When a town council member is elected mayor and takes the oath of office for the mayor's job, do they automatically lose their council seat, or do they get to keep both?

Plain-English summary

A Front Royal town council member was elected mayor in May 2008. He took the oath as mayor on June 25, 2008, for a term that began July 1. The question Judge Hupp put to the Attorney General was crisp: did his council seat become vacant the moment he qualified as mayor, or could he hold both offices? This was the companion question to opinion 08-092 (which addressed how to fill the vacancy and what an appointee could vote on) and 08-106 here resolves the threshold issue.

Attorney General Bob McDonnell concluded that the council seat was vacated by operation of law on June 25, the day the mayor-elect took the oath as mayor. The Front Royal Charter makes the council a six-member body and makes the mayor a separate office. The mayor presides but does not vote on council questions, except as tiebreaker. Section 9 of the Charter contemplates that the mayor might come from outside the council (the council can pick any qualified Front Royal voter to fill a mayor vacancy). The structural setup leaves no room for one person to hold both the mayor's office and a council seat at the same time.

The opinion then anchors the conclusion in old Virginia common-law doctrine. The Supreme Court of Virginia held in Shell v. Cousins (1883) that an officeholder who becomes incapable of holding the first office by acting in an incompatible office ceases to hold the first office, and a later resignation from the second office does not restore him to the first. In Bunting v. Willis (1876), the court held that a person who accepts a second office incompatible with the sheriff's office stops being sheriff, and "throwing off" the second office cannot restore him. Poulson v. Justices of Accomac (1830) applied the same principle to county officers who moved out of state. The doctrine is robust and old. Taking the mayor's oath vacated the council seat, and that vacancy then had to be filled by election or appointment under the regime examined in 08-092 (and § 24.2-228).

Currency note

This opinion was issued in 2008. 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.

Background and statutory framework

The Front Royal Town Charter sets up a six-member town council plus a separately elected mayor. Section 4 of the Charter establishes the offices of "mayor [and] four councilmen," and provides that the number of councilmen "shall be six" thereafter. Section 6 governs the election of the mayor (held the first Tuesday in May, two-year term). Section 7 requires every municipal officer to take an oath of office. Section 8 makes the mayor the presiding officer of the council, with no vote except as tiebreaker. Section 9 deals with a mayor vacancy and allows the council to select any qualified voter of the town to fill the vacancy, not just a current council member.

State law adds § 15.2-1522, which generally requires elected town officers to qualify by taking the prescribed oath on or before the day their terms begin. Members of governing bodies may qualify up to and including the initial meeting of the new body. Section 49-1 prescribes the form of the oath.

The Charter's structural separation between mayor and council is the key. The mayor is one of "the municipal officers of the town" but is not a "member" of the council. Section 8 spells that out by depriving the mayor of an ordinary vote on council questions. Section 9 confirms the separation by allowing the council to pick a non-councilman as a replacement mayor.

The Virginia common-law doctrine of incompatible offices supplies the operative principle. When an officeholder qualifies for a second office that is incompatible with the first, the first office is vacated by operation of law. The doctrine has been around since at least 1830 (Poulson v. Justices of Accomac), restated by the Supreme Court of Virginia in Bunting v. Willis (1876), Shell v. Cousins (1883), and later cases like Dean v. Paolicelli (1952).

What the AG concluded

The Charter creates two distinct offices. Mayor and council member are not interchangeable roles within the same body; they are separate offices established by different sections of the Charter, with different powers and different vacancy-filling procedures.

The Charter does not contemplate one person holding both at once. Section 8 (no mayoral vote except as tiebreaker) makes no sense if the mayor were also a council member; counting one's own tiebreaker would be a contradiction. Section 9 (council can select any qualified voter for mayor vacancy) signals that the mayor was not assumed to come from the council.

The two offices are incompatible at common law. Taking the mayor's oath made it impossible for the official to continue as a council member. Under Shell v. Cousins, that incompatibility caused the prior office to be vacated automatically.

The vacancy occurred on June 25, 2008. That was the date the mayor-elect took the oath as mayor (even though his term as mayor did not begin until July 1). The vacancy on the council had to be filled by election or appointment under § 24.2-228 and the related provisions discussed in opinion 08-092.

