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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 111492
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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What can be asked on an application for filling a vacant

Customer Question

What can be asked on an application for filling a vacant Town Council position
Two out the four of the remaining Council members took it upon themselves to write and produce a 'Application' to fill the empty Town Council position with out any notice or input from the the 2 remaining council members. Our Mayor resigned at our last Council meeting.It was sent out threw a hit or miss email to our town residents and also put on our Town of lake Santeetlah,North Carolina web site.It is of my understanding that the entire council should have made a resolution together on how and when we fill this seat.Also the questions asked,I believe not only are discriminating in nature on a state level ,but on a federal level as well.I have witnessed that the Mayor and one of the Council person with the assistance Town Administrator conducted Town business behind closed doors without allowing any input from the other elected officials.
Submitted: 2 months ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
The NC law says the council may fill vacancies on the council when they occur by appointment and if the number of vacancies on the council is such that a quorum of the council cannot be obtained, the mayor shall appoint enough members to make up a quorum, and the council shall then proceed to fill the remaining vacancies. If the number of vacancies on the council is such that a quorum of the council cannot be obtained and the office of mayor is vacant, the Governor may fill the vacancies upon the request of any remaining member of the council, or upon the petition of any five registered voters of the city. Vacancies in appointive offices shall be filled by the same authority that makes the initial appointment. This section shall not apply to vacancies in cities that have not held a city election, levied any taxes, or engaged in any municipal functions for a period of five years or more.. See: NC GS 160A-63.
Also, 153A-27. "Vacancies on the board of commissioners.
If a vacancy occurs on the board of commissioners, the remaining members of the board shall appoint a qualified person to fill the vacancy. If the number of vacancies on the board is such that a quorum of the board cannot be obtained, the chairman of the board shall appoint enough members to make up a quorum, and the board shall then proceed to fill the remaining vacancies. If the number of vacancies on the board is such that a quorum of the board cannot be obtained and the office of chairman is vacant, the clerk of superior court of the county shall fill the vacancies upon the request of any remaining member of the board or upon the petition of any five registered voters of the county. If for any other reason the remaining members of the board do not fill a vacancy within 60 days after the day the vacancy occurs, the clerk shall immediately report the vacancy to the clerk of superior court of the county. The clerk of superior court shall, within 10 days after the day the vacancy is reported to him, fill the vacancy.
If the member being replaced was serving a two-year term, or if the member was serving a four-year term and the vacancy occurs later than 60 days before the general election held after the first two years of the term, the appointment to fill the vacancy is for the remainder of the unexpired term. Otherwise, the term of the person appointed to fill the vacancy extends to the first Monday in December next following the first general election held more than 60 days after the day the vacancy occurs; at that general election, a person shall be elected to the seat vacated, either to the remainder of the unexpired term or, if the term has expired, to a full term.
To be eligible for appointment to fill a vacancy, a person must (i) be a member of the same political party as the member being replaced, if that member was elected as the nominee of a political party, and (ii) be a resident of the same district as the member being replaced, if the county is divided into electoral districts. The board of commissioners or the clerk of superior court, as the case may be, shall consult the county executive committee of the appropriate political party before filling a vacancy, but neither the board nor the clerk of the superior court is bound by the committee's recommendation."
Personnel matters are not subject to open meetings laws and may be conducted in executive session, so the decision of the council as to who they will select to fill vacancies, since it is up to the council to decide, would be considered a personnel matter.
As far as what they can ask on the application they are allowed to ask anything that would not violate the discrimination laws based on age/race/sex/disability/national origin. So they cannot ask about health or medical conditions. They SHOULD NOT (not cannot) ask race or ethnicity. They may ask date of birth to make sure person is over 18 and qualified to hold the seat. None of these requirements are in the NC statutes though, it is based on what should not be done in accordance with the various discrimination laws.

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