State law on vacancies put Fayetteville council in tough position

FAYETTEVILLE -- Kyle Smith will represent the residents who live on the west side of town for at least three years without first facing the voters.

Smith said he's prepared to hit the ground running, and his first meeting as a council member will be Tuesday. The council appointed him Nov. 21 to fill Alan Long's spot representing Ward 4. Long resigned Nov. 18, citing personal, family and business obligations.

Smith said he attended more meetings and spent more time at City Hall in the weeks leading up to his appointment because he was planning to run for the other Ward 4 spot held by John La Tour. That seat will be up for grabs next year.

State law gave the council two options to fill Long's position: appoint someone or call for a special election. The council decided 4-2 in favor of appointment. La Tour and Justin Tennant voted against. Sarah Bunch did not attend the meeting.

The measure to appoint Smith passed 5-2. La Tour and Tennant again voted no, and Mayor Lioneld Jordan cast the fifth and deciding vote. A city resolution required at least five affirmative votes.

La Tour said five people elected Smith to represent Ward 4, none of whom live there.

"I've been to the shores of Normandy, and I've been to the American cemetery where most of the crosses are inscribed with the inscription, 'Known but to God,'" La Tour said. "Those men gave their lives for our right to vote. I will not take it lightly, and I'll argue for the right to vote every time."

Tennant said he felt too much time was left on the term to appoint someone.

"I always believe if any term for any office is over a full year, there should be a vote," he said. "But in this case, I got outvoted. Nothing personal against Kyle. It could have been anyone, and I would have felt that way."

A change in law

Act 385 of 2009 amended state law on filling a city council vacancy. The law says the remaining council members have those two options if the term has more than one year left. The decision has to be made at the first regular meeting after the vacancy occurs. If the term has less than a year remaining, the council has to appoint someone.

A number of residents who spoke during the Nov. 21 meeting asked the council to call for a special election, saying one day was not enough time to notify the public and pick someone. The council learned of Long's resignation Nov. 20. Other residents supported an appointment, and Smith specifically.

City Clerk Sondra Smith estimated a special election would cost $10,000 to $30,000.

The city appeared to follow the law properly, said Beverly Pyle, one of the sponsors of the law who now serves as Crawford County clerk. The word "shall" is final and doesn't give the council much leeway, she said.

"I can see there is a need for revisiting that," Pyle said.

Before the 2009 amendment, the law said any vacancy with more than a year left in the term went to a special election. Council members would appoint someone to fill a vacancy with less than a year remaining.

There's no penalty in the law if a council doesn't immediately make an appointment or call for a special election, said Don Zimmerman, executive director of the Arkansas Municipal League. The intent of the law is to get councils to make a decision quickly without dragging on for months with an empty seat, he said.

Technically, elected officials could be removed for nonfeasance, or not following the law. It's a rare occurrence, Zimmerman said.

"I think in a situation where they get notice of a vacancy a day before the council meeting and they don't do it, I don't think a prosecuting attorney is going to indict with a circuit judge convicting somebody for a violation here, particularly if they did it the next meeting," he said. "It's reasonable to try to find good candidates and give people a few days to think about whether they want to be on the council and apply."

Making a decision

Jenevia Ralston, a longtime Ward 4 resident, said she took issue with the lack of public notice. A term with three years left on it should have gone to an election, she said.

Ralston said she understood the state law and the council had to make a decision. She just wishes it had gone the other way. The ability to choose would have been worth the cost of an election, she said.

"I don't blame Kyle Smith," she said. "I blame the people who are in an authority to make these decisions. That's who I always blame in these situations. They need to make appropriate decisions. I hold them accountable."

Jordan, who served as a Ward 4 council member from 2001 to 2008, acknowledged the tough spot the council was in.

"I'm not criticizing the council, but as for myself, personally, I would've put it to a vote of the people," he said. Since the council voted to appoint, he supported Smith, he said.

Jordan faced this decision when he served on the council. Tom Bechard was appointed to represent Ward 3 after Trent Trumbo died in 2002. Don Marr, now chief of staff, was elected to the council in a special election in 2002.

Council members Adella Gray and Sarah Marsh also voted in favor of Smith.

Gray made the motion to appoint someone. Marsh seconded.

Marsh said the seat needed to be filled. An absence in one council spot means more work for the other members, she said. For example, if a council member doesn't regularly attend committee meetings or respond to constituents, the responsibility falls to the other representative of the ward, she said.

"We need a full council because the work load -- it's heavy," Marsh said. "Especially for what we're paid."

Council members make $1,042 per month without benefits. All of the current members have jobs outside their civic duties.

Council member Matthew Petty said having to make the decision at the meeting made him sick to his stomach. He and Mark Kinion made the decision to appoint knowing if a candidate didn't get five votes the option to hold a special election would still be on the table.

Kinion said it would have been nice to have more time.

"It's the hardest vote that I have made since I've been on City Council," he said.

NW News on 12/04/2017