If a California county sheriff dies in office, when does the board hold the next election, who can the board appoint to serve until then, and does that appointee have to meet the same qualifications as an elected sheriff?

Plain-English summary

In October 2015, the sheriff of Calaveras County died with three years left in his four-year term. The county's operations bureau commander, next in line of authority, stepped in as acting sheriff under Government Code section 24105. The county counsel then asked the California Attorney General three questions about how to refill the office: when does the next election happen, must the board appoint someone in the meantime, and does the appointee need the same qualifications as an elected sheriff?

The AG concluded that the next election had to wait until the next gubernatorial election (2018, in Calaveras's case), not a sooner special election. The relevant statute, Government Code section 25304, says an appointee fills the seat "until the first Monday after January 1st succeeding the next general election," and the California Supreme Court held back in People v. Col (1901) 132 Cal. 334 that "next general election" means the next regularly scheduled election for that particular office, not the next general election of any kind. Sheriffs are elected at gubernatorial elections, so an interim general election (like the 2016 presidential) did not count.

The AG also concluded that the board of supervisors had to appoint a successor and could not leave the acting officer running the department under section 24105 indefinitely. Section 25304 uses the mandatory word "shall," which under Government Code sections 5 and 14 means the board has a duty, not a choice. Although section 25304 does not specify a deadline, the AG read in a "reasonable time" standard borrowed from contract law and the case law of several other states.

Finally, on qualifications: yes, the appointee had to meet every qualification required of an elected sheriff. That means county residency (via the registered-voter requirement in Government Code section 24001) and the POST advanced certificate or one of the education-plus-experience combinations in Government Code section 24004.3. The AG read "candidate" in section 24004.3 to cover both election candidates and appointment candidates, pointing to the statute's own grandfather clause for sheriffs holding office on January 1, 1989, which referred to "candidates seeking election or appointment." The board had no waiver authority, because section 24001's waiver proviso applies only to offices that are inherently appointive, not to vacancies in elected offices.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or qualification mentioned here.

Background and statutory framework

The factual setup. In 2014, Calaveras County voters re-elected their sheriff to a four-year term. The sheriff died in October 2015. By statute, the county's operations bureau commander took over as acting sheriff, because Calaveras had no undersheriff or assistant sheriff and the commander was the next chief deputy in the chain of command (Gov. Code § 24105).

Government Code section 25304. This is the centerpiece statute. It directs the board of supervisors to fill by appointment "all vacancies that occur in any office filled by . . . elective county officers . . . , except judge of the superior court and supervisors." The appointee holds the office "for the unexpired term or until the first Monday after January 1st succeeding the next general election."

Government Code section 24105. Spells out the chain of temporary command when a sheriff's office is vacant: undersheriff, then assistant sheriff, then chief deputy next in line. The duties are temporarily discharged by that person "until the vacancy in the office is filled in the manner provided by law." The phrase "in the manner provided by law" turns out to be the hinge of the AG's analysis on question 2.

People v. Col, 132 Cal. 334 (1901). Old but still good. The California Supreme Court read the predecessor of section 25304 to mean the "next general election" is the next one at which the particular office is regularly filled. The 1959, 1974, and 1981 AG opinions interpreting the same language all reached the same result, and the 1959 opinion noted that the statute had been "codified and re-codified" with no significant change since Col.

Government Code section 24004.3. Sets the qualifications for sheriff candidates. They must hold one of:

• An active or inactive advanced POST certificate.
• One year of full-time salaried law-enforcement experience (Pen. Code §§ 830.1 or 830.2) plus a master's degree.
• Two years of such experience plus a bachelor's degree.
• Three years plus an associate's degree.
• Four years plus a high school diploma or equivalent.

Subsection (b) is a grandfather clause for anyone holding office as sheriff on January 1, 1989, deeming them to have met "all qualifications required for candidates seeking election or appointment to the office." That grandfather clause's "election or appointment" phrasing is what the AG leaned on to conclude that "candidate" in subsection (a) covers appointed candidates too.

Government Code section 24001. Requires every person elected or appointed to county office to be a registered voter of the county, which in turn (via Elec. Code §§ 321, subd. (a) and 359) requires residency. Section 24001 includes a proviso that the board "may, if it finds that the best interests of the county or district will be served, waive the requirements of this section for an appointed county or district office." A prior AG opinion, 80 Ops.Cal.Atty.Gen. 331 (1997), had already held that this waiver proviso does not reach offices that are normally elective and only appointive because of a vacancy.

The "reasonable time" standard. Section 25304 says the board "shall fill by appointment" but is silent on timing. The AG canvassed out-of-state cases from Connecticut, Iowa, Minnesota, New Hampshire, and North Dakota (each cited above) and concluded that where a statute imposes a duty without a deadline, a reasonable time is implied. Civil Code section 1657, the contract-law analogue, says the same thing for contracts that are silent on timing. The AG did not put a number on "reasonable," but warned against letting the acting officer run the department for "a protracted period."

