TO: City Council Members

FROM: Brad Branham, City Attorney

DATE: March 16, 2020
SUBJECT: Filling Council Vacancy

SUMMARY STATEMENT: This memo is intended to provide information regarding the need
to fill the upcoming vacancy on City Council, and to provide the Council with an explanation of
options and recommendations for this process.

As you are now likely aware, Council Member Kapoor has announced his resignation
from City Council. As a result, several legal requirements will soon be in effect regarding the
process for filling this vacancy.

The Law:
STATE - North Carolina General Statute 160A-63 requires that such a vacancy must be filled by
the City Council by appointment. The appointmented member will then serve until the next
regular City election.

LOCAL - Asheville City Charter Section 7, Article II, similarly requires the Council to fill the
vacancy for the remainder of the unexpired term of the vacating member. The newly appointed
member must be selected from the qualified electors of the City of Asheville (a City resident who
is registered to vote in the City).

COUNCIL RULES - Council Rules of procedure, Rule 30, requires that an appointment to the
Council must be considered and finalized in open session. No discussion on this appointment is
permitted in closed sessions. All members are entitled to make nominations for the
appointment, no second is required. Voting is completed when one candidate receives a
majority of the votes cast.
Options
1. If the vacancy occurs more than 90 days before the November general election, then the
City will be required to conduct a second primary. This would occur in October if more
than two candidates file for the office. The general election would then have two races
for City Council. The first would be for the three open seats, and the second would be
for this now vacant one. That fourth seat would only serve until 2022 when the original
term was set to expire.
2. The second option would take place if the vacancy occurs within 90 days of the election,
essentially after early August. In such a case, both State law and the City’s Charter
dictate that Council appoint a replacement who will then serve the remainder of the
unexpired term (until 2022).
3. If the vacancy does occur before early August, and the Council does not wish to incur
the expense of a second primary, we could rely on the language in our Charter to simply
make the appointment. This appointee would then serve the remainder of the term.
There is some risk in doing so because State Law suggests that a primary may be
necessary under these circumstances. However, Asheville is unique in that we have
even-year elections on a nonpartisan primary basis. Currently, no one else in the state
does this, and the law was not written to provide for such a condition. Because there is
no requirement that the Council appoint a new member within a certain timeframe, the
Council could simply wait to make the appointment until less than 90 days before the
general election. Therefore, the City would avoid having to conduct, and incur the
expense of, a primary.

Considerations
Council will be left with an even number of members after the vacancy. If it determines
that the body is unable to reach an agreement on who to appoint, it may decide that the best
option is to agree to select the fourth place finisher in the upcoming election. Again, there is no
time restriction on when the appointment must be made. However, it should be noted that this
would leave the Council in a potentially deadlocked position on many votes in advance of the
November results.
I will be happy to answer any additional questions you may have. Please let me know if
there are specific issues about which you would like more information.