AURORA | Aurora City Council members, searching for a way to move past a stalemate in appointing a person to the Ward II vacancy, find themselves maneuvering through the city charter for a second time this week, but now with a proposal to allow a special election to remedy the 5-5 tie.
The ordinance proposal, if approved by a majority of the council on Monday, would allow for a special election to take place if an appointment is not filled within 45 days of the vacancy being created. The vacancy was created when Ward II Councilmember Nicole Johnston resigned her seat in June after announcing she would move to Colorado Springs.
“As drafted, the penalty for a violation to appoint would require the matter to be resolved through an election process,” the city attorney’s office wrote in a memo about the current stalemate. “However, it’s important to note that Council would still be violating the Charter, and that this ordinance only addresses the penalty for such violation.”
The city council voted more than a dozen rounds to fill the Ward II seat two weeks ago, but could not move past a tied vote for the appointment.
Council members Francoise Bergan, Marsha Berzins, Dave Gruber, Curtis Gardner and Mayor Mike Coffman voted for local tavern owner Steve Sundberg while council members Alison Coombs, Allison Hiltz, Crystal Murillo, Angela Lawson and Juan Marcano backed college administrator Ryan Ross, who is endorsed by Johnston.
Johnston surrendered the Ward II seat last month, leaving enough time before the November election for the city council to appoint a new member, but vague wording in the city charter, which addresses how vacancies should be filled, left many questions unanswered for the city council at the June 28 meeting, like how the council could break a tie, whether an election may be allowed and what happens if the council doesn’t fill the vacancy at all and violates the charter.
This week, the city attorney’s office has attempted to answer those questions in a memo. The brief to city lawmakers addresses how specific wording and precedence may affect this and other vacancy votes if the council decided against changing the charter to remedy the stalemate.
What happens in a tie?
The city charter isn’t clear on how members should break a tie, just that they should, according to the city attorney’s office. Normally, on any other tie vote, council members would reschedule the vote and if another tie occurred, the measure would be considered defeated.
The city attorney’s office says this event is different and the charter dictates a tie must be resolved and an appointment must be made.
The council could decide to break the tie any number of ways, including drawing straws, which has already been floated. A coin flip or game of rock paper scissors could hypothetically also be methods in breaking the tie.
Can the mayor vote?
The city attorney’s office says yes. Normally, the mayor only votes if it’s to cast a tie-breaking vote or to create a tie, but in terms of the ordinance, which says that the “remainder of council members shall…appoint by majority vote,” the mayor is included in the “remainder of council members.”
In 2018, after former Mayor Bob LeGare was appointed to his seat, he voted in filling the at-large vacancy he created. There were no ties in that appointment vote.
Could the city hold a special election?
A special election isn’t an option in the current city charter, but some council members are hoping to change that Monday.
Marcano previously said he’d be interested in hosting special elections to decide appointments.
Bergan said she’d also like to see the voters decide, but in this scenario she’d like it to happen in a regular election, this November.
“There’s not enough time for a special election,” she said in an email. “And I don’t want to waste taxpayer dollars.”
Previously, city staff said a special election would be tricky given the timeline set forth in the charter. The council has 45 days from the time a vacancy occurs to fill the seat, and it must happen prior to 90 days before an election. A special election would need to happen before August 4.
Can the city council leave the seat open until November?
In the current city charter, the city attorney has said the answer is no.
If the council did leave the vacancy open, they would be violating the city charter.
The section of code reads: If a vacancy occurs in the council, the remaining council members shall, no later than 45 days after such vacancy occurs, appoint by majority vote a person possessed of all statutory qualifications to fill such vacancy for the unexpired term of the previously vacated office.
The word “shall” does a lot of lifting in this instance. “‘Shall’ connotes a requirement,” the city attorney’s office writes in the memo, citing case law. If drafters of the charter had opted to use “may” that would have been interpreted as a direction rather than an obligation.
What happens if the city charter is violated?
The Aurora City Council won’t end up in jail if they don’t appoint a Ward II member, but it might mean legal trouble for the city, although it’s not entirely clear.
“Quasi-judicial matters coming before Council ending in a tie vote could result in a claim being brought against the City due to the failure to appoint,” the memo to council members says. “A tie in such a situation would differ little from a potential tie if a Council Member was absent. The City has been successful in defending such claims concerning tie votes in the past but there is a risk that the non-appointment could tip the scale in favor of such a claim.”
The city attorney’s office hypothesizes that it would be difficult for somebody to sue in this matter, but if they were successful, then it would be up to the court to determine a tiebreaker.
The city council meeting is slated to begin virtually at 6:30 p.m. Monday and is televised on AuroraTV.org.
Editor’s note: This article has been updated to clarify Aurora City Council member Francoise Bergan’s comments regarding a special election.