Common questions

Q: A California county sheriff just died mid-term. Does our board of supervisors have to call a special election?
A: According to this opinion, no. Under Government Code section 25304 as interpreted in People v. Col (1901) 132 Cal. 334, the next sheriff's election must coincide with the next gubernatorial election. The board may not move that up by calling a special election to fill the seat earlier.

Q: Why can't the board just leave the acting officer in charge until the next election?
A: The opinion read Government Code section 25304 to impose a mandatory duty on the board to appoint a successor. The "shall" in the statute is mandatory under Government Code sections 5 and 14. Section 24105's temporary-discharge mechanism is meant to bridge the gap while the board makes the appointment, not to substitute for the appointment itself.

Q: Is there a deadline for the appointment?
A: The statute did not specify one. The AG implied a "reasonable time" standard, drawing on out-of-state authority and Civil Code section 1657. The opinion warned that letting the acting officer continue performing the sheriff's duties for "a protracted period" was not allowed, but did not draw a precise line.

Q: Does an appointed sheriff have to meet the same qualifications as an elected sheriff?
A: Yes, under the opinion. Government Code section 24004.3's POST-or-degree-plus-experience requirements apply to both. The AG reasoned from the statute's grandfather clause (subsection (b)), which references "candidates seeking election or appointment," and from Elections Code section 13.5, which expressly ties candidate-qualification filings to section 24004.3.

Q: What about county residency? Can the board waive it for an appointee?
A: No, per this opinion. Government Code section 24001 requires county residency by way of voter registration. Although section 24001 has a waiver proviso for "appointed county or district office," the AG (following 80 Ops.Cal.Atty.Gen. 331 (1997)) read that proviso to apply only to offices that are inherently appointive, not to elected offices being filled by appointment because of a vacancy. So no waiver.

Q: What POST or education credentials does an appointee need?
A: One of the five combinations in Government Code section 24004.3, subdivision (a): advanced POST certificate, or salaried peace-officer experience plus a degree at the level the statute matches to that years-of-experience tier.

Q: Does this opinion bind a board to a particular appointee?
A: No. The opinion sets boundaries (who is eligible, when the appointment must happen, when the election runs), not who to pick within those bounds. The board still chooses.

Q: What happens if the chosen appointee turns out to be unqualified?
A: The opinion does not directly address that. Government Code section 24201 says officers hold over until successors are "elected or appointed and qualified," which suggests that if an appointee cannot lawfully qualify, the seat is not filled. Independent legal advice is warranted in that situation.

Citations and references

California Constitution and Statutes:

• Cal. Const., art. V, § 2
• Cal. Gov. Code §§ 5, 14, 1770, 1777, 24000, 24001, 24004.3, 24009, 24105, 24200, 24201, 24202, 24203, 25304
• Cal. Elec. Code §§ 13.5, 201, 300, 321, 324, 359, 1000, 1001, 1200, 1300, 8104, 8403
• Cal. Civ. Code § 1657
• Cal. Pen. Code §§ 830.1, 830.2

California Cases:

• People v. Col (1901) 132 Cal. 334
• People ex rel. Richardson v. Cobb (1901) 133 Cal. 74
• Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605
• Chapin v. Super. Court (1965) 234 Cal.App.2d 571
• Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19
• Los Angeles Unified School Dist. v. Garcia (2013) 58 Cal.4th 175
• Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379
• Smith v. Selma Community Hosp. (2010) 188 Cal.App.4th 1
• MacIsaac v. Waste Management Collection and Recycling, Inc. (2005) 134 Cal.App.4th 1076
• Coalition of Concerned Communities, Inc. v. Los Angeles (2004) 34 Cal.4th 733

Out-of-state Cases (for the "reasonable time" point):

• Hartley v. Vitiello (Conn. 1931) 154 A. 255
• Escher v. Carroll County (Iowa 1913) 141 N.W. 38
• State ex rel. Laurisch v. Pohl (Minn. 1943) 8 N.W.2d 227
• Dearborn v. Milford (N.H. 1980) 411 A.2d 1132
• Brink v. Curless (N.D. 1973) 209 N.W.2d 758

Federal Cases:

• Schaefer v. Townsend (9th Cir. 2000) 215 F.3d 1031

Prior AG opinions discussed:

• 28 Ops.Cal.Atty.Gen. 17 (1956)
• 32 Ops.Cal.Atty.Gen. 108 (1958)
• 33 Ops.Cal.Atty.Gen. 60 (1959)
• 36 Ops.Cal.Atty.Gen. 73 (1960)
• 57 Ops.Cal.Atty.Gen. 149 (1974)
• 62 Ops.Cal.Atty.Gen. 175 (1979)
• 64 Ops.Cal.Atty.Gen. 561 (1981)
• 66 Ops.Cal.Atty.Gen. 229 (1983)
• 80 Ops.Cal.Atty.Gen. 331 (1997)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/15-1202_0.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
KAMALA D. HARRIS
Attorney General

