Town Attorney Opinion Vacancy

8/12/2019 Town Attorney Opinion Vacancy

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THE LAW OFFICES OF

WHITSON W. ROBINSON, PLC35 SOUTHFOURTHSTREET

WARRENTON VIRGINIA 20186TELEPHONE: (540) 347-2200

FACSIMLE: (540) 347-6031Whitson W Robinson E MAIL WWR@WHITS0NR0BINS0N COM Of Counsel:VABar Robinson Robinson, LLC

June 16, 2014

Councilman Duggan:You have asked me to opine on an issue facing the Town Coimcil upon your vacating

your current Council seat when you swear in as Mayor of the Town of Warrenton. The facts arethat in May of 2008 you were elected to Town Council during a regularly scheduled election. Forthe past 6 years you have served as the Ward 1 representative on Warrenton's Town Councilhaving won re-election in May of 2012. On May 6, 2014 you were elected Mayor of Warrentonin an uncontested race. Once sworn in as Mayor your seat as Ward 1 Representative for theTown of Warrenton Town Council will become vacant. You have presented me with two issuesfacing the Council: 1) Wll there be a need for a special election once you have been sworn in asMayor; and 2) Would a special election be needed if you were to resign your position as TownCouncil Ward 1 Representative prior to July 1, 2014.

The first issue points me to the Virginia Code sections that apply to the elections andterms for Council Members and filling the vacancies of said seats. Virginia Code 242 222provides for the enabling legislation on members of Town Council and Mayors. It specificallystates as follows:

24.2-222. Election and terms of mayor and council for cities and towns.

The qualified voters of each city and town shall elect a mayor, if so provided by charter,and a council for the terms provided by charter. Except as provided in 24.2-222. Kandnotwithstanding any other provision of law general or special: (i) any election of mayoror councilmen of a city or town whose charter provides for such elections at two-year orfour-year intervals shall take place at the May general election of an even-numbered yearand (ii) any election of mayor or councilmen of a city or town whose charter provides forsuch elections at one-year or three-year intervals shall take place at the general election inMay of the years designated by charter. The persons so elected shall enter upon the dutiesof their offices on July 1 succeeding their election and remain in office until theirsuccessors have qualified.

The Town of Warrenton's Charter provides that there be five Ward seats and two At-Large seats:


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Town Charter Sec. 3-2. Election and terms of members.The members of the council in office at the effective date of this charter amendment willhereby continue in office until June thirtieth [,] nineteen hundred eighty-seven. On thefirst Tuesday in May, nineteen hundred eighty-seven, there shall be elected seven (7)councilmen, five (5) of whomshall be elected from wards and two (2) at large. The wardcouncilmen shall serve for a termof one (1) year and the at-large councilmen for a termof three (3) years. On the first Tuesday in May, nineteen hundred eighty-eight, the five5) ward councilmen will run for terms of four (4) years. On the first Tuesday in May,

nineteen hundred ninety, the two (2) at-large councilmen will run for terms of four (4)years. On the first Tuesday in May nineteen hundred ninety-two, the five (5) wardcouncilmen will run for terms of four 4) years. Thereafter all councilmen shall be electedfor terms of four (4) years to fill vacancies caused by expiration of terms of office ashereinabove provided.

The seat you currently hold and intend to vacate is Ward One and is set forth by map and metesand bounds description found in Town Hall. The seat you currently hold maintains a four yearterm; therefore, if you vacate your seat upon being sworn in as Mayor after July 1, 2014, theremaining termfor your seat will be less than two years.

When a seat becomes vacant it must be decided whether state statutes apply versus theTown Charter. In making that determination Virginia Code 242 225 must be reviewed. Thatcode section is titled Applicability. and states as follows:

Virginia Code 24.2-225. Applicability.

This article applies to vacancies in any elected constitutional or local office if there is noother statutory or charter provision for filling a vacancy in the office. Further provisionswithin this article which specifically override other statutory or charter provisions shallprevail.

