By David M. Greenwald
Executive Editor
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.
Duh…
Very many knew that, without equivocating, “what-if-ing”, months ago…
Welcome aboard…
It does take some longer than others to have their ‘epiphany’.
I see no reason for an “interim appointment”… could very well cause more strife, in part, from reasons you stated…
I think four months without a representative from the third is considered by some to be problematic.
If they’re going to discuss the downtown plan at all, I would consider it very problematic to have no representation of the downtown district in those discussions. As a nearby business owner who is in that district, I would definitely want to have someone representing District 3 as that plan moves forward. And we have a council member who is a downtown business owner who might have to recuse himself as well from deliberations on this topic.
It is possible the council could limit the scope of their deliberations on the downtown plan during the interval without representation. Perhaps the plan is just in the public comment stage and wouldn’t require any action by the council for several months. But if economic development is a priority, and the downtown plan is the last vestige of any kind of economic development plan at this point, I suggest that a lack of representation causing delays in movement on that would be bad for the city as a whole.
I’d have to review the calendar for resignation/appointment/election options, but looking at the city’s timeline, there would be a Planning Commission meeting in late 2022, then an Adoption Hearing in late 2022/early 2023. I really think this timeline would be inadvisable if there is not a District 3 member involved.
They could, of course, push consideration and adoption back by several months until a new council member is seated if the decision is made to go the election route.
https://www.cityofdavis.org/city-hall/community-development-and-sustainability/planning-and-zoning/downtown-davis-plan
Don… given the glacial progress of the Downtown Plan, how essential that it be adopted by June 2023?
I hear your concern, but:
I hope one district rep doesn’t guide those decisions…
I can’t see where an appointed one will “help” matters…
So, “hear you”, but am far from persuaded that an appointee would be ‘useful’… to me a delay would be better, or better yet, with a 4 person CC it would force a 75% vote (as others have opined)… might force ‘consensus’… and, it appears two seats will be contested come November… might be an excellent time to raise your concerns, as part of the “vetting” of the candidates… I see no ‘downside’ in having a 4-person CC for 5-6 months…
We can agree to disagree…
” how essential that it be adopted by June 2023?”
Given that it’s holding the General Plan and other potential things up – I would say it is a priority. Also, an important point is that I believe Josh is conflicted out of the Downtown Plan, so if there is no one in District 3, that would leave three councilmembers for a pretty important piece.
I’ll come out and ask… do you have an appointee in mind? If so, please share…
You appear to be ‘wedded’ to an appointee option…
No.
No, I think you covered it in your other post that it’s not essential that it be adopted by June 2023. It just seems that should be a conscious decision, made clear to the public, that the downtown plan will be pushed back to the next council for action if they go this route.
BTW, I don’t have a strong inclination either way, but do see the logic of the district system more in need of an election rather than an appointment.
Your belief may be misplaced. The standard, legally, is “direct financial interest” (or presumption thereof, which is ‘squishy’)… you may be thinking “optics”…
If you go by “optics”, even if Frerichs remained on the CC, the “optics” could be that he should recuse as well (as a one-time investor in Trackside)… so, we’d still be down to 3…
David, you’re “all over the place”… appt., vs. election, urgency vs. waiting (Frerichs could have resigned)… you just ‘wetting your finger’ to see how political winds play out? So you can be proved ‘correct’? Something about “both ends…”
Could cite other examples…
In your previous article, you cited precedent, now you cite “it doesn’t matter”… how many ‘appointees’ were not subsequently elected? Wisdom of the ‘appointers’, or “incumbent advantage”?
Guess my question to Don was misplaced… should have asked you, “do you have an appointee in mind” so it will give them a leg up in an election?
A student? POC? Woman? LGBT++? Preferably some combination? With an ‘incumbent’s advantage’?
What is your “view”? [After all, the article starts out with “My View”…]
Josh owns a business downtown that would be directly impacted by the new plan. I’m checking on whether he is required to conflict out or decided to.
I’m not all over the place. I don’t have a strong opinion either way and have mostly been pointing out facts irrespective of my opinion. Do I have someone in mind? No.
Fair reply… to what was meant as a fair set of questions…
Actually, a General Plan should precede what amounts to a Specific Plan… a Specific Plan should conform to a GP… [edited]
You should talk to the city then, I didn’t set it up this way, they did.