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AGLO 1974 No. 75 - July 31, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington


A vacancy on the city council of a third class city occurring in June of 1974, is to be filled under RCW 35.24.100, by appointment until the November, 1975, municipal general elections; thereafter, it is to be filled by a person then elected for the remainder of the unexpired term, if any.

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                                                                    July 31, 1974

Honorable Charles D. Kilbury
State Representative, 16th District
Box 2482
Pasco, Washington 99302                                                                                                               Cite as:  AGLO 1974 No. 75

Dear Sir:
            By recent letter you have advised us that a vacancy was created on the Pasco city council as a result of the resignation of a councilman in June of this year.  You have further noted that under the provisions of RCW 29.13.010, a state general election will be held on November 5, 1974, although the next municipal elections for cities and towns will not occur until November of 1975, as provided for in RCW 29.13.020.
            With this in mind you have asked for our opinion as to:
            (1) Whether the aforesaid vacancy is to be filled by election for the remainder of the unexpired term at the forthcoming November 5, 1974, state general election; and
            (2) Whether, if it is, candidates must file for the vacancy during the week of July 29 through August 2, 1974, in accordance with RCW 29.18.030.
            We answer your first question in the negative, thereby rendering your second question moot.
            RCW 35.24.100, which deals with vacancies in the various elective offices of a third class city such as Pasco, provides, in material part, as follows:
            ". . .
            "Vacancies in the city council or in the office of mayor shall be filled by majority vote of the council.  Vacancies in offices other than that of mayor or city councilman  [[Orig. Op. Page 2]] shall be filled by appointment of the mayor.
            "If a vacancy occurs in an elective office the appointee shall hold office only until the next regular election at which a person shall be elected to serve for the remainder of the unexpired term.
            ". . ."  (Emphasis supplied.)
            While it is true, as you have pointed out, that a state general election will be held on November 5, 1974, under the provisions of RCW 29.13.010, this election will not constitute a city or town general election.  Instead, city and town elections are governed by RCW 29.13.020, which provides that:
            "All city, town, and district general elections, except as hereinafter provided, shall be held throughout the state of Washington on the first Tuesday following the first Monday in November in the odd-numbered years:
            ". . .
            "The county auditor, as ex officio supervisor of elections, upon request in the form of a resolution of the governing body of a city, town or district, presented to him at least forty-five days prior to the proposed election date, may, if he deems an emergency to exist, call a special election at any time in such city, town, or district and for the purpose of such special election he may combine, unite or divide precincts.  Such special election shall be conducted and notice thereof given in the manner provided by law."  (Emphasis supplied.)
            Moreover, another statute, RCW 29.21.410, states that:
            "Whenever it shall be necessary to hold a special election to fill an unexpired term of an elective office of any city, town, or district, such special election shall be held in concert with the next general election which is to be held by the respective city, town, or district concerned for the purpose of electing officers to full terms:  Provided, That this section shall not apply to any city of the first class whose charter provision relating to elections to fill unexpired terms  [[Orig. Op. Page 3]] are inconsistent herewith."
            Thus, irrespective of whether an election to fill a vacancy under RCW 35.24.100, supra, is deemed to be a component part of the subject city's "next regular election" or, instead, is characterized as a "special election" to be held in conjunction with the "next regular election,"1/ the result is the same.  In either case, the vacancy you have described is currently to be filled by an appointment under that statute, and that the appointee will be entitled to serve until the next regular municipal election of November, 1975, at which election a person then shall be elected to serve for the remainder of the unexpired term involved.2/

             This negative answer to your first question, as above indicated, renders any consideration of your second question unnecessary.
            It is hoped that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/See, State ex rel. DeBow v. McNeill, 127 Wash. 157, 219 Pac. 852 (1923); and compare, Stephens v. Reid, 189 Ga. 372, 6 S.E.2d 728 (1939).
2/Accord, AGO 1921-22, p. 263 to the then supervisor of municipal corporations [[to C. W. Clausen on March 27, 1922]], copy enclosed.

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