This statute nowpoints to the Town Charter to determine if there is a provision for filling avacancy in the local elected office for Ward One Town Council Member of the Town ofWarrenton. The Town Charter specifically states as follows:

Town Charter Sec. 3-5. - Filling vacancies.

Vacancies on the council shall be filled for the unexpired portion of the term by amajority vote of the remaining members of the council, if such vacancy shall occur two2) years or less before the date of expiration of such terms. If the vacancy shall occur

more than two 2) years before the expiration of the term, the vacancy shall be filled by amajority vote of the remaining members of the council only until the next councilmanicelection, at which election the qualified voters shall elect a person to serve as councilmanfor the remaining two 2) years of the term.

The Town Charter maintains a provision as set forth above providing for the filling of a vacancy.It clearly states that if the vacancy occurs within two years or less that a majority vote of theCouncil shall be filled for the unexpired portion of the term The key word in this section isshall and carries with it a significant meaning. It is clear that there are no exceptions. It does

not say may be filled or shall be filled until a special election shall be held. It is unequivocalthat the remaining termbe fmished by appointment.


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The next portion of the analysis then goes to the second portion of Virginia Code 24.2225 in which the statute states Further provisions within this article which specifically overrideother statutory or charter provisions shall prevail. This means that the Virginia Code must beviewed with respect to determining whether there are any overriding provisions which wouldmake the Charter subordinate to the state code. In this instance the key words are specifically

override ... Charter provisions.The first place to look within the Virginia Code for any provisions that specifically

override the Town's Charter would be in the same Title and Chapter for Elections as VirginiaCode 242 225 The next Virginia Code section in that Titie is 242 226 Election to fillvacancy, where a search would show whether there are any provisions that specifically overridethe Town Charter. Please bear in mind that this part of the opinion assumes that you will takeoffice after July 1, 2014 and therefore the vacancy will occur after July 1, 2014. This is animportant factor. The Virginia Code section that was signed into law by the Governor on April,1, 2014 and that will become effective on July 1, 2014 is as follows in its entirety:

CHAPTER 476An Act to amend and reenact 24.2-226 of the Code of Virginia, relating to electedconstitutional and local offices; special election to fill vacancy.

[H1024]

Approved April 1, 2014

Be it enacted by the General Assembly of Virginia:

1. That 24.2-226 of the Code of Virginia is amended and reenacted as follows:

24.2-226. Election to fill vacancy.

A. A vacancy in any elected local office, whether occurring when for any reason anofficer-elect does not take office or occurring after an officer begins his term, shall befilled as provided by 24.2-228 or for constitutional officers as provided in 24.2-228.1,or unless provided otherwise by statute or charter requiring special elections within thetime limits provided in this title. The governing body or, in the case of an elected schoolboard, the school board of the county, city, or town in which the vacancy occurs shall,within 15 days of the occurrence of the vacancy, petition the circuit court to issue a writof election to fill the vacancy as set forth in Article 5 ( 24.2-681 et seq.) of Chapter 6.

Either upon receipt of the petition or on its own motion, the court shall issue the writordering the election promptly, which shall be no later than and shall order the specialelection to be held on the date of the next general election in November, or in May if thevacant office is regularly scheduled by law to be filled at that time in May. However, ifthe governing body or the school board requests in its petition a different date for theelection, the court shall order the special election be held on that date, so long as the daterequested precedes the date of such next general election and complies with theprovisions of 24.2-682., unless If the vacancy occurs within 90 days of the next suchgeneral election and the governing body or the school board has not requested in its


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petition a different date for the election, the special election shall be held on the date of inwhich event it shall be held promptly but no later than the second such general election.Upon receipt of written notification by an officer or officer-elect of his resignation as of astated date, the governing body or school board, as the case may be, may immediatelypetition the circuit court to issue a writ of election, and the court may immediately issuethe writ to call the election. The officer's or officer-elect's resignation shall not berevocable after the date stated by him for his resignation or after the forty-fifth day beforethe date set for the special election. The person so elected shall hold the office for theremaining portion of the regular term of the office for which the vacancy is being filled.

