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Town Attorney Opinion Vacancy

Town Attorney Opinion Vacancy

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Published by Fauquier Now
Warrenton, Va., town attorney opinion that special election not permitted in selecting citizen to fill unexpired town council term.
Warrenton, Va., town attorney opinion that special election not permitted in selecting citizen to fill unexpired town council term.

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Published by: Fauquier Now on Jun 18, 2014
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09/05/2014

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THE
 LAW
OFFICES
 OF
WHITSON
 W. ROBINSON, PLC
35
 SOUTHFOURTHSTREET
WARRENTON
VIRGINIA
20186
TELEPHONE: (540) 347-2200 FACSIMLE: (540) 347-6031
Whitson
 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 are that in May of 2008 you were elected to Town Council during a regularly scheduled election. For the past 6 years you have served as the Ward 1 representative on Warrenton's Town Council having won re-election in May of
 2012.
 On May 6, 2014 you were elected Mayor of Warrenton in an uncontested
 race.
 Once sworn in as Mayor your seat as Ward 1 Representative for the Town of Warrenton Town Council will become vacant. You have presented me with two issues facing the Council: 1) Wll there be a need for a special election once you have been sworn in as Mayor; and 2) Would a special election be needed if you were to resign your position as Town Council Ward 1 Representative prior to July 1, 2014. The first issue points me to the Virginia Code sections that apply to the elections and terms for Council Members and filling the vacancies of said seats. Virginia Code
 §242 222
provides for the enabling legislation on members of Town Council and
 Mayors.
 It specifically states 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. Kand notwithstanding any other provision of law general or special: (i) any election of mayor or councilmen of a city or town whose charter provides for such elections at two-year or four-year intervals shall take place at the May general election of an even-numbered year and (ii) any election of mayor or councilmen of a city or town whose charter provides for such elections at one-year or three-year intervals shall take place at the general election in May of the years designated by charter. The persons so elected shall enter upon the duties of their offices on July 1 succeeding their election and remain in office until their successors have qualified.
The Town of Warrenton's Charter provides that there be five Ward seats and two At-Large seats:
 
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 will hereby continue
 in
 office until June thirtieth
 [,]
 nineteen hundred eighty-seven.
 On the
first 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 ward councilmen 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
 five 5) 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)
 ward councilmen will
 run for
 terms of four 4) years. Thereafter all councilmen shall
 be
 elected for terms
 of
 four
 (4)
 years
 to
 fill vacancies caused
 by
 expiration
 of
 terms
 of
 office
 as
hereinabove provided.
The seat you currently hold and intend to vacate is Ward One and is set forth by map and metes and bounds description found in Town Hall. The seat you currently hold maintains a four year term; therefore, if you vacate your seat upon being sworn in as Mayor after July 1, 2014, the remaining termfor your seat will be less than two years. When a seat becomes vacant it must be decided whether state statutes apply versus the Town Charter. In making that determination Virginia Code
 §242 225
must be reviewed. That code 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 no
other statutory
 or
 charter provision
 for
 filling
 a
 vacancy
 in the
 office. Further provisions within this article which specifically override other statutory
 or
 charter provisions shall prevail.
This statute nowpoints to the Town Charter to determine if there is a provision for filling a vacancy in the local elected office for Ward One Town Council Member of the Town of Warrenton. 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 a
majority vote of the remaining members of the council,
 if
 such vacancy shall occur
 two
2) 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 a
majority vote of the remaining members of the council only until
 the
 next councilmanic election,
 at
 which election the qualified voters shall elect
 a
 person to serve
 as
 councilman for 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 the Council shall be filled for the unexpired portion of the term The key word in this section is shall 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 unequivocal that the remaining termbe fmished by appointment.
 
The next portion of the analysis then goes to the second portion of Virginia Code
 §24.2
225 in which the statute states Further provisions within this article which specifically override other statutory or charter provisions shall prevail. This means that the Virginia Code must be viewed with respect to determining whether there are any overriding provisions which would make 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 Virginia Code
 §242 225
 The next Virginia Code section in that Titie is
 §242 226
Election to fill vacancy, where a search would show whether there are any provisions that specifically override the Town Charter. Please bear in mind that this part of the opinion assumes that you will take office after July 1, 2014 and therefore the vacancy will occur after July 1, 2014. This is an important 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 476 An Act to amend and reenact § 24.2-226 of the Code of Virginia, relating to elected constitutional 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 an officer-elect does not take office or occurring after an officer begins his term, shall be filled 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 the time limits provided in this title. The governing body or, in the case of an elected school board, 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 writ of 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 writ ordering the election promptly, which shall be no later than and shall order the special election to be held on the date of the next general election in November, or in May if the vacant office is regularly scheduled by law to be filled at that time in May. However, if the governing body or the school board requests in its petition a different date for the election, the court shall order the special election be held on that date, so long as the date requested precedes the date of such next general election and complies with the provisions of
 §
24.2-682., unless If the vacancy occurs within 90 days of the next such general election and the governing body or the school board has not requested in its

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