Irvine’s “Points” Plan to Fill Vacancy Fails on Tie Vote

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We’ll elaborate on this news in the hours and perhaps days ahead, but the bottom line from Tuesday’s Special Council meeting is cause for mild, tentative celebration.  After hearing from roughly 50 Democratic Party speakers calling for a special election and Republican speakers calling for an appointment — but none, I’m told, defending the sketchy “points” system discussed in yesterday’s post — Melissa Fox moved to make an appointment requiring a majority of 3.  This did not get a second, and I expect that stomach’s clenched.

Mayor Shea then made a motion to use the proposed “points” system that would likely lead to an appointment of the consensus Republican choice, O’Malley.  This motion failed on a 2-2 vote, with Farrah Khan — shaking off whatever spell she might have been under — joining Fox to block it, while Kuo of course supported Shea.  The Council then voted 3-1 (Fox dissenting) to start taking applications while deferring the decision on the process.

Some observations:

(1) It’s good, of course, that Farrah did not sleepwalk over the cliff.  However, the final decision is only delayed, and her view that the Council has to appoint someone, as opposed to starting the process of appointing someone with the understanding that that process might fail, could still lead her to the conclusion that if no one else is going to cave to create a majority, then she will have to do it.

(2) On the other hand, the clock is already running on the ability of citizens to mount an expensive and exhausting campaign of petitioning for a special election.  The Council has 60 days (now less a few) to appoint someone — or about four more meetings even without a special meeting.  As I read the ordinance, the petition calling for a special election would have to be filed no later than 30 days after the announcement and certification of the vacancy, which means that the Council will have another 30 days after the passage of that deadline to appoint.  So if Farrah changes her mind on the points system in four weeks or so, or just decides to appoint O’Malley, the public will have no available recourse if the Council appoints.

(3) I didn’t get into this yesterday, but one problem for Fox (and Farrah, if she stands with her on this) is that, if the appointment and/or the points process stay on the table, the Council can pull it off the table at any time.  If Shea and Kuo show up to a meeting and only one of Fox and Khan show up, then they have both a quorum and a majority.  The only way to stop an appointment — or at least the rules governing one, would be for the remaining Democrat to call for a point of order, suggest the absence of a quorum, and then hightail it out of the Council Chambers to break that quorum.  (Or something like that.  This is not something I’ve ever had to do.)  Arguably, if one of the Democrats just got up to use the bathroom, the two Republicans could legally call for a snap vote before they return.  (Democrats couldn’t do it because Kuo is the Chair Pro Tem, so no Democrat can Chair a meeting for now.  Fox would be next in line, but if it ever got to her, there would be no quorum.)  It all depends on how nasty the Republicans want to be.

(4) One question that remains is how did the “special meeting get scheduled for 2:30 rather than the normal 4:00 time?”  I called the clerk’s office about this, because I know that many people thought that the meeting wasn’t starting until 4:00, and they assured me that they followed all of the necessary protocols.  Maybe so — but if people had no reason to suspect that the meeting time would be 90 minutes earlier than normal they’re not likely going to go looking to see whether it changed.

(5) Another question that remains is “how did this ‘points system’ get cooked up in the first place?”  Luckily, as with the change in starting time, these decisions should generally leave a paper trail, meaning that a California Public Records Act request might be fruitful.

(6) As Ryan Cantor commented in response to yesterday’s post, the points system — in that it would allow an appointment with less than a majority actually assenting to that appointment — does sound like it might be illegal.  Is the issue ripe for court?  One court argue that either way, but it sounds like filing for declaratory relief and an injunction might be something that DPOC perhaps ought to consider.

(7) Let’s bear in mind — so long as a points system remains even a possibility, Democrats in particular have to have as many candidates running as there are ranks to be awarded points, so that  both Democrats (if they are so inclined)  can avoid casting any vote for a Republican candidate, as that single point would lead to their appointment.

This is going to continue to be interesting.