Waxhaw town council delays appointing new member
The Waxhaw town council didn’t violate any state statutes by deciding not to appoint a successor to departed commissioner Brian Haug, according to a state expert.
During their Monday, Jan. 17 meeting, council members voted 3-2, with Mayor Daune Gardner breaking the tie, to refrain from appointing Haug’s successor for at least six months.
The potential problem, raised by town attorney Chaplin Spencer during the meeting, involves N.C. statute 160A-63, which states: “A vacancy that occurs in an elective office of a city shall be filled by appointment of the city council.”
Because the word shall was used, Spencer argued the board couldn’t delay a decision.
But that’s not exactly the case, according to University of North Carolina at Chapel Hill School of Government Professor Fleming Bell.
“While the statute does say that the vacancy ‘shall’ be filled, it does not state any particular period of time within which the filling must occur,” Bell said. “There is no stated penalty for not filling a city council vacancy within a certain period of time.”
The rule is different for county commissioners, Bell said, as the statutes give specific details as to when a replacement for the departed member has seated. Still, that doesn’t mean the board can postpone the appointment forever.
“I’ve told boards over the years that the statute probably imposes an obligation to act with good faith in filling a vacancy, but I don’t think that a certain time period applies,” Bell said, and he doubts a court would have much success forcing the board to do so, either.
“Filling a vacancy is a discretionary act of the council,” said Bell, who is considered the state’s expert on municipal and county law, “so that a court would probably not be able to compel the appointment of a (particular) person.”
Tired of juggling work, a family and his duties as commissioner, Haug resigned from the town board Dec. 14. Haug, a merchandise-planning manager for Family Dollar, husband and father of two, said circumstances had changed dramatically since he joined the board in 2007.
State statutes give towns multiple options in light of a resignation, Bell said. In recent years, Indian Trail and Marvin have had resignations, and in each case, the council chose to appoint someone to serve until the next election. If after the six-month period Waxhaw chooses not to go that route, they could hold a special election, Bell said, to install a replacement or simply leave the seat empty.
For now, town officials chose to leave the seat empty, giving the mayor essentially “veto power.” With four members left on the council, Mayor Gardner will now be able to vote on disputed issues. She said there simply wasn’t a candidate for the fifth position whom everyone could support.
“I’ve done a lot of hard thinking about this,” Gardner told a Union County Weekly reporter. “This is an elected position. I mean the people chose Brian. There are very few people who are dedicated enough for this job.”
Gardner pointed to her own experience. She attended years of town meetings before running for mayor four years ago.
“I attended meetings for three years. There are very few people who are dedicated enough to do that,” Gardner said. “I certainly couldn’t vote for someone I wouldn’t support as a citizen.”
She also found the mini-controversy interesting. When Tammy Norwood resigned several years ago, the council also left the position open until the next election, and no one protested, she said.
Haug’s seat is up for grabs in this year’s general election.