By David M. Greenwald
Davis, CA – The council might be leaning toward a special election for the first time to replace Lucas Frerichs when he steps down in January to become a county supervisor. That was the gist of the discussion on Tuesday, although two of the four councilmembers that could act on this are up for election in November—so any thought on ultimate direction is speculation.
One thing that is clear—the thought that Lucas Frerichs could step down prior to the November election to allow for a November vote has passed, as the law requires an election has to be called at least 114 days prior to the election. Moreover, several on the council pointed out that was a non-option anyway.
That means that the council will have to act the first week of January if they chose to have a special election on May 2 – the earliest possible date as set by state law. The other dates would August 29 and November of 2023.
The city attorney did clarify that city ordinance allows for a hybrid—the council could make an interim appointment and then call for a special election.
Roberta Millstein, calling into public comment, said an “election is clearly more democratic than an appointment.” She noted, “The four council members who would be making an appointment in 2023 would all be from different districts. District 3 deserves to have a representative who they feel represents their interest and knows their concerns. It is the more democratic choice. It is also the choice that gives more opportunity for new voices to be part of city governance.”
Alan Miller during public comment added, “Why didn’t the council take action a few weeks ago? And we could have had a November election saving money, who is legally just anticipated.”
Kelsey Fortune added, “’I’d first like to express my disappointment that this was not discussed at a previous council meeting, as we’ve known about Mayor Frerichs’ departure for over a month.”
However, despite the feeling that the city council sat on this until it was a non-issue, the city attorney pointed out that the council can only act when there is actual vacancy—they cannot call a special election for an anticipated vacancy. Moreover, the election results were only certified by the county on Monday, and the 114-day period had already passed at the point when Frerichs was officially elected.
While former Mayor Gloria Partida pushed back on the notion that Frerichs would resign, she did state, “I am uncomfortable with appointing somebody for a two-year term. I think the two years is a very long time to have someone that was not, that was not elected.”
While she acknowledged they were not making a decision today, she did urge the council to tip their hand as soon as possible to allow those who intend to run to gear up for a campaign. However, the soonest that could be is after the election results are largely finalized and new councilmembers, if there are some, are seated.
Vice Mayor Will Arnold also pushed back on the notion that Frerichs would resign.
“Lucas has been elected citywide twice, then elected overwhelmingly by the voters of City Council District 3 just less than two years ago. Then elected by, I don’t know, roughly half of Davis to higher office.,” Arnold said.
He continued, “I mean, if there’s anyone who has… the support of the citizens of Davis to be a representative in a policy making position it’s Lucas. And so the idea that he would abdicate his elected position that the citizens of Davis have repeatedly and overwhelmingly elected him to, to me, is borderline offensive.”
Arnold scoffed at the notion that Frerichs could resign and the council could reappoint him to the position until the November election.
He said, “Lucas is doing exactly what the citizens, uh, have elected him to do, which is serve out the terms that he was elected for.” He said, “We’re not able to have an election in November for this District 3 seat—it was never an option. You cannot fill a vacancy that doesn’t exist, even if you know for certain that it will exist in the future.”
However, Will Arnold indicated he is now leaning toward a special election, especially with the new reality of district elections.
Inder Khalsa, the city attorney, noted, “It is actually the Davis Municipal Code, which allows you to take this hybrid approach that is not necessarily something that other cities do.”
It was pointed out that the council could deadlock at 2-2 in January.
Khalsa said, “The Government code is clear—you have 60 days to decide one way or the other. Non-action isn’t really one of the options. I think we would probably in the interest of trying to make an interpretation one way or another, we would go with special election if you were unable to come to a decision.”
She also pointed out that while it might not be technically illegal for Lucas Frerichs to participate, “the uniform consensus of the elections experts that I work with is that it’s inappropriate and that would have an appearance of impropriety, even if it’s not technically illegal.”
The council could informally ask potential appointees to state that they do not intend to seek election—but Khalsa also pointed out they would have no way to prevent someone appointed from filing papers.
However, the timing may be such that the candidates will have to file before the appointment process could be completed.
While it seemed that the council might be leaning toward a special election, no decision can be even informally made until the make-up of the four members of council is clear in December.