Could Oregon State Treasurer Ted Wheeler run for re-election in 2016 given the eight-years-in-twelve term limit, after serving an appointment in 2010 and an elected fill-in term?

Plain-English summary

Article VI, section 1, of the Oregon Constitution limits the State Treasurer (and Secretary of State) to eight years in office in any 12-year period. The Secretary of State asked the AG whether Treasurer Ted Wheeler could run for re-election in 2016. Wheeler had been:

• Appointed by Governor Kulongoski in March 2010 to fill the vacancy from Treasurer Ben Westlund's death.
• Elected in November 2010 to fill the remaining two years of Westlund's term (January 2011 to January 2013).
• Re-elected to a four-year term in November 2012 (January 2013 to January 2017).

The AG concluded the appointment time did not count toward the eight-year limit. Article II, section 12, expressly excludes "appointment[s] pro tempore" from term-limit calculations. The 1936 AG opinion 17 Op Atty Gen 639 had reached the same conclusion about an appointed Treasurer.

But the two years from January 2011 to January 2013, when Wheeler was elected and qualified rather than holding office under the appointment, counted. By January 2017 he would have served six consecutive elected years. A 2016 re-election would put him in office through January 2021. By January 2019 he would hit eight consecutive years and become ineligible.

That math meant Wheeler could not lawfully complete a four-year term starting in January 2017. The Oregon Supreme Court's decision in McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972), held that a candidate known to be incapable of serving the full term does not "qualify" for the office, and the Secretary of State cannot certify someone known to be unqualified. The 1828 Webster's definition of "eligible," contemporary with the Oregon Constitution's adoption, supported reading the requirement strictly: a candidate must be "fit to be chosen" for the full term, not just for part of it.

Conclusion: Wheeler could not be certified as a candidate for State Treasurer in 2016.

Currency note

This opinion was issued in 2014. 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.

Historical summary

Background facts

Westlund had been elected Treasurer in November 2008 for a four-year term that would have run from January 2009 through January 2013. He died on March 7, 2010. The Governor appointed Wheeler. Under Article V, section 16, of the Oregon Constitution and ORS 249.215(2), the appointment expired when Wheeler was elected and qualified at the next general election, in November 2010. Wheeler then served the balance of Westlund's term from January 2011 through January 2013, won re-election in 2012, and began a four-year term in January 2013.

What counts toward the eight-year limit

Article VI, section 1, says the elected Secretary of State and Treasurer "shall severally hold their offices for the term of four years; but no person shall be eligible to either of said offices more than Eight in any period of Twelve years."

Article II, section 12, carves out appointments: "In all cases, in which it is provided that an office shall not be filled by the same person, more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term."

Combining the two provisions:

• March 2010 to January 2011 (appointed): does not count.
• January 2011 to January 2013 (elected to fill remainder of Westlund's term): counts as elected service.
• January 2013 to January 2017 (current elected term): counts.

By January 2017 Wheeler would have served six consecutive years toward the eight-year cap. A new four-year term would have to end at January 2019 to stay under the cap, but a four-year term elected in November 2016 would run until January 2021. He could not complete it without violating Article VI, section 1.

Why incomplete-term incapacity disqualified the candidate

The 1972 McAlmond v. Myers decision involved a candidate who, because of an earlier election-law violation, would have been disqualified from serving roughly the first week of the four-year State Treasurer term she sought. The Oregon Supreme Court held the Secretary of State should not have certified her: certification represents to voters that, "insofar as can then be known, the candidate, if elected, will be able to qualify for the Full term of the office." The court adopted the reasoning of Commonwealth ex rel Kelley v. Keiser, 340 Pa 59, 16 A2d 307 (1940), that voters must be assumed to be voting for a candidate "legally capable of holding the entire term."

The AG read McAlmond as controlling. Wheeler would be ineligible to hold office for the last two years of any 2016 term, a much larger gap than the one week in McAlmond. The same disqualification rule applied: the Secretary of State could not lawfully certify him.

How the term-limit math interacts with vacancy law

The opinion noted in a footnote that ORS 249.215, which lets a person be elected to fill the remaining two years of a predecessor's term, potentially conflicts with Article VI, section 1's specification of a four-year term. The AG sidestepped that constitutional question because, even taking ORS 249.215 at face value, Wheeler would still hit the eight-year limit.

The opinion also walked through ORS 249.031(1)(f) (declaration must contain "[a] statement that the candidate will qualify if elected") and ORS 249.004 (filing officer's authority to verify the validity of those statements) and ORS 254.555(1)(c) (Secretary of State must certify the primary winner). ORS 254.165 already authorized the filing officer to keep a disqualified candidate's name off the ballot. Together those statutes built a framework for the Secretary of State to act on disqualifying facts known at certification time.

