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45 <br /> DJRSL•'Y & WHI INEY LLP <br /> MEMORANDUM <br /> TO: Acting Mayor and Members of the City Council <br /> Michael Mornson, City Manager <br /> FROM: Jerome P. Gilligan <br /> DATE: September 7, 2004 <br /> RE: Mayoral Vacancy <br /> Vacancies in elective offices of the City are governed by Minnesota Statutes, Section <br /> 412.02, Subdivision 2a. The statute provides that a vacancy in an office "shall be filled by <br /> council appointment until an election is held as provided in this subdivision. Although the <br /> statute does not mandate when the appointment must be made, any vacancy in an elective <br /> office should be filled by the,City Council within a reasonable period of time. <br /> The Council may appoint any individual to fill a vacancy in elective office who is <br /> otherwise eligible for election. Under state law, this means the person selected must be at least <br /> 21 years of age, a citizen of the United States, a resident of the state for at least 20 days, and a <br /> resident of the City of St. Anthony. The Council may appoint a current Council Member or any <br /> other eligible resident of the City. If the Council is voting to appoint as Mayor a current member <br /> of the Council, the interested Council Member should not participate in the vote. <br /> In the present case, the Mayo's death has created 'a vacancy. The appointment of a <br /> new Mayor must be made by the City Council. The appointment is to be made by a majority <br /> vote of the remaining Council Members at a regular or special meeting of the Council. If there is <br /> a tie vote, the statute provides that"the Mayor shall make the appointment." Since the Mayor's <br /> office is vacant, the acting Mayor shall make the appointment if there is a tie vote. The acting <br /> Mayor may select any qualified person and does not need to choose from those individuals <br /> considered by the Council. The acting Mayor, however, may not appoint himself or herself as <br /> the Mayor. <br /> Since the vacancy occurred before the first day to file affidavits of candidacy for the <br /> City's regular 2005 election and more than two years remain in the unexpired term of office, a <br /> special election is required to be held at or before the City's.regular 2005 election and the <br /> person appointed to the Mayor's office shall serve until the qualification for office of the person <br /> elected as Mayor at the special election. <br /> If a current Council Member is appointed as Mayor and accepts such appointment, such <br /> Council Member gives up his or her position as a Council Member and there will be a vacancy <br /> in that Council position. The Council cannot appoint a Council Member to "temporarily"serve as <br /> Mayor until a special election is held to elect a person to complete the unexpired Mayoral term, <br /> with such person returning to his or her position as a Council Member after the Mayoral election. <br /> The vacancy in the Council position must be filled using the same procedure for filing the <br /> Mayoral vacancy. The Council votes to make the appointment, and in the.event of a tie vote by <br /> the Council, the Mayor makes the appointment. The Council has the option after the <br /> appointment is made to hold a special election prior to the next regular City election to fill the <br /> 60I257Y d O-ITNEY LLF' <br />