| Background: |
Article III, section 4 (set forth below) dictates
what happens when a vacancy occurs on the city council. Under that section,
a vacancy occurs when a councilor is absent from the city for 30 days, unless
the council consents to the absence. By statute, however, no vacancy actually
occurs in any elected office if the person is absent because of military
duty. (ORS 408.240 - set forth below.) Also according to statute, a councilor
called to military duty is required to be replaced by a pro tem appointment
by the council. The pro tem serves until the councilor on military duty returns.
(ORS 408.250 to .280 - see below.)
Council vacancies in the past have been filled by permanent appointments
for councilors who have left their positions. In other words, the appointments
replaced councilors for the remainder of a term, or until the next regular
election. This case is somewhat unusual in that the replacement is restricted
to a pro tem appointment since the position will not officially be deemed
vacant.
Since there is no specific process established for the council's
required appointment of a pro tem the council should determine the most suitable
process for this particular situation.
Charter and ORS Requirements
Charter, Article III
Section 4. Vacancies. An office shall be deemed vacant upon
the incumbent's death; adjudicated incompetence; conviction of a felony;
other offense pertaining to his/her office, or unlawful destruction of public
records; resignation; recall from office or ceasing to possess the qualifications
for the office; or, in the case of the Mayor or Council Member, upon his/her
absence from the City for thirty (30) days without the consent of the Council
or upon his/her absence from meetings of the Council for sixty (60) days
without like consent, and subsequent declaration of the vacancy by a two-thirds
affirmative vote of the Council.
A vacant elective office in the City shall be filled within sixty
(60) days by the Council electing some qualified person to fill such vacancy.
The appointee's term of office shall begin immediately upon appointment and
shall continue until a successor, elected at the next biennial election,
takes office for the unexpired term. The Council shall have the power, by
a two-thirds affirmative vote, to expel any member of the Council for disorderly
conduct in Council or inattention to duties. No Council member shall be expelled
without notice and a hearing by the Council.
408.240 Status and rights of public officer and employee during
and after military duty. (1) Whenever any public officer
or employee leaves a position after June 24, 1950, whether voluntarily or
involuntarily, in order to perform military duty, such office or position
shall not become vacant, nor shall the officer or employee be subject to
removal as a consequence thereof. Unless the officer or employee dies, resigns
or is relieved or discharged from such duty under other than honorable
conditions, during the term for which the officer or employee was elected,
appointed or employed, such officer or employee shall be deemed absent on
leave until release from such active service has permitted the officer or
employee to resume the duties of the office or position. While so absent
on leave, the officer or employee shall not receive the pay or other emolument
of such office or position, nor become liable, as such officer or employee,
on an official bond or otherwise, for the acts or omissions of any other
person.
(2) Subsection (1) of this section does not apply unless the
officer or employee, upon the termination of such military duty, is qualified
to perform the duties of such position, and makes application within 90 days
after the officer or employee is relieved from such military duty, or from
hospitalization continuing after discharge for a period of not more than
one year. If the officer or employee is not qualified to perform the duties
of such position by reason of such service, but is qualified to perform the
duties of any other public position, the officer or employee shall be restored
to such other position, the duties of which the officer or employee is qualified
to perform, as will provide the officer or employee like seniority, status
and pay, or the nearest approximation thereof, consistent with the circumstances
in the case.
(3) Except as otherwise provided in this subsection, subsection
(1) of this section does not apply if the total of such military duty exceeds
four years. If the period of military duty is extended at the request of
and for the convenience of the federal government, subsection (1) of this
section is applicable if the total of such military duty does not exceed
five years. Subsection (1) of this section is applicable also with regard
to military duty that exceeds four years if the period of additional duty
was imposed by law or resulted from inability of the officer or employee
to obtain orders relieving the officer or employee from active duty. [Amended
by 1979 c.468 §§13]
408.250 Rights and duties of person replacing public officer in
military service. During the period any public officer is absent on leave
pursuant to ORS 408.240, a substitute shall serve in the place and stead
of the public officer. Such substitute shall be appointed by the authority
having power to have appointed the substitute as successor had such office
become vacant. The substitute shall qualify by taking an oath of office,
and by giving bond in an amount and conditioned as required by law for the
officer for whom the substitute has been appointed, or, in the event no bond
is required by law, then as the appointing authority directs. The substitute
shall be designated by the title of the office, followed by the words "pro
tem." The substitute shall be invested with the authority, duties and
responsibilities, and shall receive the emoluments of the office, in lieu
of the officer for whom the person is the substitute.
408.260 Termination of term of office of substitute for officer
in military service. When the absence on leave of a public officer, granted
by ORS 408.240, has terminated, or a successor has been duly appointed and
qualified to fill the vacancy created by the death or resignation of such
officer, the appointment of the substitute shall terminate, and the substitute
immediately shall deliver to such officer or successor all records and other
incidents of the office, together with a full and detailed statement of
accounting covering the entire period of service as substitute.
408.270 Restoration of employee''s seniority and tenure. Upon
the termination of any leave granted by ORS 408.240, every public employee
shall be restored to the position without loss of seniority or other benefits.
It is the intention of the Legislative Assembly that such employee shall
be restored in such manner as to give the employee the status in employment
that the employee would have enjoyed if the employee had continued in such
employment continuously from the time of entering the Armed Forces until
the time of restoration to such employment. Any person so restored to the
position shall not be discharged from such position without cause within
one year after such restoration. Any employee who has not completed the
probationary period in the position at the time of leaving for military duty,
shall, upon returning to such position, be required to serve the remainder
of such probationary period, notwithstanding the granting of continuous time
credit for time served in the Armed Forces.
408.280 Reelection of public officer while in military service.
Whenever the term of office of an elected public officer expires during
military service in the Armed Forces of the United States for which a leave
of absence has been granted pursuant to ORS 408.240 and the officer is reelected
to such office, the officer shall continue in such office and on such leave
of absence. The pro tem officer acting in the place and stead shall continue
to act in said capacity during the continuation of such leave of absence
of such public officer. Whenever the leave of absence of the reelected public
officer has terminated, and the reelected public officer has qualified for
the resumption of the duties of said office as required by law, and has conformed
to the requirements of ORS 408.240, the appointment of the substitute of
the reelected officer shall terminate in the same manner as provided in ORS
408.260. |