B. Notwithstanding any provision of law or charter to the contrary, no election to fill avacancy shall be ordered or held if the general election at which it is to be called isscheduled within 60 days of the end of the term of the office to be filled.

C. Notwithstanding any provision of law or charter to the contrary, when an interimappointment to a vacancy in any governing body or elected school board has been madeby the remaining members thereof no election to fill the vacancy shall be ordered or heldif the general election at which it is to be called is scheduled n the year n which the termexpires.

Subsections B and C both have overridmg provisions as is evidenced by the languageNotwithstanding any provision of law or charter to the contrary, ... This language plainly

means that the terms that follow contrary will be what govems. So in subsection B a Charterwhich would require a special election to be held within 60 days of the term expiring would betrumped and no special election would be held. In the facts as presented here, this does not apply.In subsection C the language after contrary indicates that if a Charter called for a specialelection in the same year as the term would expire, that charter would be trumped and no specialelection would occur.

Subsection A is the next section to review for overriding language. On the face of thestatute there appears to be no overriding language to unmediately remove the Town ofWarrenton's Charter proscribing an appointment that shall be filled for the unexpired portion ofthe term (emphasis added). What subsection A does say which appears to be a touch confusingis that A vacancy in any elected local office, whether occurring when for any reason an officer-elect does not take office or occurring after an officer begins his term, shall be filled as providedby 24.2-228 or for constitutional officers as provided in 24.2-228.1, or unless providedotherwise by statute or charter requiring special elections within the time limits provided m thistitle. The confusing part is two-fold.

The second confusing part will be analyzed first. It is easier to parse out portions of thatstatute so that it may be read a little clearer. A vacancy in any elected local office ... shall befilled as provided by 24.2-228 ... or unless provided otherwise by ... charter requiring specialelections within the time limits provided in this title. The Town of Warrenton's charter providesfor when to have a special election and when not to. As cited entirely above, the charter statesthat if the vacancy occurs with over two years remaining in the term, that the special election is tobe held at the next councilmanic election. Had you resigned prior to the previous election heldin May of 2014, there would have been a special election. Instead, in this part of the analysis,your vacancy occurs during a time when the Charter specifically states that no special election isto be held. These conditions fit within the time limits of this title. Therefore this is not anoverriding provision.


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Now the first confusing part will be analyzed. This involves the section that states thatA vacancy in any elected local office ... shall be filled as provided by 24.2-228 ... Now

Virginia Code 24.2-228 must be reviewed and states as follows:

24.2-228. Interim appointment to local governing body or elected school board; elected

mayor.A. When a vacancy occurs in a local governing body or an elected school board, theremaining members of the body or board, respectively, within 45 days of the officebecoming vacant, may appoint a qualified voter of the election district in which thevacancy occurred to fill the vacancy. If a majority of the remaining members of the bodyor board cannot agree, or do not act, the judges of the circuit court of the county or citymay make the appointment. Notwithstanding any charter provisions to the contrary, theperson so appointed shall hold office only until the qualified voters fill the vacancy byspecial election pursuant to 24.2-682 and the person so elected has qualified. Anyperson so appointed shall hold office the same as an elected person and shall exercise allpowers of the elected office.

If a majority of the seats on any governing body or elected school board are vacant, theremaining members shall not make interim appointments and the vacancies shall be filledas provided in 24.2-227.

B. When a vacancy occurs in the office of a mayor who is elected by the voters, thecouncil shall make an interim appointment to fill the vacancy as provided in subsectionA.

C. For the purposes of this article and subsection D of 22.1-57.3, local school boardscomprised of elected and appointed members shall be deemed elected school boards.

D. The failure of a member of a local governing body or elected school board or mayor totake the oath of office required by 49-1 before attending the first meeting of thegoverning body or school board held after his election shall not be deemed to create avacancy in his office provided that he takes the oath within 30 days after that firstmeeting.

