Rearranging the Deck Chairs

Here's the memo from the Town Attorney

Memorandum to:Carrboro Mayor and Board of Aldermen

From: Mike Brough

Subject: Filling Vacancy

Date: November 4, 2005

At its meeting on November 1, 2005, the Board requested that I prepare this memorandum dealing with the procedures to be followed in filling the vacancy on the Board that will occur following the election on November 8th.

As a preliminary matter, it should be noted that Subsection 2-2(d) of the Town Charter is not relevant to this issue. That subsection states:

In the general municipal election the candidate receiving the highest number of votes for mayor shall be elected. The three candidates in such election receiving the highest number of votes for the office of alderman shall be elected for full four-year terms. If it is also necessary to elect one or more aldermen to fill the unexpired terms of one or more aldermen whose offices were vacated, the person receiving the fourth highest number of votes for aldermen (and, if necessary, the fifth and the sixth highest number of votes) shall be elected for the unexpired term or terms.

As the text plainly indicates, this subsection applies only to filling seats on the board at general municipal elections. It has nothing to do with filling vacancies by appointment of the Board.

The statute that covers filling vacancies is G.S. 160A-63. It states simply that “[a] vacancy that occurs in an elective office of a city shall be filled by appointment of the city council.” It then goes on to provide, in essence, that if a vacancy occurs during the first two years of a Board member's four year term (and at least 90 days prior to the municipal election that occurs during the mid-point of that four year term), then the person appointed by the Board to fill that vacant seat “shall serve only until the elected successor takes office.” In other words, under those circumstances, at the municipal election that occurs after a vacancy that occurs in the first two years of a term, the electorate chooses a person to serve for the remaining two years of that term. On the other hand, if the vacancy occurs during the second half of a four year term (or less than 90 days before the municipal election that occurs during the middle of that term), then the person appointed by the Board to fill that vacant seat serves for the remainder of the term of that seat. The above cited charter provision fills in a gap in state law by clarifying that, if four seats are up for elections under the circumstances described above (i.e. three 4-year terms and one 2-year term), the candidate receiving the fourth highest number of votes is elected to the 2-year term.

Neither the General Statutes nor the Town Charter establishes any procedure for the Board to follow in filling a vacancy. And the Board's recent history in filling vacancies is mixed in terms of the procedures followed. In 1998, the Board established a formal process whereby the vacancy was published, written applications were accepted, and the Board interviewed the candidates before making an appointment. In 1997, the Board simply voted to appoint a former member of the Board to fill the vacancy. And in 1995, the Board appointed the person who had received the fourth highest number of votes for aldermen in the preceding municipal election. In short, the Board has broad discretion in deciding how to fill any vacancy that occurs.

However, the Board has no authority to call a special election to fill a vacancy. G.S. 163-287 provides the procedure for calling a special election, but this statute authorizes the Board to call such elections only “as permitted by law.” Thus, other authority to hold such an election must be found, such as the authority to hold an election on a proposed bond issue. But there is no such authority to call a special election, advisory or otherwise, for the purpose of selecting a person to fill a vacancy.

Seems certain the BOA will appoint.
My question: Can the BOA wait until the January 1st annexation date before they make the appointment? (I see Diana McDuffee was appointed right away (Dec. 5, 1995))

OK, I admit I do not understand this plain English. Wasn't this election a general municipal election, and wasn't a seat vacated (Mark's), leaving an unexpired term? Why doesn't the first statute apply?

It does seem certain that the BOA will appoint. With no close fourth place finisher to chose, who is the likely appointee? Anyone want to throw their hat into the ring?

Good question James. Does this mean the Board can appoint anyone from the public at large? Will there be an application process? Who decides?

Since Herald achives are pay-for-play, here is the text of an article I wrote on this subject over the weekend. It recaps the memo posted above, but also has a little community reaction...
---
BY JENNIFER FERRIS jferris@heraldsun.com; 918-1036
Chapel Hill Herald
Sunday November 06, 2005
Final Edition
Front Section
Page 1
CARRBORO -- With Election Day just two days off, the question of who will fill three open Board of Alderman seats remains uncertain. But the fate of the fourth slot -- which will open when one of the two board members running for mayor takes office -- also is anyone's guess.

There have been three occasions in recent history where the Aldermen faced a mid-term vacancy and each time the position was filled in a different way.

In 1995, when Alderman Michael Nelson was elected mayor, the board chose to simply appoint the election's fourth-highest vote-getter, Diana McDuffee. After a member -- Jay Bryan -- resigned from office in 1997, Frances Shetley, a former board member, was appointed to serve the remainder of the term.