A 1990 AG opinion reached the same conclusion in another context. Citing 1990 Op. Va. Att'y Gen. 57, the AG noted consistency with that earlier opinion.

Common questions

What does "incompatible offices" mean in Virginia law?
Two offices are incompatible when the duties of one are inconsistent with the duties of the other, when one office reports to or controls the other, or when public policy precludes holding both. In Front Royal's case, the Charter's structural design (mayor as presiding officer without ordinary council vote) put the offices in functional opposition: you cannot preside over a body and also be a member subject to that presiding officer.

Could the mayor-elect have declined to take the oath and kept his council seat?
Yes, in theory. The mayor-elect could have refused to qualify as mayor, in which case § 24.2-228 would have created a different kind of vacancy (failure to qualify), and the council seat would not have been vacated. The act that triggered the vacancy was the oath.

Did the mayor-elect resign in writing too?
The opinion notes that he "resigned" his Town Council position on June 25 to qualify as mayor. The written resignation and the qualification as mayor likely happened together, but as a matter of law, the qualification alone would have vacated the seat.

Could the council have appointed him back to his old council seat after his oath as mayor?
Under Shell v. Cousins and Bunting v. Willis, once he qualified as mayor, the prior council office was vacated. A later "throwing off" of the mayor's office (resignation as mayor) would not restore him to the council. He would need a fresh election or appointment to the council seat.

Why does this matter for ordinary residents?
The vacancy on the council meant Front Royal operated with five council members plus the mayor until the seat was filled. As opinion 08-092 explained, certain Title 15.2 actions require votes by all elected members. A five-member council with one appointee had different voting power than a fully elected six-member body, which affected what business could get done.

Citations

• Va. Code Ann. § 15.2-1522 (qualification of town officers)
• Va. Code Ann. § 49-1 (oath of office)
• Town of Front Royal Charter §§ 6, 7, 8, 9, 10
• Shell v. Cousins, 77 Va. 328 (1883)
• Bunting v. Willis, 68 Va. (27 Gratt.) 144 (1876)
• Dean v. Paolicelli, 194 Va. 219 (1952)
• Poulson v. Justices of Accomac, 29 Va. (2 Leigh) 804 (1830)
• 1990 Op. Va. Att'y Gen. 57

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-106-Hupp.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

December 11, 2008

The Honorable Dennis Lee Hupp
Judge, Twenty-Sixth Judicial Circuit
112 South Main Street
Woodstock, Virginia 22664-1423

Dear Judge Hupp:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether an elected member of the Town Council of the Town of Front Royal vacated his position on the Town Council upon qualifying as mayor and taking the oath of office for his elected position as mayor of the Town.

Response

It is my opinion that the member of Town Council of the Town of Front Royal who was elected as mayor of the Town vacated his position as a member of the Town Council upon taking the oath of office and qualifying as mayor.

Background

You advise that the Town Council of the Town of Front Royal ("Town Council") consists of six members and the mayor. The mayor does not have a vote, except as a tiebreaker. In May 2008, a Town Council member was elected to be the mayor of the Town of Front Royal ("Front Royal"). On June 25, 2008, the mayor-elect qualified as mayor by taking the oath of office for the term commencing on July 1, 2008 and expiring on June 30, 2010.

Applicable Law and Discussion

Section 6 of the Charter of the Town of Front Royal (the "Charter") provides, in part, that:

On the first Tuesday in May, nineteen hundred seventy-six ninety-four, and every two years thereafter, there shall be elected by the qualified voters of the Town of Front Royal, a mayor, who shall be one of the electors of the town, and whose term of office shall begin on the first day of July succeeding his election and continue for two years thereafter, and until his duly elected successor has qualified.[1]

In addition, § 7 of the Charter provides that "[a]ll municipal officers of the town, before entering upon the duties of their respective offices, shall be sworn in accordance with the laws of the State by anyone authorized to administer oaths under the laws of the State."[2] The mayor presides at the meetings of council; however, the mayor has no right to vote in the Town Council except as a tiebreaker.[3]

Section 15.2-1522 sets forth the general law regarding qualification of town officers:

Every elected … town … officer, unless otherwise provided by law, on or before the day on which his term of office begins, shall qualify by taking the oath prescribed by § 49-1 and give the bond, if any, required by law, before the circuit court for the county or city, having jurisdiction in the … town … for which he is elected or appointed, or before the clerk of the circuit court for such … town …. However, members of governing bodies and elected school boards may qualify up to and including the day of the initial meeting of the new governing body or elected school board.

