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Except as provided in Wis. Stat. § 9.10 (recall), the common council may fill vacancies in the office of mayor or alderperson in second, third, and fourth class cities by majority vote, appointing a successor to serve for the remainder of the unexpired term or until a special election is held, as ordered by the common council under Wis. Stat. § 8.50, or an office may remain vacant until an election is held. Wis. Stat. § 17.23(1)(am).
State law specifies that no special election to fill a vacancy may be held after February 1 preceding the spring election unless it is held on the same day as the spring election, nor after August 1 preceding the general election unless it is held on the same day as the general election, until the day after that election. If the special election is held on the day of the general election, the primary for the special election, if any, shall be held on the day of the partisan primary. If the special election is held on the day of the spring election, the primary for the special election, if any, shall be held on the day of the spring primary. Wis. Stat. § 8.50.
Wisconsin Stat. § 17.23(1)(bm) provides that a vacancy in the office of a city’s municipal judge shall be filled in the manner provided in Wis. Stat. § 8.50(4) (fm) which provides that a permanent vacancy in the office of municipal judge may be filled by temporary appointment of the governing body, or, if the judge is elected under § 755.01(4), jointly by the governing bodies of all municipalities served by the judge. The office shall then be permanently filled by special election. A person so elected serves for the remainder of the unexpired term.
Vacancies in any other elective second, third, and fourth class city offices are filled by appointment by the mayor subject to council confirmation. The person appointed serves for the remainder of the unexpired term unless the common council orders a special election. A person so appointed and confirmed shall hold office until a successor is elected and qualifies. Wis. Stat. § 17.23(1)(c).
Vacancies in appointive city offices may be filled by appointment for the remainder of the unexpired term by the appointing power and in the manner prescribed by law for making regular full-term appointments thereto. Wis. Stat. § 17.23(1m).
Except as provided in Wis. Stat. § 9.10 (recall), vacancies in any elective village office may be filled by appointment by a majority of the members of the village board for the remainder of the unexpired term or until a special election is held, as ordered by the village board, or an office may remain vacant until an election is held. A vacancy in an appointive office shall be filled in the same manner as the original appointment. Wis. Stat. § 17.24. If the vacancy is in the office of municipal judge, the provisions of Wis. Stat. §§ 800.06(3) and 8.50(4)(fm) apply.
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Section 17.01, Stats., sets out the procedure municipal officers must follow when resigning from office. That statute provides that resignations must be made in writing and addressed and delivered to the officer or body prescribed by statute. Sec. 17.01(13). City officers such as the mayor and members of the council must address and deliver resignations to the council by leaving a copy of the resignation with the city clerk. Other elected city officers must address and deliver resignations to the mayor. Resigning appointed city officers must present the resignation to the officer or body authorized to fill the vacancy. Sec. 17.01(8) and (13)(b).
All village officers, except the village clerk, must address and deliver resignations to the village board by leaving a copy with the village clerk. Sec. 17.01(10) and (13)(b). A resigning village clerk must present the resignation to the village president. Sec. 17.01(13)(b).
A resignation may be either immediate or prospective. Except for officers whose terms continue by law until a successor is chosen and qualifies, a resignation takes effect "at the time indicated in the written resignation." Sec. 17.01(13). If no time is indicated in the written resignation, the resignation takes effect immediately upon delivery. Sec. 17.01(13).
Resignations by officers whose term of office continue by law until a successor is chosen and qualifies, take effect upon the qualification of the successor. Sec. 17.01(13). This provision does not apply to any elective municipal offices since such offices are vacant upon the expiration of the incumbents’ term. Sec. 17.03(10). The statutes explicitly provide, however, that appointed village and city officers serve until their successors are appointed and qualify unless otherwise provided by ordinance. Sec. 61.23(1) and sec. 62.09(5)(e), as modified or created by 2009 Wis Act 173. Therefore, a resignation by an appointed officer would not take effect until the successor is appointed and qualifies.
The Wisconsin Court of Appeals has concluded that under sec. 17.01(13), resignations may be made on a conditional basis. In Ortin v. Schuett, an elected town treasurer submitted a letter of resignation to the town board indicating that the resignation would take effect on November 1, conditioned upon the board authorizing an independent audit to clear her name. On November 6 the treasurer wrote another letter to the board withdrawing her resignation after noting that November 1 had passed without action being taken on the audit. The board met on November 6, accepted the treasurer's resignation effective November 1, and appointed a new treasurer. The court held that the treasurer's resignation never took effect because the board did not order an audit. The court concluded that the language in sec. 17.01(13) allowing an officer to indicate the "time" a resignation takes effect does not preclude the officer from conditioning a resignation on the happening of a future event. According to the court, an officer may indicate that a resignation will be effective when certain specified conditions are met. The public office holder remains in office until those conditions are met.
There is no need for the governing body or officer to whom a resignation is presented to formally accept the resignation. The resignation takes effect at the time indicated in the resignation or immediately upon delivery regardless of whether it has been officially accepted by the body or officer to whom it is addressed.
Once a resignation takes effect, the officer cannot withdraw it. It should be noted, however, that a common council or village board may reappoint a person who resigns from the governing body to fill the vacancy created by the resignation if the resigning officer later changes his or her mind. Also, any officer may withdraw a prospective resignation before it takes effect.