What this meant for 2016

Wheeler did not run for re-election as Treasurer in 2016. He ran for Mayor of Portland, which he won. The 2016 Treasurer's race was open. The AG opinion's reasoning would carry forward to anyone in a similar posture: an appointment to a partial term followed by election fills part of an Article VI, section 1 cap, and a new full-term candidacy that would exceed eight years inside the 12-year window cannot be certified.

Common questions

Q: What does Article VI, section 1, of the Oregon Constitution say about Treasurer term limits?
A: It sets a four-year term and prohibits anyone from holding the office for more than eight years in any 12-year period. The Secretary of State has the same limit.

Q: Do gubernatorial appointments count toward those limits?
A: No. Article II, section 12, of the Oregon Constitution carves out "appointment[s] pro tempore." The 1936 AG opinion 17 Op Atty Gen 639 confirmed that interpretation in the context of an appointed Treasurer.

Q: When does an appointed Treasurer's term end?
A: When a successor is elected and qualified at the next general election. Article V, section 16, of the Oregon Constitution and ORS 249.215(2) both say so.

Q: Why did Wheeler's two-year fill-in service count?
A: Because once the November 2010 election happened and he qualified in January 2011, he was no longer holding office under the gubernatorial appointment. He was holding under election. Article II, section 12 only excludes appointment time, not subsequent elected time.

Q: Why couldn't the Secretary of State just put Wheeler on the ballot and let him run?
A: McAlmond v. Myers held that candidates must be capable of completing the full term they are running for. Placing a name on the ballot represents to voters that the candidate can serve the whole term. The Secretary of State has authority under ORS 249.004 to verify that candidates qualify, and ORS 254.165 lets a filing officer keep a disqualified candidate off the ballot.

Q: Could a candidate run knowing they would have to leave partway through?
A: Under McAlmond, no. The court rejected exactly that approach.

Q: Does this rule apply only to the Treasurer?
A: The same Article VI, section 1, language applies to the Secretary of State. The same logic would apply to other constitutional officers with similar term-limit provisions, although the specific calculation depends on the language of each provision.

Background and statutory framework

Article VI, section 1, of the Oregon Constitution sets four-year terms and an eight-of-twelve-year limit for the Secretary of State and the State Treasurer. It dates to the original 1857 constitution.

Article V, section 16, governs vacancies in state office: the Governor appoints, and the appointment expires when a successor is elected and qualified.

Article II, section 12, excludes pro tempore appointments from continuous-service term limits.

The implementing statutes are in ORS chapters 249 and 254. ORS 249.215 covers vacancy elections, including filling out a predecessor's term. ORS 249.031, ORS 249.035, and ORS 249.004 govern declarations and certificates of candidacy and the filing officer's authority to verify them. ORS 254.165 authorizes the filing officer to omit disqualified candidates from the ballot, and ORS 254.555(1)(c) requires the Secretary of State to certify the primary winner to the general election ballot.

The interpretive framework relied on the 1828 Webster's American Dictionary, contemporary to the Oregon Constitution's adoption in 1859, to read "eligible" strictly: "fit to be chosen * * * legally qualified to be chosen." The constitutional history, the McAlmond precedent, and the Pennsylvania Kelley decision the Oregon court adopted, all aligned on the same point: a candidate must be capable of serving the full term to be eligible to run for it.

Citations and references

Constitutional provisions:
- Or Const Art II, § 12 (appointment pro tempore exclusion)
- Or Const Art V, § 16 (vacancy filling)
- Or Const Art VI, § 1 (Treasurer and Secretary of State terms)

Statutes:
- ORS 249.004 (filing officer verification)
- ORS 249.031(1)(f) (declaration must include qualification statement)
- ORS 249.035 (filing with Secretary of State)
- ORS 249.215 (filling vacancies in elected office)
- ORS 254.165 (omitting disqualified candidates from ballot)
- ORS 254.555(1)(c) (certification of primary winner)

Cases:
- McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972)
- State ex rel Whitney v. Johns, 3 Or 533 (1869)
- State ex rel Musa v. Minear, 240 Or 315, 401 P2d 36 (1965)
- Commonwealth ex rel Kelley v. Keiser, 340 Pa 59, 16 A2d 307 (1940)

Prior AG opinions:
- 17 Op Atty Gen 639 (1936)
- 30 Op Atty Gen 101 (1960)

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2014/08/op8288.pdf

Original opinion text

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

ELLEN F. ROSENBLUM
ATTORNEY GENERAL

FREDERICK M. BOSS
DEPUTY ATTORNEY GENERAL

DEPARTMENT OF JUSTICE

Justice Building
1162 Court Street NE
Salem, Oregon 97301-4096
Telephone: (503) 378-4400

August 11, 2014

No. 8288

The Secretary of State asks if the current State Treasurer, Ted Wheeler, would be eligible to run for reelection in 2016, or whether limitations imposed by the Oregon Constitution would prohibit him from running. Below we set out the secretary's specific question and our short answer followed by a discussion of the applicable law.

