Two of Durham’s most powerful political organizations, the People’s Alliance and the Durham Committee on the Affairs of Black People, have asked the city council to halt the process for appointing a replacement for Vernetta Alston, who resigned last week to join to General Assembly. 

The organizations say that social distancing as a result of the COVID-19 threat limits citizens’ participation in the appointment process. Alston’s successor, they argue, should be selected by voters in November. 

But it’s not that simple. The city’s charter—which can only be changed by the General Assembly—says the city council “shall” select a replacement; it can only hold an election if council members “fail to choose some qualified person within 60 days after the vacancy occurs.” 

What the PA appears to be asking the council to do, in essence, is to shirk its duties. 

But that’s not an option, says council member Charlie Reece. “Because our charter requires that we attempt to make an appointment to fill this vacancy, that is what we must do, and only if we fail in doing so within 60 days of the vacancy is a special election triggered,” he says.

Last Thursday, the council approved Alston’s resignation. Alston was running unopposed for the state House seat left vacant by the passing of MaryAnn Black last month. The process to appoint her replacement began on Monday, when the city clerk published information about how to apply.

The application and questionnaire—available in English and Spanish—are due April 23. 

The council will select three to seven finalists for interviews during a special virtual meeting on the morning of April 27. The council will hold a second round of online or phone interviews during another virtual meeting on April 30, and vote and swear in the new Ward 3 representative on May 4.

The PA responded on Monday, writing on its Facebook page that COVID-19 and considerations for public health have “seriously curtailed” public participation and oversight of city government. 

“Under state law, the council may fill a vacancy through an appointment process,” the PA said. “The time allowed for the process, 60 days, is, under normal conditions, sufficient to provide ample opportunity for public input and the highest degree of public scrutiny. But under the extraordinary circumstances imposed by COVID-19, the appointment process cannot be carried out with the level of public engagement necessary to make the selection of a new city council member an appropriate exercise of democratic government.”

In 1979, the General Assembly amended the city charter to specify what should happen in the event of a vacancy. The language reads:

“If a vacancy occurs in the office of Council member, the City Council shall … within 60 days of the vacancy, choose some qualified person to fill the place of such Council member for the remainder of the unexpired term. If the vacancy to be filled occurs in a seat occupied by a Council member elected from a ward, then such person chosen to fill such vacancy shall reside in the ward from which the Council member whose place is to be filled was nominated. If the Council fails to choose some qualified person within 60 days after the vacancy occurs, it may not fill the vacancy by appointment, but shall call a special election.”

Nana Asante-Smith, who helped draft the PA’s Facebook statement, says the organization isn’t asking the council to “do something unlawful.” She emphasizes the last part of that provision, which allows for a special election if the vacancy isn’t filled. 

These are “unprecedented times,” Asante-Smith says, and the PA wants the council to take unprecedented action on behalf of Durham residents. 

“The purpose of our statement was to acknowledge our duty, as the PA, and the duty of the city council to exercise their representation in a way that prioritizes the well-being and best interests of the Durham community,” Asante-Smith says.

But as Reece points out, the notion that appointing a replacement is optional appears to contradict the charter, which directs the council to appoint a replacement and only hold an election if it is unable to agree upon someone.

“The Durham City Council does not have the ability to modify our charter, nor does a state of emergency constitute grounds to disregard the clear language of our charter,” Reece says.

In an email, professor Frayda S. Bluestein of the UNC School of Government says that the city charter gives the council two choices to decide by a majority vote. 

The charter says the council must fill the vacancy. So the council can do that. Or, “The charter says that if the council fails to (or decides not to) fill the vacancy with the 60 days, there will be a special election.”

Bluestein continues: “Both the [state] statute and the charter provide that [the] council contemplate that the council will fill the vacancy. The charter, however, recognizes that the council may not fill the vacancy. The statute does not.  It has been the advice at the School of Government that board members have an obligation to fill vacancies in order to make sure that the citizens have the benefit of a full complement of representation and leadership.”*

Reece says the city council expects to receive further legal guidance on this issue by Friday. Mayor Steve Schewel declined to comment, saying he’s sure the council will take up the issue at its next meeting on Monday. 

The PA acknowledges that leaving the council seat vacant until November “is not ideal” but is nonetheless a preferable option. The PA also says it won’t endorse during an appointment process. 

Omar Beasley, chairman of the Durham Committee, says members of his PAC agree with the People’s Alliance.

“The Committee won’t get a chance to weigh in,” he says. “Normally, we get a chance to interview the candidates and give our endorsements. Social distancing limits our ability to do that. And people have too much on their minds. They are losing their jobs, losing their loved ones—it’s not the right climate to do this. Put it on the [November] ballot at no additional cost, and a larger number of Durham citizens will be engaged in the process.”

On Wednesday, council member Mark-Anthony Middleton told the INDY that he’ll file a motion at the Monday meeting to rescind the appointment process. The interpretation of the charter shared by some members of the council, he says, is not universal. 

“The charter mandates a selection process that includes an allowance for an election,” he says. “The charter does not prescribe what that process looks like. That is left to us. There could very well be a step in our process that makes a feasibility assessment of a selection process at that time. If we determine that due to a worldwide pandemic, it is not conducive at this time to engage in a selection process and opt for an election, is anyone really worried about us being sued or the results of our election being challenged?”

Contact staff writer Thomasi McDonald at mcdonald@indyweek.com.

*Update: After the original version of this story was posted, Frayda Bluestein emailed that parts of her original analysis had been incorrectly stated. As she mentioned, state law gives the council the option to hold an election or appoint someone until an election, but in both cases, the election would have to come in 2021, when the seat would be up again anyway. 

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