What happens when a council member passes away?


News Analysis

Councilman Harry Barovsky died suddenly and unexpectedly Saturday. While the situation of an incumbent council member dying in office is relatively rare, it is not unprecedented.

There are a number of laws in the California Government Code that govern this situation, and they leave the Malibu City Council little discretion. The council has 30 days, in this case by April 24, in which to appoint a new council member or call a special election. The new council, however, by law, can’t be sworn in before April 25. Therefore, the current council gets to make the decision.

The election for the three open council seats does not change. That election will be held April 11, as scheduled, and only three council members will be elected. They will be sworn in on April 25, as dictated by state law. The council will be one member short.

According to legal experts, it’s possible even if one or several council members were defeated in the April 11 election, they still participate in the decision to appoint or call an election. If they were to appoint, that decision couldn’t be undone by the incoming City Council, and the appointee would serve the remainder of term even if the new council didn’t want him or her. By law, however, the council cannot appoint one of its own members to fill the vacancy, so if Keller, Van Horn or House were to be defeated, they could not be reappointed to fill Barovsky’s term.

The present council could make the appointment before the election, or it could wait until after the election and then choose.

If the current council were to deadlock on making an appointment or calling an election, the council would remain at only four members until the election in November. It would still take three votes to pass any measure.

Since Barovsky still had approximately two years left on his term, the replacement named would have two years to serve, then he or she could run for office in the 2002 election.

The council is free to choose whomever it wants and is under no obligation to pick the person who finished fourth in the election. In fact, that situation actually did occur in Malibu’s short history. Former Mayor Larry Wan resigned, and the council passed over Jeff Jennings, who was the next highest vote getter in the previous election, and instead appointed John Harlow to replace Wan. It takes only a majority vote, three votes, of the council to name that replacement.

Another option would be for the council to call a special election and let the voters decide who the replacement will be.

A last option would be to do nothing. If the council chooses to do nothing, or if it is deadlocked 2-2 and can’t get the third vote necessary for the decision, the law requires an election be called automatically. Because of a 1999 statutory change in that law, however, that election would be held in November 2000, at the same time as the presidential election.

Historically Malibu City Council elections have a 40 percent to 45 percent voter turnout, but presidential election turnouts typically run 55 percent to 60 percent and perhaps even higher where there is no incumbent president running.