May 15, 2006
Dear City Manager:
You have the following question brought on by the facts that a member of the City
Council died on May 13, and that another member of the City Council takes office as the County
Mayor on September 1, leaving his office on the City Council vacant: How are the two vacancies
filled, and for what term?
Article IV, ' 3, of the City Charter answers that question. It provides as follows:
- The first vacancy “shall be filled by appointment made by the
remaining members” for the unexpired term.
- Any “additional vacancy after the first” shall be filled by a special
election, for the unexpired term.
- Exception as to the filling of an “additional vacancy after the
first”: If the additional vacancy occurs less than 180 days prior to
any general city election the vacancy is filled by the remaining
members of the council “and the mayor or councilman so
appointed shall serve until his successor is elected at the next
general election is qualified.”
Filling the First Vacancy
Because the death of the sitting City Council member on May 13, produces the first
vacancy on the council, the method for filling his vacancy, and the term of his replacement is
straightforward: His term is filled by the remaining members of the board for the remainder of
his term. The term of the member of the city council who died on May 13 expires on the date of
the city’s general election, which, under Article III, ' 1 of the City Charter, is the date of the state
general election on November 7, 2006.
Filling the Second Vacancy
Due to the language of Article IV, ' 7 of the City Charter, and of the general election
laws governing the filling of vacancies and of the qualification of candidates for office, the filling
of the second vacancy raises some serious questions:
May 15, 2006
Page 2
The first question is whether there is a second vacancy within the meaning of Article IV,
' 7, if the city council fills the vacancy brought on by the death of the city council member
before the vacancy that will be brought on when the sitting council member elected to the office
of county mayor takes that office. That question arises from the fact that Article IV, ' 7, does
not expressly provide for whether its terms apply only to cases where there are two vacancies to
fill at the same time, or whether its terms apply to any second vacancy in office no mater when it
occurs. However, that provision strongly implies that it applies to any second vacancy no matter
when it occurs:
Any vacancy in the council shall be filled by appointment made by
the remaining members thereof....Provided, however, that only one
(1) vacancy shall be filled by appointment made by the council;
and, in the event of any additional vacancy after the first, the
council shall forthwith [call for an election to fill that vacancy]
[Emphasis is mine.]
It seems clear that Article IV, ' 7 was clearly implied to mean that it applies to any
second vacancy occurring at any time after the first one occurred. [In rare circumstances where
there are two vacancies there might be a dispute over which one occurred first, but that
circumstance does not exist in this case].
The second question is, does the city have the right to determine which is the first and
second vacancies?
I have been unable to find any cases in the United States where that issue has arisen.
However, it appears to me that the provision of Article IV, ' 7 quoted immediately above also
answers that question. The strong implication of that provision appears to me to require that the
city treat the vacancies and the first and second ones, in the chronological order in which they
occurred. When the City Council member who, on September 1, will take office as County
Mayor, or resigns before that date, his office will be vacant. His vacancy will be the second one
under Article IV, ' 7.
The third question is, how, and for what term is the second vacancy filled?
Article IV, ' 7 provides that the second vacancy is filled by special
election, except where the vacancy occurs within
180 days of the general city election. Obviously,
whether the person who will be the creator of the
second vacancy resigns on or before he takes office
May 15, 2006
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on September 1, the second vacancy will fall within
the 180 day exception because under Article III, ' 4,
of the City Charter, the date of general city elections
correspond to the dates of the general state elections
held on the first Tuesday after the first Monday in
even-numbered years.
Because the 180 day exception in Article IV, ' 7 applies, to the second vacancy, it is also
filled by the remaining member of the city council. Under the same charter provision, his
replacement serves “until his successor is elected at the next general election is qualified.”
The term of the council member who will create the second vacancy when he takes the
office of county mayor on September 1 (unless he resigns before that date) expires on November
7, 2008. Because his resignation as a council member will create a vacancy on the city council
that would ordinarily end on the date of the general city election in November, 2008, it appears
that under Article IV, ' 7, his replacement will be appointed by the remaining member of the city
council for a term that will end when his successor is qualified after the date of the general city
election on November 7, 2006. If that appointment is made, the consequence will be that the
appointee will serve only roughly 60+ days.
Frankly, that seems to me a horrible way to run a railroad, but that is what Article IV, ' 7
says. It can be argued that had the General Assembly wanted a second vacancy occurring within
180 days of the general city election to be filled for the unexpired term, it simply could have said
so, as it did with respect to the first vacancy filled by the city council.
The fourth question with respect to the second vacancy is, how do candidates who seek to
fill the remainder of the two year term of office that remains after November 7, 2006, meet the
qualifying deadlines?
