City of Mill Creek makes statement on vacant city council seat

At their regular January 2, 2018, meeting, the Mill Creek City Council asked the city manager to develop an expedited process to fill the city council seat vacated by Sean Kelly last year. The city released a statement summarizing the situation.

By Joni Kirk, Mill Creek Director of Communications and Marketing.

The City of Mill Creek has continued to receive questions about the Council vacancy created when Sean Kelly moved out of Mill Creek and thus became ineligible to hold office in Mill Creek.

There are two different Council terms affected by this event:

Council Term 1: Sean Kelly’s remaining term that ended December 31, 2017.

Council Term 2: The new 4-year term for Council Position No. 1 that began January 1, 2018.

Council Term 1

Council membership is a function of state electoral law. While the Mill Creek City Council has broad authority to manage its own affairs under RCW 35A.11.020, that authority does not extend to removal of one of its members without formal legal action. Absent a resignation by Sean Kelly or a court order, the Council could not take action to eject a councilmember from his/her seat.

Questions about Sean Kelly’s residency were first raised in September 2017. Sean Kelly’s eligibility for office was formally contested by his opponent, Carmen Fisher, in a hearing before the Snohomish County Canvassing Board on November 17. The official ruling by the canvassing board determined that Kelly’s voter registration for Mill Creek was invalid as his legal residence had changed in the summer or 2017 and was no longer in the City of Mill Creek. No court has formally ejected Sean Kelly from his Council seat.

After the election was certified on November 28th, Kelly resigned his current seat from the Council (i.e., Council Term 1, ending December 31, 2017), and reimbursed the City for salary received for the months of August through November.

Based on the timing of these events, that Council seat became and remained vacant for the remainder of 2017 (approximately 1 month) before the term ended on December 31, 2017.

Council Term 2

Upon the election certification for Council Term 2 on November 28th, Sean Kelly was determined to be the winner of Mill Creek City Council Position No. 1. Carmen Fisher then filed a petition contesting the certification of Sean Kelly, naming Snohomish County Auditor Carolyn Weikel as the sole defendant. Carmen Fisher’s petition was heard by the Superior Court on December 15, 2017.

In its order filed December 27, 2017, the court declared that Sean Kelly was not qualified to hold City Council Position No. 1. However, the court denied Ms. Fisher’s petition to decertify the 2017 general election results and also denied her request to declare her elected to Position No. 1. As a matter of law, the City must abide by the certified election results and the judge’s decision.

While Sean Kelly is the duly elected councilmember for a new term in office, he does not reside in Mill Creek and is therefore ineligible to hold office under state law. The vacancy in that seat will commence by operation of law on January 1, 2018.

The Council has observed the ongoing legal proceedings since November, awaiting a judicial determination before making any appointment to the vacant seat. As a result of the court’s December 27, 2017, decision and the ensuing vacancy, per RCW 42.12.070, the City Council is now able to appoint a replacement to fill the vacancy commencing January 1, 2018. The Council will have 90 days from that date in which to fill the position. The appointment will be a for a two-year term per state law.

Next Steps

At the January 2nd City Council meeting, the Council asked the City Manager to develop an expedited process to fill the Position No. 1 vacancy in accordance with the Council’s Governance Manual. The City Manager will present a proposed process at the January 9 City Council meeting.


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