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Unofficial Opinion 2008-3

Unofficial Opinion 2008-3

November 19, 2008
To: 

Representative, District 169

Re: 

Vacancies in the offices of mayor and council members for the City of Willacoochee should be filled by special election held on a statutorily authorized date and not by appointment of the remaining members of the city council.

You have requested my opinion as to the proper method of filling vacancies in the offices of mayor and council members for the City of Willacoochee.  Pursuant to the City’s local legislation, such vacancies should be filled by special election and not by appointment of the remaining members of the city council.  Any such special election, however, may be held only on a date authorized by Georgia law.

The Georgia Constitution permits the General Assembly to provide for the creation of cities and the structuring of a city’s government.  Ga. Const. Art. IX, Sec. II, Para. II.  The legislature has exercised this authority through two different methods.  First, it has provided laws of statewide application dealing generally with the powers of municipalities.  See, e.g., O.C.G.A. § 36-35-1 through 36-35-8 (Home rule powers of municipalities).  Additionally, it has provided by various local laws for the creation and structure of 535 cities across the State.[1]   The City of Willacoochee in AtkinsonCounty is one of those cities.

While the original local legislation creating the City of Willacoochee dates back to 1889, the current charter for the City was adopted by the General Assembly in 1953.  1889 Ga. Laws 1006; 1953 Ga. Laws (Nov.-Dec. Sess.) 3039.  The 1953 legislation provided that the City would be governed by an elected mayor and five aldermen, known as the city council.  1953 Ga. Laws (Nov.-Dec. Sess.) at 3049 (Charter Sec. 201).  The law also provided that:

In the event that the office of mayor, or any one or more of the aldermen shall become vacant by death, resignation, removal or otherwise, said vacancy or vacancies may be filled by appointment and selected by the mayor and the aldermen, in the case of vacancies in the board of aldermen, and by the aldermen in the case of a vacancy in the office of mayor, and persons so selected shall be duly qualified to fill such vacancies for the unexpired terms provided it does not exceed (12) months.  If an unexpired term exceeds twelve (12) months, the same shall be filled in the above manner until the next regular election when the same shall be filled by election of the qualified voters of said city.

1953 Ga. Laws (Nov.-Dec. Sess.) at 3051 (Charter Sec. 202).

Over the years, the City’s charter has been amended on a number of occasions.  In 1965, the aldermen positions on the council were designated as Posts 1 through 5, but the provisions for filling vacancies as outlined above were not changed.   1965 Ga. Laws 2287 (Charter Sec. 202).  However, in 1980, the General Assembly did amend the vacancy provisions of the local law, removing the power of appointment to fill vacancies and instead mandating:

In case of a vacancy in the office of mayor or councilman from failure to elect, death, removal, or any cause whatsoever, the mayor and council have the power to call a special election ordered by the city council to take place not less than 30 nor more than 60 days after the call of said election, under the same rules and regulations that govern other elections in the city.

1980 Ga. Laws 3941, 3942 (Charter Sec. 203(b)).  “All laws and parts of laws in conflict with this [1980] Act” were also repealed at the same time.  1980 Ga. Laws at 3949.  The repealed language included the original provisions of Section 202 of the Charter which provided the authority for appointing to fill vacancies in the office of mayor or council member.[2]

In 1987, the General Assembly again amended the City’s charter, affecting only the terms of office and election dates of the mayor and council members.  1987 Ga. Laws 4361.  These 1987 provisions were subsequently repealed in 1997.   1997 Ga. Laws 4050, 4051.[3]   Neither the repealed 1987 legislation nor the 1997 legislation made any change in the 1980 requirement that vacancies in the governing body be filled by special election.  Id.

Where there is a constitutional or statutory right under Georgia law to the holding of a special election, it is a legally enforceable right.  See Duncan v. Poythress, 657 F.2d 691 (5th Cir. Unit B 1981), cert. dismissed 459 U.S. 1012 (1982).  The legal right to a special election may not be defeated or ignored in favor of filling vacancies by appointment.  Id.  Given the aforementioned authorities, it appears that there would be such a statutory right to the holding of a special election to fill a vacancy in either the office of mayor or council member for the City of Willacoochee.

It should be noted, though, that the 1980 legislation provides that the special election to fill a vacancy in the office of mayor or a council member should be held “not less than 30 nor more than 60 days after the call of said election.”  1980 Ga. Laws at 3942.  Since that time, the General Assembly has enacted general law governing the dates on which such special elections may be held.  O.C.G.A. § 21-2-540(c)(1)(A, B).  This general law provides that special elections to fill vacancies in municipal offices may only be held on certain specified dates throughout the year, notwithstanding any other provisions in the law.  Id.  Because the requirements of general law control over any conflicting provisions of local law, the special election to fill vacancies for the City of Willacoochee may only be held on one of these statutorily permissible days.  See Ga. Const., Art. III, Sec. VI, Para. IV(a) (“Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law . . .”); 1991 Op. Att’y Gen. 91-23 (“[T]he general legislation, O.C.G.A. 21-2-540, would control as to the setting of such referendum dates and override any conflicting dates established by local legislation.”)

Therefore, given these statutes, it is my unofficial opinion that vacancies in the office of mayor or a city council member must be filled by special election and not by appointment by the remaining members of the council.   However, while a special election must be held to fill any vacancies, the 1980 provisions for the election date have been superseded by the general law provisions of O.C.G.A. §  21-2-540(c) and any special elections should be held only on one of the statutory authorized dates.

Prepared by:

 

DENNIS R. DUNN

Deputy Attorney General



[1]See Georgia Department of Community Affairs, Active Municipalities by County as of October 4, 2007, http://www.dca.state.ga.us/development/research/publications/Co_Ci_List.pdf (Last visited November 18, 2008).

[2]As with other statutes changing an election practice or procedure in Georgia, such changes must be precleared under Section 5 of the Voting Rights Act of 1965, as amended.  42 U.S.C. § 1973c.  If the 1980 change was not precleared, then it may not be enforceable and the preceding 1953 statutory provisions may still be in effect.  The City should consult with its counsel to confirm the preclearance status of the 1980 provision.

[3]“An Act amending an Act creating a new charter for the City of Willacoochee and changing the terms of office of the mayor and aldermen, approved March 19, 1987 (Ga. L. 1987, p. 4361), is repealed in its entirety.”