By David M. Greenwald
Davis, CA – Fire first and aim later should be the mantra for Davis politics. Over the last few months, really ever since it was clear that Lucas Frerichs would be elected to the county supervisor seat, people have been throwing out “suggestions” as to what he and the city council should do about the anticipated vacancy. My response was always for people to find out what the law is.
It turns out the options are fairly limited—as I will explain shortly here.
First of all, I want to clarify something, I didn’t take a position in my column on Monday, “Monday Morning Thoughts: Folks Will Yell Democracy, but Davis Has Generally Appointed to Fill Vacancies.” Yes, I laid out the fact that the elected bodies, city council and school board, had always opted for the appointment route. But that was a historical analysis, not advocacy.
What I wrote was: “Of course, just because we have always done something one way is no reason to continue doing so.”
Moreover, I ended the piece: “Honestly, the cost of an election is relatively low and it’s a one-time cost. That should not be the reason that the council goes with an appointment process.”
Where I may have been wrong was in my last line: “That said, I think the most likely course of action would be for the council to appoint someone to council and then the voters can decide in 2024 what to do with the seat.”
Based on the discussion on Tuesday, I don’t think that’s the most likely course anymore. Although, it was a weird discussion because both Gloria Partida and Dan Carson are up for reelection in November and there is a possibility neither will be on the council when this comes for a vote perhaps in December or January.
Still, I found myself moved by the argument that councilmembers in other districts probably should not appoint a member of another district. Moreover, the council has a workaround of a temporary appointment in January prior to a special election in May.
So long as they don’t appoint someone who becomes the de facto incumbent, that seems like a reasonable option.
I think that will head off most of the criticism—much of which is unfair in my view.
A lot of people have argued that Lucas Frerichs should resign and allow the election to take place in November. Even if Lucas were inclined to take that approach—which he is steadfastly not—the state has made that approach difficult if not impossible.
First of all, the law does not permit the council to call for a special election unless there is an actual vacancy—not just an anticipated one.
Second, there is a timing issue. In order to get on the ballot in time for November, the council had to act 114 days prior to the election and, by the time Tuesday hit, the 114-day period had just expired.
That led to some public commenters suggesting that the council ran out the clock and should have acted sooner. The problem is that that the County Elections Office only certified the election on Monday of this past week—the day before the council meeting. So Lucas Frerichs had not even been elected to office until the timeline passed.
It seems to me that those two issues could easily be remedied by the state legislature changing the law to allow for vacancies to be more democratic. But that is a story for another day.
As is often the case, there were some “creative” recommendations for the council. One in particular that seemed promising was Lucas Frerichs could resign and the council could appoint him to fill the vacancy while the election would choose his replacement.
As Will Arnold put it, “the idea that was thrown around that, that he would quote unquote, resign, wink, wink, and then we would reappoint him wink, wink, so that we could have an election in November.”
When it was suggested, I immediately suspected that would probably be some sort of Brown Act violation, but it turns out according to City Attorney Inder Khalsa, it’s not even permissible.
Others suggested even without that arrangement that Frerichs should simply resign after he was elected. He would have had to have resigned prior to the election being certified—which is problematic anyway.
While Frerichs’ colleagues went to various lengths to defend his record, at the end of the day, the law permits Frerichs to retain his prior office until he is sworn in as county supervisor. For his part, he still has things he would like to do as Mayor of Davis and, since the law permits him to do so, it is hard to fault him.
Particularly since there is a viable workaround. Resigning by January 3 permits the council to act to do a temporary appointment and place the matter for a special election in May.
The state law is really part of the problem here. By law, there are only a few options for special elections—May, August, or November. And to get it on the May ballot, they have to act by January 8.
Given the timing of resignations from people headed for higher office, the state law could be revised.
Still, in the end, I think a city council election in May is reasonable. We know how to do all-mail ballots—while it might not be as high a turnout in May as November, it probably will not make a huge difference.
At the end of the day, the state legislature should be asked to modify the law about anticipated vacancies and when elections should be called, but if we get a temporary appointment followed by an election, I don’t think most people will complain.
In the meantime, we have what should be an interesting election coming in November.