10-19-09 WSMichael C. Couri-
Andrew J. MacArthur
Robert T. Ruppe—
"Also licensed in Illinois
* "Also licensed in Califomia
October 15, 2009
City Council Members
City of Otsego
c/o Tami Loff, City Clerk
8899 Nashau Avenue NE
Otsego, MN 55330
COURI, MA CAR THUR &
RUPPE, P.L.L.P.
Attorneys at Law
705 Central Avenue East
PO Box 369
St. Michael, MN 55376 -0369
(763) 497 -1930
(763) 497 -2599 "Ag
www.courimacarthur.com
RE: Election Procedures- Council Vacancy
Dear Council Members:
Kyle R Hartnett
Sarah E. Schwarzhoff
Minn. Stat. 412.02, Subd. 2a allows the City Council to appoint a successor to a resigning
Council Member. In the event, as in this case, that more than two years remain in the
term the appointment only lasts until the earlier of a special election or at the next regular
City Council election in 2010.
To call a special election prior to next November would require the Council to pass an
ordinance stating that a special election is necessary, ordering the special election and
following all of the notice and other procedures for a regular election. Without an
ordinance, the special election is held at the same time as the next regular election and
would only involve some slight modification in the ballot and notice of the election.
A special election would cost roughly one half of the cost of a general election and has
probably not been budgeted for.
The ballot for the next City Council election would have to be modified since the current
ballot just states the openings and asks the voter to vote for two candidates for four year
terms. The ballot would have to be modified to include a separate ballot item indicating
that voters should vote for one candidate for the remainder of the existing term (2 years).
The statute indicates that the Council shall appoint a successor. The Attorney General has
also indicated that the appointment is mandatory. The statute does not state how soon the
appointment must be made, but in my opinion it must be made within a reasonable period
Letter to Otsego City Council
October 15, 2009
Page 2
of time (2 -3 months). The current reduced number of Council members can create
problems with obtaining a quorum, or the ability to act on certain votes where a super
majority of the entire Council is required. The sooner the appointment is filled the better.
The Council is not bound to follow any specific procedure in appointing a successor. The
City has not adopted any policies that would require a special procedure for filling a
vacancy. Therefore, the Council can simply talk to persons with interest and
qualifications and motion for their appointment, the Council can pick certain persons and
interview them, or it can establish a process (as the Lakeville procedure earlier provided
to the Council) and follow that procedure.
The bottom line is that even if a procedure is established, the Council is not legally bound
to that procedure in making its final decision.
I will be available to further discuss this matter at the special City Council meeting on
Monday evening.
Very truly yours,
Andrew J. MacArthur
COURI, MACARTHUR & COURI, PLLP