When a Minnesota statutory city holds a special election to fill the remainder of an unexpired mayoral term, when does the appointed mayor's tenure end and the newly elected mayor's term begin?

Plain-English summary

The City of Maplewood had a mayoral musical-chairs situation. In November 1997, Mayor A was re-elected for a four-year term. Before taking the oath in January 1998, Mayor A was appointed to a district court judgeship and resigned. The council appointed Mayor B to fill the vacancy under Minn. Stat. § 412.02, subd. 2a. Because Mayor A resigned before January 1, 1998, Mayor B's appointed tenure ran from January 1998 until qualification of a successor elected at the next general election (November 2, 1999). About two years remained on the original four-year term.

Maplewood City Attorney Patrick Kelly asked the AG: when does Mayor B's tenure end and the newly elected mayor's term begin, when there's still time left on the original term and the election is for that remaining time?

The AG said the elected mayor could take the oath and assume office as soon as they received a certificate of election. The first-Monday-in-January start date for elective city offices in Minn. Stat. § 412.02, subd. 2 only applies to terms that are first commencing; it does not apply to vacancy fills mid-term. Mayor B's appointed tenure ran "until qualification of a successor elected at a special election to fill the unexpired portion of the term," per § 412.02, subd. 2a. As soon as the elected successor took the oath, Mayor B's tenure ended.

This conclusion was consistent with several earlier AG opinions interpreting parallel statutory language for other offices: Op. Atty. Gen. 161-A-25 (Feb. 6, 1958) (school board); Op. Atty. Gen. 126H (Sept. 2, 1950 and Nov. 8, 1952) (county board); Op. Atty. Gen. 371-A-5 (Oct. 21, 1944) (railroad and warehouse commission). The 1950 opinion expressly reversed earlier contrary AG opinions that had relied on Minn. Const. art. VII, § 7 (terminating all terms on the first Monday in January). The reversal logic: that constitutional provision applies only to the statutory term for which officers are elected, not to vacancies filled pending an election for an unexpired term.

Currency note

This opinion was issued in 1999. 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 remedy mentioned here. Minn. Stat. § 412.02 has been amended since 1999. The structural conclusion (vacancy-fill elected officer assumes office upon qualification, not on the first Monday in January) appears to remain Minnesota practice, but should be confirmed against the current statute.

Historical context: what the AG concluded

The opinion turns on three statutory pieces.

Section 412.02, subd. 2 (general term start): "Terms of elective officers shall commence on the first Monday in January following the election at which the officer is chosen. All officers chosen and qualified as such shall hold office until their successors qualify."

Section 412.02, subd. 2a (vacancy fill): A vacancy is filled by council appointment until an election. "If the vacancy occurs before the first day to file affidavits of candidacy for the next regular city election and more than two years remain in the unexpired term, a special election shall be held at or before the next regular city election and the appointed person shall serve until the qualification of a successor elected at a special election to fill the unexpired portion of the term."

Constitution art. VII, § 7: "The official year for the state of Minnesota commences on the first Monday in January of each year and all terms of office terminate at that time."

The AG read these together to mean that the first-Monday-in-January start date applies only when an officer is filling a regular term that starts new (i.e., where the term itself commences in January). For a vacancy fill, the term itself has already commenced (here, in January 1998); the special election just chooses who serves the rest of it. Section 412.02, subd. 2a expressly says the appointee serves "until the qualification of a successor elected at a special election to fill the unexpired portion of the term." There is no impediment to the newly elected person qualifying and assuming office as soon as they receive a certificate of election.

Footnote 3 of the opinion noted that subdivisions 2 and 2a were amended by the Act of April 20, 1999, ch. 75, § 2 and the Act of May 7, 1999, ch. 132, § 43, both effective August 1, 1999. The amendments did not affect the analysis.

Footnote 1 of the opinion noted that qualifying for public office requires taking the oath of office (Minn. Stat. § 358.05 (1998)) and in some cases posting of a bond, but the AG was not aware of any bonding requirement for the mayor of a statutory city.

Common questions

Q: I'm a city clerk. We just held a special election to fill an unexpired mayoral term. When does the new mayor take office?
A: Under the 1999 opinion, as soon as the new mayor takes the oath and receives a certificate of election. There is no requirement to wait until the following January. The appointed interim mayor's tenure ends when the elected mayor qualifies.

