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<DIV><FONT size=4></FONT><FONT size=4>Donovan,</FONT></DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4>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:</FONT></DIV>
<DIV> </DIV>
<DIV><FONT size=4><FONT size=3>"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."</FONT><BR></FONT></DIV>
<DIV><FONT size=4>Notice the text of the applicable statute:</FONT></DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4><FONT size=3>"<STRONG><FONT color=#0000ff>A vacancy on the
council shall be filled by appointment made by the mayor with the consent of the
council</FONT></STRONG>, 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."</FONT><BR><BR>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.</FONT></DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4>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.</FONT></DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4>Others may differ with this opinion -- good arguments can be
produced on either side of this issue.</FONT></DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4>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).</FONT></DIV>
<DIV><FONT size=4><BR>Art Deco (Wayne A. Fox)<BR><A
href="mailto:deco@moscow.com">deco@moscow.com</A><BR></FONT></DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4></FONT> </DIV>
<DIV><FONT size=4>----- Original Message ----- </FONT>
<DIV><FONT size=4>From: "Donovan Arnold" <</FONT><A
href="mailto:donovanjarnold2005@yahoo.com"><FONT
size=4>donovanjarnold2005@yahoo.com</FONT></A><FONT size=4>></FONT></DIV>
<DIV><FONT size=4>To: "Art Deco" <</FONT><A
href="mailto:deco@moscow.com"><FONT size=4>deco@moscow.com</FONT></A><FONT
size=4>>; "Vision 2020" <</FONT><A
href="mailto:vision2020@moscow.com"><FONT
size=4>vision2020@moscow.com</FONT></A><FONT size=4>>; "Jon Kimberling"
<</FONT><A href="mailto:jonk@kimberlinginsurance.com"><FONT
size=4>jonk@kimberlinginsurance.com</FONT></A><FONT size=4>></FONT></DIV>
<DIV><FONT size=4>Sent: Tuesday, November 15, 2005 10:46 PM</FONT></DIV>
<DIV><FONT size=4>Subject: Re: [Vision2020] City council elections-immediate
appt. of Mr. Ament</FONT></DIV></DIV>
<DIV><FONT size=4><BR></FONT></DIV><FONT size=4>> Wayne,<BR>> <BR>> As
you probably know, I am not very good at the whole<BR>> idea of throwing of
personalities into the mix.<BR>> Further, I do not think it matters what
*feelings*<BR>> Aaron or Jon have on the matter. I would consider the<BR>>
case the same regardless of the people involved. I did<BR>> not vote for
Aaron, and I did not appoint Jon. So,<BR>> while I too am grateful for their
willingness to<BR>> serve, I really do not consider those personal
and<BR>> emotional issues when discussing just the facts of an<BR>> issue
nor would I for this legal matter. I am<BR>> confident, however, that both
care for their community<BR>> very much and if they didn't would not be
willing to<BR>> serve us. Jon resigning early would not free the
seat,<BR>> it would simply remain vacant until January. The law<BR>> would
have to be changed on the state level.<BR>> <BR>> I do agree with your
assertion that one legal opinion,<BR>> regardless of who it may be, does not
automatically<BR>> deem it a proper interpretation. But I also agree
with<BR>> the explanation as being valid, in that his<BR>> explanation was
logical, even if I disagree strongly<BR>> with the content of that
explanation.<BR>> <BR>> There simply is no reason why a candidate elected
to<BR>> fill a vacancy cannot be sworn in after the vote is<BR>> certified
to fill that position. But that is the way<BR>> the law is, and I think
Lewiston is in violation of it<BR>> if that is the correct legal
interpretation of the<BR>> law.<BR>> <BR>> Take Care,<BR>> <BR>>
Donovan J Arnold<BR>> <BR>> --- Art Deco <</FONT><A
href="mailto:deco@moscow.com"><FONT size=4>deco@moscow.com</FONT></A><FONT
size=4>> wrote:<BR>> <BR>>> Donovan, et al,<BR>>> <BR>>>
For practical purposes in Moscow, the AG opinion may<BR>>> settle
it.<BR>>> <BR>>> However, it doesn't settle it at law. There
appears<BR>>> to be some ambiguity or <BR>>> inconsistency in the
statute. That is why this<BR>>> discussion is occurring.
