The New Orleans City Council is set to vote Thursday (Sept. 22) on an interim replacement for at-large Councilman Arnie Fielkow, who has announced his resignation effective Oct. 1 to head up the National Basketball Retired Players Association in Chicago.
Fielkow announced his resignation on Aug. 22.
Teams of lawyers immediately began researching state law and the City Charter to determine how and when Fielkow's replacement should be selected. Not surprisingly, different lawyers came up with different answers.
The confusion apparently stems from the fact that Fielkow resigned prospectively, rather than immediately — and the City Charter pegs the timetable for replacing him on the date the "vacancy" in his seat "occurs." Fielkow still sits on the council, so it's easy to argue that the vacancy has not yet occurred. Some, no doubt, take a different view.
Consequently, in addition to all the political intrigue that now surrounds the interim appointment (and, for a time, that which accompanied the scheduling of the election to choose his permanent replacement), we now have the legal conundrum of when Fielkow's interim successor will be properly named — and, possibly, who will properly name him or her.
All legal minds agree that the council gets the first shot at selecting Fielkow's interim replacement; the law also bars that person from seeking the office in the ensuing election. Questions arise as to timing. If the council does not make the selection on a timely basis, Mayor Mitch Landrieu gets to weigh in. So the question is, when is the right time?
The council takes the position that this Thursday is the correct date. It appears to be the last possible day under that interpretation of the law. But what if that interpretation is wrong, or challenged later?
What may have to happen is a belt-and-suspenders approach. That is, the council may find it wise to pick someone on Thursday, and then subsequently ratify that selection later. It would help if Landrieu would issue an executive order naming the same person — hence the belt and suspenders reference.
Landrieu no doubt favors this interpretation because it gives him some say-so in what has heretofore been strictly a council prerogative. Overall, Hizzoner gets along fairly well with this council, although he and Fielkow have had several behind-the-scenes tussles, mostly concerning policy disagreements.
Landrieu is thought to favor several among the 16 applicants for Fielkow's seat; above all, he wants the interim appointee to be an African-American. That would begin to restore some racial parity to the council. Five of the council's seven members are white; the city is more than 60 percent black.
Council sources say both frontrunners for the interim appointment are African- American: former state Sen. Diana Bajoie and Fielkow chief of staff Eric Granderson. All who applied appear qualified on some level — depending on whether your preference is for someone with governmental experience, or an "outsider," or a lawyer, a business person, etc. One applicant, David Payton, has even served as an interim council member before — for former Councilman Marlin Gusman, who resigned in 2004 to become criminal sheriff. Payton previously served on Gusman's council staff.
If all this is not complicated enough, Fielkow is breaking with tradition and promising not to try to sway the selection. That's a first. In the past, the resigning council member (with the glaring exception of Oliver Thomas, who resigned because he pleaded guilty to a federal bribery charge) typically nominated someone who was summarily appointed by his or her colleagues.
These days, few things are done the old way. Time will tell if that's a good thing in this case.