And during the last vacancy in 1998, after the death of Alderman Hank Anderson, the board tried a new, more formal application and interview process that ultimately led to Joal Hall Broun's appointment.

This year, Katrina Ryan, an Alderman candidate and a self-described advocate for residents living in recently annexed neighborhoods, has begun to lobby for a change to the appointment process resulting in a special election for those in annexed areas to choose who would fill the vacated slot.

Some other candidates and community members have begun to back Ryan's plan. But, according to a memo issued by Town Attorney Mike Brough, an additional election would not be legal.

"There is no such authority to call a special election, advisory or otherwise, for the purpose of selecting a person to fill a vacancy," Brough wrote in the memo.

However, Brough wrote that aside from an election, the board may follow almost any process members prefer in selecting who will fill the vacancy. The appointee need not even be a candidate from the most recent election.

Looking for consensus

Mayoral candidate Alex Zaffron, who was present as an Alderman for all three previous mid-term appointments, said that even without an election, the board will listen to voters when considering who will fill the seat.

"We will see if we can find a consensus candidate," Zaffron said.

"The most important thing is to arrive at a consensus, both on the board and within the community," he said.

How that consensus will be reached, Zaffron said, is still uncertain.

Some have assumed that the fourth-highest vote-getter in this election will be guaranteed a seat, but mayoral candidate and Alderman Mark Chilton said that is subject to debate.

"It's one thing if the fourth place is very close, another if they are trailing distantly," Chilton said, and added that there might be "other factors" that lead to the board's decision.

Ryan said she is "certain" the board would not appoint her, even if votes put her in a close fourth place.

"It's very obvious they don't want the input of the northern neighborhoods," Ryan said. "They don't want us except for our money."

If the board embarks on a written application process, Ryan said she was unsure as to whether she would participate.

Challenger David Marshall said he supports the board's prerogative to choose how it would replace an Alderman, but he would prefer an election to fill the vacancy.

However, Marshall said, he could understand that an election might add complications to town process.

"There is a balance that must be struck between efficiency and democracy," he said.

In order for the town to function as smoothly as possible, Alderman candidate Catherine DeVine said she advocates filling the fourth Alderman seat before January.

In the case of a close race, DeVine said, she advocates automatically appointing the fourth-highest vote-getter, but if the votes show a large disparity between third and fourth place, she would like to see an application process be used.

OK, since I've been asked to chime in:

1) Mike Brough's memo is correct

2) The only way that the charter provision on automatically taking someone applies is if the extra vacancy had occurred more than 90 days before the election (August 9). For instance, if Zaffron and Chilton had resigned when they filed, then the ballot would have said "vote for 5", the top three finishers would have gotten four year terms, the fourth and fifth place finishers two-year terms

3) The Board of Aldermen can adopt whatever procedure they choose, and on whatever timetable (for instance, if Mark were to resign TODAY, in theory the old board could fill the vacancy.) If Mark resigns effective taking the oath of office as Mayor, then the new board fills the vacancy (Mark has experience in this, he resigned from the Chapel Hill Town Council in 1997 in the middle of a four-year term.)

4) The Board could appoint someone from the annexed area if it waits until the annexation is effective to make the appointment

5) finishing fourth does not have any legal significance. The appointing authority can give whatever political signficiance it want "finished fourth -- close, give them the appointment" or "finished fourth -- the voters rejected that candidate, no way"

Well, folks, my hat remains in the ring. The disparity between third and fourth place gives the Board sufficient latitude to open Door #4, as I call it, to the appointee or applicant of their choice.

Recent history tells us that the Board moves swiftly to fill vacancies - quite successfully, as evidenced by Joal's and Diana's staying power.

James,

That was careful wording of "no close fourth place finisher."

However, there is a *clear* fourth place finisher. What's more, she hails from the area semi-disenfranchised by annexation's timing. (And yes, folks, the timing of the *vote* for annexation was entirely willful -- it could easily have been set up earlier, or delayed.)

I'd like to see the new Board, not the old, make the replacement appointment. That is, I prefer Randee's participation to Mike's because she's recently elected and probable for democratic responsibility in future campaigns.

when Is said "The Board of Aldermen can adopt whatever procedure they choose," I meant: " The Board of Aldermen can adopt whatever appointment procedure they choose"

Ok, I understand. Thank you for the explanation. :}

Does anyone reading this believe the northern transition area deserves special consideration when the appointment is made?

It seems like the argument that the 4th place finisher was totally rejected is inherently flawed -- shouldn't we assume that anyone who was interested in a spot on the Board of Aldermen was already in the race? Katrina Ryan was favored by voters over the other candidates that didn't recieve seats.