<BR>>> The AG's opinion is just another lawyer's opinion<BR>>> which
would receive no <BR>>> special consideration from the court if
declaratory<BR>>> relief were petitioned <BR>>> for.<BR>>>
<BR>>> It is likely, but not certain that the court would<BR>>> rule
as the AG argues.<BR>>> <BR>>> <BR>>> <BR>>> However,
here's another question: What would happen<BR>>> if Jon Kimberling
would <BR>>> resign very soon?<BR>>> <BR>>> Jon is an
honorable person and I mean no disrespect<BR>>> toward him. However,
<BR>>> Jon is not in office because of a direct vote of the<BR>>>
electorate. He was <BR>>> asked to serve, he graciously agreed to
serve if<BR>>> appointed, he was appointed <BR>>> by the council,
and he did serve with honor (and<BR>>> made some great personal
<BR>>> sacrifices in order to do so). If the AG's
opinion<BR>>> is correct, Jon has a <BR>>> right to continue serving
until the first week in<BR>>> January.<BR>>> <BR>>>
<BR>>> However, Jon was not directly elected by the voters.<BR>>>
<BR>>> What are Jon's feelings and opinions about this? <BR>>> About
representational <BR>>> democracy?<BR>>> <BR>>> What are Jon's
feelings and opinions about the<BR>>> difference between being
<BR>>> appointed and being elected?<BR>>> <BR>>> Does Jon
believe that the current will of the<BR>>> electorate is more or less
<BR>>> important than staying in his appointed office a few<BR>>>
more weeks regardless <BR>>> of how well he served?<BR>>>
<BR>>> Aaron campaigned by taking a definite position on<BR>>>
several hot-button issues. <BR>>> Does Jon believe that the latest
decision by the<BR>>> electorate means that Aaron <BR>>> should be
allowed to be part of the decisions on<BR>>> those hot button issues
<BR>>> which might come before the council before the first<BR>>>
week of January?<BR>>> <BR>>> Jon will give the citizens of Moscow
the answers to<BR>>> these questions above by <BR>>> his
actions. If the AG's opinion is correct, then<BR>>> the matter is
now Jon's <BR>>> call, and best left to his conscience alone.<BR>>>
<BR>>> Art Deco (Wayne A. Fox)<BR>>> </FONT><A
href="mailto:deco@moscow.com"><FONT size=4>deco@moscow.com</FONT></A><BR><FONT
size=4>>> <BR>>> <BR>>> <BR>>> ----- Original Message
----- <BR>>> From: "Donovan Arnold"<BR>>> <</FONT><A
href="mailto:donovanjarnold2005@yahoo.com"><FONT
size=4>donovanjarnold2005@yahoo.com</FONT></A><FONT size=4>><BR>>> To:
<</FONT><A href="mailto:pcook818@adelphia.net"><FONT
size=4>pcook818@adelphia.net</FONT></A><FONT size=4>>; <</FONT><A
href="mailto:vision2020@moscow.com"><FONT
size=4>vision2020@moscow.com</FONT></A><FONT size=4>><BR>>> Sent:
Tuesday, November 15, 2005 3:58 PM<BR>>> Subject: RE: [Vision2020] City
council<BR>>> elections-immediate appt. of Mr. <BR>>>
Ament<BR>>> <BR>>> <BR>>> >I guess that settels the matter,
unless there have<BR>>> > been other rulings since that correspondence
in<BR>>> 1987.<BR>>> > Ament cannot take office until January of
2006.<BR>>> ><BR>>> > I think the state needs to amend the
statue §<BR>>> 50-704<BR>>> > so it is consistent with the
language in statue §<BR>>> > 50-702.<BR>>> ><BR>>> >
When a federal or state elected official is<BR>>> elected to<BR>>>
> fill a vacancy, the candidate takes office before<BR>>>
the<BR>>> > other candidates elected to a full term. Why
that<BR>>> > cannot be the case in the city elections, I
have<BR>>> no<BR>>> > idea. There is no logic behind that
reasoning if a<BR>>> > democratic government is the intent.<BR>>>
><BR>>> > Take Care,<BR>>> ><BR>>> > Donovan J
Arnold<BR>>> ><BR>>> ><BR>>> ><BR>>> > ---
Philip Cook <</FONT><A href="mailto:pcook818@adelphia.net"><FONT
size=4>pcook818@adelphia.net</FONT></A><FONT size=4>> wrote:<BR>>>
><BR>>> >> The following is from the Idaho Attorney<BR>>>
General's<BR>>> >> Annual Report, 1987.<BR>>>
>><BR>>> >> Philip Cook<BR>>> >><BR>>>
>> *******Quoted material follows*******<BR>>> >><BR>>>
>> September 25, 1987<BR>>> >><BR>>> >> James B.
