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AGO 1978 No. 20 - June 08, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- OPTIONAL MUNICIPAL CODE ‑- FILLING PROSPECTIVE VACANCY ON CITY COUNCIL

Where a city council member in a code city operating under the mayor-council plan of government indicates his or her intent to resign as of a specified date certain in the future, no vacancy will come into existence until the effective date of such resignation; accordingly, the city council may not appoint someone to succeed the resigning member under RCW 35A.12.050 until the effective date of the aforesaid resignation.

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                                                                    June 8, 1978

Honorable Will Knedlik
State Representative, 45th Dist.
P.O. Box 99
Kirkland, Washington 98033

                                                                                                                 Cite as:  AGO 1978 No. 20

Dear Sir:

            This is written in response to your recent request for our opinion on two questions which we paraphrase as follows:

            (1) In the event that a city council member in a code city operating under the mayor-council plan of government indicates his or her intent to resign as of a specified date certain in the future, may the city council then appoint someone to succeed the resigning member prior to the effective date of the aforesaid resignation?

            (2) If question (1) is answered in the affirmative, may the council member who has tendered such resignation participate and cast a vote in filling the impeding vacancy?

             [[Orig. Op. Page 2]]

            We answer your first question in the negative for the reasons set forth in our analysis, thereby rendering consideration of your second question unnecessary.

                                                                     ANALYSIS

            The governing statute, in connection with your questions, is RCW 35A.12.050.  This statute, which is a part of the Optional Municipal Code, applies to those code cities which have elected to operate under the statutory mayor-council plan of government provided for in chapter 35A.12 RCW; and it reads as follows:

            "The office of a mayor or councilman shall become vacant if he fails to qualify as provided by law or fails to enter upon his duties at the time fixed by law without a justifiable reason, upon his death, resignation, removal from office by recall as provided by law, or when his office is forfeited as provided in RCW 35A.12.060.  A vacancy in the office of mayor or in the council shall be filled for the remainder of the unexpired term, if any, at the next regular municipal election but the council, or the remaining members thereof, by majority vote shall appoint a qualified person to fill the vacancy until the person elected to serve the remainder of the unexpired term takes office.  If at any time the membership of the council is reduced below the number required for a quorum, the remaining members, nevertheless, by majority action may appoint additional members to fill the vacancies until persons are elected to serve the remainder of the unexpired terms.  If, after thirty days have passed since the occurrence of a vacancy, the council are unable to agree upon a person to be appointed to fill a vacancy in the council, the mayor may make the appointment from among the persons nominated by members of the council."

             [[Orig. Op. Page 3]]

            The basic reason for our negative answer to your first question is quite simple.  The power of appointment which is granted to the city council (or the remaining members thereof) by RCW 35A.12.050, supra, is one which depends upon the existence of a vacancy for its exercise. And, in the case of a prospective resignation, no vacancy occurs until the effective date thereof.  Accord, 67 C.J.S., Officers, § 55(b), p. 226, and cases cited therein.

            It is true that in some other jurisdictions so-called prospective appointments have been sanctioned by the courts.  See, in general, Anno.:  Public Officer‑-Power to Appoint, 75 A.L.R.2d 1277 (1961) and cases cited therein.  None of those cases, however, involved the filling of an unexpired term in anticipation of the yet to arrive effective date of a prospective resignation.  Instead, they all dealt with attempts by an appointing authority (some successful and some not) either (a) to make an appointment to a newly created office prior to the effective date of the law by which the office was established or (b) to make an appointment for a full term of an existing office commencing at some time in the future.  In that factual context the critical issue, in turn, has been whether the officer or council in which the power of appointment is vested is seeking to preempt the ability of his (or its) own successor to make the appointment when the vacancy actually comes into existence.  If so (e.g., where an outgoing governor attempts to fill a future vacancy so as to deprive his successor of the power to do so) the prospective appointment is ordinarily held to be void. See, e.g., People ex rel. Sweet v. Ward, 107 Cal. 236, 40 Pac. 538 (1895) along with other cases cited in 75 A.L.R.2d 1277, supra, at 1281.  Otherwise, however, prospective appointments have been upheld, on occasion, in that specific factual context.

            In the case of a prospective or anticipated vacancy resulting from a not yet effective resignation, on the other hand, the courts have not been so liberal.  Instead, primarily because of the fact that such a resignation may, in the meantime, be withdrawn (meaning, of course, that no "certain" vacancy will exist until the future date specified on the resignation), the courts in that context have held that there can be neither a valid appointment nor election of a person to serve for the remainder of the unexpired term until the effective date of the resignation.  See,e.g., the early, but well reasoned,  [[Orig. Op. Page 4]] case of Blount Etc. v. Anderson, 1 Ky.Op. 62 (1867), cited in 67 C.J.S., Officers,supra, at p. 227.  There, as here, a certain elective official (specifically, a district court clerk) prepared and submitted a letter of resignation indicating his intent to resign as of a specified future date‑-following a forthcoming election‑-and the question presented was whether the position should be placed on the ballot at that election for the purpose of choosing a successor for the remainder of the unexpired term.  The court said "no" for the simple and obvious reason that such a special election could only be held to fill a vacancy in existence at the time of the election.

            We agree and, therefore, as indicated at the outset, conclude that regardless of whether or not the outgoing council member attempts to participate in the appointive process, any appointment made by the city council prior to the effective date of his or her (presently) prospective resignation would be premature and, hence, of no binding legal force or effect.1/

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/In so concluding we have not overlooked so much of RCW 35A.12.050, supra, as reads:

            ". . . the council or the remaining members thereof, by majority vote shall appoint a qualified person to fill the vacancy . . ."

           Because of this language it has been argued, in an attachment to your letter, that the full council (including the member whose office is to become vacant) may vote on the appointment to fill such vacancy.  A complete answer to this argument, however, is to be found in the fact that RCW 35A.12.050,supra, not only applies to vacancies on a city council but also to vacancies in the office of mayor.  In that latter event, obviously, the full council would remain in existence even after the vacancy occurs and thus might properly be looked to for the purpose of filling such vacancy.

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