Legal analysis of Recall appointment process

The City has been asked the process regarding appointments should the Council been recalled. We provide this legal analysis:

Does the Mayor appoint replacement council members?

No, the Mayor alone cannot constitute a quorum. Four arguments on point. 

1) Oregon's home-rule doctrine treats a council's quorum and vacancy-filling as matters of the "structure and organization" of local government reserved to the city charter (City of La Grande v. Pub. Employes Ret. Bd., 281 Or. 137, 576 P.2d 1204 (1978)), (Rogue Valley Sewer Servs. v. City of Phoenix, 357 Or. 437, 353 P.3d 581 (2015)). So the Charter governs not only over the Council Rules (the turn-one point) but also over the state default statutes, which themselves apply only where the charter "does not otherwise provide" (Or. Rev. Stat. Ann. § 221.160 (West)).

2) Quorum computation. Oregon's default measures a quorum against the full authorized body, not the survivors (Burton v. Lithic Mfg. Co., 73 Or. 605, 144 P. 1149 (1914)), and when a charter speaks in terms of the council's "membership," Oregon reads it strictly — "it means what it says" — against the body the charter establishes (State ex rel. Roberts on Info. of McMullen v. Gruber, 231 Or. 494, 373 P.2d 657 (1962)).

3) Charter mode is the measure of power. Oregon requires vacancies to be filled only by the exact charter mechanism, which presupposes a functioning body (State ex rel. Dyer v. Kirkpatrick, 76 Or. 8, 148 P. 51 (1915)).

4) Sole-member self-appointment is rejected. The directly on-point authority refuses to let one official "virtually meet with themself" to appoint a whole new body — and holds such a power "must be explicitly declared," which Waldport's plural "remaining membership" language does not do (State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S.E.2d 683 (1942)), (Ross v. Miller, 115 N.J.L. 61, 178 A. 771 (Sup. Ct. 1935)).

Instead, the Charter specifically states that the city shall hold a special election OR, which applies in this case, the next general election.

Why does it have to wait until the next general election?

Again, because the Charter is specific. And the Charter overrules state law in this case as state law applies only where “the charter of such city does not otherwise provide” The Charter says specifically "If the vacancy occurs more than eight months before the date of the next general election, the appointment shall continue until the successor for the unexpired term is chosen at the next earliest practicable special election after the vacancy occurs." and "The successor for the unexpired term shall be chosen at the next general election." 

In this case, the next general election is in November, only four months from the recall election, and three months from the time the recall is validated. Specifically, the Charter's eight-month rule decides special vs. general — and now favors waiting. Section 30 requires a special election only when a vacancy occurs "more than eight months before the date of the next general election" (Waldport City Charter of 1996 § 30). The eight-month mark before the November 3, 2026 general election was March 3, 2026. A recall taking effect now (late June) falls inside that window, so the Charter channels the refill to the November general election. Had the recalls occurred before March 3, a special election would have been required.

What do you mean by 'the recall is validated'?

The recall is an elective process. Until the abstract of the election is delivered and accepted by the city, the results are not binding. 

Does that mean the Council or City Election officer could not accept them? 

Not really. You might have seen some cities in other areas of the country trying this approach. That is NOT what would be allowed to occur in Waldport. While legal challenges may occur from either side, the abstract of the vote, once delivered will be accepted by the City Elections Officer unless she is ordered to halt by a member of the judiciary (i.e. a judge would have to say no). 

What would that mean for the city? 

The City of Waldport operates on a Council-Manager type of local governance structure. This is the MOST common structure in Oregon. The City Manager can keep routine operations running, but only within what the Council has already authorized, and the City cannot govern in the interim. 

What the Manager can do alone: As administrative head, he enforces ordinances, supervises and hires/disciplines staff, runs utilities, and handles purchasing and day-to-day contracts (Waldport City Charter of 1996 § 21), (Waldport City Charter of 1996 § 21), (Am. Fed'n of State Cnty. & Mun. Emps. v. City of Lebanon, 360 Or. 809, 388 P.3d 1028 (2017)). Oregon law confirms "only the city manager has the authority to hire, fire, or discipline" employees (Am. Fed'n of State Cnty. & Mun. Emps. v. City of Lebanon, 360 Or. 809, 388 P.3d 1028 (2017)). Within an already-adopted budget, ordinary spending continues (Or. Rev. Stat. Ann. § 294.456 (West)).

What is frozen: All city powers vest in the Council (Waldport City Charter of 1996 § 6), (Bialostosky v. Cummings, 319 Or. App. 352, 511 P.3d 31 (2022)), and councilors cannot act individually — official action needs a majority vote at an open meeting (Am. Fed'n of State Cnty. & Mun. Emps. v. City of Lebanon, 360 Or. 809, 388 P.3d 1028 (2017)), (Am. Fed'n of State Cnty. & Mun. Emps. v. City of Lebanon, 360 Or. 809, 388 P.3d 1028 (2017)). With no quorum, the City can pass no ordinances or resolutions, appoint no officers (Waldport City Charter of 1996 § 10), approve no Council-level contracts for the entire gap.

Since Waldport adopted its FY 2026–27 budget before the recall election, the Manager can operate within those appropriations until the November-elected councilors take office in January 2027 (Waldport City Charter of 1996 § 26).

I heard the County could step in to appoint members?

No. Referencing above, the County has no such legal authority, as the state law ONLY allows this if the "Charter does not otherwise provide". In Waldport, the Charter specifies the exact process.