BUCKHANNON – Buckhannon City Council plans to rely on an application and interview process to fill future council vacancies.
Following an animated debate at city council’s Aug. 18 meeting, council members voted 5-2 in favor of directing the city attorney to draft an ordinance outlining the process for temporarily filling vacancies that arise on city council until the next municipal election takes place.
How we got here
Newly elected city council member David McCauley raised the issue in July, and council discussed the matter – but ultimately tabled it – at its Aug. 2 meeting. According to a previous article, in years past, when council must temporarily replace a city recorder or councilperson, they asked interested residents to submit a letter detailing their qualifications, interviewed those candidates, and then selected the most qualified person via a majority vote. The appointee then serves until the next municipal election.
The practice of accepting applications and conducting interviews wasn’t utilized, though, in August 2021 when, after an Election-Night tie between Shelia Lewis-Sines and CJ Rylands in the June 9, 2020, city election, council appointed former city councilwoman Shelia Lewis-Sines to fill the vacated city council seat left by Mary Albaugh, who moved out of the area.
What the city charter says
The city charter states that when a vacancy occurs in the office of the mayor “from any cause,” the city recorder becomes the mayor and serves until the next election. The charter also says that if a vacancy arises among council or in the office of the city recorder, “the remaining council shall, by a majority vote, fill such vacancy.”
The discussion began when city attorney Tom O’Neill recommended the council “do something short of an ordinance,” citing concerns that an ordinance, which carries more weight than a resolution, would not allow for flexibility in future decisions about how to fill vacancies.
“I think an ordinance would kind of unnecessarily tie the council’s hands,” O’Neill said. “With respect to who the council appoints to fill a vacancy, the council has the latitude to point whomever, or whatever qualified person the council wishes. If the council wishes to appoint the next highest vote-getter, it is absolutely free to do so in every case.”
“If it feels like that individual, for one reason or another, would not serve the people’s interests, it would have that latitude as well,” he added.
His second concern was that an ordinance could theoretically conflict with the charter from a legal perspective.
“The charter vests the council with the power to appoint a replacement,” O’Neill said. “What I’m concerned about is if the council were to enact an ordinance that would tie the hands of future councils, that might be considered to run afoul of the charter, and it could introduce the possibility of litigation … I’m concerned with the concept of the council, through an ordinance, tying the hands of future councils [in regard to] a matter that is delegated to the council in the charter.”
McCauley, who served as mayor from 2016-2020 and was the city attorney for several decades, said he had consulted the W.Va. Secretary of State’s office about filling council vacancies in years prior.
“They would say, ‘what’s your charter say?’ and I would tell them and they would say, ‘do you have an ordinance that sets forth the protocols for making these decisions?’ and I would say, ‘no, we don’t,’ and they would say, ‘then you can do it any way you want to,’” he recounted. “What we’re proposing with an ordinance is to be less arbitrary and capricious from what we have been in the past.”
Future councils could repeal an ordinance they didn’t find sound or viable, McCauley said.
“Ordinances come and go,” he added. “All I’m trying to do is have us be predictable, to be transparent, to not be arbitrary and capricious going forward – so that it’s not, ‘we’re going to do it this way this time and we’re going to do it a different way the next time,’ that whether [a vacancy arises] five years from now or 50 years from now, that there would be guidance.”
The argument for accepting applications and interviewing candidates
O’Neill said an ordinance could outline the process, but he would advise against designating a specific person – such as the next highest vote-getter – via an ordinance.
“Council certainly can enact an ordinance governing the process. My concern is, in the discussion that has been had, with the council designating the individual who will be appointed in the case of a vacancy being the next highest vote-getter,” O’Neill said. “That is what I think would run afoul of [the charter].”
The city attorney said giving the council discretion to choose an appointee wouldn’t be arbitrary and capricious.
“I think those are unique choices that are made in unique situations,” he said. “My advice is that the council not lock itself into a person to be appointed; I don’t have any qualms at all about designating a process by which individuals will be evaluated and then chosen, so if you want to have an ordinance that says the council will interview no less than three people before making a decision, I don’t think there’s any problem with that.”
Councilwoman Pam Bucklew said she supported outlining a procedure for the selection process.
“I think we should have [the selection process] in writing somewhere,” she said. “I’m not saying we won’t take the next highest vote-getter, but we will consider the next highest vote-getter and we’ll take applications of interest and we’ll weigh it out that way.”