Subsections B, C, and D are not relevant to the facts as presented here. It then becomes necessaryto focus on any overriding language in subsection A. It is noted that there is overriding languageas it relates to how long the interim appointment shall last. Here the relevant language states inpertinent part Notwithstanding any charter provisions to the contrary, the person so appointedshall hold office only until the qualified voters fill the vacancy by special election pursuant to242 682 and the person so elected has qualified. The language after contrary states that theperson shall hold the office until the vacancy is filled by special election. This language isconfusing and has been the cause of some significant attempts at research, but have yielded

nothing on point. There have been some Attorney General Opinions, however, that do give someguidance. For example Front Royal appears to be a notable place for requiring an AG's Opinionon election matters. In an Attorney General Opinion by James S. Gilmore, III, 1996 Va. AGLEXIS 89; 1996 Op. Atty Gen. Va. 127 dated December 23, 1996, the Attorney General states,The procedures set forth in Article 6, Chapter 2 of Title 24.2 (Article 6) apply to the filling of

vacancies in any elected local office if there is no other statutory or charter provision for filling avacancy in the office. Sections 24.2-226 and 24.2-228 apply to filling vacancies in localgoverning bodies, with 24.2-226 dealing with special elections, and 24.2-228 dealing with


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interim appointments. The case itself is more about whether a Council maintains its right toappoint a member beyond the 45 day requirement. The pertinent aspect of the above referencedquote is that he specifically states that 24.2-226 deals with special elections and 24.2-228deals with interim appointments. This means that when reviewing overriding language as towhether a special election or the right of a Council to call for one rests in the language of 24.2-226 and not 24.2-228. 24.2-228 only relates to interim appointments and does not specifically

require a special election to be held. This is important because of the language in 24.2-225which states that the overriding language must be specific. 24.2-228 does not specificallyoverride the Town of Warrenton Charter. In other words, it does not specifically state that apetition shall be filed to require a special election. It does not specifically state thatnotwithstanding a Charter provision to the contrary, all vacancies shall be filled by a specialelection. If this were the case, then 24.2-226 would have specific overriding language insubsection A. In fact, 24.2-226(A) very specifically does not have overriding language becausesubsections B and C do have overriding language. If the legislature had intended for localities tobe required to have special elections, it would have included the overriding language asevidenced in subsections B and C. Here there is no specificity in the overriding language of 24.2-228 to make the Town of Warrenton's Charter subordinate to 24.2-226(A). Further, 24.2-226(A) requires a petition to be filed even if the Council wishes invoke its newly providedpower of asking for an earlier special election date. The Town of Warrenton Charter specificallystates that the appointment for a vacancy of less than two years shall be filled for the unexpiredportion of the term. This means that there is no petition to be filed with the Circuit Court. Theappointment is fmal, unless there is no appointment, which according to the non-binding AttorneyGeneral's Opinion cited earlier, the Circuit Court would ultimately have to make theappointment. Had the General Assembly intended to create the requirement that a specialelection be held or that the Council hold the new power to call for an earlier one it could havewritten language in 24.2-228 that cites both 24.2-226 along with 24.2-682 (which outlinesthe dates in which special elections can be held, i.e., Tuesdays and not on primary days). TheGeneral Assembly did not cite 24.2-226.

The override language in 24.2-228 does not affect the Town's Charter for an additional

reason. In a series of the opinions, the Attorney General has advised that, when a Charterprovision touches upon the appointment to and holding of public office, the charter provision isone for the organization and government of a city and prevails over general law (Emphasisadded). 1979-1980 Op. Atty. Gen. Va. 70. In other words, whether a vacancy is to be filled by acouncil appointment, by the voters at an election, or by a combination of the two is a matterinvolving the organization of a municipality, and a Charter provision prescribing how the vacancyis filled must be construed as controlling over a general law provision. On the other hand, if anelection must be held, then the timing of the election is governed by general law.

The Attorney General opinion cited above will illustrate this point. There, the City ofManassas Park had a Charter provision that authorized the council to fill a vacancy byappointment for the entire unexpired term. It made no provision at all for a special election. In1977, the General Assembly added an override provision to the Virginia Code section dealingwith vacancies involving local governing bodies. It specified exactiy when a special electionwould be held notwithstanding any provision of law or charter to the contrary. The AttorneyGeneral held that the Manassas Park Charter was not nulhfied by the override language. Heexplained that the Charter did not call for a special election under any circumstances. Therefore,the overriding language in the Code provision does not affect the necessity for special elections,merely their timing when required. (Emphasis added).


