A move by the City Council to hold a special election this summer to replace the former mayor would be in violation of state law, according to the attorney general's office.

Utah law says such a post must be filled by council appointment, according to Heidi Sorenson, a spokeswoman for the attorney general's office. She cited state law that says:"If any vacancy occurs in the office of mayor or council member of any municipality, the council shall appoint a registered voter in the municipality to fill the unexpired term . . . "

The council tonight is slated to set a date for the proposed election. Last week its members said they would rather let Draper citizens decide who will lead city government, which has been in a state of some turmoil for the past few months. Eighteen months remain in the term to which former Mayor Charles Hoffman was elected.

Sorenson said a representative from the lieutenant governor's office, which has technical jurisdiction over elections, cited the passage that says the council should appoint the mayor, and she said that an assistant attorney general in the office's Governmental Affairs Division said a special election to fill the vacant mayor's post would be inappropriate.

The assistant attorney general indicated interest in challenging such an election if the council proceeds with it, Sorenson said.

City Manager David C. Campbell said that Hollis Hunt, the city's part-time legal counsel, told the council that the election would be in order: "The only thing I can say is that our city attorney advised the council they could hold a special election," said Campbell, who added Hunt was conversing with the attorney general's office on Tuesday. Hunt didn't return a call to his office.

State law says that if a city council fails to act within 30 days of its mayor's departure - as is the case in Draper - it must choose the mayor by vote or by lot: "The two persons having the highest number of votes of the council shall come before the council. If neither candidate receives a majority vote of the council at that time, the vacancy shall be filled by lot in the presence of the council."

Sorenson said the assistant attorney general who examined the statute interpreted it to mean that the council should nominate two people to the post, and then vote on them. Unless a majority is reached, "they would basically have to flip a coin" to choose between the two nominees.

Hoffman, who was midway through his second term when he quit on May 7, cited health reasons and a Salt Lake County attorney's investigation of his office for stepping aside, but his unexpected resignation also coincided with a claim by former Police Chief Hans de Haas that Hoffman and a Draper police officer had broken the terms of de Haas' January resignation by talking about it with someone else. The county investigation of Hoffman's office never found any wrongdoing.

De Haas during a closed City Council session on April 27 produced tape recordings he said were made five days earlier of a telephone conversation in which a man claiming to be doing a pre-employment background check on de Haas asked Hoffman and police Lt. Doug E. Boone about de Haas.

After de Haas produced the tapes, the council buckled under what council members said was a lawsuit threat by the former police chief. After publicity forced them to vote on it before an angry public, however, they put the reinstatement on hold pending investigation of assorted allegations against de Haas.