Local Government

Council To Decide How to Fill Vacant Seat: Appointment or Special Election

At their January 15th meeting, Fullerton City Council will vote on how to fill the “at-large” vacancy left by now Mayor Jesus Silva when he won the District 3 council seat. The two options for filling the vacancy (which expires in 2020) are to appoint a representative or to call a special election.

At their December 18th meeting, City Council deadlocked (2-2) over how to fill the vacancy. Councilmembers Zahra and Whitaker favored a special election, and Mayor Silva and Mayor Protem Fitzgerald favored an appointment.

However, in a new development since the December 18th meeting, the city has determined that it cannot legally hold a “mail-in” special election, which would have cost $224,055 – $260,866; thus, they must choose between appointment and a more expensive stand-alone special election, which would cost $391,532- $428,150.

According to OC Registrar of Voters Neal Kelley, “the CA Election Code only allows a city to conduct an all mail ballot election under certain conditions.  One that ties Fullerton’s hands right out of the gate is the requirement that the city must be a population of 100,000 or less.  The other option would have been under SB 450, the Voter’s Choice Act.  In this case a city that consolidates with a county that has opted in to the VCA would be able to have the county conduct an all mail ballot election with vote centers.  However, only 5 counties have opted in statewide and our County is not one of them as of right now.”

This new development could affect council members Zahra and Whitaker’s decision on the issue.

At the December 18th meeting, before councilmembers discussed the item, several members of the public weighed in on this contentious issue.

Diane Vena urged council to call a special election and not to “deny voters the right to elect their representatives on this council by making an appointment.”


Diane Vena urges council to vote for a special election.

Helen Higgins also asked for a special election. “Filling a vacant council seat by appointment can easily be construed as a form of voter suppression,” she said, “Voting rights are the foundation of American democracy.”

Pete Baron said, “I think the residents deserve a right to determine who fills that seat…Appointment lends itself to cronyism, to wheeling and dealing. I think the residents deserve to have somebody they elect.”

Library Board President Sean Paden echoed this sentiment, saying that “there is a cost to democracy,” but “there’s a much bigger cost to cronyism. I’d pay the cost for democracy gladly any time.”

Former City Commissioner Arnel Dino said, “At the heart of any democracy is the will of the people…We deserve a council member who isn’t the product of a back room deal or cronyism…our neighbors deserve a transparent process, and not a backroom lobbying effort to get a council seat.”

A number of residents spoke in favor of appointing a councilmember. Many of them were specifically in favor of appointing Jan Flory, a former Fullerton councilmember and mayor.


Former councilmember Jan Flory speaks on behalf of appointing her. 

Kitty Jaramillo spoke in favor of appointment citing the high cost of a special election, and said, “I’m putting my faith in you guys that you will do the right thing.”

Ginger Britt said that appointing a member would allow there to be a full council [5 members], adding that “I know that there is at least one very qualified person to fill this spot. Jan Flory is the one I’m thinking of…she would be a great person to fill that seat.”

John Phelps said, “I believe strongly in our rights to vote; however, I think voting in the distant future doesn’t do us much good when you have an opportunity to make an appointment now and have a full council making decisions…I think Jan Flory would make an excellent appointment.”

Debra Pember also favored appointment, citing the high cost of a special election and the time it would take to fill the seat with a special election.

Kate and Tom Dalton spoke in favor of appointment and Jan Flory.

Jan Flory spoke in favor of appointing herself, listing her qualifications and experience.

After public comment, council weighed in. Mayor Protem Fitzgerald and Mayor Silva were for appointment, while council members Zahra and Whitaker were for a special election.

Fitzgerald said that appointments happen at various levels of government. Governors appoint U.S. Senators to fill vacancies, for example.

“The biggest reason for me to be in favor of appointment is the time that we will be without full representation for this city,” said Fitzgerald, “Eight months would be the time that we would be without a full council.”

Mayor Silva said he was concerned about the cost to the city of a special election.

“I agree with council member Fitzgerald,” said Silva, “I would like to see us appoint someone through a fair process.”

Councilmember Zahra, who favored a special election, asked rhetorically, “Is there a fairer and more transparent process than voting itself? Can we come up with something better than what the constitution came up with?”

Councilmember Whitaker agreed, saying, “It is far simpler to trust in the will of the voters…All of us up here were elected, we weren’t appointed…I think it’s far preferable to have the special election.”

Because Council was deadlocked on a decision, the item will come back before council at their January 15th meeting. If council is unable to make a decision by February, a special election will have to be called, per California law.


Categories: Local Government