Councilman Cecil Yates will resign from his seat on the council to run for mayor, as prescribed by the Arizona Constitution and state statute. However, Yates has told The Times his plan is to resign at the deadline for submitting nominating papers, 5 p.m. on May 30.

A number of citizens have contacted and written The Times suggesting that Yates should resign, leaving enough time for someone to file to have their name on the ballot to fill the seat. They state they prefer electing the person by ballot as opposed to the council appointing someone it may favor.

As Yates points out, language in the statute states that, “Except during the last year of a term, the Arizona State Constitution prohibits an incumbent of a salaried elective office from offering him/herself for nomination or election to ‘any salaried local, state or federal office.’ (Article 22 §18). Pursuant to A.R.S. §38-296(B), ‘an incumbent is deemed to have offered himself for office on the filing of a nomination paper.’

“This is the law that pertains to me being a sitting councilmember,” Yates said in an email response to a Times question about his position.

In regards to how the above law is applied, Yates cited several other elected officials seeking offices other than the ones they hold, who will be obliged to follow that law. Those include Kimberly Yee, a state legislator running for state treasurer; Tom Forese, a member of the Corporation Commission also running for state treasurer; and Phoenix Mayor Greg Stanton running for the U.S. House seat being vacated by Kyrsten Sinema, who is running for the U.S. Senate seat held by retiring Jeff Flake.

Yates cited Sinema as also having to resign to run, which is not the case. The state law does not apply to those holding federal office, and her house term would end before she would take the senate seat, if elected.

Yates said he believes there is some confusion between the resign to run statute and that which prescribes how vacant seats are filled.

“The other laws [pertain] to what happens when/if a sitting elected official passes away, retires, moves, leaves, etc.,” Yates said. “The Town Code (2-1-4.A) states that the council shall fill a vacancy by any method provided by state law; however, the term of the appointment is determined by state statute.”

A.R.S. (Arizona Revised Statues) §9-235 states the “[Council] shall fill a vacancy that may occur by appointment until the next regularly scheduled council election if the vacancy occurs more than 30 days before the nomination petition deadline, otherwise the appointment is for the unexpired term. This subsection does not apply to a charter city.” (i.e.: Phoenix Mayor Greg Stanton). The city charter would prescribe the method for filling a vacancy. It may or may not be consistent with state law.

A.R.S. § 9-235(A) allows individuals to offer themselves for election to fill a vacant position, if the vacancy occurs with enough time before the filing deadline to allow would-be candidates to take the steps necessary to appear on the ballot.

However, if the vacancy occurs after the deadline, there is no opportunity for potential candidates to be placed on the ballot, and the council’s appointment is therefore for the remaining term of the departing member.

Some have argued that Yates has the ability to resign early enough to have his council seat’s remaining two years go to election. Yates disagrees with this contention.

“This law does not apply to this situation or the other various elected officials, as they are required to follow the ‘resign to run’ law,” Yates said. “My personal feeling about this is that my opponent does not want to run against me, and will try anything to help her cause.

“I sit on many committees and boards on behalf of the town, where I have leadership roles in reporting back to the council and residents of Fountain Hills.

“My opponent’s side does not want me to do this anymore. They do not want to run against a sitting councilmember.”