Any such oath of … town mayors … may be taken before any officer authorized by law to administer oaths. Such oath shall be returned to the clerk of the council of the town, who shall enter the same record on the minute book of the council[.]

The Charter is clear that the mayor, while serving as the presiding officer of the Town Council, is not a member of the Council. Section 10 of the Charter provides that "[t]he council of the town shall be composed of … six members."[4] Section 8 of the Charter provides that the mayor has no vote on questions before the Town Council, except in the case of a tie.[5] In the event of the mayor's death, § 9 provides that the Council "shall choose one of the councilmen or some other qualified voter of the Town of Front Royal."[6] Therefore, the Town Council is not limited to its own membership in choosing a mayor, but may select any qualified voter of Front Royal. It is clear that the Charter does not contemplate that a Town Council member chosen as mayor may serve in that capacity while retaining a seat on the Council. Therefore, it is my opinion that when a person is elected as mayor of Front Royal and qualifies by taking the oath of that office, his Town Council seat effectively is terminated by operation of law.

The Supreme Court of Virginia has held that an officeholder who becomes incapable of holding his office by virtue of acting in an incompatible office ceases to hold the first office; a subsequent resignation from the second incompatible office does not restore him to the first office.[7] Additionally, the Court has held that a county officer who moves to another state intending to establish residence in that state has thereby effectively resigned from his county office.[8] Further, if such officer returns to the county where he previously held office, he has no right to resume that office.[9]

Therefore, it is clear that taking the oath of office as mayor of Front Royal vacates the prior office as a Town Council member. Thus, on June 25, 2008, the day that the mayor-elect qualified as mayor by taking the oath of office as mayor of Front Royal, a vacancy occurred on the Town Council that must be filled by election or appointment.[10]

Conclusion

Accordingly, it is my opinion that the member of Town Council of the Town of Front Royal who was elected as mayor of the Town vacated his position as a member of the Town Council upon taking the oath of office and qualifying as mayor.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
1:213; 1:941/08-106

1. See 1993 Va. Acts ch. 479, at 572, 573. The charter for the Town of Front Royal was enacted in 1937. See 1936-7 Va. Acts ch. 44, at 142. While § 6 of the charter was amended in 1993, the provision in § 6 concerning the filling of a vacancy on the town council remains essentially the same as originally enacted in 1937. Compare 1993 Va. Acts, supra at 573 (amending portions of § 6) with 1936-7 Va. Acts, supra, at 144 (enacting § 6).
2. 1936-7 Va. Acts, supra note 1, at 144.
3. See id., § 8, at 144.
4. 1993 Va. Acts, supra note 1, at 573; see also id., § 4, at 572 ("The municipal officers of said town shall … consist of a mayor [and] four councilmen …. [T]hereafter, the number of councilmen shall be six.").
5. 1936-7 Va. Acts, supra note 1, at 144.
6. Id. at 145.
7. Shell v. Cousins, 77 Va. 328, 331-32 (1883), quoted in Dean v. Paolicelli, 194 Va. 219, 236, 72 S.E.2d 506, 516-17 (1952); see also Bunting v. Willis, 68 Va. (27 Gratt.) 144, 161-62 (1876) (holding that by acting in capacity of second office, individual ceased to be sheriff and "throwing off" second office could not restore him to office).
8. Poulson v. Justices of Accomac, 29 Va. (2 Leigh) 804, 805 (1830) (citing Chew v. Justices of Spottsylvania, 4 Va. (2 Va. Cas.) 208, 209 (1820)).
9. Id.
10. This opinion is consistent with the conclusion expressed in a prior opinion of the Attorney General. See 1990 Op. Va. Att'y Gen. 57.