Weatherby<BR>>> >> Executive Director<BR>>> >>
Association of Idaho Cities<BR>>> >> 3314 Grace Street<BR>>>
>> Boise, ID 83703<BR>>> >><BR>>> >> THIS
CORRESPONDENCE IS A LEGAL GUIDELINE OF THE<BR>>> >> ATTORNEY GENERAL
SUBMITTED FOR YOUR GUIDANCE<BR>>> >><BR>>> >> Re: City
Council Vacancies<BR>>> >><BR>>> >> Dear
Jim:<BR>>> >><BR>>> >> In your letter of August 26,
1987, you ask<BR>>> several<BR>>> >> questions concerning
successors in office to<BR>>> council<BR>>> >> members
appointed to fill a vacancy.<BR>>> Specifically,<BR>>> >> you
ask at what point is a successor elected and<BR>>> >> qualified to
assume a council office when the<BR>>> person<BR>>> >>
appointed to fill a vacancy either is defeated in<BR>>> >> the
election or declines to seek election. You<BR>>> >> further ask that
the answer be provided as it<BR>>> >> relates to a term which still
has two years to<BR>>> run<BR>>> >> and to a term which
expires and election is for a<BR>>> >> regular term.<BR>>>
>><BR>>> >> Idaho Code § 50-704 provides the manner in
which<BR>>> a<BR>>> >> vacancy to the city council is
filled:<BR>>> >><BR>>> >> A vacancy on the council shall
be filled by<BR>>> >> appointment made by the mayor with the consent
of<BR>>> >> the council, which appointee shall serve
only<BR>>> until<BR>>> >> the next general city election, at
which such<BR>>> >> vacancy shall be filled for the balance of
the<BR>>> >> original term.<BR>>> >><BR>>>
>> Idaho Code § 50-702 provides for the point at<BR>>>
which<BR>>> >> councilmen elected take office:<BR>>> >>
?oCouncilmen elected at each general city<BR>>> election<BR>>>
>> shall be installed at the first meeting in<BR>>>
January<BR>>> >> following election.?<BR>>>
>><BR>>> >> The general rule governing taking office
upon<BR>>> >> election to fill an unexpired term is that
the<BR>>> >> person who wins the election takes the
office<BR>>> >> immediately upon election and
qualification;<BR>>> >> generally within a reasonable time after
the<BR>>> >> election. 67 C.J.S. Officers, § 79.
However,<BR>>> where<BR>>> >> a statute provides otherwise,
the person elected<BR>>> to<BR>>> >> fill an unexpired term
takes office at the time<BR>>> >> prescribed in the statute. Id.
White v. Young, 88<BR>>> >> Idaho 188, 397 P.2d 756
(1964).<BR>>> >><BR>>> >> Reading §§ 50-702 and 50-704
together, it is<BR>>> clear<BR>>> >> that in Idaho the
statutes provide a single,<BR>>> direct<BR>>> >> answer to the
various scenarios posed in your<BR>>> >> question. Thus, a person
elected to fill an<BR>>> >> unexpired term as provided by § 50-704
would<BR>>> assume<BR>>> >> office on the first meeting of the
council in<BR>>> >> January following the election. The same
would<BR>>> hold<BR>>> >> true for the person elected for a
full term which<BR>>> >> commences in January following the
election. That<BR>>> >> person also would not take office until the
first<BR>>> >> meeting in January following the
election.<BR>>> <BR>> === message truncated ===<BR>> <BR>>
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