Filling a Vacancy on the City Council
June 30, 2025When a member of a city council resigns, passes away, or otherwise becomes incapacitated, that position is left vacant. Although charter cities may have procedures in their charter to fill the vacancy, general law cities must follow the procedures set by state law. California Government Code Section 36512 lays out the rules for filling city council vacancies and provides limited options for cities that want to enact their own ordinance.
State Law Default Rule
For cities that do not have an ordinance governing vacancies, the state law rule applies as the default. Under the default rule, the council must either fill the position by appointment or call a special election within 60 days.
If the council chooses to hold a special election, then the procedure is relatively straightforward. The election must be held on the next regularly established election date more than 114 days from the call of the special election, and the winner holds office for the unexpired term of the former incumbent.
Where the council decides to appoint someone to the vacant seat, there are additional considerations. First, the council should confirm that an appointment is permitted; a vacancy cannot be filled by appointment if it would result in a majority of the members serving on the council having been appointed. Assuming appointment is allowed, the council then must decide whether it will select an appointee internally or if it will solicit applications for the position. If it decides to solicit applications, then it may also want to hold interviews, which it must conduct in open session. Additionally, the council must ensure the appointee meets the state law requirements for the position, including residency and voter registration in the city. Because each of these decisions and steps will require multiple council meetings over the course of the allotted 60 days, a council that chooses to fill the position by appointment should act quickly.
Furthermore, the length of an appointee’s term depends on when the vacancy arises. If the vacancy arises during the first half of the term and more than 130 days before the next scheduled general election, then the appointee will only serve until that election. For a vacancy at any other point in time, the appointee will serve for the remainder of the former incumbent’s term.
Ordinance Options
In addition to setting out the default rule, state law also allows cities to adopt an ordinance governing the procedure for filling a vacancy. However, cities must select one of the three ordinance options enumerated in the statute, and each one further restricts the city council’s discretion. The first ordinance option removes the council’s ability to fill the vacancy by appointment and requires it to call a special election immediately. The second ordinance option still allows the council to fill the vacancy either by election or appointment, but the council must call a special election when a petition with a specified number of valid signatures is filed. Under the third ordinance option, the council must immediately call a special election but may appoint a person to serve in the interim until the election.
Although charter cities are not limited to the options enumerated in Section 36512 and have more freedom to enact their own procedures, they should still be careful to consider as many potential vacancy scenarios as possible.
Vacancies Arising Close to Election Day
When a city council chooses to fill a vacancy by special election, state law is clear in requiring the election be called more than 114 days later. But state law does not provide guidance on how to fill a vacancy that arises less than 114 days before the end of the term and next scheduled election.
There is no clear authority answering this question, and in practice it may vary case by case. A strict reading of the statute would require the council to appoint someone to fill the seat for the short time until the upcoming election. But a more “common sense” approach is to allow the seat to remain vacant until the next election. This approach seems logically consistent with state law because seats may remain vacant for more than 114 days, so it should also allow vacancy for less time than that. Indeed, several cities have adopted this “common sense” approach and decided not to appoint someone or hold a special election when the regularly scheduled election for the vacant seat will occur less than 114 days later.
Main Takeaways
General law cities must follow state law procedures in filling city council vacancies and they have very little flexibility to stray from those procedures in developing their own ordinance. Charter cities have much more flexibility, but should still be careful to avoid creating ambiguities. And regardless of the type of city, councils that opt for appointment should be careful to allow enough time to complete the process within the permitted time frame.