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Appointments & Vacancies FAQ 1
What is the proper procedure for filling vacancies in city or village offices?
Vacancies in the office of mayor and
alderman in second, third and fourth class cities are filled by
appointment by the common council or by special election. Wis. Stat.
sec. 17.23(1)(a). A person appointed to fill a vacancy in such office
may be appointed to serve either the residue of the expired term or
until a successor is elected and qualified at a special election. Sec.
17.23(1)(a).
Unless otherwise ordered by the council,
the date for holding a special election to fill a vacancy is dictated by
date the vacancy occurs.
If a vacancy occurs before June 1st in
the year preceding expiration of the term of office, the special
election shall be held on the Tuesday after the first Monday in
November. Sec. 17.23(1)(a). If a vacancy occurs on or before December 1,
and the term does not expire the following April, the special election
is held the first Tuesday in the following April. Sec. 17.23(1)(a).
State law specifies that no special
election to fill a vacancy may be held at the same time as the regular
election for the office; instead, the regular election determines who
will succeed to the office. Secs. 17.23(1)(a) and 64.05(2).
Vacancies in other elective second, third
and fourth class city offices are filled by the mayor subject to
council confirmation. The person appointed serves until the office is
again filled by election. A successor to the appointee will be elected
at either the next regular election for the office or at a special
election ordered by the common council. Sec. 17.23(c). Vacancies in
appointive city offices are filled in the manner used for making regular
full-term appointments. Secs. 17.23(1)(c) and (d).
Vacancies in all elective village offices
are filled by appointment by a majority of the members of the village
board for the residue of the unexpired term or, if the vacancy occurs
before December 1st and the term does not expire the following April,
the board can opt for a special election in April to fill the vacancy.
Sec. 17.24. If the vacancy occurs after December 1st and
before June 1st, the village board can order a special election to be
held on the Tuesday after the first Monday in November. As with cities,
vacancies in appointive village offices are filled in the same manner
used for making the original appointment.
Vacancies in the office of municipal
judge are filled by appointment by the governing body until a new judge
can be chosen at a special election. If the vacancy occurs on or before
December 1 the special election can be held concurrently with the next
spring election. If the vacancy occurs after December 1, the special
election is held at the 2nd succeeding spring election or, if
the vacancy occurs between December 1 and April 15, the governing body
can order a special election to fill the vacancy on the Tuesday after
the first Monday in November . Secs. 8.50(4)(fm), 17.23(1)(bm) and
17.24(1).
Method of Appointment
Questions often arise concerning the
method that a governing body must employ when appointing a person to
fill a vacancy on the governing body. Although the statutes provide that
vacancies on common councils and village boards can be filled by
appointment by the governing bodies of the city or village, the statutes
do not set forth a procedure by which the appointments must be made.
Since no method of appointment is prescribed by statute, municipal
governing bodies may determine their own procedure for nominating
candidates and selecting a person to fill the vacancy.1
It should be emphasized, however, that sec. 19.88 prohibits a governing body from filling a vacancy by secret ballot.2
Secret ballots may only be used for the limited purpose of electing the
officers of the governing body, such as the council president.
Therefore, if a municipal governing body uses a paper ballot when
selecting a person to fill a vacancy in a municipal office, the ballot
must contain the name of the person voting as well as the name of the
person voted for, so that the vote of each member would be
ascertainable.3
A related question concerns the number of
votes necessary to fill a vacancy on the governing body. For village
boards, sec. 17.24 specifies that vacancies in elective village offices
may be filled by appointment by a majority of the members of the board.
The statutes are silent with respect to to the number of votes necessary
to fill a vacancy on the common council. Section 17.23 merely provides
that vacancies on the council shall be filled by appointment by the
council. The common law rule in Wisconsin is that in the absence of a
statute, ordinance, or rule requiring the vote of a majority or greater
number of the members of a governing body, a majority of a quorum is
sufficient to elect.4
Finally, when a person is elected to fill
a vacancy on the governing body, the appointment is complete once the
result of a sufficient vote is ascertained and announced, and no
resolution declaring that person to be appointed is necessary.5
In addition, the weight of authority seems to be that once a governing
body has appointed a person to fill a vacancy in a municipal office, the
governing body cannot rescind its vote or reconsider its action and
elect another person.6
End Notes
1. Appointments and Vacancies 237
2. 65 Op. Att’y Gen. 131 (1976).
3. 63 Op. Att’y Gen. 570 (1974).
4. State ex rel. Burdick v. Tyrell, 158 Wis. 425, 149 N.W. 280 (1914).
5. Id., 158 Wis. at 433.
6. State ex rel. Schneider v. Darby, 179 Wis. 147, 154, 190 N.W. 994 (1922).