OPINION of KAMALA D. HARRIS, Attorney General
LAWRENCE M. DANIELS, Deputy Attorney General

No. 15-1202
December 30, 2016

THE HONORABLE MEGAN STEDTFELD, COUNTY COUNSEL, COUNTY OF CALAVERAS, has requested an opinion on the following questions:

1. When the office of county sheriff becomes vacant because of the sheriff's death, must the next election to fill the office coincide with the next state gubernatorial election, or may the board of supervisors call a special election to fill the office earlier?

2. When the office of county sheriff becomes vacant because of the sheriff's death, must the county board of supervisors appoint a person to fill the office, or may the board, by not appointing a successor sheriff, allow the person temporarily performing the sheriff's duties under Government Code section 24105 to continue to perform those duties until the election?

3. When a county board of supervisors appoints someone to fill a vacancy in the office of county sheriff, must the appointee meet all of the qualifications of the elected position, including county residency? If so, does the board have the authority to waive those requirements?

CONCLUSIONS

1. When the office of county sheriff becomes vacant because of the sheriff's death, the next election to fill the office of sheriff must coincide with the next state gubernatorial election. The board of supervisors may not call a special election to fill the office before that time.

2. When the office of county sheriff becomes vacant because of the sheriff's death, the county board of supervisors must, within a reasonable time, appoint a person to fill out the remainder of the incumbent sheriff's term. The board may not, through inaction, allow the person temporarily performing the sheriff's duties under Government Code section 24105 to continue performing those duties for a protracted period.

3. When a county board of supervisors appoints someone to fill a vacancy in the office of county sheriff, the appointee must meet all the qualifications of the elected position, including county residency. The board does not have the authority to waive those requirements.

ANALYSIS

In 2014, the voters of the County of Calaveras, a general law county, re-elected the county's sheriff to a four-year term. In October 2015, the sheriff died, leaving a vacancy in the office. Pursuant to the county's succession of command, and in accord with state statute, the county's operations bureau commander took over on a temporary basis as the acting sheriff. The questions presented here arose from the county's deliberations on how to fill the vacancy permanently. Our analysis follows.

Question 1

We first consider when the next election to fill the office of sheriff should be held. For a time, the county considered calling a special election to fill the sheriff's office, to occur during the 2016 statewide general (and presidential) election. Ultimately, however, the county decided that the next sheriff's election must take place at the next gubernatorial election in 2018. We agree with the county's decision.

Sheriffs are elected county officers. Elected county officers are regularly chosen by the people every four years, at the same time as governors, except as otherwise provided in the Government Code. Government Code section 25304 directs that when a person is appointed to fill a vacancy in an elected county office, he or she "shall hold office for the unexpired term or until the first Monday after January 1st succeeding the next general election."

In the leading case of People v. Col, the California Supreme Court determined that the term "next general election," as used in the then-existing statute that became Government Code section 25304, meant the next "general election for filling the particular office to which the person is appointed, or, in other words, to the general election provided for as to all the county officers . . . ." That is, "the phrase 'next general election' does not refer to the general election immediately following the vacancy but to the first ensuing general election at which the particular office is normally filled for the full term."

Applying People v. Col, we concluded in 1974 that Government Code section 25304 prohibited a county board of supervisors from calling a special election to fill the office of a county law-enforcement official, a constable who had resigned during his term, rather than appointing someone to fill the vacancy for the constable's unexpired term. A sheriff, like a constable, is a county law-enforcement official. Thus, we agree with the county's determination that, under Government Code section 25304, the next election for county sheriff must coincide with the next gubernatorial election to be held in 2018.

Question 2

The second question asks whether, when a vacancy occurs in the office of county sheriff, the county board of supervisors must appoint a successor to fill that vacancy pending a proper election, or whether it may allow the person temporarily performing the sheriff's duties under Government Code section 24105 to continue to perform those duties until the election. We conclude that the county board of supervisors must fill such a vacancy by appointing a new sheriff.

When a county sheriff dies in the middle of a term, the death creates a vacancy by operation of law. Government Code section 25304 provides that the board "shall" appoint someone to fill a vacancy in a county office. In the Government Code, absent contrary indicia, the word "shall" conveys a mandatory command. As nothing in Government Code section 25304 indicates otherwise, the board is required to appoint a person to fill a vacancy in the office of sheriff.