QUESTION

Is Treasurer Wheeler eligible to run for reelection in 2016 in light of Article VI, section 1, of the Oregon Constitution, which provides that the term of office for State Treasurer is four years, and that a person is not eligible to hold the office for more than eight years in a twelve-year period?

SHORT ANSWER

No. Assuming Treasurer Wheeler completes the four-year term of office that he is currently serving, he would not qualify to run for State Treasurer in 2016, because he could not hold the office for the full four-year term without violating the eight-year limitation of Article VI, section 1.

DISCUSSION

1. Background

Wheeler has served as State Treasurer since March of 2010, when he was first appointed by Governor Kulongoski to fill the vacancy created by former Treasurer Westlund's death. Westlund had been elected for a four-year term in November 2008, but died on March 7, 2010. Wheeler was then elected to the office of treasurer in the November 2010 general election to fill the remaining two years of Westlund's four-year term. Then, in November 2012, Wheeler was reelected to a four-year term. He qualified for and assumed his present term of office in January 2013.

Article VI, section 1, of the Oregon Constitution creates the offices of State Treasurer and Secretary of State. It also establishes the terms of office and limits the number of years a person may serve in those offices:

There shall be elected by the qualified electors of the State, at the times and places of choosing Members of the Legislative Assembly, a Secretary and Treasurer of State, who shall severally hold their offices for the term of four years; but no person shall be eligible to either of said offices more than Eight in any period of Twelve years.

Article V, section 16, of the Oregon Constitution governs the filling of vacancies in state office:

when at any time a vacancy occurs in any * * * state office * * * the governor shall fill such vacancy by appointment, which shall expire when a successor has been elected and qualified. * * * * * [T]he vacancy shall be filled at the next general election, provided such vacancy occurs more than sixty-one (61) days prior to such general election.

A statute pertaining to vacancies in elected offices likewise provides that an appointment to fill a vacancy "shall expire when a successor to the office is elected and qualified." ORS 249.215(2). Under the terms of this statute, when Treasurer Wheeler was elected in 2010, he was elected to fill "the remaining two years of [Treasurer Westlund's] term." ORS 249.215(1).

2. Time Included in Limit Calculation

The question presented by the Secretary of State requires us to first assess whether the two years Treasurer Wheeler served in office following his election in November 2010 count toward the eight-year limit established by Article VI, section 1. We conclude that those two years from January 2011 through January 2013 must be included in the calculation.

Under Article II, section 12, of the Oregon Constitution, the time that Wheeler served as the appointee from March 2010, through January 2011, is not included when applying the eight-year limitation. ("In all cases, in which it is provided that an office shall not be filled by the same person, more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.") See also 17 Op Atty Gen 639 (1936) (concluding that the time that a person served as appointed State Treasurer was not included in calculations).

As noted above, both Article V, section 16, and ORS 249.215(2), provide that a temporary appointment expires when a successor is elected and qualified. Therefore, Wheeler's appointment expired when he was elected and qualified in January, 2011. Because the two years that followed were not served pursuant to an appointment, and only appointments are excluded from the calculation under Article II, section 12, those two years of service as treasurer count toward the eight-year limit in Article VI, section 1.

3. Qualification to Run for Reelection in 2016

Wheeler currently holds the treasurer's office for a four-year term, which began in January 2013 and ends in January 2017. In January 2017, Wheeler will have held office for six consecutive years. If he were elected in the November 2016 general election, his four-year term of office would begin in January 2017 and end in January 2021. In January 2019, however, he would have served eight consecutive years as elected treasurer, and he would no longer be eligible to hold the office under Article VI, section 1.

We next consider whether his ineligibility to serve as treasurer beyond January of 2019 would prohibit Wheeler from running for office in 2016 and leaving the office when he reaches the eight-year limit. We conclude that, because he would be legally incapable of completing the four-year term of office provided in the constitution, Wheeler would not qualify to run in 2016. He could not run that year with the understanding that he would only serve two years of the four-year term.

Article VI, section 1, states that the elected State Treasurer "shall hold * * * office[] for the term of four years" but is not "eligible" to hold office for more than eight in twelve years. (Emphasis added). This provision was part of the original constitution adopted in 1857 and effective in 1859. A dictionary in use around that time defined "eligible" to mean "fit to be chosen * * * legally qualified to be chosen." Webster, AN AMERICAN DICTIONARY OF ENGLISH LANGUAGE (1828). Thus, under Article VI, section 1, Wheeler would be required to run for a four-year term of office, but he would be unqualified to be elected for that term, because he could not serve the full four-year term without exceeding the eight-year limit.

