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Blog post: Pierce Freelon has been appointed to the Durham City Council. But is it legal?

Durham City Council voted on Aug. 31 to appoint Pierce Freelon to the Ward 3 seat.

The seat had been left vacant by Vernetta Alston in April when she left for the 29th district seat on the state House of Representatives. Freelon is a musician and son of the late architect Phil Freelon and jazz musician Nnenna Freelon. He had run unsuccessfully for the state senate this year and for Durham mayor in 2017.

In April, the city council was debating whether to appoint someone to the seat or to let the public decide on election day.

So why was the appointment of Freelon suddenly made some four months after Alston left? And was this action legal?

Both the city charter and the state statute are written in such a way that they require the appointment to be made soon after the vacancy occurs, and that the appointment should be in place only until when the public can elect a new representative.

That is, the law protects the public’s right to vote for their elected officials and to be represented.

The city charter’s Section 13.2 states the appointment shall be made within 60 days of the vacancy.

Here is the state statute:

A vacancy that occurs in an elective office of a city shall be filled by appointment of the city council. If the term of the office expires immediately following the next regular city election, or if the next regular city election will be held within 90 days after the vacancy occurs, the person appointed to fill the vacancy shall serve the remainder of the unexpired term. Otherwise, a successor shall be elected at the next regularly scheduled city election that is held more than 90 days after the vacancy occurs, and the person appointed to fill the vacancy shall serve only until the elected successor takes office. The elected successor shall then serve the remainder of the unexpired term.

By the state statute, if the vacancy occurs too close to an election — within 90 days — then the person appointed will serve the rest of the unexpired term.

Otherwise, if the election occurs 90 days after the vacancy, that gives the public enough time to make an informed decision and elect a new official.

By the city charter and state statute, Durham residents should have been able to vote for a new representative to serve on the Ward 3 seat.

So why did Freelon’s appointment happen? Is it legal?

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