McCauley said an ordinance could state that the next highest vote-getter would automatically be considered for an interview.
“But I would have serious qualms and problems – and Mr. O’Neill just said it – with us [adopting] a policy that automatically we’re going to go with the next highest vote-getter,” he said. “That’s problematic and that’s what I’m trying to avoid. The application process would allow us to consider the next highest vote-getter or possibly somebody else.”
City recorder Randy Sanders agreed with an application process, saying much can happen between the time a person runs for office and the time a council vacancy arises.
“My preference moving forward would be to take letters of interest,” Sanders said. “From an election standpoint, the election could be today and two years later you could have a vacancy … a lot can happen in two years, so why make a determination now on person two, three years from now?”
Councilman David Thomas, who previously supported taking the next highest vote-getter, said his perspective has since shifted.
“Last time, I was pretty adamant that we take the next highest vote-getter; I have changed my mind now, and I think we need to have an open process and have some flexibility, and if we just automatically take the next highest vote-getter, we don’t have that,” Thomas said. “We can still take the next highest vote-getter’s letter of interest and consider them.”
Bucklew said she’s aware of multiple people who would make stellar council members that haven’t run for office, and the council might miss out on a good fit by simply appointing the next highest vote-getter.
The argument for taking the next highest vote-getter or utilizing a ‘blended’ model
However, mayor Robbie Skinner felt candidates should be willing to put themselves out there and campaign.
“That’s what I have an issue with,” the mayor told Bucklew and McCauley. “There is sweat equity and there is value in going door to door and talking to people and listening to what the people have to say; there’s significant value with that. The whole point here is that you have a stake in the game, you have sweat equity, you’ve worked for it, you’ve proven that you want to be here and that you want to make the very best decisions for the community that you possibly can and by doing that, it’s listening to people, it’s showing up, it’s walking the neighborhoods, it’s knowing the community.”
Skinner had previously suggested a blended model that would draw on the results of the prior city election if there’s a close race, meaning that if a vacancy on council occurs, the council should tap the next highest vote-getter if they’re within a designated number of votes.
“I think it’s critically important that the people who elect us, that their voices are heard,” he said. “We are all here because the people of Buckhannon spoke in one way or another. Not a single one of us is appointed; we were all officially elected. At its core, it’s important that the people have a stake through our voices.”
Skinner alluded to two differing viewpoints regarding how city government should function.
“Are we a representative government or are we a government that, once we’re here, then we are entrusted with the authority to make the decisions for the community? … I’m of more of a belief in representative style of government,” the mayor said. “This is not these seven people’s community; this is all 6,000 people who live here – this is all of our community, and I think that that’s what, at its core, is most important.”
McCauley again disagreed with a system that could automatically appoint the next highest vote-getter.
“Robbie, I do not agree, not even one percent, with your sweat equity analysis,” he said. “We have seen people run for council two, three, four, five, six more times [after losing] and they are steadfastly rejected by our electorate. Those people who have lost time and time again and are rejected by our citizens, should not have an edge over somebody that’s not out there. I’m not saying that that next runner-up person wouldn’t be able to apply; they would be.”
Why the city can’t just hold another election to fill a temporary vacancy
Resident Ron Pugh asked city council why they couldn’t hold another city election, enabling the people to choose who would fill a vacancy.
“What would be wrong with having an election to fill the vacancy?” he wanted to know.
Sanders said an appointed person only serves until the next municipal election, not until the end of a term. Skinner noted that elections take time and cost money, and it’s paramount council fill a vacancy as soon as possible so seven people are on council and a 3-3 tie is avoided in important votes.
“It’s additional money from the taxpayers, and we have an election every two years anyway,” Skinner said, “so in my opinion, it seems to be either the next highest vote-getter or we solicit the community for and then conduct interviews.”
Bucklew informed Pugh that only 10 to 15 percent of registered voters turn out for municipal elections as it is.
“That’s a lot of money for that few people,” she said.
Skinner said it appeared the majority of council members wished to advertise future vacancies and interview candidates but wanted to know if council members wanted that put in an ordinance, in a resolution or in a policy.
“I’d like to see it in an ordinance and I’d move that we do the application method by ordinance,” McCauley said.
Bucklew seconded the motion, and McCauley, Bucklew, Sanders, Thomas and councilman CJ Rylands voted in favor of it. Skinner and councilman Jack Reger voted against the motion, with Reger stating that O’Neill’s advice to do something “short of an ordinance” made sense.