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 how long an interim appointment to a Virginia local governing body or elected school board lasts when the regular term of the vacant office ends before a special-election successor qualifies.

The opinion explains that remaining members may appoint a qualified voter after a vacancy occurs. The appointment ordinarily lasts until voters fill the vacancy by special election and the elected person qualifies. A new vacancy may arise when an officer-elect does not take office for the following term, but that vacancy cannot be filled in advance.

The AG considers a particular sequence: an interim appointment is made during an existing term after a candidate wins election to the following term, but before that candidate assumes office. The earlier appointment is effective only through the current term. The appointee nevertheless “shall continue to discharge the duties” of the office until a successor qualifies. If the officer-elect fails to qualify for the new term, the members of the body then in office may make a new appointment for that new vacancy. The earlier appointee’s holdover ends when that further appointment supplies a successor.

The opinion concludes that the earlier interim appointee may remain only until the remaining members of the body or board may vote on an appointment for the new term. The person appointed for that new vacancy then remains until an ultimate successor qualifies through a special election.

What this means for you

If you are an interim appointee

Expiration of the regular term does not itself stop you from performing the office’s duties. The opinion says you continue as a holdover until a successor qualifies. If the officer-elect for the new term fails to qualify, the body as constituted then may appoint a successor for that new vacancy; your holdover ends when that successor is in place.

If you serve on the appointing body

The opinion says a vacancy must actually occur before the members may fill it. If an officer-elect does not take office for a new term, the body in office when that new vacancy occurs makes the appointment. The earlier body cannot fill an anticipated future vacancy.

If you are a clerk or local government attorney

Distinguish the vacancy in the outgoing term from a new vacancy caused by an officer-elect’s failure to take office. The opinion says the earlier appointee continues discharging the duties in the gap until a successor qualifies, while the remaining members in office at the new vacancy have authority to make the further appointment.

Common questions

Q: Does an interim appointee's authority end automatically when the regular term expires?

A: No. The opinion says the appointee “shall continue to discharge the duties” until a successor qualifies. In the scenario it addresses, the holdover ends when the body in office for the new term makes an appointment for the new vacancy.

Q: Can a body fill a vacancy in a term that has not begun?

A: No. The opinion says a vacancy cannot occur for a term that has not yet started. An officer-elect can be deemed not to have taken office only once the new term begins.

Q: Who makes an appointment if the officer-elect does not take office?

A: The majority of the remaining members of the governing body or elected school board as constituted when that new vacancy occurs.

Q: What if a special-election winner qualifies first?

A: The opinion quotes the rule that an interim appointee holds office only until voters fill the vacancy by special election and the elected person qualifies.

Q: Does this opinion address other local or constitutional offices?

A: Its question and conclusion concern appointments to a local governing body or elected school board. The opinion does not decide the term of an appointment to another office.

Background and statutory framework

The opinion quotes the rule that a vacancy in an elected local office can occur when an officer-elect does not take office or after an officer begins a term. When a vacancy occurs, remaining members of the governing body or elected school board may appoint a qualified voter of the election district within 45 days. That person ordinarily holds office until a special election fills the vacancy and the winner qualifies.

A vacancy for a new term cannot be anticipated. The opinion emphasizes the present-tense phrase “does not take office”: it can apply only after the term commences. At that point, the members then serving on the body have authority to make an interim appointment.

The opinion distinguishes the earlier appointee’s appointment for the outgoing term from the holdover period after that term ends. It says the earlier appointee continues the duties until a successor qualifies, but the holdover ends when the newly constituted body makes a further appointment for the new 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