But how long does the board have to appoint a sheriff after a vacancy occurs? The applicable statute, Government Code section 25304, simply states that the county "board of supervisors shall fill by appointment all vacancies that occur in any office filled by . . . elective county officers . . . ." Accordingly, we must confront the fact that Government Code section 25304 does not specify a precise time limit, or even provide a standard for making this determination individually. Further, California appellate courts apparently have had no cause to decide when an official, or official body, must carry out a duty under a statute that is silent as to timing.

Historically, other states' courts as well as this office have concluded that, where a statute does not specify the time in which an official must perform an act, a reasonable time is implied. What constitutes a reasonable time depends on the nature and purpose of the act to be performed, as well as on the particular facts involved.

We are also asked whether, in lieu of appointing a successor sheriff, the board of supervisors may permit the person performing the sheriff's duties under Government Code section 24105, in this instance, the operations bureau commander, to continue acting as sheriff until after the next sheriff's election. We think that the board may not refrain from appointing a person to fill the vacancy. Government Code section 24105 directs that when a vacancy occurs in the office of county sheriff, the sheriff's duties of office are to "be temporarily discharged . . . until the vacancy in the office is filled in the manner provided by law . . . by the undersheriff, or if that position is vacant, by the assistant sheriff, or if that position is also vacant, by the chief deputy next in line of authority." The manner provided by law for filling a vacant sheriff's office is appointment by the board of supervisors. As noted, this appointment is mandatory and must be performed within a reasonable time. Inaction is not authorized by the governing statute.

Question 3

To be elected sheriff, a person must be a registered voter in the county, which ordinarily requires being a county resident, and must possess one of five combinations of education and law-enforcement experience. We are asked whether these eligibility requirements also apply to appointed sheriffs. We conclude that they do.

A person appointed to an elective county office must be "qualified" in order to hold the office. Government Code section 24001 generally requires that persons elected or appointed to county office be registered voters of the county, which in turn generally requires that they be residents of the county. This statute provides that "a person is not eligible to a county or district office, unless he or she is a registered voter of the county or district in which the duties of the office are to be exercised at the time that nomination papers are issued to the person or at the time of the appointment of the person." Given this express language, we conclude that the voter registration requirement, which includes a county residence requirement, applies to an appointed sheriff.

Somewhat more complex is the issue whether the statutory qualifications for elected sheriffs set forth in Government Code section 24004.3 were intended to apply to appointed sheriffs. Subdivision (a) of this statute specifies that "[n]o person is eligible to become a candidate for the office of sheriff in any county unless, at the time of the final filing date for election, he or she meets one of the following criteria" relating to education and law enforcement experience. Taken in isolation, this provision might be read as applying only to elections, not to appointments. The passage marks "the final filing date for election" as the point of determining eligibility, and a "filing date" appears germane only to a voter election.

But we must examine Government Code section 24004.3 in its statutory context, not in isolation. Doing so, we conclude that the term "candidate" denotes both a candidate for election and a candidate for appointment. We note that dictionaries define the term "candidate" broadly enough to cover both voter elections and board appointments. A candidate is "[o]ne who offers himself, or is put forward by others, as a suitable person or an aspirant or contestant for an office, privilege, or honor," or "a person being considered for a job, nomination, or appointment."

Government Code section 24004.3 conforms to this inclusive meaning of the term "candidate." In a grandfather clause, subdivision (b) states, "All persons holding the office of sheriff on January 1, 1989 shall be deemed to have met all qualifications required for candidates seeking election or appointment to the office of sheriff." This provision plainly associates the requirements of section 24004.3 with both candidates for appointment as well as candidates for election.

An inclusive interpretation also aligns with the evident legislative purpose of Government Code section 24004.3, which bespeaks an intent for all sheriffs to meet certain minimum standards of education and peace-officer experience. The need and justification for such requirements pertain equally to both elected and appointed sheriffs.

Elections Code section 13.5 lends further support to our conclusion that an appointed sheriff must possess the qualifications set out in Government Code section 24004.3. Elections Code section 13.5, subdivision (a) provides that a candidate's election filings must demonstrate "each qualification established for service in that office by the provision referenced in subdivision (b)." Subdivision (b) in turn refers to "section 24004.3 of the Government Code" for the office of sheriff.

In sum, we are firmly persuaded that the qualifications set forth in Government Code section 24004.3 apply to appointed as well as to elected sheriffs.

A final consideration is whether a board of supervisors may waive these qualification requirements for an appointed sheriff. We find no authority for the board to do so. It is true, regarding the voter-registration requirements of Government Code section 24001, that the statute provides that "[t]he board of supervisors or any other legally constituted appointing authority in a county or district may, if it finds that the best interests of the county or district will be served, waive the requirements of this section for an appointed county or district office." However, as we have explained, the phrase "appointed county or district office" as used in section 24001 refers to an office that is purely appointed, not to a vacant elected office that may be filled by appointment for the remainder of the term. Consequently, we conclude that the board may not waive the requirements of Government Code section 24004.3 in appointing a sheriff.