When a person is appointed to fill a vacancy on a Virginia city council, board of supervisors, or school board, do they keep the seat through the rest of the original term, or only until the next election cycle, or only until the next person can be appointed?

Plain-English summary

Delegate Scott Wyatt asked the Attorney General a procedural question about what happens at the end of an interim appointment to a Virginia local governing body or elected school board. The scenario: someone vacates a seat partway through a term. The remaining members of the council, board of supervisors, or school board appoint a replacement under Va. Code § 24.2-228. The petitioner asked whether that interim appointee continues in office until the regular term expires, or until a successor wins a special election under § 24.2-682, or until some other point.

Attorney General Jason Miyares concluded that the interim appointee's authority terminates when the body has the power to appoint a successor for a new term. Specifically:
- If the elected successor qualifies through the special election under § 24.2-682, the appointee leaves when that successor qualifies.
- If the original term ends and a new term begins before the special election successor qualifies, the appointee can hold over only until the body's next available appointment vote (under § 24.2-200's "duties continue until successor qualifies" language).
- If the officer-elect for the new term fails to qualify, a new vacancy arises, and the appropriate body (made up of the members in office at that time, not the body that made the prior interim appointment) makes a new interim appointment under § 24.2-228.

The opinion turns on a careful read of the statutory text. Section 24.2-226 recognizes that vacancies can arise either when an officer-elect "does not take office" (a present-tense verb, not a future-tense expectation) or "after an officer begins his term." A vacancy cannot be anticipated; it has to actually exist before the appointment authority kicks in. So the body that made the original interim appointment cannot pre-emptively appoint someone for the next term. Each new term's potential vacancy requires its own process.

Miyares also relied on Fleming v. Anderson (1948), which described the right to hold over as "a contingent right designed to meet a public necessity. It becomes operative only when the necessity arises, that is, when there is no one with the present better right to occupy the office." Once a successor with a "better right" exists (a duly elected officer who has qualified, or a duly appointed successor for the new term), the holdover ends.

What this means for you

If you are a Virginia city council member, supervisor, or school board member who was interim-appointed

Track three trigger events that end your authority: (1) qualification of the special-election winner under § 24.2-682, (2) the start of a new term followed by the body's appointment of a successor for that new term, or (3) qualification of an officer-elect for the new term. Whichever happens first ends your tenure.

If your original appointment was made to fill a vacancy partway through term, and the term you are filling expires while no special-election successor has qualified, you can continue performing duties under § 24.2-200, but only until the body's next appointment opportunity. Keep your bookkeeping current; the transition can come fast.

If you are a member of a body that is making an interim appointment

Make the appointment for the current vacancy only. You cannot pre-fill a vacancy that has not yet occurred for a future term. If the term turns over and the elected officer fails to qualify, the body that exists at that time (which may include the prior interim appointee, depending on whose seat was at issue) will need to vote on a new appointment.

When you make the interim appointment under § 24.2-228, the appointment runs only until the special election fills the seat or until the term ends and a new appointment is made for the new term. Be transparent with the appointee about the duration constraints.

Remember that you have parallel obligations under § 24.2-226 to petition the circuit court within 15 days for a writ of election to fill the vacancy. The interim appointment fills the seat in the meantime; the special election produces the actual successor.

If you are a clerk to a local council, board of supervisors, or school board

Document the basis for each appointment carefully. Note whether it is a vacancy under the original term or a new vacancy created at term turnover by an officer-elect's failure to qualify. The two situations involve potentially different appointing bodies (the body in office at the time of vacancy) and different durations (original-term vacancy expires at term end or special-election qualification; new-term vacancy expires at qualification of an elected successor for the new term).

Update internal records when the holdover period ends. If the appointee continues serving past the formal end of their authority, that creates legal exposure for the body and the appointee.

If you are a candidate for a Virginia local office

If you win a special election under § 24.2-682 to fill a vacancy, you take office once you qualify. The interim appointee leaves at that moment. Be ready to take the oath of office promptly; § 24.2-228(D) gives you a 30-day grace period after the body's first meeting following your election, but earlier is better.

If you are an officer-elect (won the regular November general election for a new term) and you fail to qualify by the start of the term, your seat becomes vacant on day 1 of the new term. The body in office at that time (which may include the interim appointee filling the prior term's vacancy) will appoint a new interim officer.