And why should the Board of Aldermen appoint someone who didn't even feel the need to run for an office? It's not like this is an unexpected opening. Anyone who wanted the job and believes in democracy should have been scrapping with the other candidates for the past few months.

For the Board of Aldermen to appoint anyone but Ryan now would indicate that they're either a placeholder or the pet poodle of the sitting aldermen.

Poodle up, cowpersons!

I for one am not holding my breath about anyone DTRT. Their lawyer has indicated that, just like the annexation, there are plenty of legally correct outs that will keep the BOA from having to worry about doing the right thing.

Sleep well, new BOA!! See you in the hood!!

Tom-

I'm not saying she was the favorite out of all the candidates. I'm saying she was favored over those others that did not get a seat and that anyone who deserves or wanted a seat would have been in the race. Ergo, with Devine, Marshall, and Ryan being legitimate choices, we can see that the voters wanted Ryan more than the other two.

Tom --

Would you extend your argument to Congress? National voters totally rejected Democrats in favor of Republicans. Well, sort of.

I wonder how the mathemetical formula would work. If 31.7% should mean zero representation, then Congressional Democrats should get what, 48%-32% = 16% of the seats in Congress? Interesting principle....

I believe the question of how the 4th board member should be appointed is still at issue.

However, the one thing that is NOT at issue is whether or not I am the preferred representative of the Northern Transition Area. Of 106 town voters at Coles Store precinct, I got 101 and one votes, or 95% of the electorate. Nearly half voted for no one else.

How the board chooses to proceed is a test of them, not me.

Tom,

I was merely indicating to Damon, who wrote that I "purport" to represent the transition area, that voters seem to think I do as well.

You'll notice I did not make a comment on how I think the board should proceed, but let's just say 31% is a large minority, and it is indeed an opportunity for the board to demonstrate their true commitment to diversity and inclusiveness.

Tom-

What you fail to be grasping is that it's all relative. Had it been simply a matter of voting for as many people as you thought would serve well on the Board of Aldermen, the number of votes for everyone would have been much higher. It's not that 50% is the margin to hit for people thinking you're qualified. It's that it's the margin to hit for people to think you're better than the alternatives. And because I would argue there are no legitimate alternatives besides Ryan, DeVine, and Marshall, it's a pretty clear cut case.

Tom,

Once again, I am not saying what the board should or should not do.

In the only appointment made at the time of an election, the fourth place finisher was appointed. To not do so this time sends a clear message to nearly a third of those who bothered to vote and 95% of suburban Carrboro that their voice is less valued by the Board of Aldermen than those who are "groovy".

Furthermore, to appoint vote getter number four or five, via an application process, explicitly in opposition to the wishes of the electorate sends an even stronger message about their commitment to democracy.

Those messages will be for future voters to judge, not me.

I'm sorry, but I just don't see how comparing this to most midterm appointments helps, Tom. The fact of the matter is that everyone knew for months there'd be another opening. What possible reason could a real candidate for appointment have had for not running for a full term? Anyone who was honest-to-gosh interested in the job would have thrown their hat into the ring. And why 40%? That's just an arbitrary number. Why is a 40% plurality the line? Why not 45%? Or 25%? At least let us know why you're picking the 40% mark.

Granted I'm sticking up for someone we endorsed, but I don't think that it's unfair to speculate that were DeVine or Marshall the fourth place finishers, there wouldn't be quite so much dissention and everyone would just nod their heads OK at them being appointed on the basis of being the next top vote-getter.

On another point, I was under the impression that Carrboro highly valued diversity. Seems only fair that that should carry over to ideology, seeing as how that actually affects how someone will vote on various issues. Or maybe I'm mistaken and the 40-percenters out there just want diversity as long as it doesn't threaten the status quo. As someone who was born and raised out in the county, I can tell you that at-large representation ain't all that it's cracked up to be. Sadly, (if the posts here are any indication) it sounds like the recently annexed neighborhoods in Carrboro will get a taste of what it feels like to have someone tell you what you can and cannot do with your property and then charge you money for it without even giving you a minority seat at the table.

It just seems odd that eyebrows get raised if there's not an ethnic minority or a woman high up in municipal governments, but not if it's a group that was clearly disenfranchised, as was discussed in one of our point-counterpoints last year:

http://www.dailytarheel.com/vnews/display.v/ART/2004/12/01/41adc99954900...

There is certainly a legitimate case to be made for appointing the high runner-up finisher (when I resigned from the Chapel Hill Town Council in 1979, Joe Herzenburg was appointed to fill my vacancy and if memory serves me right he was fifth-place finisher for the four seats, but I could be wrong)

But it is also possible that someone did not run because they already were supporting three candidates for the three seats. Maybe they would have run if there were four seats available and the ballot said vote for four.