The qualifying deadlines are prescribed by Tennessee Code Annotated, ' 2-5-101(a)(3):
Candidates in municipal elections held in conjunction with the
regular August election shall file their nominating petitions no later
than twelve o’clock (12:00) noon, prevailing time, on the first
Thursday in April. Candidates in all other municipal elections
shall file their nominating petitions no later than twelve o’clock
(12:00) noon, prevailing time, on the third Thursday in the third
calendar month before the election.
May 15, 2006
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Under that statute, the qualifying deadline to fill the second vacancy is August 17.
If the city council member who will take office on September 1, as the county mayor
were to resign at some reasonable time before that date, the deadline dates could be met. If he
resigns after August 17, obviously, the qualifying deadline will have passed.
At first glance, it could be argued that because the second vacancy will be created on or
before September 1, and would be filled only until the general city election on November 7, that
the office is no different than any other office filled by a person whose term will expire on
November 7. If that argument is correct, candidates for that office could qualify for election to
that office on that date. However, a second glance confronts the reality that the council member
who holds that office could, in theory, decide not to assume the office of county mayor on
September 1, and to continue in office as a city council member, in which case there would be no
vacancy in that office to fill by election. .
I can find no other provision in the general law for different qualifying deadline dates that
apply to the filling of the second vacancy. The general election law of the state that governs “all”
elections of the state is contained in Tennessee Code Annotated, Title 2. Tennessee Code
Annotated, ' 2-14-101says that, “Special elections shall be held when a vacancy in an office is
required to be filled by election at other times than those fixed for general elections.” But it was
held in the unreported case of Town of Linden v. Garcia, 2001 WL 856596 (Tenn. Ct. App.), that
a charter provision that provided for the filling of vacancies in office until the “next regular
election” applied to any regular election of the state, county or city. Article IV, ' 7 of the City
Charter provides that the filling of second vacancies by the city council that occur within 180
days of the next general city election is for the term that ends “until his successor elected at the
next general election is qualified.” But Town of Linden probably does not apply to that
provision because Article VI, ' 7, at least three times refers to the filling of vacancies until the
“next general city election.” For that reason, the term “next general election” in Article VI, ' 7
probably means the next general city election.
The last paragraph in Article IV, ' 7 muddles the question of how the second vacancy is
filled. It provides that:
In the event of the occurrence of any vacancy in the council, which
may, under the provisions of this section, be filled by appointment
by the mayor and remaining councilmen, and such mayor and
remaining councilmen shall fail or neglect to fill such vacancy
within 20 days of its occurrence, it shall be the duty of the Election
Commission of the County....to call and cause to be held....a
special election for the purpose of filling such vacancy, provided
May 15, 2006
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such certification be made to the Election Commission for the
County within sufficient time to permit the holding and completion
of any special election at least 180 days prior to the next general
city election.
On its face, that provision calls for a calling of a special election in the case of “any”
vacancy in the city council “under this section” that is not filled by the city council within 20
days of the vacancy. That provision plainly includes a special election occasioned by the failure
on the part of the city council to fill a first vacancy, and a special election occasioned by the
failure on the part of the city council to fill a second vacancy where that vacancy occurs within
180 days of the next general city election. That special election is triggered by
“any council member.” But if a second vacancy in office occurs within the 180 days of the
general city election, there is obviously no way for the call for the general election to be made at
least 180 days before the general city election.
It seems to me that the city has one reasonably good option in dealing with the filling of
the second vacancy: Let the second vacancy go unfilled. If November 7, 2006, passes, it appears
to me that Tennessee Code Annotated, ' 2-14-101 et seq., which governs the filling of vacancies
“at other times than those fixed for general elections,” is triggered. This option would leave the
office vacant for a period of at least roughly five months.
Another option is for the city council to fill the vacancy for the period September
1BNovember 7. Under this option, Tennessee Code Annotated, ' 2-14-101 et seq., is also
triggered. It does not appear that the person so appointed to fill the second vacancy could be a
holdover for the unexpired term, but only until the special election could be held. [See
Stambaugh v. Price, 532 S.W.2d 929 (Tenn. 1976).]
The Tennessee Constitution, Article VI, Section 5, provides, among other things, that,
“Every officer shall hold his office until his successor is elected or appointed and qualified.” As
far as I can determine, that anti-vacancy provision has never actually been cited in a case
involving a municipal officer. However, although the Tennessee Supreme Court never expressly
cited that provision in State ex rel. Wyrick v. Wright, 678 S.W.2d 61 (Tenn. 984), it is clear that
the Court believed that provision does apply to municipal officers. It did not apply in that case
only because the three city council members in question who resigned were elected at large.
They held an office of alderman, but they did not hold any particular office of alderman.
[Especially see p. 63[1]]. But that does not appear to be a problem as to the second vacancy in
the case of the City. The city council members are elected at large, but the second vacancy seems
clearly identified with a particular city council member appointed to fill that vacancy on a
temporary basis.
Sincerely,
May 15, 2006
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Sidney D. Hemsley
Senior Law Consultant
SDH/