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1G/31/01 WED 11:05 FA% 6123402643 46 • MEMORANDUM TO: Acting Mayor and Members of the City Council Michael Morrison, City Manager FROM: Jerome P. Gilligan DATE: October 30, 2001 RE: Mayoral Vacancy Vacancies in elective offices are governed by Minn. Stat. §412.02, subd. 2a. The statute provides that a vacancy in an office"shall be filled by council appointment." Although the statute does not mandate when the appointment must be made, any vacancy in an elective office should be filled by the City Council as soon as practicable. The law does not require the City to advertise a vacancy in office although the City Council could choose to do so. The law also does not require the City to interview prospective council members or to follow any set procedures. These matters are within the discretion of the Council. The Council may appoint any individual who is otherwise eligible for election. Under state law, this means the person selected must be at least 21 years of age, a citizen of the United States, a resident of the state for at least 20 days, and a resident of the City of St. Anthony. The Council may appoint a current Council Member or any other eligible resident of the City. If the Council is voting to appoint as mayor a current member of the Council,the interested Council Member should not participate in the vote. See Minn. Stat. § 471.46 (A council member may be appointed to the office of mayor but"the member shall not vote in the appointment.') In the present case,the mayor's resignation has.created a vacancy. The appointment of a new mayor must be made by the City Council. The appointment is to be made by a majority vote of the remaining Council Members at a regular or special meeting of the Council. If there is a tie vote,the statute prpvides that"the mayor shall make the appointment." Since the mayor's office is vacant,the acting mayor shall make the appointment if there is a tie vote. See Minn. Stat. § 412.121 ("The acting mayor shall perform the duties of mayor...in case of vacancy in the office of mayor,until a successor has been appointed and qualifies.") The acting mayor may select any qualified person and does not need to choose from those individuals considered by the Council. The acting mayor,however,may not appoint himself or herself as the mayor. Since the vacancy occurred after the fast day to file affidavits of candidacy for the City's regular 2001 election, the person appointed to the mayor's office shall serve the remainder of the term or, if the Council elects to hold a special election to fill the unexpired term,until the qualification for office of the person elected as mayor at the special election. If a current Council Member is appointed as mayor and accepts such appointment, such Council Member gives up his or her position as a Council Member and there will be a vacancy in • that Council position. The Council cannot appoint a Council Member to "temporarily"serve as DORSEY & WHITNEY LLP