An Omaha resident has filed paperwork to recall his Omaha City Councilman for failing to advocate for an emergency election to fill the seat of another councilmember currently in jail awaiting trial on fraud charges.
Michael Pilypaitis, a resident of District 3 in midtown Omaha, said his representative, Danny Begley, is blocking an opportunity for the people of District 4 in South Omaha to choose their own replacement for Vinny Palermo, who residents are also petitioning to recall. Pilypaitis submitted the form to the Douglas County Election Commission on Tuesday, June 6.
“I want my representatives to take this unprecedented situation and make it right for the people of South Omaha,” Pilypaitis told The Reader.
Despite being away from the Council since his arrest in April, Palermo can not be removed from his seat according to Omaha’s Home Rule Charter, Omaha’s constitution also known as the city charter. Palermo’s position can only be vacated if he resigns or is absent from the council for three months, which would be on July 25. A separate recall effort for Palermo has started, and some residents have hopes for an election to fill his seat. But Council President Pete Festersen has said the council will choose his replacement — because there’s no other option.
“In the city charter, there are only certain avenues we can take at this point that are applicable to the situation and there is no further action the City Council could take right now,” Festerson told The Reader.
Pilypaitis doesn’t think that’s fair. Whoever replaces Palermo will represent South Omaha for at least two years until the 2025 city elections. That person should be someone the people choose, he said.
“It’s really important to me that people in South Omaha be represented truly by someone that they elect, and it’s not their fault that the current seat is being vacated,” he said.
City Charter Rules the Way Forward
Festersen said the City Council cannot pass an ordinance for a special election of a new member of council because it would be in conflict with what the charter says.
Based on the city charter, a vacancy in a council seat would not be a basis for having a special election, said Bernard in den Bosch, Omaha’s deputy city attorney.
Section 2.06 of Omaha’s city charter states that to fill a councilmember’s vacancy, remaining members will appoint a qualified person by a majority vote. The Councilmember who is vacating the seat being filled cannot vote for the replacement.
The Council can enact emergency ordinances that can call a special election, but in den Bosch said these elections are for questions or propositions not required to be submitted for the general election, including ballot initiatives, tax rates, levies, bond issues and more. It does not refer to an election to fill a vacant City Council seat. Furthermore, emergency ordinances can not be in conflict with the charter.
State law says vacancies in elected offices “shall be filled by the mayor and council or board of trustees for the balance of the unexpired term.” State Statute 32-569 also says that mayors and councils can call for a special city election to fill a vacancy instead of appointing someone to an empty seat.
But in cities like Omaha that operate under a home rule charter, city officials must follow the city charter guidance on addressing vacancies.
State law also says if for any reason one-half or more of councilmember seats become vacant, the Secretary of State would conduct a special election to fill the vacancies for the unexpired portion of each term. Section 8.13 Omaha’s city charter says in the event of a public disaster resulting in the death or disability of a majority of the council, the remaining councilmembers will appoint enough additional members to fill the vacancies.
To have a special election to fill one vacant seat would require a change to the city charter. Some residents think Palermo’s absence and the question it raises about representation is reason enough to change the rules.
“It’s not right that if [a council seat] opens up, whoever’s paying attention or has donations or connections behind the scenes [can get it],” said Jonathan Rentería who started his own recall effort to remove Palermo from his seat on April 25.
Typically the city charter is updated every 10 years, including recently in 2022.
City Councilmembers technically have the power to propose a charter amendment outside a charter convention by adopting an ordinance that would go on a ballot in a general election to be voted on by the people, according to in den Bosch.
“That has not occurred in a long, long time, but it’s theoretically possible,” the attorney said.
Constituents can also bring an ordinance — or amendment to an existing ordinance in the charter — to the Council, according to Section 2.18 of the city charter. The petition would have to be signed by a sum of Omahans equal to 15% of the ballots cast for mayor in the last general election.
The latest Charter Convention in May of 2022 brought changes to the charter’s rules about councilmember vacancies. Citizens on the 2022 Charter Study Convention recommended to the City Council Legislative Affairs Committee two main changes to Section 2.06.
- “As part of the process of appointing a person to fill a vacancy on the Council, the Council shall have a public hearing in which the applicants, or if there are more than three applicants with at least three finalists they select, to answer questions from the sitting Councilmembers and the public.
- “The Councilmember who is vacating the seat being filled shall not vote for his/her replacement.”
The Legislative Affairs Committee moved forward only with the second suggestion, which ultimately passed as a ballot measure in the November 2022 general election.
Councilmembers Say They Continue to Support District 4.
Rentería and other South Omaha residents have said they’re concerned about the lack of representation as Palermo holds his seat from jail.
In an opinion piece published by the Omaha World-Herald, Councilman Brinker Harding said the remaining six councilmembers, who are now evenly divided between Democrats and Republicans, will “pick up the slack” and act as “de facto representatives” for District 4.
“We had a call with [District 4 stakeholders earlier this week] to listen to them share issues they wanted to make sure were being considered with Palermo’s sitting in jail,” Harding told The Reader.
When the seat becomes vacant, the City Council will produce a plan for how to choose the next representative and Harding said he’s open to hearing which constituents would be the best pick.
Pilypaitis said he hopes to see a more democratic approach to the councilmember seat, especially in this situation, and changing the process would prevent situations like Palermo’s absence in the future.
“A set of rules in place would say if something like this happens, people would be able to have a vote and that this is important enough to have an emergency special election. We would not have any room for ambiguity,” Pilypaitis said.
The Omaha City Council can be reached at (402) 444-5520. Find a full list of individual councilmembers’ phone numbers and emails on the city’s website.
Contact the reporter at bridget@el-perico.com