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Let Voters Fill Every Council Vacancy

Will Power Concede Power Without a Demand?


Santa Barbara’s governing document, its Charter, is at a crossroads. The City Council is considering options for ballot measures to change the Charter to be put before the voters this November. These measures would alter the city’s framework of governance for decades to come.

One Charter provision deals with filling vacancies on the City Council. Councilmembers are considering several options right now. What are the proposals? How are they different? What would each mean to you as a voting resident of the City of Santa Barbara?

Until 2015 when district elections began to be held, Santa Barbara long had city-wide elections. The existing, outdated Charter provision for filling vacancies on the council provides for remaining councilmembers to appoint a replacement. The outdated provision directs that the vacancy be filled by six people who came from the same geographical voting area as the person who has departed from office, the city at large.

But with district elections, clear differences exist among councilmembers that are determined by the place they live.

Current Proposal #1: The City Attorney’s proposal provides that only if a council vacancy is created by election of a sitting councilmember to the post of mayor can that vacancy be filled either by appointment by the City Council or by special election called by the City Council. Any vacancy created by any other cause can only be filled by appointment by the council.

The Special Election option would be available in only a very few vacancies. And, one does not need a crystal ball to predict this future. Frederick Douglass said, “Power concedes nothing without a demand. It never did and it never will.” When the council is presented with this unfettered option, it will choose to fill the seat itself. In practical terms, all vacancies will be filled by council appointment.

There is a more democratic proposal on the table.

Current Proposal #2: In the District Election Committee’s proposal, a vacancy will be filled by special election, with the option of an interim appointment until the district’s voters have an election to decide on their representative. In that election the appointee could not use the designation “incumbent” on the ballot.

Those who support appointment-only will say, “We are saving the cost of a special election.” Or, “the voters elected us to make tough decisions like this.” And, “it worked in the past, so it will work this time.”

None of these arguments holds water. As then mayor-elect Cathy Murillo said at the December 5, 2017, council meeting, “The people in a district should pick their leader, their direct representative.” To minimize costs, special elections could occur at regular elections. If the council appoints, persons from outside the district will be determining who represents that district’s communities on council. So, what worked in the past cannot work now.

In any appointment process, if the mayor resides in the district with the vacancy, one of the six decision makers will live in the district. If not, the decision will be made by six people, none whom reside in the district.

The crux of the issue is: Who will be given the power to create incumbency? The people of the district? Or the elected representatives who remain on council and who represent other districts?

The Long Beach City Charter provides that anyone appointed to fill a vacancy shall not “be designated on any ballot or voter pamphlet as an incumbent, a member of the City Council, or other designation indicating incumbency, for purposes of the next primary and general elections for members of the City Council.” If an appointee runs for that same office, she or he cannot claim incumbency. Only the voters convey incumbency.

Adopting Proposal #2 would: 1) empower the district voters and council to be integral partners in the process of filling a vacancy, with voters having primacy, and 2) allow a rapid appointment to avoid depriving the district of a voice, and a prolonged “empty chair” on the council.

On June 5, 2018, the city will, for the first time, fill a vacancy on the City Council by means of a special election. The council determined in January to adopt a proposal from the District Elections Committee to allow the voters of District Three on the Westside of Santa Barbara to elect their own replacement representative. They vested the power to create incumbency in the voters of the district instead of retaining that power in themselves. Why not cement this concept into our charter?

Now is the time to have this discussion. There will be another vacancy on the City Council in January when Gregg Hart becomes a member of the Board of Supervisors. Will the voters of District Six select his replacement and create a new incumbent? Or will the remaining councilmembers, none of whom live in District Six, make that decision?

The Charter lasts for decades. Vacancies have occurred in the past. They will occur in the future. These proposals have opposite impacts. One will vest the power to create incumbency with the voters of the district. The other will bestow that power on the council.

If you have thoughts, make them known now. The Charter proposals that council is presently considering will be on the ballot this November. The governing structure of the city will be substantially changed for decades to come.

Write an email or make a phone call. Let your representative know who you want the Charter to grant the power to create incumbency. The council? Or the voters of the district?

Frank Ochoa is a retired judge of the Santa Barbara Superior Court and currently of counsel with Sanger, Swysen & Dunkle.

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