Q: Does the same rule apply to other city offices (council member, treasurer, etc.)?
A: The opinion is specifically about the mayor of a statutory city, but the reasoning extends to other elective offices under parallel statutory language. The 1999 opinion cites prior AG opinions reaching the same result for school boards (161-A-25, Feb. 6, 1958), county boards (126H, Sept. 2, 1950 and Nov. 8, 1952), and the railroad and warehouse commission (371-A-5, Oct. 21, 1944).

Q: What about home rule charter cities?
A: The 1999 opinion is specific to statutory cities under Minn. Stat. ch. 412. Home rule charter cities operate under their charters, which may have different vacancy-fill and term-commencement provisions. Check the city's charter.

Q: What if the new mayor delays taking the oath?
A: Under the 1999 opinion, the appointed interim mayor's tenure continues until the elected successor qualifies. If the elected successor delays qualification, the interim mayor continues to serve. There may be other statutory or charter time limits for qualifying after a certificate is issued; consult counsel.

Q: What does "qualify" mean exactly?
A: Footnote 1 of the opinion says qualifying for public office requires the taking of the oath of office (Minn. Stat. § 358.05 (1998)) and in some cases posting of a bond. The AG noted that no bonding requirement applies to the mayor of a statutory city.

Background and statutory framework

Statutory cities (cities operating under the general statutes rather than home rule charters) are governed by Minn. Stat. ch. 412. Section 412.02 sets the rules for elective officers' terms and vacancy fills.

The 1999 opinion reinforces the longstanding distinction in Minnesota practice between (a) terms first commencing (which start the first Monday in January) and (b) terms partially run that are being filled by vacancy-fill elections (which commence whenever the elected successor qualifies). The same pattern appears across school boards, county boards, and other Minnesota elective bodies.

Mike Hatch was Minnesota AG in late 1999. Hubert H. Humphrey III had been AG until January 1999, then was elected AG of Minnesota again briefly before Hatch's term began (the opinion identifies AG Hatch as the issuing authority). Kenneth E. Raschke, Jr. was the Assistant AG of record.

Citations and references

Statutes:
- Minn. Stat. § 358.05 (1998) (oath of office)
- Minn. Stat. § 412.02, subd. 2 (Supp. 1999) (general term commencement)
- Minn. Stat. § 412.02, subd. 2a (Supp. 1999) (vacancy fill by appointment, special election)

Constitution:
- Minn. Const. art. VII, § 7 (official year of state; terms of office)

Session laws:
- Act of April 20, 1999, ch. 75, § 2, 1999 Minn. Laws 216 (amendment)
- Act of May 7, 1999, ch. 132, § 43, 1999 Minn. Laws 530, 543 (amendment)

Prior AG opinions referenced:
- Op. Atty. Gen. 161-A-25, February 6, 1958 (school board: same conclusion)
- Op. Atty. Gen. 126H, September 2, 1950 and November 8, 1952 (county board: reversed earlier contrary opinions)
- Op. Atty. Gen. 371-A-5, October 21, 1944 (railroad and warehouse commission: same conclusion)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/471m-19991123.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATUTORY CITY COUNCIL: VACANCY IN OFFICE: Person elected to fill remainder of unexpired mayoral term may assume office upon receipt of certificate of election. Minn. Stat. § 412.02, subd. 2, 2a.

471-M
November 23, 1999

Patrick J. Kelly
Stephen Kelly
BANNIGAN & KELLY, P.A.
Maplewood City Attorneys
1750 North Central Life Tower
445 Minnesota Street
St. Paul, MN 55101-2132

Dear Messrs. Kelly:

In your letter you present substantially the following:

FACTS

In November 1997, A was re-elected at regular election to the position of Mayor of Maplewood, a statutory city, for a 4 year term. Before taking the oath in January of 1998, Mayor A was appointed District Court Judge and resigned. Therefore a vacancy occurred in the position of Mayor. Pursuant to Minn. Stat. § 412.02, subd. 2a, the Council filled the vacancy by appointing Mayor B to the position. Because Mayor A resigned before January 1, 1998, the tenure of Mayor B ran from January 1998 until qualification of a successor elected at the next general election, held November 2, 1999. There was roughly 2 years left of the original term of Mayor A.