If you are a local government attorney

This opinion provides a clean framework for advising on transitions. The key timing points are: (1) original vacancy occurs, (2) interim appointment under § 24.2-228, (3) circuit court issues writ of election under § 24.2-226, (4) special election held under § 24.2-682, (5) elected successor qualifies (interim appointee leaves), or term turnover occurs first. If turnover happens before special-election qualification, the body in office at that time votes on the new term's appointment.

When advising the body, distinguish between "vacancy that occurred during the prior term" (original-term appointment) and "vacancy that occurred at term turnover because the officer-elect failed to qualify" (new-term appointment). The two are governed by the same statutory framework but require separate appointment votes.

Common questions

Q: I'm an interim appointee. The election to permanently fill my seat is nine months away. When do I leave?
A: When the elected successor qualifies after winning the special election. Until then, you serve. If your original term expires before the special election, you can hold over until the body votes on a successor for the new term.

Q: Can the body that appointed me also appoint someone for the next term in advance?
A: No. The AG concluded that vacancy authority kicks in only after a vacancy occurs. The body cannot pre-fill a future-term vacancy that has not yet materialized. A new appointment vote is required at the time the new vacancy actually arises.

Q: The officer-elect won the November election but never showed up to take the oath. What happens?
A: Section 24.2-228(D) gives a 30-day window after the body's first meeting following election. Failure to take the oath within that window creates a vacancy in the new term, which the body in office at that time fills under § 24.2-228.

Q: What if I am an interim appointee and I'm also up for re-election? Do I keep my seat if I lose?
A: Once the regular term ends, your interim authority ends. Whoever is elected for the new term takes the seat upon qualifying. If your seat ended at the end of your interim term and you weren't re-elected, you go.

Q: Can two people claim the seat at the same time?
A: No. The AG cited Fleming v. Anderson (1948) for the proposition that "the right to hold over is a contingent right." It "becomes operative only when the necessity arises, that is, when there is no one with the present better right to occupy the office." The "better right" rule prevents two simultaneous claimants.

Q: Does this apply to charter-city offices?
A: § 24.2-228(A) applies "notwithstanding any charter provisions to the contrary." So yes, even charter-city councils follow the same interim-appointment framework for vacancies.

Q: What about elected constitutional officers like sheriffs and clerks of court?
A: This opinion addresses local governing bodies and elected school boards specifically. Constitutional officer vacancies are governed by separate provisions. Consult § 24.2-225 and the specific provisions for the office in question.

Background and statutory framework

Virginia local governing bodies (city councils, town councils, county boards of supervisors) and elected school boards are filled by November general elections, with terms commencing on the January 1 succeeding election (or July 1 for May general elections). § 24.2-218 to § 24.2-223 set out the term lengths and election cycles.

When a vacancy occurs partway through a term, two things happen simultaneously. § 24.2-228(A) authorizes the remaining members of the body to appoint a qualified voter from the election district to fill the vacancy on an interim basis. § 24.2-226 separately requires the body to petition the circuit court within 15 days to issue a writ of election for a special election under § 24.2-682. The interim appointee fills the seat between the vacancy and the special-election successor's qualification.

§ 24.2-228(A) provides that the interim appointee "shall hold office only until the qualified voters fill the vacancy by special election pursuant to § 24.2-682 and the person so elected has qualified." This is the outer limit of the interim appointee's authority for the current term.

§ 24.2-200 provides the holdover rule for officers generally: terms commence on January 1 (or July 1 for May elections) succeeding their election, but officers' duties continue until a successor qualifies. The combined effect of § 24.2-228 and § 24.2-200 is that the interim appointee can hold over after the original term's expiration, but only until a successor with a "better right" exists. The Supreme Court of Virginia in Fleming v. Anderson (1948) crystallized this principle.

The Wyatt question focuses on what happens when a special election does not produce a qualified successor by the time the original term expires. The AG concluded that the body in office at the start of the new term has the authority (and the responsibility) to make a new appointment for the new term under § 24.2-228. The prior interim appointee can serve as holdover only in the gap between the term's start and the body's next appointment vote.