No, there is no time limit specified in the statutes for filling a vacancy on the common council or village board. In previous opinions we have suggested that vacancies on the governing body should be filled within a reasonable time. It makes sense to fill a vacancy as soon as practicable because an unfilled vacancy can, under certain circumstances, make it difficult for a governing body to conduct business.(rev. 4/19)
In general, the answer is no, unless there is a statutory requirement that the appointed official be a resident of the municipality – e.g., Wis. Stat. §§ 30.37(3) [board of harbor commissioners], 27.11(1) [board of public land commissioners], and 43.54(1)(a) [library boards]. In the absence of such a statutory requirement, a non-resident may be appointed to a municipal office or position unless the city or village has adopted its own residency requirement for appointed officials. However, it is important to note that Wis. Stat. § 66.0502 prohibits municipalities from enacting employee residency requirements. In light of this prohibition, whether a local residency requirement is permissible likely turns on whether the appointed official is an “employee.” If an appointed person is an employee, § 66.0502 appears to preclude a local residency requirement.
Yes. Nothing in state law prohibits minors from being appointed to serve on municipal committees, boards, or commissions. A person must be a resident elector of the municipality to be eligible for election to a municipal office and only persons 18 years of age or older qualify as electors. See Wisconsin Stat. §§ 61.19 (villages), 62.09(2) (cities), and 6.02 (qualifications for electors). However, no similar eligibility requirements apply to persons serving in appointive municipal offices.
If a municipal official, such as a member of the library board or the governing body, is temporarily unable to perform his or her duties because of an illness, may the governing body appoint someone to fill the temporary vacancy until the officer is able to return and perform his or her duties?
Yes. State law provides that if any municipal officer, other than an alderperson or trustee, “is incapacitated or absent from any cause,” the governing body may appoint a person to discharge the officer’s duties until the officer returns or until the disability is removed. See Wis. Stat. §§ 61.23(1) (villages) & 62.09(5) (d) (cities). These statutes further provide that if a trustee or an alderperson is “temporarily incapacitated because of physical or mental disability,” the village board or common council may appoint a person to discharge the trustee’s or alderperson’s duties until the disability is removed.
No. Determining whether a public official is or is not a resident of a municipality or an aldermanic district requires evaluating the surrounding circumstances to determine the public official’s intent.Intent may be evidenced to some degree by the circumstances surrounding the move. For example, if a public official needed to move outside the municipality or aldermanic district due to the destruction of his or her home, financial problems or other similar circumstances and the official indicated and demonstrated a clear intent to move back into the municipality or district at the earliest opportunity, then the official should probably not be deemed to have vacated his or her office due to lack of residency.Other factors may also indicate intent. For example, if the official has children in school, a relevant consideration would be whether the children continue to attend their old school or now attend a new school. Another factor would be the legal arrangement of his or her current housing. Did the official purchase a new home outside the district or municipality or is s/he renting? If the official is renting, is the lease term lengthy or short?There is no bright line test for determining whether public officials are still residents of a municipality or aldermanic district for purposes of retaining their office when they have moved out of the municipality or district. Instead, such determinations must be made on a case-by-case basis, after considering all relevant factors and circumstances surrounding the relocation, to ascertain the official’s true intent.For more information on determining residency of officials, see Governing Bodies 335R2, the Municipality, p. 22 (July 2018).(rev. 3/19)
No. There are two basic scenarios presented by this question. The first is when the outgoing member seeks to vote before they have vacated their office. The second is where the member seeks to vote after they have vacated their office.In the first scenario, the outgoing member cannot vote on the vacancy because there is no vacancy to fill. The outgoing member is still a member of the body at the time of the vote.In the second scenario, the former member cannot vote on the vacancy because they are no longer a member of the body. As a non-member, that person has no authority to cast a vote on any issue as part of the body they no longer belong to. An exception to this arises when a current village trustee is appointed to fill a vacant village president position pursuant to Wis. Stat. § 61.325. In that instance, the trustee appointed as president would still be a voting member of the governing body and able to participate in a vote to fill the now vacant trustee position.
No. Section 66.0501(2) of the Wisconsin Statutes provides that, unless expressly authorized by statute, no member of a town, village or county board, or city council, during the term for which the member is elected, is eligible for any office or position which during that term has been created by, or the selection to which is vested in, the board or council, but the member is eligible for any elective office. Because the member is ineligible during the entire term for which the member is elected, resigning does not make the member eligible to hold the office or position.
Although the statutes provide that governing bodies may fill certain vacancies by appointment, the statutes do not set forth a procedure by which the appointments must be made. Accordingly, municipal governing bodies may determine their own procedure for nominating candidates and selecting a person to fill a vacancy.
It should be emphasized, however, that § 19.88 prohibits a governing body from filling a vacancy by secret ballot. Secret ballots may only be used for the limited purpose of electing the officers of a governmental 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 is ascertainable.
Finally, when a person is appointed 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. 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 appoint another person. State ex rel. Schneider v. Darby, 179 Wis. 147, 154, 190 N.W. 994 (1922).