You then ask substantially the following:

QUESTION

When a person is appointed to fill a vacancy in the office of mayor of a statutory city, and an election is held to fill the unexpired term of that position, when does the term of the appointed mayor end and the term of the mayor elected to fill the unexpired term begin?

OPINION

In our opinion the person elected to fill the unexpired mayoral term is eligible to qualify and assume office upon receipt of an election certificate, and the tenure of the appointee terminates when the elected person so qualifies. Minn. Stat. § 412.02 subd. 2 and 2a (Supp. 1999) provide in pertinent part:

Subd. 2. Term. Terms of elective officers shall commence on the first Monday in January following the election at which the officer is chosen. All officers chosen and qualified as such shall hold office until their successors qualify.

Subd. 2a. Vacancy. Except as otherwise provided in subdivision 2b, a vacancy in an office shall be filled by council appointment until an election is held as provided in this subdivision. In case of a tie vote in the council, the mayor shall make the appointment. If the vacancy occurs before the first day to file affidavits of candidacy for the next regular city election and more than two years remain in the unexpired term, a special election shall be held at or before the next regular city election and the appointed person shall serve until the qualification of a successor elected at a special election to fill the unexpired portion of the term.

[Footnote 1: Qualifying for public office requires the taking of the oath of office (See Minn. Stat. § 358.05 (1998) and in some cases may require posting of a bond. However, we are not aware of any bonding requirement for the mayor of a statutory city.]

[Footnote 2: Subdivision 2b pertains to circumstances creating a potentially temporary vacancy. That subdivision would not apply here.]

[Footnote 3: These subdivisions were amended in 1999. Act of April 20, 1999, ch. 75 § 2, 1999 Minn. Laws 216; Act of May 7, 1999, ch. 132, § 43, 1999 Minn. Laws 530, 543. These amendments, which took effect on August 1, 1999, do not affect our opinion in this matter.]

Pursuant to subdivision 2 the "terms" of elective city offices begin on the first Monday of January following election. However, in the case of filling a vacancy, as here, the time of commencement of the "term" of office is not at issue. There is no question that the term of the office of mayor commenced in January of 1998 and will end in January of 2002. The election held in November of 1999 was to choose someone to serve for the remainder of that term. Therefore, the January date has no special significance in these circumstances. By the terms of subdivision 2a, the appointed mayor may only serve until qualification of the successor elected to fill the remainder of the term. There would seem no impediment to the person recently elected taking the oath and assuming office at any time after receiving a certificate of election.

[Footnote 4: See also Minn. Const. art. VII § 7 which provides:

Sec. 7 Official year of state. The official year for the state of Minnesota commences on the first Monday in January of each year and all terms of office terminate at that time. The general election shall be held on the first Tuesday after the first Monday in November in each even numbered year.]

While we are aware of no previous opinions directly addressing this question as applied to Minn. Stat. § 412.02 subd. 2a, this conclusion is consistent with a number of previous opinions that have construed similar statutory language as applied to vacancies in other offices. See e.g., Ops. Atty. Gen. 161-A-25, February 6, 1958 (school board); 126H, September 2, 1950 and November 8, 1952 (county board) and 371-A-5, October 21, 1944 (railroad and warehouse commission). The September 2, 1950 opinion acknowledged that some previous opinions had reached a different conclusion. However it noted that:

The opinions contrary to this view have been based upon the provision in Art. 7, Sec. 9 of the State Constitution, that all terms of office shall terminate on the first Monday in January of each year. It appears clear to us that this applies only to the statutory term for which officers are elected and does not apply to vacancies which are filled pending an election for an unexpired term of office.

Thus, the previous inconsistent opinions were reversed.

For these reasons it is our opinion that the person elected on November 2, 1999 may now qualify and assume office if he or she has received a certificate of election. Upon that person's qualifying, the tenure of appointed Mayor B will terminate.

Very truly yours,

MIKE HATCH
Attorney General
State of Minnesota

KENNETH E. RASCHKE, JR
Assistant Attorney General
(651) 297-1141

AG: 288959, V. I