The state attorney general's office has recommended the Bountiful City Council appoint someone to replace Councilwoman Phyllis Southwick by April 7 to avoid some difficult legal questions.
Ralph Finlayson, assistant attorney general, said Tuesday he has discussed the matter with several representatives of the city, including City Attorney Layne Forbes. He has said there are several ambiguities in a law that tells city councils what to do when one of their members resigns."Whatever is done, the statute is unclear. We recommend that the process should be handled in a practical way, recognizing that best way to resolve everyone's concerns is to get a replacement within 30 days," Finlayson said.
The City Council has called a special meeting Wednesday night at 7 p.m. to discuss the matter, City Manager Tom Hardy said.
One of the questions raised involves what actually is meant by "vacancy" in Title 10-3-302 of the state code.
"If any vacancy occurs in the office of mayor or council member of any municipality, the council should appoint a registered voter in the municipality to the fill the unexpired term of the office vacated until the next municipal election, unless the vacancy occurs at least four days prior to the last day of filing in the municipality, in which case the appointment shall be for the remainder of the term," the law reads.
Finlayson said the law could be interpreted to mean that resignation became effective when Southwick's letter of resignation was dated, March 8, or when the council officially accepts it. April 7 would be 30 days since the resignation was first submitted.
City council members and Mayor Dean S. Stahle have been interpreting the law to mean a member of the council remains seated until the council votes to accept a resignation. The council has yet to take any action on the resignation.
At a meeting last Wednesday, Councilman Harold Shafter suggested that out of respect for Southwick that she remain on the council, perhaps until next January, even if she doesn't come to meetings.
Finlayson said that application of such a plan could create some "bizarre" circumstances especially if a council member decides to return to the council every once in a while or changes his or her mind about resigning.
The law also is not clear about what happens if a council vacancy is not filled within 30 days.
"If, for any reason, the council does not fill the vacancy within 30 days after the vacancy occurs, the two persons having the highest number of votes of the council shall come before the council, and if there is no majority to fill the vacancy, the vacancy shall be filled by lot in the presence of the council," the law says.
Finlayson said that the law is ambiguous because it never tells the councils that they have to vote on a replacement if it is not filled within 30 days. It is also unclear what the "votes" refers to. Finlayson said it is unclear whether the "votes" refer to those cast in a general election or voting by the council.
The law also fails to address exactly how the council chooses people to fill vacancies.
Other questions concern whether nominees could be discussed in closed sessions.