[Vision2020] City council elections-immediate appt. of Mr. Ament

[Art Deco]

Donovan,

Not to beat a dead horse, and anything you or I write here will probably not have the slightest effect on what the city does, but you said:

"Jon resigning early would not free the seat, it would simply remain vacant until January. The law would have to be changed on the state level."

Notice the text of the applicable statute:

"A vacancy on the council shall be filled by appointment made by the mayor with the consent of the council, which appointee shall serve only until the next general city election, at which such vacancy shall be filled for the balance of the original term."

If I am reading this statute correctly, which could be open to doubt, then the legislative intent of this statute is provide a replacement for a vacancy on the council as quickly as possible after that vacancy occurs.  If this is so, then Jon, if he desired, could resign, and then Aaron could be immediately appointed to fill that vacancy until he is seated in January.  This is similar to what happened when Jack Hill resigned and Jon was appointed.  If I remember correctly, which is also open to doubt, the council appointed Jon mid-stream.

In my opinion it is more in accordance with the concept of representational democracy to have someone who has passed the current test of the electorate decide on current issues that are of concern to the electorate, than someone who was appointed without the consent of the electorate sometime in the past.

Others may differ with this opinion -- good arguments can be produced on either side of this issue.

However, I think the issue of whether an appointee should graciously step aside for someone who has been given the legitimacy of the electorate is a matter of conscience for and commitment to the concepts of representational democracy by the appointee (and the mayor and council).

Art Deco (Wayne A. Fox)
deco at moscow.com



----- Original Message ----- 
From: "Donovan Arnold" <donovanjarnold2005 at yahoo.com>
To: "Art Deco" <deco at moscow.com>; "Vision 2020" <vision2020 at moscow.com>; "Jon Kimberling" <jonk at kimberlinginsurance.com>
Sent: Tuesday, November 15, 2005 10:46 PM
Subject: Re: [Vision2020] City council elections-immediate appt. of Mr. Ament


