Opinion No. (1991) Ag ( 1991 )

RE: FILLING A VACANCY ON A CITY COUNCIL

THANK YOU FOR YOUR LETTER CONCERNING THE REQUEST OF MR. WEBSTER, A COUNCILMAN FOR THE CITY OF WAR ACRES CONCERNING THE FILLING OF A VACANCY ON THE CITY COUNCIL.

THE AUTHORITY OF THIS OFFICE IS TO ANSWER QUESTIONS FROM STATE OFFICIALS CONCERNING APPLICATION OF STATE LAW. GENERALLY WE DO NOT TRY TO ADVISE CITY OFFICIALS CONCERNING THEIR LEGAL PREDICAMENTS. ACCORDINGLY, FACTS SPECIFIC QUESTIONS SUCH AS THE ONE PRESENTED BY MR. WEBSTER ARE NOT USUALLY THE SUBJECT OF ATTORNEY GENERAL OPINIONS. IT HAS BEEN MY EXPERIENCE THAT THOSE TYPES OF QUESTIONS ARE MORE PROPERLY ADDRESSED TO THE ATTORNEYS HIRED BY THE INDIVIDUAL MUNICIPALITY.

IN ANY EVENT, I DID PRELIMINARY RESEARCH ON THIS MATTER, WHICH INDICATED THAT A SIMPLE ANSWER MAY NOT NECESSARILY BE FOUND. THE CHARTER FOR THE CITY OF WAR ACRES AT SECTION 2-9 STATES THAT VACANCIES MAY BE CHOSEN "BY VOTE OF A MAJORITY OF ALL ITS MEMBERS". ONE CASE WAS FOUND WHICH DEFINED THE TERMS "MAJORITY OF THE MEMBERS OF THE BOARD AS REQUIRING A MAJORITY VOTE OF ALL THE MEMBERS AND NOT JUST A MAJORITY OF A QUORUM BEFORE A VOTE WAS VALID. HOUSER V. SCHOOL DISTRICT OF SIOUX CITY, 202 N.W.2D 621, 623 (1972). HOWEVER, ANOTHER CASE WHICH ADDRESSED THE TERMINOLOGY "BY MAJORITY OF ITS REMAINING MEMBERS HELD THAT SUCH LANGUAGE MERELY REQUIRED A MAJORITY OF THE QUORUM PRESENT AT THE MEETING IN ORDER TO CREATE A VALID VOTE. DIDIACINTO V. CITY OF ALLEN TOWN, 406 A.2D 520, 523 (1979).

FROM MY READING OF THE WAR ACRES' CHARTER IT WOULD APPEAR THAT THE HOLDING IN THE SIOUX CITY CASE WOULD APPLY TO THE WAR ACRES SITUATION. THIS CONCLUSION IS MADE FOR THE REASON THAT THE CHARTER UNDER SECTION 210 DEFINES "QUORUM AS A "MAJORITY OF ALL THE MEMBERS OF THE COUNCIL WHICH IS THE SAME LANGUAGE USED IN SECTION 2-9. THUS IT WOULD SEEM APPROPRIATE TO READ SECTION 2-9 CONCERNING VACANCIES AS REQUIRING A QUORUM OF VOTES FROM THE REMAINING MEMBERS BEFORE SUCCESSORS CAN BE VALIDITY ELECTED TO TAKE OFFICE. (UNDER THE FACTS OUTLINED IN YOUR REQUEST, THIS WOULD REQUIRE FIVE VOTES.)

(GUY L. HURST)