The most democratic solution would be to hold an election.

Mark's right--that WOULD be the most democratic solution--but that is NOT going to happen. I'll be shocked if the BoA appoints Katrina--though I think they should.

melanie

Katrina,
You say, "However, the one thing that is NOT at issue is whether or not I am the preferred representative of the Northern Transition Area."

Besides you, who in the NTA was allowed to vote for BOA? Personally, I know of no other NTA residents who established residence in Carrboro so that they could vote or run for office.

I would safely say this: You campaigned very hard in Lake Hogan Farm and on Tuesday 101 people who live in Carrboro in Lake Hogan Farm voted for you. Clearly, 101 people in Lake Hogan Farm would like to see you on the BOA.

BTW--- not that it makes much difference, but it looks like at least 114 Carrboro voters voted at Coles Store (# votes cast for mayor).

Just a slight correction to one of Katrina's posts- she claims "Of 106 town voters at Coles Store precinct, I got 101 and one votes, or 95% of the electorate"

I see the the Coles Store precinct has 3877 registered voters, so one might more correctly say she recieved votes from about 4% of the Coles Store "electorate", defined as a "body of qualified voters".

Extrapolating further, out of a total electorate of 14,109 voters in Carrboro, Katrina's 731 votes comes to about .5%

(BTW, Mark Chilton's 1331 suggests that only 9% of the electorate cast their votes for him- it may have been a "landslide", but I wouldn't call it a "mandate"!)

Correcting my own correction, Katrina got 5%, not .5% of the total electorate.

Melanie,
What is fair about appointing Katrina? Katrina had the resources and cunning to establish residence in Carrboro so that she could run for office. Now Katrina claims that she is my preferred candidate (I live in the NTA). Does this seem fair to you?

I would like to see the BOA use an application process for filling the open seat. I would like the appointment to be made after January 1st so that newly annexed citizens can apply.

Also, I want to make it clear that Carrboro is a community. The appointee must be able to represent all of Carrboro. The appointee must be respectful of all points of view. I would like to see the BOA appoint someone with community-building skills.

For what it's worth, I told Katrina point-blank before Tuesday that I don't want to see her on the board. But I do want to see the empty seat filled fairly and thoughtfully. Katrina invested a lot of her time and energy learning about the many facets of town government; she set herself up as the representative for a couple of groups of disenfranchised voters (NTA, Rogers Road) and it looks to me like that group endorsed her candidacy at a rate only slightly lower than that of the winning mayoral candidate (5% to 9%).

I can't see how it would be more equitable to appoint someone who hasn't had the opportunity to learn what new candidates need to learn in order to be effective legislators or who further disenfranchises a large group of people who will have the power to drastically change the future of Carrboro in the very near future. I'd rather see those new neighbors welcomed rather than further ostracized.

To me this is an issue of representative government. If we believe in representative government, then we should believe in it for everyone, not just those who share our views. How is this different from all the discussions on a more 'fair' mechanism for achieving district representation in the county?

I think Chris' stat that Cole Store has 3877 voters and Katrina got votes from 101 of the 106 Carrboro voters in that precinct who voted on election day mixes apples and oranges. (implying a LACK of interest in the area in the election). In fact, 38% of the Carrboro voters in Coles Store voted in the town election. Coles Store has a VERY few Carrboro voters in proportion to the total precinct, in fact, the northern quarter (geographically ) of Coles Store is in the Orange County school district.
http://www.co.orange.nc.us/elect/stats.htm
Coles Store
total voters 3877
Ch-Carrboro SD 2444
Orange SD 1433
Town of Carrboro 686

In addition, while there were 106 Coles Store voters who voted ON ELECTION DAY, the total Coles Store turnout was 264, meaning that there were 158 Cole Store voters who voted early or by mail (of a total of 358 Carrboro early/absentee voters)

This means that almost 45% of the Carrboro early voters were from Coles Store. The stats below, from:
http://www.co.orange.nc.us/elect/Nov2005/stats.htm

Carrboro Voter Turnout Statistics
Precinct Total Voted Total Registered Percent Voted
Absentee 358 NA NA
Carrboro 298 1523 19.57%
Coles Store 264 686 38.48%
Damascus 71 1872 3.79%
Lions Club 274 2828 9.69%
North Carrboro 580 2327 24.92%
OWASA 167 3070 5.44%
Town Hall 295 1803 16.36%
Provisional 0 NA NA
Total 2307 14109 16.35%

Since NONE of these totals include Carrboro voters who are being annexed (just those who live nearby), it shows an EXTRAORDINARY amount of political involvement and interest by those in the NT area in carrboro politics.

