Filling Vacant Council Seats and Precedent

UW Oshkosh Professor of Economics and former two-term Oshkosh Common Councilor Kevin McGee today writes that the Common Council should appoint Steve Cummings to fill the seat vacated by Paul Esslinger. Says Dr. McGee: "It's the right thing to set this precedent – that when an opening appears, you appoint the voters' next top choice to fill it."

As I see it, the strongest reason for appointing an election runner-up is that it's easy and quick. Even though Mr. Cummings finished almost 600 votes behind third place winner Bob Poeschl (and only 24 ahead of fifth-place finisher John Hinz), appointing him to the Council would mean much less work for the Council, and even allow us to avoid what will be an avalanche of condemnation from Steve's endorsers on the Oshkosh Northwestern editorial board.

But would it be right, as McGee says, to set this precedent? I'm not sure. Would we really want to establish the principle that when a vacancy exists it should be filled by the next runner-up? Runners-up are runners-up for a reason: the voters said "we do not want this person in this office at this time." Yes, Steve Cummings is a competent person. He raised more money than any other council candidate, and received the endorsements of the realtors association and the Oshkosh Northwestern. His 4,136 votes represents 36.7 percent of the 11,267 total votes cast (compared to 36.5 percent for John Hinz--who raised less than $1,000 and did not receive the same endorsements.).

But one can easily imagine a scenario in which a runner-up seems not at all competent. Every Oshkosh voter can imagine some of those candidates. Yet by the McGee principle, a council would have to appoint him or her anyway. I'm not sure that's a wise path to follow. The city council would easily open itself up to charges of discrimination and double standards if it did not automatically appoint the runner-up. Can you imagine the editorial gymnastics the Northwestern would have to engage in to justify why a runner-up they don't like shouldn't automatically fill a vacancy? It would be embarrassing.

How have other cities dealt with vacancies? I have not had enough time to do enough research on this, but here are some examples I've come across:

*In Appleton, councilor Walter Kalata's death in late 2007 created a vacacy. Jason Schmitz had run against Kalata twice (in 2005 and 2007), yet that by itself did not entitle him to fill the vacancy. Instead, 5 persons interested in filling the position (including Schmitz) submitted letters of interest. Here's the process that was used:

Mayor Hanna advised this meeting was called to appoint a successor to fill the vacancy in District 1.
Discussion was held on the candidate presentation and the voting process to be held:
1) Each candidate will be allowed a 3 minute presentation
2) Candidates picked numbers to determine the order of the presentations.
3) After the presentation, ballots will be passed out. Eight votes will be needed to confirm the appointment. If no candidate receives 8 votes, the candidate with the lowest votes will be eliminated and another ballot will be cast.

Using that process, Rebecca Baron (not runner-up Schmitz) filled the seat.

*In Wauwatosa, alderman Craig Maher recently resigned his seat. Acquanitta Harris-Patterson, the runner-up against Maher in the election, said she should be appointed to fill his seat for that reason. The Council told her she should submit an application. (Wauwatosa apparently fills vacancies by asking interested persons to apply to a selection committee, which then makes a recommendation to the Council. I believe they have talked about changing the process, but automatically appointing runners-up is not one of the options on the table.).

*In LaCrosse, a vacancy was created when Council President Joe Ledvina resigned. According to the city of LaCrosse website: "City Council will vote by majority to appoint a representative to fill the now vacant seat until the 2009 spring election. To arrive at this end, the Council President will direct the City Clerk to advertise the available position, take applications for it, and then submit to the current 16 members of the City Council."

*Green Bay has a written policy on filling council vacancies. Here's what it says:
1.06 VACANCIES. (1) ALDERMEN. (Amd. GO 40-03) Pursuant to the terms and conditions of Sec. 17.23, Wis. Stats., in the event of an aldermanic vacancy, the City Clerk shall, within 14 days of a vacancy, advertise for and solicit applications from individuals to fill the vacant position. In addition to the application, an applicant must submit the signatures of 20 qualified electors from within the vacant district supporting the candidacy of the applicant. Applicants must submit applications and signatures to the City Clerk within 30 days of the initial advertisement of vacancy. Thereafter, at the next regular meeting of the Common Council, all qualified applicants shall be allowed time to make a presentation regarding their qualifications to the Council. The Common Council shall then, by majority vote, decide who will fill the vacancy. (2) APPOINTED OFFICIALS. Vacancies in appointed offices shall be filled as provided in Sec. 17.23, Wis. Stats.

I suspect the process used in Appleton and Green Bay is probably typical around the state and nation. If the Oshkosh Common Council were to solicit letters of interest to fill Mr. Esslinger's vacant seat, it would hardly be unusual.