Texas Supreme Court summarized Texas’ home rule doctrine as follows:

It was the purpose of the Home-Rule Amendment ... to bestow upon accepting cities and towns of more than 5,000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers.

I don't make this up, the Texas Supreme Court did. So lets talk about it all. Lets make a decision to have a healthy dose of understanding by all voters and politicians alike in this game of local politics!

Have a good day, Mr Gadfly!


Sassy Texan said...

This is where the charter is so important
in wording and understanding by both sides
of the equation. The public who offers the
authority and the council who represents the
public in local governance.

This disconnect of the appointed charter
commission is the council gets to choose the
rules they operate under. That's where corruption
begins, no matter the intention. Good or bad.

We already have a disconnect when they make decisions
and do not have public discussion on the "why" of the
decisions. Majority of the talk is some really
strange, incestuous, kinda syrupy praise of each other
I have never really understood. Almost child like.

So much is about power and control, its sometimes hard
to see the issues.


mccalpin said...

You can make all the declarative statements you want, Ms. Duncan-Hubert, but the fact is that the charter of the City of Richardson does not authorize such an election, the laws of the State of Texas do not authorize such an election, and decades of long-standing legal tradition across the United States do not authorize such an election.


Or perhaps you have a serious explanation on why you know better than the Chief Election Official of the State of Texas as well as the Attorney General of the State of Texas as well as numerous courts?

You say "One[sic] again....I said....its a choice the council can make. " And I say and have proven that anyone with any knowledge of the law and government knows that that statement is absolutely and undeniably false.


Sassy Texan said...

Mr. McCalpin...
Nope I'm not wrong. Plenty of evidence otherwise.
Not worth discussing cause the council did what
they did. Their choice. Just like the many other
choices they make that violate the charter.

Quit talking to me and about me.