Going back historically to a priorl arge controversial Carrboro annexation (Barrington Hills - 1979). The residents of this area got very involved in the next Carrboro city election and voted out several members of the then ruling Carrboro Community Coalition (the progressive group that had ousted the conservative board in the 1973 and 1975 cycles.) One of the leaders of the Barrington Hills group in the electoral success in reaction to the annexation -- Steve Halkiotis.

Terri, if it is an issue of representative government, let's give everyone in the NTA the opportunity to participate-- not just Katrina who had resources and cunning.

Yes, Katrina invested a lot of time, energy, and money in this campaign, and she lost. Others lost too.

Also, you say that Katrina "set herself up as the representative for a couple of groups of disenfranchised voters (NTA, Rogers Road) and it looks to me like that group endorsed her candidacy at a rate only slightly lower than that of the winning mayoral candidate (5% to 9%)."

I know no one in the NTA who voted-- except Katrina...

The NTA includes Lake Hogan Farms, Mary. It's not just the annexed neighborhoods.

Can we clarify (am I hopelessly confused?): I thought Lake Hogan Farm was in Carrboro, not the NTA?

Likewise, when I am annexed, won't I check off Carrboro (not the NTA) as the area in which I live?

Is 'NTA' a permanent designation, despite incorporation? If it is a permanent designation, why?

Mary,

As long as the process addresses the issue of representation, I don't care how the BOA decides to go forward. I just wanted to point out that Katrina's un-popularity shouldn't mask the contradictory position being promoted here that one candidate can represent everyone in Carrboro and yet we need more district representation for the BOCC.

Residents in the areas surrounding the NTA did vote for her and could be considered viable proxies for how the new annexees would have voted.

If they don't go with the 4th place candidate, what criteria would you suggest they use for selecting among applicants?

I love the back and forth interplay about disqualifying an argument (and a candidate), by adding in the people who didn't vote.

YOU don't represent the people of Hooterville! 95% of the people didn't vote so you clearly don't represent 95% of the people!!

Extreme analogy, yes. But how can you splash cold water on someone with this argument without realizing that the same holds true for all the candidates?? If 95% of the potential voters were to skip an election then NONE of the candidates can legitmately claim to represent more than 5% of the people -- not just the candidates that you choose to shush!

I still want to understand why it is when you apply for an Orange County Board, you are only allowed to check one designation-- i.e. Carrboro or NTA.

Can a Lake Hogan Farm resident be either the Carrboro or the NTA representative on a county board?

I always assumed that LHF residents could only be considered Carrboro representatives.

Two more burning questions?
Lake Hogan Farm has been part of Carrboro for how many years?
During these years, how many LHF residents have run for BOA or mayor?

Mary,

Technically, The NTA is the area withing Carrboro's planning district, but not in town limits. In this discussion, I believe it has morphed into a synonym for Carrboro neighborhoods north of Homestead Road.

I'd also point out that I got 38% support in North Carrboro, which is a pretty large minority, and BTW got double the amount of the 5th place finisher.

Terri, you wrote: "[disenfranchised voters] endorsed [Katrina's] candidacy at a rate only slightly lower than that of the winning mayoral candidate (5% to 9%)"

This is misleading in that 1331 (my total) is about 58% of those who chose to participate, whereas 731 votes is about 32% (ie the % of voters who marked Katrina on their ballot). For comparison's sake, John H got 54% of the turnout and came in third. In itself that doesn't rule out Katrina, but it is a far more reasonable comparison than the one Terri is trying to draw.

Mary, for what it is worth, I recall that the effective date of the annexation will be February 1, 2006 (not January).

Mark M, clearly an election would be the most democratic resolution, but our attorney says that we have no power to call an election for this purpose. I know you will just be shocked to learn that NC law prohibits the most democratic solution- absolutely shocked! ;)

Tom J, you might be reading a bit much into the results of the last two elections, but I think it is fair to say that the overall indication of the two elections taken together is that Carrboro wishes to grow its downtown, but to do so with care (although there are, no doubt, many views about what kind of care).

Anyone, I do not know so could someone tell us: How does the present situation compare with the vote total or percentage of votes that Diana McDuffee got when she came in fourth place and then got appointed to the BOA?

Our article on it from today: http://www.dailytarheel.com/vnews/display.v/ART/2005/11/10/4372d70f8bfae. I think having the fourth person come on seems the likely choice as that was the will expressed by the voters at that particular time, but then again, the people elected or on the board have the confidence of those same voters, so ideally they should be trusted to run a fair application process.