The Jackson City Council seat left open by the resignation of Andy Rodriguez won't be on the ballot in the November election - but it may be directly affected by the vote.

The current city council does not have many options when it comes to filling the seat. Governmental Code 36512 requires that it either makes an appointment, call an election after the one on Nov. 4 or allow the seat to remain empty until 2012. If the council doesn't take one of those three actions by Nov. 5, the seat will automatically sit vacant for the next four years.

City Manager Mike Daily explained the predicament in which council members found themselves. "If the council calls a special election, the law says it has to be 135 days after the resignation," he said. "So we won't be able to add this seat to the upcoming election."

During public comment, candidate Marilyn Lewis declared the current council had no right to make an appointment since a new group of council members would soon be in place. The city's attorney, Andy Morris, again explained the point Daly had just made. "According to the law, it's impossible for them to do that," he told Lewis.

"Well, that seems awfully convenient," Lewis, a former council member, shot back as she left the podium.

A number of residents suggested that a fair way to address the issue would be for the current council to automatically appoint whichever candidate received the fourth highest number of votes in next month's election. This strategy would require the council call an emergency meeting the day after the election - the absolute deadline to take action on the matter - and review the election results. While the council members seemed reluctant to promise appointing the fourth highest voter-getter, they did agree to hold the special meeting on Nov. 5 to be able to take the election results into consideration when making the appointment. "I think we should ask for applications from anyone who wants to apply," said Vice Mayor Connie Gonsalves. "If the current candidates want to also apply for an appointment, we'd have the ability to look at the election results when factoring our decision."

Complicating this plan is the fact that two incumbents - Wayne Garibaldi and Al Nunes - could technically apply for appointment, though they could not vote on the appointment if they did so. This hypothetical situation caused Morris to do some hard thinking about potential conflicts of interest if either incumbent chose to apply for the appointment as a backup to losing their seats in the election. Garibaldi made it clear he had no interest in taking that route. "I promise I will not apply for the appointment," he said. "Either I win my seat back in the election or the people vote me out. Either way, I won't put myself in a position where there's a conflict in making the appointment."

Nunes had no comment on the matter, but voted along with Gonsalves and Garibaldi to accept applications by Oct. 30 and make the appointment on Nov. 5.