> Wayne,
> 
> As you probably know, I am not very good at the whole
> idea of throwing of personalities into the mix.
> Further, I do not think it matters what *feelings*
> Aaron or Jon have on the matter. I would consider the
> case the same regardless of the people involved. I did
> not vote for Aaron, and I did not appoint Jon. So,
> while I too am grateful for their willingness to
> serve, I really do not consider those personal and
> emotional issues when discussing just the facts of an
> issue nor would I for this legal matter. I am
> confident, however, that both care for their community
> very much and if they didn't would not be willing to
> serve us. Jon resigning early would not free the seat,
> it would simply remain vacant until January. The law
> would have to be changed on the state level.
> 
> I do agree with your assertion that one legal opinion,
> regardless of who it may be, does not automatically
> deem it a proper interpretation. But I also agree with
> the explanation as being valid, in that his
> explanation was logical, even if I disagree strongly
> with the content of that explanation.
> 
> There simply is no reason why a candidate elected to
> fill a vacancy cannot be sworn in after the vote is
> certified to fill that position.  But that is the way
> the law is, and I think Lewiston is in violation of it
> if that is the correct legal interpretation of the
> law.
> 
> Take Care,
> 
> Donovan J Arnold
> 
> --- Art Deco <deco at moscow.com> wrote:
> 
>> Donovan, et al,
>> 
>> For practical purposes in Moscow, the AG opinion may
>> settle it.
>> 
>> However, it doesn't settle it at law.  There appears
>> to be some ambiguity or 
>> inconsistency in the statute.  That is why this
>> discussion is occurring. 
>> The AG's opinion is just another lawyer's opinion
>> which would receive no 
>> special consideration from the court if declaratory
>> relief were petitioned 
>> for.
>> 
>> It is likely, but not certain that the court would
>> rule as the AG argues.
>> 
>> 
>> 
>> However, here's another question:  What would happen
>> if Jon Kimberling would 
>> resign very soon?
>> 
>> Jon is an honorable person and I mean no disrespect
>> toward him.  However, 
>> Jon is not in office because of a direct vote of the
>> electorate.  He was 
>> asked to serve, he graciously agreed to serve if
>> appointed, he was appointed 
>> by the council, and he did serve with honor (and
>> made some great personal 
>> sacrifices in order to do so).  If the AG's opinion
>> is correct, Jon has a 
>> right to continue serving until the first week in
>> January.
>> 
>> 
>> However, Jon was not directly elected by the voters.
>> 
>> What are Jon's feelings and opinions about this? 
>> About representational 
>> democracy?
>> 
>> What are Jon's feelings and opinions about the
>> difference between being 
>> appointed and being elected?
>> 
>> Does Jon believe that the current will of the
>> electorate is more or less 
>> important than staying in his appointed office a few
>> more weeks regardless 
>> of how well he served?
>> 
>> Aaron campaigned by taking a definite position on
>> several hot-button issues. 
>> Does Jon believe that the latest decision by the
>> electorate means that Aaron 
>> should be allowed to be part of the decisions on
>> those hot button issues 
>> which might come before the council before the first
>> week of January?
>> 
>> Jon will give the citizens of Moscow the answers to
>> these questions above by 
>> his actions.  If the AG's opinion is correct, then
>> the matter is now Jon's 
>> call, and best left to his conscience alone.
>> 
>> Art Deco (Wayne A. Fox)
>> deco at moscow.com
>> 
>> 
>> 
>> ----- Original Message ----- 
>> From: "Donovan Arnold"
>> <donovanjarnold2005 at yahoo.com>
>> To: <pcook818 at adelphia.net>; <vision2020 at moscow.com>
>> Sent: Tuesday, November 15, 2005 3:58 PM
>> Subject: RE: [Vision2020] City council
>> elections-immediate appt. of Mr. 
>> Ament
>> 
>> 
>> >I guess that settels the matter, unless there have
>> > been other rulings since that correspondence in
>> 1987.
>> > Ament cannot take office until January of 2006.
>> >
>> > I think the state needs to amend the statue §
>> 50-704
>> > so it is consistent with the language in statue §
>> > 50-702.
>> >
>> > When a federal or state elected official is
>> elected to
>> > fill a vacancy, the candidate takes office before
>> the
>> > other candidates elected to a full term. Why that
>> > cannot be the case in the city elections, I have
>> no
>> > idea. There is no logic behind that reasoning if a
>> > democratic government is the intent.
>> >
>> > Take Care,
>> >
>> > Donovan J Arnold
>> >
>> >
>> >
>> > --- Philip Cook <pcook818 at adelphia.net> wrote:
>> >
>> >> The following is from the Idaho Attorney
>> General's
>> >> Annual Report, 1987.
>> >>
>> >> Philip Cook
>> >>
>> >> *******Quoted material follows*******
>> >>
>> >> September 25, 1987
>> >>
>> >> James B. Weatherby
>> >> Executive Director
>> >> Association of Idaho Cities
>> >> 3314 Grace Street
>> >> Boise, ID 83703
>> >>
>> >> THIS CORRESPONDENCE IS A LEGAL GUIDELINE OF THE
>> >> ATTORNEY GENERAL SUBMITTED FOR YOUR GUIDANCE
>> >>
>> >> Re: City Council Vacancies
>> >>
>> >> Dear Jim:
>> >>
>> >> In your letter of August 26, 1987, you ask
>> several
>> >> questions concerning successors in office to
>> council
>> >> members appointed to fill a vacancy.
>> Specifically,
>> >> you ask at what point is a successor elected and
>> >> qualified to assume a council office when the
>> person
>> >> appointed to fill a vacancy either is defeated in
>> >> the election or declines to seek election. You
>> >> further ask that the answer be provided as it
>> >> relates to a term which still has two years to
>> run
>> >> and to a term which expires and election is for a
>> >> regular term.
>> >>
>> >> Idaho Code § 50-704 provides the manner in which
>> a
>> >> vacancy to the city council is filled:
>> >>
>> >> A vacancy on the council shall be filled by
>> >> appointment made by the mayor with the consent of
>> >> the council, which appointee shall serve only
>> until
>> >> the next general city election, at which such
>> >> vacancy shall be filled for the balance of the
>> >> original term.
>> >>
>> >> Idaho Code § 50-702 provides for the point at
>> which
>> >> councilmen elected take office:
>> >> â?oCouncilmen elected at each general city
>> election
>> >> shall be installed at the first meeting in
>> January
>> >> following election.�
>> >>
>> >> The general rule governing taking office upon
>> >> election to fill an unexpired term is that the
>> >> person who wins the election takes the office
>> >> immediately upon election and qualification;
>> >> generally within a reasonable time after the
>> >> election. 67 C.J.S. Officers, § 79. However,
>> where
>> >> a statute provides otherwise, the person elected
>> to
>> >> fill an unexpired term takes office at the time
>> >> prescribed in the statute. Id. White v. Young, 88
>> >> Idaho 188, 397 P.2d 756 (1964).
>> >>
>> >> Reading §§ 50-702 and 50-704 together, it is
>> clear
>> >> that in Idaho the statutes provide a single,
>> direct
>> >> answer to the various scenarios posed in your
>> >> question. Thus, a person elected to fill an
>> >> unexpired term as provided by § 50-704 would
>> assume
>> >> office on the first meeting of the council in
>> >> January following the election. The same would
>> hold
>> >> true for the person elected for a full term which
>> >> commences in January following the election. That
>> >> person also would not take office until the first
>> >> meeting in January following the election.
>> 
> === message truncated ===
> 
> 
> 
> 
> __________________________________ 
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