10/8/21: YOU HAVE TWO CHOICES ON ELECTION DAY; NEW TOWN COUNCIL COULD MAKE A THIRD.

The close-up photograph above depicts the content of the ballot that Southern Shores voters will mark for the Nov. 2 general election. The Beacon obtained it courtesy of a resident who votes by absentee ballot.

As you can see, you have two choices: 1) to vote for a new mayor; and 2) to vote for a new Town Councilman (member). You may vote for only one person in each election. There are no qualified write-in candidates.

The Beacon has heard confusion expressed by some voters who believe that they can vote for two Town Councilman candidates. This confusion may have arisen because of the possibility that election returns may result in another seat on the Town Council becoming vacant.

In the event that Mayor Pro Tem Elizabeth Morey defeats Rod McCaughey, the immediate past president of the Southern Shores Civic Assn., for the mayor’s office, Ms. Morey’s current Town Council seat would become vacant. She has two more years remaining on her term.

If Ms. Morey wins, the new Town Council would appoint someone to serve out her unexpired term. There would not be a special election.

It may seem peculiar or even inappropriate for four residents (or three, see below), out of the 3,000-plus who live in Southern Shores, to decide who will serve as a fifth member of the Town Council for two years, but appointments are standard procedure in North Carolina municipalities when council/board vacancies occur.

North Carolina is not a special election or public referendum type of state. It charges elected officials with decisions that other states, especially those in the West, might turn to the public to make.

The N.C. General Statutes clearly state who picks a new person to fill a vacancy on a town or city council (NCGS 160A-63); a county board of commissioners (NCGS 153A-27 and -27.1); or a school board (NCGS 115C-37 and -37.1.)

Section 160A-63 specifies that “a vacancy that occurs in an elective office of a city shall be filled by appointment of the city council.”

The statute elaborates upon how long the appointed person shall serve. In the case at hand in Southern Shores, it would be until an elected successor takes office after the next regularly scheduled city election.

The next election in Southern Shores is November 2023. New Town Council members would take office in December 2023.

If Ms. Morey wins, the new Town Council is under no obligation to appoint the person who came in second in total voting in the Nov. 2 election or third, if the second highest vote-getter was elected Town Councilman.

Town Manager Cliff Ogburn confirmed this with us yesterday, emailing: “[T]he new Council can appoint anyone they choose. There is no requirement that the person receiving the next highest vote total would automatically fill the unexpired term of [Ms. Morey’s] seat should she become Mayor.”

“Nothing is automatic or predetermined,” he stressed.

According to Mr. Ogburn, the new Town Council would make its selection by the “motion and vote method” or the “nomination and ballot method.”

VOTING METHODS OF APPOINTMENT

We turned to the University of North Carolina-Chapel Hill School of Government (SOG) for an explanation of these methods and found both to be well-detailed, if not always clearly so, in an article by Robert Joyce, an SOG professor of public law and government, titled, “How to Fill a Vacancy on an Elected Board.”

See https://canons.sog.unc.edu/how-to-fill-a-vacancy-on-an-elected-board/.

Here is how Mr. Joyce, an attorney, elucidates the methods:

*Motion and vote: A member of the new Town Council would make a motion in an open meeting, such as “I move that Larry Hamilton fill the vacancy in Henrietta Miller’s seat,” and if by “the regular procedures of the Council, that motion receives a majority of affirmative votes, Larry fills the vacancy.” If it does not, then a new motion must be made.

If this method is used, Mr. Joyce explains, the mayor may vote only in case of a tie. As we read Mr. Joyce’s article and the underlying statute, we believe that a Southern Shores appointment by motion-and-vote would most likely be made by three people, whose vote would result in a tie only if one votes affirmatively, one votes negatively, and the third abstains.

Regardless of the voting method used, the rules about ties and other procedural issues should be clearly established by the new Council. Presumably, Town Attorney Ben Gallop would assist the Council with this exercise.

*Nomination and ballot: Town Council members would nominate citizens in an open meeting to fill the vacancy, or, in the alternative, the Council could decide “that everyone who has filled out an application is to be considered a nominee,” Mr. Joyce explains, and then vote by ballot.

It is possible for members to decide to mark their ballots secretly, rather than to vote openly, but even if the rules they adopt allow for secret ballots, the SOG professor says, “the ballots must contain the members’ names so that when the vote is counted the minutes [show who voted for whom].” So, while ballot marking may be secret, the announcement of the vote and the ballots themselves would be public.

Under this method, each Council member would vote for the person he or she favors, and the person who receives a majority of the votes would be selected to fill the vacancy. In the event there is no majority-vote candidate, “those who receive the fewest votes should be dropped from consideration, so that the voting is between the front-runners,” Mr. Joyce writes.

This contemplates both a larger council than Southern Shores has, as well as multiple candidates and rounds of ballots.

The rules established in advance for the nomination-and-ballot method of appointment, which is preferred by Robert’s Rules of Order Newly Revised 10th ed., according to Mr. Joyce, are critical.

The rules might say, for example, the professor explains, that “all candidates who receive zero votes would be removed [or that] after the second round . . . all candidates but two will be dropped so that the third round is between the two highest vote-getters.”

The mayor does not vote to break a tie under the nomination-and-ballot method. So, this appointment would be made by three people, too.

Of course, none of this would occur if Mr. McCaughey wins the mayor’s race. We make no endorsement here now of either candidate.

We do think, however, that it would be in residents’ best interests to vote for all five Town Council representatives in one election.

This same scenario came up in the 2017 election when sitting Town Councilman Gary McDonald ran against incumbent Mayor Tom Bennett for mayor. It is not unusual for sitting Town Council members to aspire to the mayor’s office.

It also makes more sense to us to hold the mayor’s election in the alternating election cycle when three Town Council members are elected, but that is not what a previous Town Council decided to do when it staggered the elections.

Registered voters in Southern Shores did not get to vote for mayor until the general election of 2001. (See Town Code sec. 3-4.) Until then, the five elected Town Council members chose the mayor from among themselves.

REMEMBER:

OCT. 14: Early “one-stop” voting for the election begins Thursday, Oct. 14, and runs through Saturday, Oct. 30. It will be conducted at the Kill Devil Hills Town Hall and the Dare County Administration Bldg. in Manteo from 8 a.m. to 5 p.m., Monday through Friday, and on Sat., Oct. 30, from 8 a.m. to 3 p.m. There will be no early voting on the weekends of Oct. 16-17 and Oct. 23-24.

ELECTION DAY, TUESDAY, NOV. 2: The Southern Shores polling place for voting on Nov. 2 will be the Kitty Hawk Elementary School gymnasium, not the Kern Pitts Center. The polls will be open from 6:30 a.m. to 7:30 p.m.

Enjoy this fabulous weather, everyone! This is why we’re here.

Ann G. Sjoerdsma, 10/8/21

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