Carefree Truth

Issue #383, March 13 , 2015

 

 

 

Councilman John Crane explained that there were many conflicting opinions at the February meeting concerning the proper method to fill the vacated mayoral seat.  Some audience members insisted it should be done via a special election, since the Mayor is directly elected by the voters.  Many of the Council members believed the Mayor should be chosen by them from amongst their ranks, as is done when a council seat is vacant.  Town Attorney Mike Wright, looking at the Carefree Town Code, voiced the opinion that the Vice Mayor automatically becomes the Mayor until the next regular election. 

 

 

 

Due to the lack of certainty about how to proceed in a way that was in compliance with the Town Code and the State Statutes, Mr. Crane said he had requested a second, outside legal opinion.  The best municipal attorney in the state, Bill Sims, was hired to render his opinion.  Mr. Sims has conducted courses in ethics and the Open Meeting Law that have been attended by all the Council members.  He is the attorney for the Risk Pool, which manages risks for small towns, and he acts as the Town Attorney for multiple towns in Arizona.   Mr. Sims recently participated in a similar mayoral succession case in Tusayan, AZ which had many common elements with the one in Carefree. 

 

 

 

Mr. Crane said Mr. Sims was contacted, informed of the situation, given copies of the Carefree Town Code, and asked to formulate a solution that was defensible if the Town was challenged.  He issued a position that was distributed to the Council members prior to the meeting.

 

 

 

Mr. Sims began by expressing his sorrow to hear of David Schwan's illness.  He said that Mr. Schwan had attended every ethics seminar and is a true gentleman.

 

 

 

He explained that Tusayan, by initiative, specified a special election to replace their mayor.  Mr. Sims contacted the League of Cities and Towns, and looked at their election manual to ascertain if that route was legal.  It was the League representative's "rigid view that it was completely illegal to call a special election to fill the vacancy of mayor".  Mr. Sims next contacted the Coconino County Elections Office, which refused to hold a special election.  So, he's been "down that path".  

 

 

 

There are three ways to fill the seat.  1. is a special election, which is illegal.  2. is for the Council members to elect people from their body if both the Mayor and the Vice Mayor are absent or disabled, which is not the case in Carefree.  3. is to allow the Vice Mayor to ascend to the position of Mayor if the Mayor is absent or disabled.  Since Mayor Schwan had tendered his resignation, Mr. Sims looked at the Arizona Constitution, the State Statutes, and the Carefree Town Codes.  He concluded that both the Constitution and the Town Codes say resignations are effective upon being accepted by the person filling the office, so technically, the Mayor had not resigned, and the Town Code provision stating that the Vice Mayor would ascend to the duties of Mayor prevailed.  Currently, the Vice Mayor is acting informally as Mayor, so technically there is no Mayor.  Upon acceptance of Mr. Sim's opinion by a majority vote of the Council that the Mayor is disabled and not present, the Vice Mayor would be caused to assume the duties of Mayor.  

 

 

 

Councilwoman Melissa Price thanked Mr. Sims for appearing.  She said agreed with his opinion, but still thought the Council should take another vote after the two vacant seats were filled, choosing a mayor from amongst their ranks.  She agreed with his interpretation of the Carefree Town Code, but felt he didn't give credence to State Statute 9-237, which she quoted as saying, "In case of absence of the Mayor, the Council may appoint one of their number to act in his stead."  She also quoted the League training book, "Regardless of the cause of the vacancy in the office of a Mayor or Council member, the vacancy is filled by a majority vote of the Council."  She added that she appreciated Mr. Sims' opinion, but did not accept it.  Mr. Sims replied that she is welcome to her own opinion, and agreed that the law is confusing.

 

 

 

Councilman Glenn Miller said he had been in contracting for 40 years and had dealt with many unclear building codes over the course of his career.  Three different building inspectors could come up with three different opinions.  He thought it was the same situation with State Statutes.  "So it is what it is, just an opinion."  Mr. Sim's replied, "You're welcome to yours, and I have mine."  Mr. Miller respectfully granted, "You taught our class the first time I was elected."

 

 

 

Ms. Price referred to Town Code 2-1-4.  Mr. Sims replied, "Lets look at 2-1-4  vs. 2-2-2, which deal with the Mayor and the Vice Mayor.  'The Vice Mayor shall perform the duties of the Mayor during his absence or disability.' "  This governs the office of the Mayor.  The Town Code is confusing because the Mayor is selected by the voters.  2-2-2 directly addresses the issue and says, "the Vice Mayor shall perform...".  2-1-4 is the Council provision to fill vacancies.  Mr. Sims found both case law and statements in the Arizona Constitution supporting his position that the resignation isn't effective until after the position is filled.  He explained that Codes are written the way they are in order to provide continuity and to avoid having a rudderless ship.  The Mayor's office would sit vacant for 18 months if it had to wait for a general election.  Mayors have a lot of responsibility, and very limited authority, with one exception.  A Mayor can declare an emergency in the event of a disaster and can take action.  Carefree doesn't have anyone who can do that now.  

 

 

 

Ms. Price repeated that 9-237 talks about the Mayor and the duties.  Mr. Sims replied that he would agree if the Statute read "shall appoint", but it is "permissive", and says "may appoint".  In that case, definitive Town Codes take primacy over State Statutes.  Carefree Town Code declares that the Vice Mayor becomes the Mayor immediately in the event of an absent or disabled Mayor.  Technically, the Mayor has not resigned.  Mr. Sims said that if a majority of the Council votes to accept his legal opinion, it would cause the Vice Mayor, without any further action, to step into the position of acting Mayor.  

 

 

 

Mr. Miller pointed out that Statute 38-291 talks about vacancies in office.  Mr. Sims explained that it deals with all public officials, elected or hired, and with conflict of interests.  It doesn't deal with elections or resignations vs. holding office until there is an acceptance of a resignation.  It deals with the expectation that terms will be fulfilled, and doesn't allow public officials to walk away from their office, disrupting continuity.  38-291 holds them accountable. 

 

 

 

Mr. Miller asked Mr. Sims to explain the term "lawful acceptance".  Mr. Sims said that it applies more at the state fiduciary level.  For example, the State Auditor can't decide to quit before the contracted term is fulfilled.  He said another good example, closer to home, would be Carefree Town Attorney Mike Wright.  Mr. Miller thought Mr. Wright was a bad example, as the Council had hired the Sherman Howard law firm.  They provided Mr. Wright, and another lawyer from that firm would replace Mr. Wright should he no longer be the Town Attorney.  Mr. Wright disagreed, saying he was the contracted Town Attorney.  Mr. Miller thought Mr. Wright's position with Carefree was part time.  Mr. Wright clarified that he is the full time Carefree Town Attorney.

 

https://vimeo.com/user18676056/review/121332103/ea8dda8f8e

 

 

Lyn Hitchon

 

 

 

Prepared by Carefree Truth

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