2006-07-14 Letter to Constance Kiriu re Hawaii's Resign to Run Law and Charter Provisions Pertaining to Vacancies in County Elected Offices

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i Honorable Constance Kiriu July 14, 2006 Page 7 charter pertaining to council voting, it means the entire membership of nine members, even if there (sic)vacancies. In the United States, there is a general split of authority with respect to the legal ability of remaining council members to fill vacancies, when there is less than a quorum of members left in office. For illustration purposes, we discuss one case that allowed less than a full majority of members to which the council was entitled to proceed to fill a vacant position. In Schisler v. Clausing, Not Reported in N.E.2d, 1980 WL 351087 (Ohio App. 4 Dist. 1980),2 at issue was the following provision from the Portsmouth (Ohio) City Charter: If a vacancy occurs in the Council, except as the result of a recall election, some eligible person shall be chosen within thirty (30) days by a majority vote of the remaining members of Council to fill the unexpired term. At the time, the Portsmouth City Council was comprised of a full membership of six members. There were only five active members, as the sixth member had recently resigned. At issue were three meetings where only three of the remaining five members appeared. At these meetings, over the objection and protestation of the Council's attorney,3 the three present members by unanimous vote proceeded to select Marceline Shepherd to the single Council vacancy. The Court of Appeals of Ohio, Fourth District, held that the appointment was proper, and "a majority vote of the remaining members" meant that only three votes were necessary, as three members represented a majority of the remaining members (five). It is important to note here Schisler may be distinguished from the circumstances presented in our present hypothetical, since Hawaii County's Charter provision specifically requires (and is unambiguously clear) that a majority of the entire membership (nine members) is necessary for official action, even if there are vacancies. Thus, five votes remain necessary for our Hawaii County Council to take any official action. Our Hawaii State Constitution, Hawaii Revised Statutes, Hawaii Administrative Rules, and County Charter provide little guidance on the specific 2 We recognize unpublished opinions should not be cited to a court for the purpose of arguing precedent. In the present matter,we cite this case to the County Clerk for the purpose of legal analysis only. 3 Not wise to ignore your attorney(most of the time).