Our conclusion is supported by an Oregon Supreme Court opinion holding that a candidate for State Treasurer who was incapable of serving the full term did not qualify for the office. In McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972), the candidate had violated a state election law in an earlier election for state senator. In consequence, she was disqualified from serving in another office during the term that she would have served as state senator. Her senatorial term would have expired on January 8, 1973, and, if elected State Treasurer, her term of office would have begun on January 1, 1973. She would have been disqualified from serving as State Treasurer for one week of the four-year term.

The court concluded that the Secretary of State had a duty to withhold certification of a candidate that he knew was "unqualified" or "ineligible" for office. The court explained that candidates for State Treasurer were nominated by filing a nominating petition or declaration of candidacy with the Secretary of State. Candidates had to state in those documents that they would qualify if elected. The Secretary of State was authorized to verify the validity of those statements. The court opined that the Secretary of State's authority to verify the validity of the statements in declarations and petitions "would be meaningless if it was not contemplated that he would take action if facts became known to him which show that the candidate is unqualified." 262 Or at 25.

Then, as now, the Secretary of State had a duty to certify a petition of nomination to the person receiving the highest number of votes in the primary. See ORS 254.555(1)(c)(Secretary of State must certify nomination of primary winner). The court reasoned that if the secretary knew that the candidate was disqualified from being elected or serving as treasurer he had a duty to omit her name from the certification of candidates in the general election. See also, ORS 254.165 (current statute providing that if filing officer determines that a candidate has become disqualified or will not qualify in time for the office if elected they may not print the name of the candidate on the ballot).

The court reasoned that "[p]lacing a party's name on the ballot is a form of representation to the voters that, insofar as can then be known, the candidate, if elected, will be able to qualify for the Full term of the office." 262 Or at 532 (capitalization in original). The court also agreed with a Pennsylvania decision holding that when a candidate asserted that he was qualified for office, the candidate was asserting eligibility to fill the entire term of the office:

"[I]t may be assumed that those who voted for him did so in the mistaken belief that the candidate of their choice would be legally capable of holding the entire term for which they were balloting. * * * * . Its effect * * * [would be] to bring about the election of one who could not, by any act of his own, or in any possible circumstances, remove the disqualification so as to completely fill the office for which he was standing, and to which he had been elected * * ."

262 Or at 532-533 (quoting Commonwealth ex rel Kelley v. Keiser, 340 Pa 59, 16 A2d 307 (1940)). If Wheeler were elected in 2016, he would be ineligible to hold the office for the last two years of the four-year term. For this reason, we conclude that the Secretary of State would not be able to certify Wheeler as a candidate for treasurer, knowing he would be ineligible to hold the full term of office.

CONCLUSION

For the reasons discussed above, we conclude that the two years Treasurer Wheeler served after his election in November of 2010 must be included when applying the eight-year limit of Article VI, section 1. Assuming that Treasurer Wheeler completes his present four-year term of office, we further conclude that he would not qualify to run for State Treasurer in the 2016 election, because he would be incapable of fulfilling the full term of office without violating the eight-year limitation of Article VI, section 1, of the Oregon Constitution.

ELLEN F. ROSENBLUM
Attorney General

1/ In providing that the State Treasurer may be elected to fill the remaining two years of a predecessor's term under some circumstances, ORS 249.215 potentially conflicts with Article VI, section 1, of the Oregon Constitution, which specifies a four-year term. Regardless of any conflict, if Treasurer Wheeler completes his present term, he will have served six consecutive years as treasurer since his initial election, and therefore be ineligible to run again in 2016. For that reason, it is not necessary in this opinion to analyze the constitutionality of ORS 249.215.

2/ See also, State ex rel Whitney v. Johns, 3 Or 533, 536, 1869 WL 638 (1869) (holding that the governor's appointment power under Article V, section 16, "extends to the filling of the vacancy and until the next election, when the people can regularly exercise their authority in electing officers. * * * * . The term of the appointed incumbent * * * then expires."); State ex rel Musa v. Minear, 240 Or 315, 319, 401 P2d 36 (1965) (citing Article V, section 16, and declaring that "the framers meant an elected official to be elected by the people * * * * . The only appointments contemplated were to fill vacancies between elections."); 30 Op Atty Gen 101(1960) (stating that if an officer appointed by the governor to fill a vacancy pursuant to Article V, section 16 is then elected by the people at the next election, there are two terms involved, an appointive and an elective term).

3/ Although some of the numbers have changed, the current statutes contain the same requirements. See ORS 249.03 (candidates must file a nominating petition or a declaration of candidacy); ORS 249.035 (nominating petitions and declarations of candidacy for state office must be filed with Secretary of State); ORS 249.031(1)(f)(nominating petition or declaration must contain "[a] statement that the candidate will qualify if elected"); ORS 249.004(filing officer may verify the validity of the contents of documents filed under chapter 249).

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