Citations and references

Statutes:
- § 24.2-200, Va. Code Ann. (terms and holdover)
- § 24.2-226, Va. Code Ann. (vacancy)
- § 24.2-228, Va. Code Ann. (interim appointment)
- § 24.2-682, Va. Code Ann. (special election)

Cases:
- Fleming v. Anderson, 187 Va. 788 (1948) (holdover as contingent right)
- City of Colonial Heights v. Loper, 208 Va. 580 (1968) (vacancy upon failure to meet qualification conditions)
- Vaughan v. Johnson, 77 Va. 300 (1883) (officer-elect failure to qualify creates vacancy)
- Burnett v. Brown, 194 Va. 103 (1952) (no qualification = vacancy)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-061-Wyatt-issued.pdf

Original opinion text

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

COMMONWEALTH of VIRGINIA

Office of the Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
December 21, 2023
Virginia Relay Services
800-828-1120
7-1-1

Jason S. Miyares
Attorney General

The Honorable Scott Wyatt
Member, Virginia House of Delegates
Post Office Box 365
Mechanicsville, Virginia 23111

Dear Delegate Wyatt:

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 individual appointed to a local governing body or elected school board to fill a vacancy pursuant to Code § 24.2-228 remains in that position until the regular term of the vacated office expires or until a successor ultimately is qualified under a special election pursuant to Code § 24.2-682.

Applicable Law and Discussion

Members of local governing bodies and members of elected school boards are elected to specified terms of office that are established by the General Assembly. The General Assembly also has provided for interim appointments when vacancies in such offices occur. You ask whether an interim appointment extends beyond the expiration of the term of the office the person was appointed to fill.

Code § 24.2-226 directs that "[a] vacancy in any elected local office, whether occurring when for any reason an officer-elect does not take office or occurring after an officer begins his term, shall be filled as provided by § 24.2-228." In turn, § 24.2-228 provides that, when a vacancy occurs, "the remaining members of the body or board, respectively, within 45 days of the office becoming vacant, may appoint a qualified voter of the election district in which the vacancy occurred to fill the vacancy." Upon appointment of an interim officer to fill the specific vacancy, "the person so appointed shall hold office only until the qualified voters fill the vacancy by special election pursuant to § 24.2-682 and the person so elected has qualified."

Your inquiry thus implicates well-established principles of statutory construction. The "primary objective" in construing a statute is "to ascertain and give effect to legislative intent, as expressed by the language used in the statute." Legislative intent, in turn, must be gathered from the words used in the statute, and "where possible, every word of a statute must be given meaning." "When a statute's language is plain and unambiguous, courts are bound by the plain meaning of that language." Nevertheless, statutes are not to be read as isolated fragments of law, but rather related statutes should be construed in pari materia, as part of a harmonious whole or system.

The plain language of § 24.2-228 empowers the "majority of the remaining members" of the local governing body or elected school board to make an interim appointment "[w]hen a vacancy occurs." Code § 24.2-226 recognizes that a qualifying vacancy can occur "when[ever] an officer-elect does not take office" as well as "after an officer begins his term[.]" Although the general procedures of § 24.2-228 govern irrespective of the basis of the vacancy, a vacancy can be filled using those procedures only once it occurs and not beforehand. Rather, the relevant "remaining members" are to make their appointment "within 45 days of the office becoming vacant[.]"

Critically, for purposes of § 24.2-228, a vacancy cannot be said to have occurred for a term that has not yet started. As acknowledged by the language of § 24.2-226, an officer-elect can be deemed to have not taken office only after the term of office has commenced, at which point the "vacancy occurs." More generally, a vacancy in a new term arises upon failure of a succeeding elected officer to qualify for office as of the beginning of a term or shortly thereafter. The operative phrase related to officers-elect is "does not take office," which is in the present, rather than future tense, and thus precludes anticipatory vacancy fillings.

Once the vacancy does occur, the "majority of the remaining members of the [local governing] body or [elected school] board", as those bodies are constituted at the time of such vacancy, is authorized to make an interim appointment for the newly vacant position.

Consequently, when an interim appointment has been made to fill a vacancy that occurs during a given term due to circumstances arising after a candidate has won election to the following term but before the officer-elect assumes office, the interim appointment will be effective only through the end of the officer's current term. That appointee "shall continue to discharge the duties" of the office until a successor qualifies. When an officer-elect fails to qualify as the successor, a new successor will be available when a majority of the remaining members of the body or board existing at that time exercises its authority under § 24.2-228 to make a further interim appointment to fill the vacancy that has occurred by virtue of the officer-elect's failure to take office. Any ability of the appointee selected to fill the vacancy during the prior term to "hold over" terminates at that point.

Conclusion

Accordingly, it is my opinion that an individual appointed to a local governing body or elected school board to fill a vacancy pursuant to Code § 24.2-228 may remain an interim appointment in said office only until such time as a majority of the remaining members of the body or board may vote on an appointment for the new term of office; it is this person who shall remain in office until an ultimate successor is qualified under a special election pursuant to Code § 24.2-682.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General