Vacancies in the offices of mayor and council members for the City of
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
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. The City of
While the original local legislation creating the City of
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.
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
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.
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
Where there is a constitutional or statutory right under
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
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.
DENNIS R. DUNN
Deputy Attorney General
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).
As with other statutes changing an election practice or procedure in
“An Act amending an Act creating a new charter for the City of