Council Seeks State Backing

All members of the Montgomery County Council endorsed letters Councilmember George Leventhal sent to the County’s State Delegations to the Maryland General Assembly seeking authority for the County to hold a special election if the County Executive position becomes vacant during a term.

Councilmember Leventhal sent the letters to Delegate Anne Kaiser, chair of the County’s delegation to the House of Delegates, and Senator Jamie Raskin, chair of the County’s delegation to the Senate.

Currently, the Montgomery County Charter permits, and the County Code provides for, a special election to fill a vacant seat on the County Council. However, in the event of a vacancy in the position of County Executive, Charter Section 205 provides for the appointment of a successor within 45 days by a vote of not less than five members of the Council. If the Council fails to make such an appointment within 45 days, Section 205 further provides that the Council shall appoint, within 15 days, the nominee of the County Central Committee of the political party of the elected County Executive.

“I am unclear as to why this incongruity exists, as it gives voters the opportunity to fill a vacancy in one office by special election, but not the other,” wrote Councilmember Leventhal. “Unfortunately, this is not a matter that can be resolved locally by Charter and County Code amendment.”

The letters ask that the County delegations pursue amendments that would allow the County to hold a special election if a vacancy occurs in the position of County Executive.

“Because I believe that the voters of the County should have the same opportunity to fill a vacancy in the position of County Executive as they do for a Councilmember, I ask if there is interest on the part of members of the delegation to pursue the necessary amendments to the Maryland Constitution and Code to make this a possibility,” wrote Councilmember Leventhal. “If the State law were amended to permit it, the County could pursue the necessary Charter and, if necessary, County Code amendments.”

The complete text of the letters to Delegate Kaiser and Senator Raskin:

January 28, 2014

It has recently come to my attention that there is a discrepancy in the manner in which vacancies in elected County offices are filled. The Montgomery County Charter permits, and the County Code requires, a special election to fill a vacant seat on the County Council. Specifically, County Code Section 16-17 requires a special election to fill “a vacancy on the Council that occurs before December 1 of the year before a year in which a quadrennial state election will be held.” However, in the event of a vacancy in the position of County Executive, Charter Section 205 provides only for the appointment of a successor within 45 days by a vote of not less than five members of the Council. If the Council fails to make such an appointment within 45 days, Section 205 further provides that the Council shall appoint, within 15 days, the nominee of the County Central Committee of the political party of the elected County Executive. There is neither provision in the Charter, nor requirement in the County Code, for a special election to fill a vacancy in the office of County Executive. I am unclear as to why this incongruity exists, as it gives voters the opportunity to fill a vacancy in one office by special election, but not the other.

Unfortunately, this is not a matter that can be resolved locally by Charter and County Code amendment. The Quadrennial Elections Article of the Maryland Constitution, Article XVII, provides that all state and county elections are to take place every four years on the date for congressional elections. The only exception to this election schedule is for “a special election that may be authorized to fill a vacancy in a County Council under Article XI-A, Section 3 of the Constitution.” Article XI-A, Section 3, among other things, empowers charter counties “to provide for the filling of a vacancy in the County Council by special election.” The Express Powers Act, Title 10 of the Local Government Article of the Maryland Code, then provides that a “county may provide for the conduct of a special election to fill a vacancy in the county council.” Finally, there are sections in the Election Law Article that govern the conduct of a special election to fill a county council vacancy, if so provided for in a county charter. There are no corresponding provisions in State law related to special elections to fill a vacancy in the office of County Executive.

The Constitution, the Express Powers Act, and the Elections Article were amended in 1996 to permit special elections to fill County Council vacancies, and to grant charter counties the power to provide for such elections. See Chapters 81 and 674, 1996 Laws of Maryland. These amendments were designed to supersede the Court of Appeals’ decision in Prince George’s County v. Bd of Supvrs of Elections of Prince George’s County, 337 Md. 496 (1995), which invalidated a Prince George’s County Charter amendment providing for special elections to fill interim vacancies on the County Council. In Prince George’s County, the question related
solely to vacancies on the County Council, not in the position of County Executive, and the subsequent amendments to the Constitution and Code provided only the authority for a charter county to conduct special elections to fill County Council vacancies. I am concerned that if Montgomery County tried to resolve this inconsistency at the county level, we would find ourselves in the same predicament that Prince George’s County faced in the early 1990s.

Because I believe that the voters of the County should have the same opportunity to fill a vacancy in the position of County Executive as they do for a Councilmember, I ask if there is interest on the part of members of the delegation to pursue the necessary amendments to the Maryland Constitution and Code to make this a possibility. If the State law were amended to permit it, the County could pursue the necessary Charter and County Code amendments to provide for and require a special election to fill a vacancy in the office of County Executive under the same circumstances as is required to fill a vacancy on the Council.

Sincerely,

Craig L. Rice George Leventhal
Council President Council Vice President

Phil Andrews Roger Berliner
Councilmember Councilmember

Marc Elrich Nancy Floreen
Councilmember Councilmember

Nancy Navarro Hans Riemer
Councilmember Councilmember

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