Stanislaus County's legal staff advises that the election office not conduct a June special election for Riverbank.
In a report, the county counsel's office said there's a technical flaw in Riverbank's call for a special election to fill a council vacancy and that it would make the special election invalid. If the vote is held, a legal challenge could result in the election results being thrown out, the report says.
Tuesday, county supervisors will consider Riverbank's request for the county to conduct the special vote June 4 to fill the unexpired council term of Richard O'Brien, who was elected mayor in November.
"We don't want to put our elections official in that awkward position," County Counsel John Doering said. "We still want to work with Riverbank to figure out how best to proceed."
Doering and Deputy County Counsel Deirdre McGrath are backing Registrar of Voters Lee Lundrigan, who says state law requires the city to call for the election at least 114 days before the vote. Riverbank's council needed to take action by Feb. 10 for the June 4 election.
Lundrigan says a council resolution approved Feb. 11 shows the city called for the election a day late. City officials maintain that the call for an election was automatic after the council failed over a two-month period to agree on an appointment.
The state-mandated 60-day period for making an appointment ended Feb. 8. In the city's view, it was too late to hold the vote at the next special election date in March; therefore, state law requires the seat be filled at the next election date June 4.
Doering said records for the Jan. 28 council meeting the last time the council deadlocked 2-2 on appointment show that council members didn't make a motion to hold an election but moved on to the next agenda item.
"They may have mistakenly believed a call for election happened automatically," Doering said.
Steve Churchwell, a special counsel for Riverbank, disagrees. He said that after the Jan. 28 council vote, Mayor O'Brien said it looked as though "we are having a special election" and council members nodded. Churchwell said it's clear the city clerk got the message because she opened the nomination period for candidates.
Churchwell said the county counsel report does not cite court cases to support its opinion.
"I don't know what happened here," he said. "When I saw the registrar of voters' position, I thought it would be corrected."
The attorney said the city has good relations with the election office and wants it to conduct the election. If supervisors reject the request, the city intends to hire a private vendor or another public agency to handle the election duties.
A county-run election would cost about $57,000.
Churchwell said the state Government Code would not allow an August all-mail election, as Lundrigan has suggested. He argued that a November election to fill the vacancy isn't supported in state law and those results easily could be invalidated if someone challenged the vote.
City Manager Jill Anderson said Friday that the special counsel was speaking for the city. She said Riverbank officials will attend Tuesday's meeting to urge the supervisors to reconsider.
The city's legal counsel has said people interested in council service should file papers for the June 4 election. The filing deadline for the election is Friday.
The Board of Supervisors will meet at 9 a.m. Tuesday in the basement chamber of Tenth Street Place, at 1010 10th St., Modesto.
Bee staff writer Ken Carlson can be reached at email@example.com or (209) 578-2321.