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Thus, to the extent the statutory language here may be ambiguous, the Attomey Generalhas made it clear that a Charter provision specifying how a vacancy is to be filled must beconstrued as prevailing over general law provisions. In Warrenton's case, its Charter clearlydirects the Council to fill any vacancy by appointment for the entire unexpired term as long asthat period is two years or less. Hence, that provision takes precedence over the overridelanguage that purports to limit the term of office of the person appointed by Council.

For the foregoing reasons as outlined above, there are no specific overriding provisions inthe Virginia Code that specifically state the Town of Warrenton's Charter not be adhered to. It isheretofore my opinion that should you take your oath of office for Mayor subsequent to July 1,2014, the Town Council does not have the authority to petition the Circuit Court of FauquierCounty for a special election. Therefore, the Town Council must appoint a citizen of Ward Oneto fill the vacancy that would be left by your vacating that seat.

The next question asked by you involves much of the same facts as above, but with thecaveat of your resigning your seat prior to July 1, 2014. The same analysis would apply in firstreviewing 24.2-225. The standard is to look to see if Title 24.2 of the Code of Virginia evenappUes to the vacancy, and then to determine whether there are any overriding clauses in the

code. Again 24.2-225 states, This article applies to vacancies in any elected constitutional orlocal office if there is no other statutory or charter provision for filling a vacancy in the office.The Town Charter does specifically have a provision for filling a vacancy. The issue here is thatthe Charter speaks to vacancies occurring if there are two or more years before the term ends, orif the vacancy occurs if there is less than two years remaining.

In your second question, you ask what would happen if you resign your seat with morethan two years remaining. The Town Charter states, If the vacancy shall occur more than two(2) years before the expiration of the term, the vacancy shall be filled by a majority vote of theremaining members of the council only until the next councilmanic election, at which election thequalified voters shall elect a person to serve as councilman for the remaining two (2) years of theterm. Here there would normally be a special election. The problem occurs in that the next

councilmanic election would be in May of 2016. If you resign your seat prior to July I, 2014, andif there was an overriding clause requiring a special election, then the current code (not the newcode) might apply. Under the current 24.2-226 there is no mechanism that could create anearlier election than May of 2016. It appears that there is a gap between the councilmanicelection that just occurred and the two year mark. Clearly in 24.2-226 the code reads, ... thecourt shall issue the writ ordering the election promptly, which shall be no later than the nextgeneral election in November, or in May if the vacant office is regularly scheduled by law to befilled at that time ... The legislature chose to place May as the time for elections when thoseelections are regularly scheduled. Had the legislature chosen to allow for November elections tobe included for May elections, it would have left the second phrase regarding May out. Orperhaps various other terms to produce a different result. Regardless, there is no overridingprovision in 24.2-226(A) which would oust the Town's Charter and therefore the Charterprovision remains.

So now the remaining issue is that when is the next election for your seat as it would bevacant prior to the two year mark. As noted above, the next election would be in May of 2016 asno other councilmanic elections are between now and then. As a practical matter, that is whenthe next election is anyway and therefore a moot point. Even still, 24.2-226(C) would prohibitit as a matter of law. That section reads as follows, Notwithstanding any provision of law orcharter to the contrary, when an interim appointment to a vacancy in any governing body orelected school board has been made by the remaining members thereof no election to fill the


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vacancy shall be ordered or held if the general election at which it is to be called is scheduled inthe year in which the term expires. As the election would be held in May of 2016 and that is theyear in which the term expires, there cannot be an election.

Therefore my opinion as to both questions you have put before me is that no specialelection is allowable under the law. The Council must appoint your successor for the remainder ofyour term. Please let me know if you have any further questions or concerns.

Whitson W. Robinson, Esq.

Documents

Town Attorney Opinion Vacancy